Murder and Its Degrees

Murder and Its Degrees

Two questions have to be kept apart before premeditation makes sense. The first is what makes a killing murder at all, and the second is what makes some murders first-degree murder. The first question is answered by the common law definition: murder is the unlawful killing of another human being committed with malice aforethought.¹ The second is answered by statutes, and premeditation lives only in the second. The two subsections below take the questions in that order, because the grading rules assume the reader already knows what the baseline crime requires.

What Malice Aforethought Means

Read literally, "malice aforethought" suggests ill will toward the victim and an intent to kill that was thought out in advance. That literal reading was once accurate. In the earliest period the judges required for murder a previously thought-out intent to kill, and the English statutes of about 1550 that singled out killing by poison or by lying in wait described typical cases of exactly that kind of planned killing.² At that stage there was one type of murder, the unlawful killing with a premeditated intent to kill.

The judges then widened the category one situation at a time. They held that an intentional killing in an unreasonable passion was murder even though the killer was too inflamed to plan, and over time they dropped the planning requirement for intentional killings generally. They held that an unintended death caused during a felony, such as a fatal arson fire, was murder, and that an unintended death caused by extreme recklessness, such as a workman heaving a stone from a roof onto a busy street, was murder as well.³ The result is that malice aforethought exists today if the defendant acted with any one of four mental states: an intent to kill, an intent to inflict grievous bodily harm, extreme recklessness showing a depraved and malignant heart, or an intent to commit a felony.⁴ The defendant needs only one of them, and only when no doctrine excuses the homicide or reduces it to voluntary manslaughter.⁵

Because the four states drifted away from the literal words, "malice aforethought" is a legal term of art. A killing need not be malicious in the everyday sense, and it need not have been thought of beforehand, to count as murder.⁶ A person who, without stopping to think, intentionally pushes a boy into water and drowns him has killed with malice aforethought, and in most states so has a man who kills his dying, beloved wife at her request.⁷ Neither killer planned anything or bore any ill will, yet both intended death, and intent to kill is enough. Compare a defendant who spends weeks arranging an ambush: that defendant also has malice, but the planning adds nothing at this stage, because the baseline crime was satisfied the moment the intent to kill was shown. Students lose points here by treating premeditation as an element of murder generally, when it is only a feature that matters for grading.

Why Statutes Create Degrees

Once malice aforethought covered everything from a planned execution to a death caused by extreme indifference, a single murder category treated very different killers alike, and the common law punished all murder with death. The English judges never divided murder into degrees. That step came through legislation, and today most American states divide murder into two, sometimes three, degrees, while England and a minority of states do not.⁹ The first statute to do so was enacted in Pennsylvania in 1794, and its pattern was later copied in a large majority of the states.¹⁰

The reason for the move is a mechanism more than a sentiment. After the Revolution, legislators knew the courts had stretched malice aforethought to reach people who never intended death, and they responded by reserving the death penalty for killings that were premeditated, willful, and deliberate.¹¹ Planned, cold-blooded killing was a sensible marker because it tracks the original meaning of malice aforethought, so the legislatures were in effect recovering the old core of the crime and leaving the judicial extensions to a lesser grade. The stated purpose is to confine the most severe punishments to first-degree murder, with less severe penalties, generally including life imprisonment but not death, for second-degree murder.¹²

The typical statute then works as a sorting rule. First-degree murder includes an intentional killing that is also premeditated and deliberate, and a killing in the course of one of several listed felonies such as rape, robbery, kidnapping, arson, and burglary, often with murder by lying in wait, poison, or torture added. All other murder is second degree.¹³ Second degree is therefore the residual category: it takes in an intent to kill without premeditation and deliberation, an intent to do serious bodily injury, depraved-heart murder, and felony murder based on an unlisted felony.¹⁴ California's Penal Code follows exactly this design, listing the first-degree routes and then declaring that all other kinds of murder are of the second degree.¹⁵ The grade matters because the sentence follows it. In California, first-degree murder carries death, life without parole, or 25 years to life, while second-degree murder carries 15 years to life.¹⁶

The sorting turns on one added fact. Take a defendant who intentionally kills and the prosecution proves affirmative evidence of planning: the killing fits the "willful, deliberate, and premeditated" formula and is first degree. Now change only the planning. If the same defendant kills in an unplanned burst of anger, with no evidence of prior reflection and no doctrine reducing the crime to manslaughter, the killing is still murder because intent to kill is malice, but it falls into the residual second-degree category.¹⁷ Everything else in the chapter concerns how the prosecution proves, and the defendant defeats, that one added fact.

What Malice Aforethought Means

The phrase "malice aforethought" sits inside the definition of murder: the unlawful killing of a human being with malice aforethought.¹⁹ Read in ordinary English, it describes a killer who bore ill will and thought the killing out ahead of time. That reading was once accurate. In the earliest period the judges required a previously thought-out intent to kill, and the English statutes of about 1550 that singled out killing by poison or by lying in wait described typical cases of exactly that kind.²⁰ At that stage murder was one crime with one mental state, a premeditated intent to kill.

The judges then widened the category one situation at a time, and the reason is blameworthiness. Killers who intended only serious injury, or who acted with extreme recklessness about human life, seemed as dangerous as the planner, so the courts stretched the old words to reach them. An unintended death during a felony, such as a fatal fire set in arson, became murder even though the arsonist neither intended death nor planned it.²¹ An intentional killing in an unreasonable passion became murder as well, and over time the planning requirement dropped out for intentional killings generally.²² Courts reached the point where the phrase had, in one commentator's phrase, little to do with either malice or forethought.²³

The settled result is that malice aforethought exists if the defendant acted with any one of four mental states: an intent to kill, an intent to inflict grievous bodily harm, extreme recklessness showing a depraved and malignant heart, or an intent to commit a felony, which supplies felony murder.²⁴ Those four exhaust the meaning of the phrase, which has no residual content beyond them.²⁵ The prosecution needs to prove only one, and only where no justification, excuse, or mitigation such as provocation applies.²⁶ Because the phrase now works as a label for those states, it is a term of art. A killer need not feel hatred, and need not have thought about the killing beforehand, for the killing to be murder.²⁷

Intent to kill occupies a particular place among the four. A deliberate intention to take a life is express malice, the clearest and most culpable form, and California's statute defines it in just those terms.²⁸ The other states are usually grouped as implied malice, meaning malice inferred from conduct, such as the extreme indifference to life that marks depraved-heart murder.²⁹ The same California statute adds that once an intentional act with express or implied malice is shown, no other mental state need be shown to establish malice aforethought.³⁰ In other words, the baseline crime is complete the moment the intent to kill appears. That is why "aforethought" is said to mean only malice at the time of the killing, which is a different thing from the premeditation required for first degree.³¹

Two contrasting defendants show which fact does the work. A defendant who coolly plans a killing for weeks and then carries it out has malice aforethought under both the old meaning and the modern one, but the planning adds nothing to that question. Change the facts: a person fires a rifle into a passing train for no apparent reason, with no plan to kill anyone, and a trainman dies. No one thought anything out in advance, yet the shooter acted with a depraved heart and so with malice.³² Both are guilty of murder, and the only difference is the mental state that supplies malice. Students go wrong here when they treat premeditation as an element of murder itself. It is a feature that matters only when a statute grades murder into degrees, which the next section develops.

Why Statutes Create Degrees

The common law gave the same label, and the same death sentence, to a planned execution and to a death caused by extreme indifference to life. Legislatures answered that mismatch by dividing murder into grades. The English judges who created the crime never did this, and England and a minority of American states still do not, but most states divide murder into two degrees and sometimes three.³⁴ The purpose is to reserve the harshest punishment, usually death at the time these statutes were enacted, for first-degree murder, and to attach lesser penalties, generally life imprisonment, to second degree.³⁵

The reasoning behind the move is a matter of aiming the penalty. Once the courts had stretched malice aforethought to cover people who never intended death, a legislature that wanted capital punishment to track the worst killers needed a narrower marker. State legislatures after the Revolution chose cold-bloodedness: only killings that were premeditated, willful, and deliberate would be death-eligible.³⁶ A dissenting opinion in Fisher v. United States supplies the deterrence logic behind that choice, which is that capital punishment can deter only when the murder results from premeditation and deliberation, since a killer who does not reflect cannot weigh a penalty.³⁷ The first statute of this kind was enacted in Pennsylvania in 1794, and its language became the pattern for most later legislation.³⁸

The typical statute then works as a sorting rule with a list at the top and a catch-all underneath. The Pennsylvania act as applied in Commonwealth v. Drum made murder by poison, by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or committed during certain listed felonies, first degree, and declared that "all other kinds of murder shall be deemed murder of the second degree."³⁹ California's Penal Code section 189 keeps the same design, listing the first-degree routes in subdivision (a) and sweeping everything else into second degree in subdivision (b).⁴⁰ The grade then fixes the sentencing range. California punishes first-degree murder by death, life without parole, or 25 years to life, and second-degree murder by 15 years to life.⁴¹

Statutes vary in detail, so the label on the statute does not settle the grade. Michigan reserves first degree for murder by poison, lying in wait, or other willful, deliberate, and premeditated killing, for listed felonies, and for killings of certain officers, and then provides that all other murder is second degree.⁴² Pennsylvania's current code uses three grades, defining first degree as an intentional killing (which it defines to mean poison, lying in wait, or other willful, deliberate, and premeditated killing), second degree as felony murder, and third degree as all other murder.⁴³ Under every one of these statutes the lowest grade is the residual one, and what lands there is determined by subtraction.

The residual structure has a practical consequence for proof. Second degree takes in intent-to-kill murder that lacks premeditation and deliberation, intent to do serious bodily injury, depraved-heart murder, and felony murder based on an unlisted felony.⁴⁴ Since the lower grade needs no extra ingredient, the extra ingredient belongs to first degree, and the prosecution must supply it with affirmative evidence. A jury cannot find first degree merely because the defendant killed intentionally. Intentional killing without proven reflection is second-degree murder, and a degree question defaults downward whenever the first-degree factors are missing.⁴⁵

Two defendants who differ in one fact show how this works. A man buys a gun, waits outside his rival's workplace, and shoots him when he emerges, and the jury may return first degree because the evidence shows reflection and preparation. Change only the evidence: a woman, enraged during an argument, grabs a kitchen knife and stabs her opponent, and the record shows an intent to kill but nothing showing she reflected beforehand. The killing is still murder, because intent to kill is malice, but it falls into the second-degree residue. Later sections take up what counts as proof of reflection, how much time it requires, and how a defendant's mental condition can defeat it. Some courts have also watered the formula down, reading premeditation to include split-second decisions, a development that matters for how much the extra ingredient adds in practice.⁴⁶