Introduction

Premeditation and Deliberation

Introduction

Both of those defendants are murderers because common law defined murder as the unlawful killing of another human being committed with malice aforethought.¹ The phrase is a term of art. A killing can carry malice aforethought without any ill will in the everyday sense and without any thought beforehand, which is why an intentional killing carried out on the spot still qualifies.² Malice exists once no doctrine excuses the homicide or reduces it to voluntary manslaughter and the defendant acted with one of the recognized mental states.³ The intent to kill is the most familiar of those states, and it is the one this chapter examines, so the other routes to malice stay in the background here.

The different treatment of the two defendants comes from legislation. The English judges who shaped the crime of murder never divided it into degrees, and England and a minority of American states still have no degrees, but most states now split murder into two degrees and sometimes three.⁴ The purpose is to confine the heaviest punishments, often including the death penalty, to first-degree murder and to apply lesser penalties, generally life imprisonment, to second-degree murder. Without the split, a single category would carry the same penalty for the planner and the impulsive killer. With it, the legislature can reserve its harshest sanction for the killings it regards as most blameworthy. Nearly all of these states place in first degree the intentional killer who also premeditated and deliberated, along with felony murder, and where only two degrees exist every murder outside first degree is second degree.⁵

The analysis of an intentional killing therefore has two layers. Intent to kill supplies malice and makes the killing murder, while premeditation and deliberation, a statutory add-on, decide whether that murder is first degree. This chapter follows the same order: first what intent to kill means and how a jury may infer it from the weapon used, then why malice must be kept apart from premeditation, then what premeditation and deliberation each demand, how much time they take, and how a prosecutor proves them, and finally the Model Penal Code, which rejects the formula altogether. Every later question assumes the first layer is settled, so the lesson begins by pinning down what the law means by an intent to kill.