Thread by @NiggaTheory

My #DerekChauvinSentencing remarks for news shows on Friday have earned me condemnation in some circles and support in others. Ibram X. Kendi (author of How To Be An Antiracist) and I, for instance, took opposite positions when commenting on Chauvin’s sentence for @CBSNLive.

Kendi’s position—shared by most everyone—was that Chauvin should get maximum punishment. His rationale: if Chauvin were Black, he’d get severe punishment (as I show in N*gga Theory, courts do mete out more draconian sentences to Blacks), so punish him with that level of severity.

For too many, racial equality means treating White wrongdoers with the same draconian severity we already apply to similarly situated Black ones. For them, equality in punitiveness is an equality worth striving for. I demur, for down that road racial injustice lies.

Just the math: Black folk are disproportionately trapped in criminogenic circumstances, which results in our overrepresentation in criminal courts. Encouraging courts to embrace a punitive approach to sentencing—reinforcing that moral framework—disproportionately hurts Blacks.

New Jim Crow foes have been fighting for years to overhaul the moral framework courts & lawmakers apply to wrongdoers, including, if not especially, violent ones. We’ve been fighting against three strikes laws, sentence enhancements, and the punitive mindsets that created them.

Many anti-carceral activists see that it’s not enough to repeal particular draconian laws without transforming the punitive, carceral mindset from which those laws spring, a mindset & moral compass that will continue to spawn new draconian punishments unless radically overhauled.

Nothing less than a revolution in consciousness about matters of blame and punishment—a flat rejection of a moral compass rooted in retribution and revenge in favor of one rooted in compassion for human frailty—can lead to deep and lasting cuts in racialized mass incarceration.

Here’s another illustration from #DerekChauvinSentencing of how celebrating and reinforcing the legal and moral framework that subjected him to maximum punishment winds up disproportionately hurting Blacks caught up in the criminal justice system.

Chauvin’s most serious conviction (hence the one subjecting him to the most blame and punishment) was for unintentional second degree murder. He was also convicted of third degree (unintentional) murder and second degree manslaughter.

Manslaughter is a lower “grade” criminal homicide than murder, & murder in the third degree is lower grade than murder in the second degree. Grading is supposed to help assure that the punishment fits the blame—that more culpable people are punished more, and less culpable, less.

In a logically consistent world, a person guilty of manslaughter would be less culpable & so subject to less punishment than someone guilty of murder; and someone guilty of third degree murder subject to less blame & punishment than someone guilty of murder in the second degree.

(Historically the distinction between first- and second-degree murder worked this way: “premeditated” first-degree murders were viewed as more blameworthy than second-degree ones, and so they would subject the wrongdoer to much more punishment, including execution.)

Now comes the part where the price of getting the max punishment for #DerekChauvin is supporting a bad & unjust rule called the Felony Murder Rule (FMR) that disproportionately hurts Blacks. The FMR is a darling of tough-on-crime DAs because it turns accidents into murders!

Under the kind of felony murder rule (FMR) applied to Chauvin, if someone committing a felony accidentally causes another’s death, they are guilty of murder, even though absent the FMR they might only be guilty of, at most, negligent homicide or manslaughter. It’s a bad rule.

The kind of felony murder rule (FMR) that got Chauvin his conviction for second-degree (unintentional) murder is a legal abomination that makes a mockery of the proportionality principle in criminal matters by punishing accidental deaths just as harshly as intentional murders.

The kind of felony murder rule applied to Chauvin has been roundly criticized by most legal scholars & many judges but lawmakers don’t dump it because, again, traditional tough-on-crime prosecutors LOVE it: they have never shown any regard for proportionality in punishment.

Yes, a bad and generally unjust felony murder rule was used by prosecutors to maximize the amount of punishment to which they could subject Chauvin, just as they use the same bad rule much more often on Black defendants whose underlying felonies may be much less culpable than his

But assuming we concluded that a murder conviction for Chauvin was appropriate, we didn’t need to use a bad, unjust felony murder rule (FMR) to get us our desired outcome—recall that the jury also convicted him of third degree MURDER. It wasn’t even necessary to invoke the FMR!?

To find Chauvin guilty of third degree murder, the jury had to directly assess his subjective culpability and conclude that even if the death was unintentional, the act causing it manifested murderous mens rea, i.e., a “depraved mind,” callously indifferent to human suffering.