Concept
Model Penal Code Approach
Premeditation, deliberation
Model Penal Code Approach
The common-law method taught so far sorts intended killings in stages: find malice aforethought, then ask whether the killing was premeditated and deliberate, and on that answer place it in first or second degree.1 The Model Penal Code is a reform model written for legislatures to consider, not a body of common law, and it proposes a different structure for the same killings. States have followed it to differing extents, and most recent state criminal codes kept the division into degrees despite the criticisms the Code's drafters directed at it.2 A problem therefore has to be read for the approach it assumes, since the Code answer and the degree-statute answer to the same killing can differ. This section first states what the Code requires for an intended killing and then explains why its drafters gave up the premeditation formula.
Purpose and Knowledge
Section 210.2(1)(a) of the Code makes criminal homicide murder when it is committed purposely or knowingly.3 A killer acts purposely when causing death is the aim of the conduct, and acts knowingly when aware that death is practically certain to result, which is the awareness that separates the knowing killer from one who merely consciously disregards a risk.4 Subsection (1)(b) adds a separate route to murder for reckless homicide under circumstances manifesting extreme indifference to the value of human life, but an intended killing is complete under subsection (a).5 The section's opening words also except homicides governed by Section 210.3(1)(b), the Code's provision for killings committed under extreme mental or emotional disturbance, which are manslaughter instead of murder.6
The Code abolishes the term malice and the distinction between first and second degree murder, so none of the common-law staging questions survives into the definition of murder.7 Premeditation can be dropped without freeing any killer, because every premeditated and deliberate homicide is already a purposeful or knowing one: a person who reflects before killing has necessarily aimed at death.8 At common law the added reflection did the work of separating the worst murders from the rest, and the Code moves that sorting to the sentencing stage, as the next part explains. Under the Code, then, an answer never asks whether the killer had a cool mind, how many seconds passed, or whether the plan preceded the act. Those questions matter only where a statute still grades murder by degrees.
In one commonly used illustration, a defendant pushes a boy into the path of a car that the defendant clearly sees approaching. At common law the prosecutor has little trouble showing malice, since the defendant purposely caused the death, and the contest is over whether a jury will find premeditation in what happened in an instant.9 Under the Code the push is purposeful and therefore murder, and the question of grade disappears. The next pair of scenes isolates the fact that moves the Code's answer.
The two scenes differ in the defendant's aim, and that fact alone separates murder from manslaughter under the Code, while the brevity of the thought in the first scene is irrelevant. The knowing prong exists for a related reason: an actor whose goal lies elsewhere but who is aware that death is practically certain could otherwise say that death was never the object of the conduct. A caution applies to grading. Section 210.2(2) calls murder a felony of the first degree, a phrase that describes the grade of the felony for sentencing and creates no first degree murder with a premeditation element.12 Students carry the common-law label across and lose points, because the Code's first degree is a felony grade, and the Code does not divide murder into degrees at all.
Why Abandon Degrees
The division of murder into degrees is a legislative creation. English judges never divided murder into degrees, and most American states that did so used two degrees, with the aim of confining the most severe punishments to first degree murder.14 After the Revolution, legislatures reserved the death penalty for premeditated, willful, and deliberate killings so as to reach the cold-blooded killer, and neither a depraved heart nor bare intent was supposed to suffice.15 Many courts quickly undercut that design by holding that premeditation can occur a moment before the act, so that reflection of a split second would do.16 The formula therefore separated planned killings from impulsive ones far less reliably than its authors intended.
Judge (later Justice) Cardozo suggested that the distinction was too vague and obscure for any jury to understand and should be dropped.17 The decisions on duration bear out his concern. In People v. Waters a gunman fired a second shot within about five seconds of the first, with both hands on the pistol, and the premeditation finding was upheld. In State v. Bingham a divided court held that five minutes of strangling, with no other evidence of planning, could not support the finding on time alone.18 The results can be reconciled, since Bingham found nothing beyond time, but they show a formula whose outcome depends on how a court reads ambiguous facts rather than on any stable measure of blame.
The drafters' deeper objection is that premeditation is a poor measure of blame in both directions. The formula reaches planned killings such as mercy killings and suicide pacts, which the drafters describe as "far more the product of extraordinary circumstances than a true reflection of the actor's normal character."19 It also misses impulsive killings, because extreme depravity can be revealed by a murder committed on impulse.20 A formula that tracks planning will therefore sometimes point toward the heaviest label for the sympathetic planner and away from it for the callous impulsive killer.
The Code's replacement follows from that diagnosis. Because no single set of general words can capture all the factors that bear on how a particular killer should be treated, the Code uses a short list of mental states to define murder and leaves finer distinctions to sentencing.22 Section 210.6 lists mitigating and aggravating factors to be weighed at that stage, so the decision about the most severe sanction depends on a series of factors in place of one label.23 Some of the features that might mark one premeditated killing as worse than another, such as the victim's identity, the method, or a killing done for hire, can be considered there.24
Where a jurisdiction keeps degrees, none of this changes the analysis. These are reasons for reform, not the governing rule, and a degree statute still requires proof of premeditation and deliberation for first degree murder, which is why most recent state codes had to grapple with the formula despite the criticism.25
Purpose and Knowledge
For an intended killing, the Model Penal Code asks one question about the defendant's mind. Section 210.2(1)(a) makes criminal homicide murder when it is committed purposely or knowingly, and the opening words of the subsection except homicides governed by Section 210.3(1)(b), the provision for killings committed under extreme mental or emotional disturbance.27 Nothing in the text refers to malice aforethought, premeditation, deliberation, or the time that passed between decision and act.28 The common-law staging taught earlier sorts intended killings into degrees. Here that sorting step is absent, and what remains is the meaning of the two mental states that make a homicide murder.
The Code defines each state in Section 2.02. A person acts purposely toward a result when causing that result is the person's conscious object, so a killer acts purposely when death is what the conduct is meant to achieve. A person acts knowingly toward a result when aware that the result is practically certain to follow from the conduct.29 Both definitions describe the defendant's actual state of mind, and that has a consequence for proof. The prosecution cannot rest on a presumption that people intend the natural and probable consequences of what they do. It must establish that the defendant aimed at death or was aware that death was practically certain, although the state of mind may be proved circumstantially, and a finding of purpose or knowledge may be inferred from the character of the conduct and the circumstances around it.30
The Code lists two states because they describe different relationships between a person and a result. A person can want a result without being sure it will follow, and a person can be sure a result will follow without wanting it, as when death is the foreseen by-product of pursuing some other goal.31 Common-law intent already reached both, since it covers a conscious object to cause harm and also knowledge to a virtual certainty that harm will occur.32 The Code keeps the two states in separate definitions but treats them alike for grading, reflecting the judgment that purpose and knowledge belong together and that no further distinction between them can usefully be made for sentencing.33
The pair isolates the fact that decides the case: what the defendant was aiming at or aware of, and not how long the defendant thought about it. That focus explains why the Code does without a premeditation inquiry. A defendant who reflects on killing and then acts has necessarily aimed at death, so every premeditated and deliberate killing is already a purposeful or knowing one, and the Code's rule reaches more killings than first degree premeditated murder does. A defendant who thinks at length about ending the life of a terminally ill relative and then does so acts purposely, so the homicide is murder, and the merciful motive does not change the classification.34 A defendant who kills on a sudden impulse with the conscious object of causing death is equally a murderer, even though a degree statute might keep that defendant out of the top grade.
The reasons for building the rule on these states are practical. Purpose and knowledge ask what the defendant was after or aware of, which a jury can read from the weapon, the aim, and the surrounding conduct. Premeditation asks the jury to reconstruct a process of thought, and courts that took up the task stretched it, many holding that reflection a moment before the act is enough, so that the formula separated planned killings from impulsive ones far less reliably than its legislative authors intended.35 On an exam, the usual error is to carry the common-law inquiry into a Code problem, because the Code never asks whether the killer premeditated in order to reach murder. Even the phrase felony of the first degree in Section 210.2(2) grades the offense for sentencing and does not bring a premeditation element back.36
The rule also has a boundary on the other side. A driver who speeds thirty miles an hour over the limit through a school zone at arrival time and strikes and kills a child who attempts to cross did not aim at death and was not aware that death was practically certain, so neither prong of Section 210.2(1)(a) is met, however blameworthy the driving.37 The only remaining route to murder is recklessness under circumstances manifesting extreme indifference to the value of human life, which Section 210.2(1)(b) supplies and which is taught separately.38 Without that showing the homicide falls below murder.
Why Abandon Degrees
The Code asks only whether a killing was purposeful or knowing, which raises an obvious question: why did its drafters discard the premeditation-and-deliberation formula that most American legislatures had adopted? The answer starts with what the formula was built to do. English judges never divided murder into degrees. American legislatures did, usually into two tiers, so that the heaviest punishments, often including death, would attach only to first degree murder.43 After the Revolution, the legislatures that created the tiers reserved the death penalty for killings that were premeditated, willful, and deliberate. They aimed at the cold-blooded killer and meant to exclude both the depraved-heart killer and the killer whose only mental state was intent.44 The formula therefore treats planning as a stand-in for the worst kind of blame. The Code's objection is that the stand-in misfires in two opposite directions, and keeping the two errors apart is the key to this topic.
The first error is over-inclusion, because the formula reaches planned killings that reveal nothing about a depraved character. The Forrest decision shows how this happens. The defendant shot his critically ill father four times in the head while the father lay helpless in a hospital bed, using a five-shot revolver that had to be cocked before every shot.45 The court treated the defendant's own statements as the most persuasive evidence of premeditation and deliberation: he said he had thought about putting his father out of his misery and had promised that he would not let him suffer.46 The evidence that proved the planning also proved the merciful motive, so the more clearly the prosecution shows reflection, the more sympathetic the defendant may look. The Code's drafters described this class of killing, with mercy killings and suicide pacts as examples, as "far more the product of extraordinary circumstances than a true reflection of the actor's normal character."47 A parallel illustration reaches the same place: a person who deliberates for a long time about ending a loved one's suffering, and acts from what she sees as the best of motives, is a first degree murderer at common law and simply a murderer under the Code.48 The victim's consent does not change the analysis, since the long-standing common-law view is that a homicide victim's consent is immaterial to the killer's guilt.49 Whatever leniency such a defendant receives therefore comes from charging and sentencing discretion and not from the elements of the offense.50
The opposite error is under-inclusion, because the formula can miss killings that show extreme depravity simply because they were done on impulse. A passerby who, out of wanton cruelty, pushes a boy sitting on a bridge into a deep river has made no plan. A man whose advances a woman has rejected, and who instantly cuts her throat, has acted in sudden fury. Each killing shows a ferocity that is arguably as bad as that of many planned murders.51 Courts have blurred this edge of the formula, because many of them quickly construed premeditation to cover split-second decisions, so that reflection a moment before the act was enough.52 That stretching pulls some impulsive killers back into first degree, but it empties the word of its meaning. It also makes the result depend on how generously a given court reads ambiguous facts, which has little to do with how culpable the killer was.
Both errors follow from one diagnosis. Judge (later Justice) Cardozo thought the distinction too vague and obscure for any jury to understand and would have dropped it.53 The Code's drafters, borrowing from a royal commission on capital punishment, concluded that there are not two classes of murder but "an infinite variety of offenses which shade off by degrees from the most atrocious to the most excusable."54 If culpability is a spectrum, a formula with two boxes will misplace cases on both sides of the line between them.
The Code's response is to remove malice and the first and second degree division, to define murder by a short list of mental states, and to move the finer distinctions to sentencing, where § 210.6 lists mitigating and aggravating factors to be weighed.55 Weighing several factors can capture features that premeditation ignores, such as the victim's age or identity, the method of killing, a killing done for hire, or a risk to multiple possible victims. A torturer of a small child and a poisoner of an adult enemy may both have premeditated, and a sentencer using factors can still treat them differently.56 Capital sentencing in Strickland v. Washington shows the weighing method in operation under a Florida statute: the trial judge listed aggravating circumstances, including that the murders were especially heinous, were committed during other violent felonies, and were for pecuniary gain, and concluded that the mitigating circumstances were insufficient to outweigh them.57
New York shows that dropping malice does not require dropping degrees. Its second degree murder provision covers a person who, with intent to cause the death of another, causes the death of that person or of a third person, and it says nothing about malice aforethought or premeditation. A defendant who acted under extreme emotional disturbance with a reasonable explanation may raise that as an affirmative defense, and the result is a reduction to first degree manslaughter.58 Intent to cause death is therefore the baseline for second degree murder in New York, and the state keeps a tiered structure without using premeditation as the divider at that level. The Code goes further by abandoning tiers altogether, so the two modern approaches differ in what they keep as well as in what they discard.
The critique has not persuaded every legislature. Most recent state codes retained the degree distinction, so the formula must still be applied wherever a statute requires it.59 Some states, New Jersey among them, followed the Code in abandoning the formula.60 Defenders of grading also have an argument that survives the attack on premeditation: some countries that have abolished capital punishment have kept the label "murderer" for the worst killers, reasoning that criminal law should make moral distinctions and that calling every criminal killing "homicide" would weaken its moral force.61 The criticism thus targets premeditation as the method of grading and does not settle whether grading is worthwhile. For an exam problem, a degree statute still demands premeditation, and the Code's critique supplies reasons for reform without changing the elements of first degree murder in a jurisdiction that has kept them.