Concept
The Model Penal Code Alternative
Premeditation, deliberation
The Model Penal Code Alternative
The premeditation formula taught in the preceding sections sorts intentional killings into two grades, and the sorting carries heavy consequences, because in most degree-based codes the harshest punishment is reserved for first degree murder.1 Critics have long doubted that the formula sorts accurately, and the Model Penal Code is the most influential response. Section 210.2 does not try to sharpen the words premeditated, deliberate, and willful. It removes the term malice and the division into degrees, defines murder by the defendant's culpable mental state, and leaves differences in blameworthiness to be weighed when the sentence is set.2
The section takes the Code's text first, because the critique makes sense only once the reader sees what replaces the formula. It then turns to the objections that drove the drafters, and it ends with the reasons so many states have kept the traditional approach anyway.
MPC Murder Provisions
Section 210.2(1) makes criminal homicide murder in two situations. The first is a homicide committed purposely or knowingly.3 The second is a homicide committed recklessly under circumstances manifesting extreme indifference to the value of human life, and the Code presumes that recklessness and indifference when the actor is committing, attempting, or fleeing from robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.4 The opening clause of the section carves out one exception: a homicide that would otherwise be murder, but that is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, is manslaughter.5 Finally, murder is a single offense, a felony of the first degree, with the death penalty bracketed as an option for states that have one.6
The Code's categories line up with the older ones, which explains why the change is less radical than it first looks. Any premeditated and deliberate killing is necessarily a purposeful or knowing one, so the core of common law first degree murder sits inside subsection (1)(a). The depraved heart category moves into subsection (1)(b), where it is described by conscious disregard of a substantial and unjustifiable risk of death rather than by a colorful phrase about the heart.7 The Code gives no separate place to an intent to cause serious bodily injury, and its commentary explains that such cases are better handled under the standards of extreme recklessness and ordinary recklessness.8 The line between murder and manslaughter then depends on how extreme the recklessness is, a judgment the Code leaves to the trier of fact under instructions that treat recklessness fairly assimilated to purpose or knowledge as murder and less extreme recklessness as manslaughter.9
Two defendants show how the premeditation inquiry drops out. A defendant who brooded for weeks and then killed acted purposely, so she is a murderer under the Code, and the weeks of planning no longer decide the grade of the offense.10 A defendant who fires a gun into a passing train with no plan to kill anyone has not premeditated anything, yet he consciously disregards a grave risk of death and can be a murderer under subsection (1)(b) if the circumstances manifest extreme indifference.11 Lower the recklessness below that extreme level, and the same death is manslaughter instead. In each case what moves the answer is the defendant's mental state toward death, and the length of his reflection does not matter.
On an exam, if the problem invokes the Model Penal Code, premeditation drops out of the analysis, and a student who spends time asking how long the defendant reflected has answered a question the Code does not ask. Spend that time on purpose, knowledge, and the degree of recklessness instead.
Critique of the Formula
The drafters' quarrel with premeditation is old and has two parts, one about clarity and one about accuracy. On clarity, Judge (later Justice) Cardozo suggested that the distinction between first and second degree murder based on premeditation and deliberation is too vague and obscure for any jury to understand, and that it should not be continued in the law.14 His reasoning was that every intent involves some choice, and that a choice formed in a few seconds is still a choice. If seconds can satisfy the formula, the supposed line between a sudden impulse and a deliberate design nearly disappears, and the jury is left with a distinction it cannot apply with any confidence.15
On accuracy, the objection is that premeditation is both over-inclusive and under-inclusive as a measure of who deserves the severest sanction. It is over-inclusive because a person can brood for months over a mercy killing, satisfy every word of the formula, and still be acting from motives that no one would call depraved. The drafters made the point directly: a long internal struggle may show that the homicidal impulse was deeply aberrational, far more the product of extraordinary circumstances than a true reflection of the actor's normal character.16 It is under-inclusive because some of the worst killings are sudden. A man who shoves a stranger's child off a bridge into a deep river out of wanton cruelty has formed his intent in an instant, and the formula treats him more gently than the mercy killer even though his conduct shows at least as much cruelty and danger to others.17
The drafters added a historical argument that explains their remedy. In their account, the distinction between degrees originated to isolate the cases in which capital punishment would be automatic, and now that a death sentence can no longer be automatic, the distinction serves no purpose.18 The Supreme Court's decision in Furman v. Georgia held that the death sentences before it were cruel and unusual punishment under the Eighth and Fourteenth Amendments.19 In Gregg v. Georgia the Court then approved guided sentencing, relying in part on the Code drafters' conclusion that the main circumstances of aggravation and of mitigation can be identified and weighed against each other in a concrete case.20 The Georgia scheme it upheld required the jury to find at least one of ten statutory aggravating circumstances beyond a reasonable doubt before a death sentence could be imposed.21
The Code's solution follows from that history. Rather than let a single mental-state label decide the punishment at the guilt phase, it lists aggravating and mitigating circumstances to be considered at sentencing.22 The proposed aggravating circumstances include that the murder was committed by a convict under sentence of imprisonment, that the defendant had a prior murder conviction or a prior violent felony, and that the defendant committed another murder at the same time.23 Each factor can be argued and weighed on its own, which lets the sentencer separate the mercy killer from the wanton killer in a way the single premeditation gate cannot. The American Law Institute later withdrew the Code's death-penalty section in 2009, citing institutional and structural obstacles to a minimally adequate system for administering capital punishment, so the sentencing machinery described above is no longer part of the Code itself.24
Why States Keep the Formula
Despite the criticism, most recent state codes have kept the distinction, and a few states, such as New Jersey, have followed the Code in abandoning it.26 Part of the explanation is institutional. The degrees are written into statutes, so a court that dislikes the formula cannot abolish it; one state supreme court said that separation of powers left it without the prerogative to eliminate the distinction, and it tried instead to give the terms real content.27 The tradition also has a history that supporters can invoke. The division into degrees grew out of the view that capital punishment deters only when a murder results from premeditation and deliberation, and a colonial charter as early as 1682 reserved death for premeditated murder and treason.28
Supporters also offer two affirmative defenses of the line that do not depend on capital punishment. The first is a culpability argument: a person who premeditates overcomes strong inhibitions against killing and reveals a settled commitment to taking life, while a sudden killing in the face of provocation says less about the killer's character.29 The second is a deterrence argument. Whether or not premeditating killers are the most culpable or dangerous, they are the most deterrable, since a planner is more likely to have devised a way to avoid or delay detection, and a heavier penalty offsets the lower odds of being caught.30 A broader point is that the label murder carries moral weight, and that graded categories let the law distinguish among killers rather than calling every criminal killing simply a homicide.31 Critics answer that neither argument shows premeditation to be a reliable marker, so the debate continues, and on an exam the controlling question is simply which approach the jurisdiction's statute has adopted.
MPC Murder Provisions
Model Penal Code § 210.2 replaces the common law label of malice aforethought, and the statutory label of premeditation, with a short list of culpable mental states. Subsection (1) begins by excepting the extreme-disturbance rule of § 210.3(1)(b) and then says that criminal homicide constitutes murder when one of two conditions is met.33 The first is that the homicide is committed purposely or knowingly.34 The second is that it is committed recklessly under circumstances manifesting extreme indifference to the value of human life, and the Code presumes that recklessness and indifference when the actor is committing, attempting, or fleeing from robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.35 The Code removes the term malice and the split between first and second degree, so these two conditions are the entire definition.36
The first condition draws on the Code's general definitions of mental state. A person acts purposely as to a result when causing that result is the person's conscious object, and the likelihood of success is never part of the inquiry.37 Consider a defendant who has never fired a gun and shoots at a spouse from 400 yards away. The odds of a fatal hit are slim, but if killing was the aim, the low probability is no defense, and the shot itself becomes evidence of purpose.38 Knowledge reaches the actor who does not desire death but is aware it is practically certain to follow.39 Together these two states cover every intentional killing, so a premeditated and deliberate homicide always qualifies.40 A planned shooting is therefore murder under subsection (1)(a), and the weeks of planning, which would decide the grade in a degree jurisdiction, add nothing to the Code analysis.
The second condition does the work that the depraved heart category did at common law, but it describes the mental state in structured terms. A reckless actor neither desires death nor knows it is practically certain. He consciously disregards a substantial and unjustifiable risk that death will result, as when someone fires into a passing train.41 Recklessness alone does not make the killing murder. The circumstances must also manifest extreme indifference to the value of human life, a judgment the Code's commentary leaves to the trier of fact, with instructions that recklessness fairly assimilated to purpose or knowledge is murder and less extreme recklessness is manslaughter.42 The felony presumption supplies the answer in one common setting, because a death during or in flight from a listed felony is presumed to meet both the recklessness and the indifference requirements.43 Remove the extreme indifference and the same death is manslaughter. A defendant who consciously ran a real but not extreme risk is guilty of manslaughter under § 210.3(1)(a), and one who should have perceived the risk but did not is guilty of negligent homicide.44
The Code also treats grade and punishment differently from the degree statutes. Murder is a single offense, a felony of the first degree, and the bracketed language in § 210.2(2) leaves the death penalty as an option only for states that want it.45 The common law category of intent to cause serious bodily injury has no separate home. The commentary explains that such cases are better handled under the standards of extreme recklessness and ordinary recklessness, and that the rare purposeful injury with no recklessness as to death is a matter for aggravated assault or negligent homicide.46 The reason for the change is that culpability is measured directly, by what the defendant purposed, knew, or consciously risked, rather than by a historical label that courts stretched over many different mental states.47
On an exam, premeditation drops out of the analysis once the problem invokes the Model Penal Code. A student who measures how long the defendant reflected has answered a question the Code does not ask. The time is better spent on purpose, knowledge, and how extreme the recklessness was.
Critique of the Formula
The premeditation-and-deliberation formula has drawn criticism for as long as it has existed, and the criticism comes in two forms. One is about clarity: can a jury tell the two grades apart? The other is about accuracy: even if a jury can, does the line sort killers by how much they deserve to be punished? Judge (later Justice) Cardozo pressed the first objection. He reasoned that every intent involves some choice, that courts nonetheless say a choice formed in seconds can be deliberate and premeditated, and that the supposed dividing line, a sudden impulse, cannot mean much when an impulse is measured in seconds.50 If a few seconds of thought satisfy the formula, then almost every intentional killing qualifies, and the jury is asked to apply a distinction that the case law has already dissolved. In his view the distinction was too obscure for a jury hearing it for the first time to understand, and it should not be continued in the law.51
The accuracy objection has two halves, because the formula can fail in either direction. It is over-inclusive when it sweeps in killers whose planning reveals nothing wicked. Take a caretaker who spends months agonizing over whether to end a terminally ill spouse's suffering and then acts. The long reflection satisfies every word of the formula, so the caretaker is a first-degree murderer, yet the same reflection shows someone trying, however mistakenly, to do the right thing.52 The drafters of the Model Penal Code made the point directly. A long internal struggle may show that the homicidal impulse was deeply aberrational, far more the product of extraordinary circumstances than a true reflection of the actor's normal character, as with mercy killings and suicide pacts.53
The formula is under-inclusive when it lets cruel but impulsive killers fall into the lower grade. Sir James Stephen's famous examples make the point: a man passing a river sees a boy sitting on a bridge and, out of wanton barbarity, pushes him in to drown. No premeditation is present unless the word is stretched to an unnatural sense, yet the cruelty is at least as great as in a planned killing.54 A modern counterpart is a defendant who deliberately shoves a child into the path of an oncoming car. That defendant plainly acts with intent to kill, but the first-degree question turns entirely on whether a court will find premeditation in the instant before the push.55 The two failures are linked. Courts that count seconds as enough are partly trying to catch such killers, and in doing so they erase the line Cardozo found so hard to locate.56
The Model Penal Code's remedy rests on a historical claim as well as a conceptual one. The drafters argued that the degrees originated to isolate the cases in which capital punishment would be automatic, so that once a death sentence can no longer be automatic, the distinction serves no purpose.57 The Supreme Court's decision in Furman v. Georgia held that the death sentences before it violated the Eighth and Fourteenth Amendments.58 In Gregg v. Georgia the Court then explained how capital sentencing could be made less arbitrary, pointing to the Code drafters' conclusion that the main circumstances of aggravation and mitigation can be identified and weighed against each other in a concrete case.59 The Code's own proposed aggravating circumstances included a murder committed by a convict under sentence of imprisonment, a prior murder or violent felony conviction, and a second murder committed at the same time.60 Each factor can be argued and weighed separately, so a sentencer can distinguish the mercy killer from the wanton killer, which a single mental-state gate cannot do. The Code's death-penalty provision was withdrawn by the American Law Institute in 2009, so this machinery is now an account of the Code's reasoning rather than a live part of it.61
The formula nonetheless has defenders, and most recent state codes have kept it, although a few states, New Jersey among them, followed the Code and abandoned it.62 One defense is about culpability. A person who premeditates overcomes strong inhibitions against killing and reveals a settled commitment to taking life, while a spontaneous killing under gross provocation is uncharacteristic behavior and says less about the killer's character.63 The other is about deterrence. Even if planners are not the most culpable or dangerous killers, they are the most deterrable, because a planner is more likely to have devised a way to avoid or delay detection, and a heavier penalty offsets the lower chance of being caught.64 Retention also has a structural explanation. Because the degrees are written into statutes, a court that dislikes the formula cannot abolish it, and one state supreme court said that separation of powers left it only the option of giving the terms real content.65 The critiques therefore explain why reform proposals exist, but on an exam the controlling question is which approach the jurisdiction's statute has adopted.