Concept
Incapacity and Premeditation
Premeditation, deliberation
Incapacity and Premeditation
Premeditation and deliberation describe what actually happened inside the defendant's own mind: a cool state of blood in which the defendant reflected on the killing before carrying it out. Because the element is subjective, evidence that the defendant's mind could not work that way bears directly on whether the element exists. A killer may be incapable of cool reflection because of emotional upset, intoxication, feebleness of intellect short of insanity, or terror, and in those cases the defendant can generally be held guilty of second degree murder.1 The chapter's earlier sections showed how the state proves reflection through planning, motive, and manner. This section shows how the defense can answer by proving that reflection was impossible.
The reduction usually stops at second degree because incapacity to premeditate does not remove the intent to kill. In graded systems, intent-to-kill murder becomes first degree only when premeditation and deliberation are added to the intent.2 A defendant who could not reflect but did form an intent to kill, usually shown by intentional use of a deadly weapon, has therefore failed only the added element. Manslaughter is a different matter. It required an intentional killing in the heat of passion, after adequate provocation, before a reasonable cooling-off period had passed.3 That test is partly objective, because the provocation must be of a kind that would arouse sudden and intense passion in an ordinary person.4 The law will lower a murder to manslaughter only on that objective showing, and it will not do so on the strength of a defendant's private weakness. Subjective incapacity therefore works at the boundary between the two degrees of murder and does not reach the line between murder and manslaughter. Three causes of incapacity recur, and each has its own limits.
Emotional Upset and Terror
A defendant dominated by passion or fear may be unable to deliberate to the degree a first degree conviction requires, because deliberation means acting in a cool state of blood.5 The mechanism is plain. Reflection involves weighing the act and its consequences, and a mind flooded with rage or panic does not weigh anything. It reacts. The same source warns that courts are not uniform, because some decisions have held that a lack of cool deliberation did not stop an intentional killing from being first degree, so the reader should expect jurisdictions to differ on whether deliberation is treated as separate from the intent to kill at all.6
The case of State v. Guthrie shows the kind of claim that arises. A dishwasher, enraged after a coworker snapped him with a dishtowel, pulled a knife and stabbed the coworker in the neck. He had a documented history of daily panic attacks and several psychiatric disorders, and he testified that a panic attack came immediately before the stabbing.7 The jury convicted him of first degree murder, and on appeal he attacked instructions that equated willful, deliberate, and premeditated with a mere intent to kill. The West Virginia court answered that a definition allowing the intent to come into existence for the first time at the moment of the killing erases the distinction between the degrees. It approved an instruction requiring a period of prior consideration long enough for the accused to be fully conscious of what he intended.8 Panic and rage matter in such a case because they bear on whether that conscious reflection occurred.
The heat-of-passion rules sort the neighboring outcomes. A defendant who is both actually and reasonably provoked, and who has not cooled in fact or in reason, is guilty of voluntary manslaughter. A defendant who is actually in a passion but unreasonably so, either because an ordinary person would not have been provoked or because an ordinary person would have cooled, is a candidate for second degree murder, since an intent to kill existed without premeditation and deliberation. A defendant who is not provoked at all, or who actually cools off, kills in cold blood and may be convicted of first degree.9 Take a man who is cornered in a parking garage by a stranger with a crowbar and, in sheer terror, grabs a pistol and fires intending to kill. His fear may defeat deliberation, so first degree is hard to sustain. If the stranger's threat was not the kind that would provoke an ordinary person, the grade is second degree murder, and manslaughter requires an objectively adequate provocation, so it is not available on his terror alone. The details of the manslaughter doctrine are taken up in its own reading.
Intoxication
Intoxication works through the same logic. Just as a defendant may be too upset or panicked to reflect, intoxication may rob the defendant of the capacity to premeditate and deliberate and thereby reduce the crime from first degree to second degree murder.11 The intoxication must be severe enough to destroy the ability to reflect, but it need not be so great that the defendant is unconscious or cannot tell right from wrong.12 A defendant who is merely less inhibited than usual does not qualify, because courts are unanimous that lowered inhibitions create no defense.13 The usual formulation is that first degree murder demands a high level of mental state, and an intoxicated defendant who could not form it has a partial excuse that mitigates the crime to a lesser included offense.14
The reduction ordinarily stops at second degree and does not go on to manslaughter. In most jurisdictions that divide murder into two degrees, second degree murder can be committed without any intent to kill, through a high degree of recklessness, the depraved-heart type. Intoxication can negate a required intention but, on the majority view, cannot negate recklessness, so the defendant stays in murder.15 A minority of authority would reduce the homicide to manslaughter where intoxication blots out the intent to kill or seriously injure as well.16
Timing is the main trap. A defendant who premeditated and formed an intent to kill while sober, and then drank to get up nerve, remains eligible for first degree murder even if intoxication left the defendant incapable of reflection by the moment of the killing.17 The reflection already happened, and the drinking only carried out the plan. Compare two defendants. One drinks heavily, becomes so impaired that he cannot reflect, then forms an intent to kill and shoots a stranger, and a jury may find second degree murder. The other plans the killing, decides on it, and then drinks to steel his nerve, and he remains eligible for first degree because he premeditated while sober.18 The California bar-shooting facts illustrate how a jury could view such a record. The defendant, drunk at a blood-alcohol level estimated near .19 percent, announced he would get a gun and kill the guard, went home, returned with a rifle about two hours later, and said he had told the guard he would be back.19 The threat and the trip for the weapon are evidence of design that does not depend on the state of mind at the moment of firing.
Jurisdictions also differ on whether the evidence is admissible at all. California, for example, abolished diminished capacity but allows voluntary intoxication evidence solely on whether the defendant actually formed the required intent, premeditated, deliberated, or harbored malice aforethought.20 Other states bar the evidence. Texas, for instance, forbids evidence of voluntary intoxication to negate a culpable mental state.21 In Montana v. Egelhoff the Supreme Court upheld a conviction under a Montana law that barred such evidence, and the result is that states may treat intoxicated defendants as having a state of mind they did not in fact have.22 An exam answer should therefore apply the majority rule while noting any contrary jurisdiction the facts name.
Mental Abnormality Short of Insanity
The third cause is a mental condition that does not meet the legal test for insanity. A defendant may know the nature of the act and that it is wrong, yet be too impaired to premeditate. Most courts, though not all, allow evidence of the mental defect to be introduced on that question.24 The reason is that premeditation is an element the state must prove, and a defendant who can show the mind could not reflect is attacking the state's proof. A claim of insanity asks for a different result, since it excuses a defendant even where every element is proved. In Commonwealth v. Gould, a defendant with a delusional belief system and a diagnosis of paranoid schizophrenia could not prove insanity under Massachusetts law. The court nonetheless held he could offer his mental condition to persuade the jury that, even if he intentionally killed, he was unable to premeditate.25
Leland v. Oregon illustrates the interaction at trial. The jury there was told that evidence offered to prove insanity should also be weighed, together with all the other evidence, on the defendant's ability to premeditate and deliberate, and that a defendant lacking that ability could not be guilty of first degree murder. The Court noted that the jury might find a defendant incapable of premeditation yet not legally insane, and that the prosecution had to prove premeditation and deliberation beyond a reasonable doubt even though insanity was pleaded.26
The doctrine is not uniform, and the contrary authorities show why. In Fisher v. United States the defendant, a man described as mentally somewhat below average with an aggressive psychopathic personality, asked for an instruction letting the jury weigh his mental deficiencies on premeditation and deliberation. The Court approved the refusal because District of Columbia law had long denied that theory of partial responsibility.27 Justice Murphy's dissent argued that a person of weakened intellect may be incapable of deliberation and premeditation, so the jury should be allowed to find a lesser degree rather than choose between a death sentence and complete freedom.28 The District of Columbia Circuit later overruled its Fisher decision on this point.29 Arizona still confines mental-disease and capacity evidence to the insanity defense, and in Clark v. Arizona the Supreme Court upheld that rule, reasoning that a State that sets a stringent insanity standard may keep a more lenient second route from displacing it.30
Even where the evidence is admissible, it must do the right work. In Williams v. State a Texas court held that the excluded evidence had to do more than provide an excuse or justification for forming the intent. It had to show that the defendant was prevented from forming the intent.31 A defendant who killed because paranoid thoughts made the victim seem threatening has offered a motive, and a motive leaves the intent intact.32 The same distinction governs premeditation. A condition that explains why the defendant wanted to kill does not show that the defendant could not reflect.
Running the Analysis
Because the three causes share one logic, an exam problem is best run as a sequence of questions that separate incapacity from mere emotion, lowered inhibition, or motive.
Emotional Upset and Terror
First degree murder by premeditation asks about the quality of the defendant's mind as well as its content, so a defendant whose mind was overwhelmed may fall short of that grade and still be a murderer. Deliberation requires a cool mind that is capable of reflection, and premeditation requires that such a mind did in fact reflect, at least briefly, before the act of killing.35 Reflection means weighing the act and its consequences, and a mind flooded with rage or panic does not weigh anything; it reacts. A defendant in that state can still intend to kill, and an intent to kill is all that second degree murder demands, so the usual result is a drop of one grade rather than an acquittal or a manslaughter verdict.36 The reason the grades are drawn this way appears in Justice Murphy's dissent in Fisher v. United States, which explained that murder was divided into degrees because the heaviest punishment can deter only a killing that results from premeditation and deliberation.37 A killing that erupts from terror or fury is not the product of calculation, so the severe penalty has nothing to deter.
State v. Guthrie shows how the claim arises. A dishwasher was snapped on the nose with a dishtowel by a coworker who was teasing him, became enraged, and stabbed the coworker in the neck. He had a long psychiatric history that included panic attacks, and he testified that an intense attack came immediately before the stabbing.38 He was convicted of first degree murder and attacked instructions that treated willful, deliberate, and premeditated as nothing more than an intent to kill. The West Virginia court agreed that a definition letting the intent arise for the first time at the moment of the killing erases the line between the degrees, and it approved an instruction requiring a period of prior consideration long enough for the accused to be fully conscious of what he intended.39 The holding concerns the definition the jury must apply, and panic or rage matters under that definition because it bears on whether conscious reflection took place.
The same reasoning drives Justice Murphy's reading of the facts in Fisher. The defendant there struck a woman at the Cathedral where he worked after she used an offensive epithet, kept on when her screaming frightened him, and afterward cleaned up the blood as part of his custodial job. Murphy saw a man reacting to a sudden insult without purpose or design, and he wrote that premeditation means nothing unless it excludes an instinctive, uncalculated response to a stimulus.40 A defense lawyer in a Los Angeles riot prosecution made a similar argument about group frenzy, telling the jury that people consumed by mob emotion cannot engage in the reflective thought that specific intent and premeditation require.41 Both are arguments for what a jury may find, and neither makes emotion an automatic bar to first degree.
Emotion does not defeat premeditation merely by being present, and the limits matter on an exam. A sudden passion can produce an impulsive intent and yet last long enough for the defendant to think it over and weigh the consequences, and a killing that results is deliberate even though it began in anger.42 In People v. McZeal the defendant argued after a verbal quarrel, left, drove others home, and came back to shoot; that interval, and witnesses who described him as calm, supported premeditation and left no basis for a heat-of-passion finding.43 Terror from outside pressure gets the same treatment. In People v. Anderson the California court said that a killing under duress may or may not be premeditated, and that a person who kills on command without reflection might be found to lack premeditation, but a malicious, premeditated killing is first degree even if the killer acted under duress.44 The question in each case is whether reflection actually occurred.
This incapacity rule has to be kept apart from heat-of-passion manslaughter, which applies different tests. At common law, voluntary manslaughter is an intentional killing that would otherwise be murder but is committed in the heat of passion, after adequate provocation, before a reasonable cooling-off period has run.45 Adequate provocation has an objective core, since the provocation must be the kind that would arouse sudden and intense passion in an ordinary person, and the defendant must actually have been provoked and must not in fact have cooled.46 The classification follows from those hurdles. A defendant who is reasonably and actually provoked and has not cooled is guilty of voluntary manslaughter. One who is actually in a passion but unreasonably so, because an ordinary person would not have been provoked or would have cooled, is a candidate for second degree murder, since an intent to kill was present without premeditation and deliberation. One who is not provoked at all, or who actually cools, kills in cold blood and may be convicted of first degree.47
A matched pair shows which fact moves the grade. A man who is called a name by a neighbor flies into a rage and swings a hammer at once, intending to kill. Words alone almost never amount to adequate provocation,48 so he gets no manslaughter reduction, but his fury may have left no room for reflection, and the likely grade is second degree murder. Now change the provocation. Owen comes home early, finds his wife with a coworker, and shoots immediately; that is the kind of provocation a jury may find would move an ordinary person, and he acted before any chance to cool.49 His crime is a candidate for voluntary manslaughter. The inner state is similar in both cases, and what separates them is whether an ordinary person would have been provoked. Students lose points here when they treat terror or rage alone as manslaughter, because the objective provocation requirement is what supports that further reduction. Courts also differ on how much weight lack of cool deliberation carries, and some have held that an intentional killing was first degree despite it, so an answer should apply the majority approach while flagging the variation.50
Intoxication
Voluntary intoxication is the third cause of incapacity, and it works by the same logic as emotional upset. Premeditation and deliberation describe the quality of the defendant's mind, a cool state capable of reflection in which reflection actually occurred, so anything that destroys the capacity for reflection can defeat them.52 Intoxication can do that. A defendant so impaired by alcohol or drugs that he could not premeditate and deliberate lacks the added elements of first degree murder, and the crime drops to second degree murder.53 The reason is the one that governs every mental-state element. Premeditation is something the state must prove as a fact about this defendant's mind, and evidence that the mind was too clouded to reflect goes directly to whether the state has proved it.
The severity of the intoxication is the first limit. Ordinary drunkenness does not qualify, because the effect of alcohol is usually to lower inhibitions, and courts are unanimous that a substance that merely reduces or removes inhibitions creates no defense.54 The intoxication must be severe enough to rob the defendant of the ability to premeditate and deliberate. It need not go as far as unconsciousness, and it need not erase the defendant's ability to tell right from wrong.55 Take a defendant who becomes extremely drunk, forms a sudden intent to kill, and acts with no capacity to reflect. Such a defendant is guilty of second degree murder, because the intent to kill remains and only the added reflection is missing.56 A defendant who is merely loosened by drink, and who weighed the act before carrying it out, has lost nothing the first degree statute requires.
The second limit is the floor of the reduction. Intoxication is generally held unable to reduce a homicide below second degree murder to manslaughter.57 The reasoning follows from how second degree murder is built. In most two-degree jurisdictions, second degree murder includes a killing committed with a high degree of recklessness (the depraved heart type), and under the majority view intoxication can negate an intention but cannot negate recklessness. A drunk defendant who intended to kill or injure is a murderer by intent, and one who acted with extreme recklessness is a murderer on that ground, so manslaughter is not reached. A minority of authority would reduce the crime to manslaughter where the intoxication blots out the intent to kill or seriously injure as well as the premeditation.58 An exam answer should apply the majority position and note the minority only if the facts invite it. Manslaughter for the intoxicated killer ordinarily requires something else, such as adequate provocation, and not the drinking.
The third limit concerns timing. A defendant who premeditated and deliberated and formed an intent to kill before drinking, and then drank to get up his nerve, remains eligible for first degree murder, even if by the time of the killing he was too intoxicated to reflect.59 The reason is that the elements were satisfied while the mind was still clear, and a defendant cannot use the very drinking he undertook to carry out the plan as proof that no plan existed. Compare two killers who are equally drunk at the moment of the shooting. The first decides on the spur of the moment, with no capacity left to reflect, and is a candidate for second degree. The second decides in the afternoon to kill a rival, buys a handgun, drinks through the evening for courage, and fires at midnight; his first degree liability rests on the afternoon's reflection and survives his condition at midnight. The usual exam instruction is to check whether the defendant did the premeditating before getting drunk.60 Students who look only at the defendant's condition at the moment of the killing miss this issue, so the timing of the plan against the drinking is the fact to find in the stem.
Jurisdictions also differ on whether the evidence reaches the jury at all, and the limits come from legislatures and not from any single common law rule. California admits evidence of voluntary intoxication, in a case charging a specific intent crime, solely on the issue of whether the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought.61 The wording asks whether the defendant actually reflected, and it does not ask about capacity in the abstract. Other states close the door entirely. Texas forbids evidence of voluntary intoxication to negate the culpable mental state of a crime.62 Montana went further and barred the evidence on any mental state, and in Montana v. Egelhoff the Supreme Court upheld a conviction under that rule in a badly fractured decision. The practical upshot is that states may treat intoxicated defendants as having a state of mind they did not in fact have.63 An exam answer should therefore apply the majority rule while noting any contrary jurisdiction the facts name.
Mental Abnormality Short of Insanity
The last cause of incapacity is a mental condition that is real and serious but does not meet the legal test for insanity. The usual treatment is the same as for emotional upset and intoxication: a defendant whose condition left him unable to reflect coolly lacks premeditation and deliberation, and he is generally guilty of second degree murder because the intent to kill remains.65 Two different questions are in play here, and keeping them apart is the whole skill. Insanity asks whether the defendant is excused from responsibility for a crime the state has otherwise proved, and the test is typically narrow, such as whether he could tell right from wrong. Premeditation asks whether the state has proved one particular element of first degree murder, namely that this defendant actually reflected before killing. A defendant can fail the first question and still raise a reasonable doubt on the second.
Leland v. Oregon shows the two questions running side by side in one trial. The jury received five possible verdicts, ranging from first degree murder through second degree murder and manslaughter to not guilty and not guilty by reason of insanity.66 The trial judge told the jurors to weigh the evidence of the defendant's mental condition together with all other evidence on his ability to premeditate, deliberate, and form a purpose to kill, and told them that a defendant who lacked that ability could not be guilty of first degree murder.67 The jury was also told that the state carried the burden on every element throughout the trial, while the separate plea of insanity was decided on its own special verdict, where the defendant bore the burden.68 The Supreme Court observed that the jury could have found him mentally incapable of premeditation and deliberation, and yet not legally insane.69 That observation is the doctrine in compact form: legal insanity is one issue, and the capacity to premeditate is another.
The reason for admitting such evidence comes from how the element is built. Premeditation is a fact about the defendant's own mind, a cool state capable of reflection in which reflection actually took place, so evidence that his mind could not work that way bears directly on whether the state has proved it.70 Courts that adopted this reasoning pointed to an inconsistency in the alternative. A court that lets a drunk defendant argue that he could not premeditate would be hard pressed to refuse the same argument from a defendant whose mental condition was involuntary.71 A rule that treats insanity as the only door also has a harsh edge, since it lets a seriously impaired person be convicted on proof of fewer elements than the state would need against a healthy one.72 In Commonwealth v. Gould, a paranoid schizophrenic who believed he had a messianic mission stabbed his former girlfriend because he thought her impure. He could not satisfy the Massachusetts insanity test, yet the court held that he was entitled to offer his mental condition to persuade the jury that, although he intended to kill, he could not premeditate. The court noted that voluntary intoxication evidence was already admissible for that purpose and found his disorder at least as probative.73
The evidence helps only when it actually bears on the mental state, and this limit explains many of the cases that go against defendants. Mental illness that explains why a defendant killed does not necessarily show that he lacked the intent to kill. In Williams v. State, a Texas court recounted how the Texas high court had treated paranoid schizophrenia in an earlier killing: the defendant's belief that his brother was out to get him was an excuse for the crime, not proof that he lacked intent. In a later case, paranoid thinking that led a defendant to believe officers had mistreated him went to motive, which is a matter of punishment and not of culpability. By contrast, delusions that led a defendant to believe he was shooting at figments of his imagination, and not at police officers, did negate the element that he intended to shoot officers.74 The same logic applies to premeditation. A calm, methodical planner who is driven by a delusion has reflected, and the delusion explains his plan without removing it.75 The evidence must show that the defendant could not weigh the act in his own mind, which is a narrower claim than that he was ill.
Jurisdictions disagree about whether the evidence reaches the jury at all. The nutshell position is that most, but not all, jurisdictions admit evidence of mental abnormality to show that the defendant lacked a required mental state, and it is especially important in first degree cases where the claim is that he could not premeditate.76 Some states reject the evidence because they treat insanity as an all-or-nothing defense. The District of Columbia once did so too: in Fisher v. United States the defendant offered psychiatric testimony that he was a psychopathic personality of an aggressive type and argued that he could not deliberate or premeditate though he knew right from wrong. The Court upheld the refusal of such an instruction as consistent with long-standing District law, a rule the D.C. Circuit later overruled.77 The Constitution leaves the choice to the states. In Clark v. Arizona, the Supreme Court upheld a rule that confined expert evidence of mental disease and of capacity to the insanity defense and kept it away from the question of intent, while observation evidence of the defendant's behavior stayed usable on the mental element.78 Legislatures can also narrow the field. California abolished diminished capacity and provides that evidence of mental illness cannot be offered to show or negate capacity to form a mental state, and its statute on intoxication permits evidence only on whether the defendant actually formed the required intent, premeditated, deliberated, or harbored malice.79 In Michigan, a finding of mental illness does not negate malice aforethought as a matter of law, though it may be considered.80
A matched pair shows which fact decides the outcome. In the pattern of the Leland instruction, psychiatric testimony establishes that the defendant, though not legally insane, could formulate no plan, design, or intent to kill in cool blood.81 The jury may find that he did not premeditate, and the likely result is second degree murder. Change one fact. The defendant offers no evidence of impaired capacity, and the record shows that he bought a weapon, learned the victim's schedule, and waited by the victim's car. The same intent to kill now sits on proof of careful preparation, and the evidence supports first degree. In both cases the diagnosis may be identical, so what separates them is whether the record shows a mind that could not reflect or one that did. Mental illness alone does not negate premeditation, and an exam answer that treats the diagnosis as the end of the analysis misses the actual question.