Degrees of Murder

Degrees of Murder

The previous section separated malice, which makes an unlawful killing murder, from premeditation and deliberation, which statutes use to pick first-degree murder out of the larger class. That division of labor rests on a structure the common law never supplied. English judges created the crime of murder, including its several forms, but they never divided it into degrees; the division came later, through legislation.¹ At early common law every unlawful homicide was punishable by death, the law later separated murder from manslaughter, and later still legislatures divided murder itself into degrees.² Most American states now use two degrees, and some use three, while England and a minority of American states treat murder as a single offense.³

The reason for adding a layer lies in what a single crime of murder forces the law to do. When one offense covers every unjustified, unexcused intentional killing, the coolly planned execution and the impulsive shot in a quarrel carry the same penalty, and that penalty has to be set high enough to reach the worst case. Degrees let the legislature reserve the most severe punishment, usually but not always the death penalty, for first-degree murder, and attach lesser penalties, generally life imprisonment but not death, to second degree.⁴ California shows the spread: first-degree murder is punishable by death, life without parole, or twenty-five years to life, while second-degree murder carries fifteen years to life.⁵ Premeditation became the sorting marker because a killing preceded by calm reflection suggests a settled purpose that a spontaneous act does not. That choice has long roots, since William Penn's Great Act of 1682 prescribed death only for premeditated murder and treason, although the reform did not last.⁶ Pennsylvania's 1794 statute dividing murder into degrees became the pattern for most later legislation of that kind.⁷ Jurisdictions that adopted degrees typically limited capital punishment to first degree and required the prosecution to prove premeditation and deliberation to establish it.⁸

Almost all jurisdictions that divide murder into degrees make an intentional killing first degree when premeditation and deliberation accompany the intent to kill. They also make a killing in the course of a listed felony such as robbery or arson first degree, a route covered elsewhere.⁹ Second degree is the residual category. California's statute lists the first-degree routes, including any willful, deliberate, and premeditated killing, and then provides that all other kinds of murder are second degree.¹⁰ That residual class holds the intentional killer who did not premeditate, and it also holds murders committed with no intent to kill at all, such as killings under circumstances showing depravity of heart.¹¹

The jury charge in Leland v. Oregon shows the degrees operating as a ladder of findings. The defendant was tried for first-degree murder, and the trial judge told the jury it could return any of five verdicts.¹² The first two verdicts differ by a single finding. The jury could convict of first-degree murder if it found beyond a reasonable doubt that the defendant killed purposely and with deliberate and premeditated malice, and it could convict of second-degree murder if it found beyond a reasonable doubt that he killed purposely and maliciously, but without deliberation and premeditation.¹³ Removing deliberation and premeditation therefore lowers the same purposeful, malicious killing by exactly one degree and leaves it inside murder. Below those two verdicts sat manslaughter for a killing without malice upon sudden heat of passion caused by sufficient provocation, then acquittal if any necessary element left a reasonable doubt, and finally not guilty by reason of insanity.¹⁴ Because the charge treated the extra layer as an element, the prosecution had to prove premeditation, deliberation, malice, and intent beyond a reasonable doubt to obtain the first-degree verdict.¹⁵

The second step does real work beyond restating the first. A statute that makes first degree turn on a willful killing demands a specific intent to kill, so an intent to scare, to wound, or even to cause grievous bodily harm cannot carry a killing into first degree, although it can still supply the malice that makes the killing second-degree murder.¹⁸ The sequence also fixes the order of an exam answer. Proof that the defendant intended death completes the first question and never answers the grading question, and the grading question is reached only after malice is established.

Because degrees are determined exclusively by statute, the labels carry different content from state to state, and a few states recognize more than two degrees.¹⁹ California, New York, and Ohio punish intentional killing as second-degree murder, Florida, North Carolina, and Virginia define premeditated intentional killing as first-degree murder, and Pennsylvania punishes intentional killing as first-degree murder but defines it as requiring premeditation.²⁰ The meaning of premeditation itself also varies, and California provides that proving a deliberate and premeditated killing does not require proof that the defendant maturely and meaningfully reflected on the gravity of the act.²¹ In some jurisdictions the term describes little more than an intentional killing.²² Students lose points when they assume first degree means the same thing everywhere, so the governing statute or jury instruction has to be read before the common structure is applied.