Homicide: Legal Aspects

The traditional definition of murder is that it is a homicide committed with "malice aforethought." That phrase, as it developed in English law, was a technical term referring to the mental state of the actor or to the other equivalent circumstances that qualified a homicide as murder. It did not invariably require malice or fore-thought. While it is still common to use the phrase in connection with murder, it has no independent descriptive significance. In the common law, there was malice aforethought if the homicide was accompanied by (1) intention to kill; (2) intention to cause serious injury; (3) extreme recklessness or disregard of a very substantial risk of causing death; (4) commission or attempted commission of a felony; or (5) according to some authorities, resistance to a lawful arrest. Modern definitions of murder have clarified and in some respects limited these as elements of the crime of murder. In general, the distinguishing feature of the crime is an intent to kill or a disregard of so plain a risk of death to another that it is treated as the equivalent of an intent to kill.

Intention to kill. All jurisdictions place the intentional killing of another without jurisdiction, excuse, or mitigating circumstances within the category of murder, as the most serious form of criminal homicide. While intentional killings may be classified further into subcategories of greater or lesser gravity, there is no controversy about their general classification as murder. Intent to kill has nothing to do with motive as such. While the circumstances that give rise to the intent may mitigate culpability, the law makes no differentiation between a killing with a benevolent motive, like euthanasia, and any other intentional killing.

Ambiguities in the general use of the concept of "intention" to describe conduct have caused trouble in its use to define murder. If the actor's very purpose is to kill, there is no difficulty. It may be, however, that the death of another is an apparently necessary means to the accomplishment of his purpose but that he would be just as satisfied if it wee achieved otherwise. Or, he may be aware that a death is a substantially certain consequence of his conduct, without wanting or trying to bring it about. Courts have wrestled with the distinctions among such states of mind and sometimes offer elaborate analyses of them in the context of particular facts. While such efforts may help to explain the result based on those facts, they do not yield generalizations beyond the ordinary open use of the concept of intention. In general, if the actor is aware that the likelihood of a death resulting from his conduct goes beyond the level of risk to the level of certainty or near-certainty, the element of intent is satisfied. The availability of another category of murder based on extreme recklessness instead of intent helps to ease the burden of decision in borderline cases.

Since persons who intend to kill unlawfully are not likely to proclaim their intention, murder must often be established without explicit proof of intent to kill. The use of a deadly weapon is ordinarily sufficient to establish that element of the crime. While this result may be based on a "presumption" arising from use of a deadly weapon, the presumption amounts only to the usual inference that a person intends the ordinary and probable consequences of his actions. A killing may be murder even though the actor intended to kill someone other than the person who was the actual victim. Although the killing of that person was not intentional, it is enough that the actor acted with the intent to kill. His intent is sometimes said to be "transferred" to the actual killing.

As one of the most serious crimes, murder has historically been a capital offense. All cases of murder were capital offenses under the common law, which remained unchanged in England until 1957, when the class of capital murders was sharply limited; before then, capital punishment could be avoided only by the exercise of executive discretion to commute the sentence of death. In the United States, the Pennsylvania legislature in 1794 limited capital punishment by distinguishing between intentional killings that are "willful, deliberate or premeditated" and those that are not (Pa. Act of April 22, 1794, ch. 257, § 2, 3 Dallas 599). (The formula was later changed to "willful, deliberate and premeditated.") The former, along with a restricted category of felony murder, discussed below, and killing by poison or lying in wait, were labeled murder in the first degree and remained punishable by death. All other kinds of murder were designated murder in the second degree and were not capital offenses. This distinction and the "degree" labels were adopted elsewhere and continue to be widely used. While the term willful by itself does not add to the requirement of intent, the deliberation-premeditation formula calls attention to the difference between someone who kills "in cold blood," fully aware of what he is doing and determined to bring about the result, and someone who acts intentionally but impulsively, without having turned the plan over in his mind. Courts have repeatedly observed that deliberation and premeditation require no particular period of reflection; a very short time before the plan is formed and, once formed, executed, is enough. For this reason and because it is so unclear what kind or quality of deliberation and premeditation is required, the formula has been criticized for giving juries power to dispense verdicts of different severity without any workable standard to guide them. As much criticized as it has been, and difficult as it has been to apply in close cases, the formula reflects a perceived difference of culpability in the paradigms.

Intention to injure seriously. The intention to injure that constituted one of the common law's categories of malice aforethought was an intention to cause serious physical injury, stopping short of death itself. Provided that the intended injury is truly serious, so that an accidental death from an ordinary assault is not included, few homicides that fall within this category would not also fall within one of the other categories of murder. Death having in fact been the result, in most cases in which a jury is able to find the necessary intent to injure it will be able to find either an intent to kill or extreme disregard of a risk to life. One of the functions of this category of malice aforethought may indeed have been to relieve somewhat the burden of finding an intent specifically to kill rather than to inflict a serious injury.

The Model Penal Code eliminates intent to injure as a separate basis of liability for murder. The drafters concluded that proper cases for liability of this type will be included without it. The only clear case of murder under the common law that is excluded under the Code is one in which the actor inflicts serious injury while taking express precautions not to kill his victim, and the victim dies anyway. Such a case would in any event fall within some category of criminal homicide—manslaughter, if not murder. On the other hand, retention of the common law classification leaves the possibility that unless the degree of seriousness of the intended injury is emphasized, an unintentional killing not accompanied by the same culpability as an intentional killing will be treated in the same way. Some jurisdictions follow the lead of the Model Penal Code; many others retain this category of murder.

Extreme recklessness. The common law recognized as the equivalent of an intent to kill an attitude of extreme recklessness toward the life of others. One whose conduct displayed plain disregard for a substantial, unjustified risk to human life was guilty of murder if his conduct caused a death. Various formulas have been used to describe this category of malice aforethought, including phases such as "a depraved mind regardless of human life," "an abandoned and malignant heart," and "a heart regardless of social duty and fatally bent on mischief." Whatever formula is used, the key elements are that the actor's conduct perceptibly creates a very large risk that someone will be killed, which he ignores without adequate justification. The risk must be large, and it must be evident; there must also not be circumstances that make it reasonable to impose such risk on others. It is not necessary that the actor be aware of the identity of the person or persons whose life he endangers or that he have any desire that they be killed. The Model Penal Code sums this up in a requirement of recklessness "under circumstances manifesting extreme indifference to the value of human life" (§ 210.2 (1)(b)).

The scope of this category of murder evidently depends considerably on how "extreme" the actor's conduct has to be. Properly limited, the category includes only conduct about which it might be fairly said that the actor "as good as" intended to kill his victim and displayed the same unwillingness to prefer the life of another person to his own objectives. Examples of such conduct, which have been the basis of convictions for murder, are firing a gun into a moving vehicle or an occupied house, firing in the direction of a group of persons, and failing to feed an infant while knowing that it was starving to death. Expanded much beyond cases of this kind, the category might include conduct involving a high degree of carelessness or recklessness that is nevertheless distinct from an intent to kill and more properly included within some lesser category of homicide.

The question is occasionally raised whether the actor must be aware of the risk he creates, if it would be plain to an ordinary reasonable person. Unless the actor is subject to some personal disability that accounts for his lack of awareness, it is most unlikely that he will be unaware of, rather than simply indifferent to, a plain risk so extreme that murder is in issue. In such a case, the resolution will probably depend on the jurisdiction's treatment of that kind of disability generally. If the disability is accepted as a defense or mitigation generally, then it will avoid the charge of murder; otherwise, the actor's lack of awareness will not help him. Thus, for example, while the Model Penal Code's formulation requires conscious disregard of the risk of death, one who was unaware of the risk because he was drunk could nevertheless be found guilty of murder, because the Code elsewhere provides that self-induced intoxication does not avoid a charge of recklessness as an element of an offense. Aside from special cases of this kind, it is probably safe to conclude that the extreme recklessness that characterizes this category of murder includes a realization of the risk. A lesser degree of risk, of which the actor might be unaware, would suffice for manslaughter but not murder.

Felony murder. The common law crime of murder included a homicide committed by a person in the course of committing (or attempting to commit) a felony. The felon—and, according to the rules of accomplice liability, his accomplices—was guilty of murder even if he had no intent to kill or injure anyone and committed no act manifesting extreme recklessness toward human life. The origin of this doctrine may reflect the difficulty of proving specifically an intent to kill, in circumstances in which the intent to commit a felony may suggest a willingness to kill if necessary and other proof either way is lacking. Felonies under early English law were mostly violent crimes and were in any case punishable by death. An attempt to commit a felony was only a misdemeanor, however; the felony-murder doctrine, which also applied to uncompleted felonies, did change the outcome if a homicide was committed during an unsuccessful attempt.

The number of felonies has increased dramatically under modern law. Statutory felonies include a large number of offenses that, however serious on other grounds, do not ordinarily pose great danger to life. Application of the felony-murder doctrine to them distorts the concept of murder as a crime involving a serious direct attack on the value of human life. The explanation that the intent to commit the felony "supplies" the malice aforethought merely states the conclusion. So also, stretched to its logical limits, the felony-murder doctrine would make a felon guilty of murder even if the victim were killed by someone else trying to prevent the felony, provided it were found that the commission of the felony caused the death. In this way, it was occasionally held that when a policeman fired at felons and the bullet struck and killed a bystander, the felons were guilty of murder.

Far as such a death is from the intentional killing that is the paradigm of murder, one can perhaps understand the attitude that leads to the conclusion that the felon should be liable. If not for the felon's conduct—the commission of the felony—the victim would not be dead, accidentally or not. Since in that sense the commission of the felony is the cause of death and the felon has in any case engaged in criminal conduct, it is easy to hold him responsible for the death as well. Even so, it is not appropriate to describe his conduct as murder if he has not engaged in conduct that seriously endangers life. Murder is not simply homicide, but homicide of a particularly culpable nature because it is accompanied by defined mental states; although willingness to commit a felony is itself culpable, it is not the same as, or equivalent to, the culpability that qualifies a homicide as murder.

While the doctrine of felony murder has sometimes been extended to cases very remote from an intentional killing, the courts and legislatures have quite generally adopted rules to restrict its scope. One restriction that responds to a large number of nonviolent statutory felonies is that the doctrine is applicable only if the underlying felony involves violence or danger to life. Sometimes it is required that the type of the underlying felony meet this requirement; or it may be enough if the commission of the felony in the particular circumstances is violent or dangerous. The first approach retains the felony-murder doctrine on its own terms but confines it to a more limited group of felonies; to the same general effect are requirements that the felony have been a felony at common law or that it be malum in se. The second approach may create liability in a case not covered by the first; it looks in the direction of a displacement of felony murder by a different rationale based directly on the dangerousness of the actor's conduct.

In many states that have more than one category of murder, the more serious category includes homicides committed in the course of one of a short list of particularly dangerous felonies: usually arson, rape, robbery, and burglary; commonly kidnapping; and sometimes one or two others. All other felony murders are in the less serious category. The Pennsylvania degree statute of 1794, referred to above, made this distinction; only homicides committed in the course of the first four mentioned crimes were murder in the first degree.

The nature of the underlying felony is restricted also by the requirement that it be "independent" of the homicide. Otherwise, every felonious assault from which death results might be prosecuted as murder, by operation of the felony-murder doctrine. Such an outcome would obliterate the common law difference between murder and manslaughter and would treat alike homicides of very different character and culpability. Even so, the requirement of independence has been rejected in a few jurisdictions, which presumably leave it to the good sense of the prosecutor not to reach an inappropriate result. The requirement does not apply if the person who is killed is someone other than the victim of the assault.

Another way of restricting felony murder places strong weight on the element of causation. Mere temporal conjunction of the felony and death has never been sufficient for felony murder; it is necessary at least that the death would not have occurred but for the felony. Some courts have explicitly required more than "but for" causation; the death must be a reasonably foreseeable, or natural and probable, consequence of the felony and must not be attributable primarily to a separate, intervening cause. Various ad hoc rules rejecting felony murder when someone other than the felon or an accomplice actually commits the homicide or when an accomplice is killed take a similar approach, although they refer to the party who kills or is killed rather than to causation as such.

The duration of the period during which the felony-murder doctrine applies is not uniformly defined. Once the felony is in progress, the doctrine certainly applies, but it is possible to end its application sooner or later after the felony is complete or has been abandoned, to include or exclude, in particular, flight from the scene of the felony. Some statutes explicitly include the period of flight. There is no clear general rule, the doctrine usually is applicable if the flight is continuous with the commission of the felony and if it cannot yet be said that the felony has succeeded or failed.

A more general attack on felony murder rejects it entirely and subsumes appropriate cases of homicide in the course of a felony under another category of murder. If a felon acting either with intent to kill or with extreme recklessness commits a homicide, then he is guilty of murder on that basis; the fact that the acts were committed in furtherance of a felony obviously does not count against liability. Reflecting the conclusion that if no element of that kind is present, then the felon's liability for murder is gratuitous, the Model Penal Code and the statutes of a few states have eliminated the felony-murder doctrine. Elsewhere, there has been a partial displacement of the strict doctrine by allowance of an affirmative defense if the felon's own conduct was not intended to and did not in any way endanger life. Of course, if the commission of a felony is itself deemed sufficient to satisfy the requirement of extreme recklessness (on the ground that a felony of that nature is always extremely dangerous to life), the concept of felony murder is reintroduced with the pretense of a different rationale. The Model Penal Code, for example, notwithstanding its strong criticism of the felony-murder doctrine, provides that recklessness and extreme indifference to the value of human life, which support liability for murder, are presumed if the actor is committing or is in flight after committing, one of half a dozen named violent felonies (§ 210.2(1)(b)). Some courts occasionally criticize the doctrine but preserve its force in particular cases by tenuous application of an alternative basis of liability to the specific facts. England, where the doctrine originated, abolished it by statute in 1957 (Homicide Act of 1957, 5 & 6 Eliz. 2, c. 11, § 1).

The uneven record of legislative and judicial efforts to limit or eliminate the felony-murder doctrine suggests strongly the central themes of the law of criminal homicide. When a death occurs and its occurrence can be attributed to the conduct of an identifiable person who is not blameless, there is a strong impulse to hold that person liable for the death, even if, from his point of view, the death should be viewed as accidental. The law not only reflects considered judgments about culpability; it also reflects an unconsidered effort to find an explanation and assign responsibility for an occurrence as disturbing to our sense of order as an unnatural death.

Resistance to a lawful arrest. Some of the older accounts of murder under the common law include resistance to a lawful arrest as a category of malice aforethought. Such a rule would impose strict liability for murder on a person whose resistance to a lawful arrest caused a death, even if it were accidental. It is now generally agreed that there is no such independent category of murder, although a statutory provision reflecting the traditional rule survives in a few states. A lawful arrest does not mitigate or excuse conduct in opposition to it, as might an unlawful application of similar physical force. Otherwise, homicide resulting from resistance to a lawful arrest if not treated differently from other homicide. Even in those states that have a special statutory provision, it is doubtful whether a wholly accidental death would be treated as murder if it did not also satisfy some other category of the crime. (England explicitly abolished this category of murder along with felony murder by means of the Homicide Act of 1957.)

Degrees of murder. The distinction between first-degree and second-degree murder that the Pennsylvania legislature adopted in 1794 applied to intentional killings and felony murder. The statute referred explicitly to killings "by means of poison, or by lying in wait"; but these were evidently intended simply as examples of "willful, deliberate, or premeditated killing." Statutory provisions differentiating types of murder were subsequently enacted in other states. They typically followed the Pennsylvania formula (including references to poison and lying in wait, which sometimes took on a significance of their own) and occasionally made additional distinctions. As in Pennsylvania, the dominant purpose has been to restrict the imposition of the most severe penalty, whether capital punishment or the longest period of imprisonment. Among other circumstances that may qualify a homicide as first-degree, or capital, murder are the use of torture, destruction of or interference with the operation of a public conveyance, use of an explosive, murder for hire, and killing a public official or someone engaged in law enforcement.

Another approach is taken by the Model Penal Code, which rejects further classification of murder but specifies "aggravating circumstances" and "mitigating circumstances" to be taken into account in the determination of whether to impose capital punishment (§ 210.6). The aggravating circumstances include ones that have been used in statutory degree provisions, such as commission of specified violent felonies. They also include others which reflect a judgment that the special deterrent or preventive effect of the death penalty or an extreme measure of retribution is appropriate, as in the case of a defendant under sentence of imprisonment or previously convicted of murder or a violent felony, or where there has been more than one victim. Mitigating circumstances include aspects of the crime that lessen the defendant's culpability as well as factors about the defendant himself, including his youth and lack of a criminal history. Capital punishment can be imposed only if at lest one aggravating circumstance, and no mitigating circumstance, is present. Decisions of the Supreme Court have imposed constitutional limitations on capital punishment, which appear to require an exercise of discretion in each case pursuant to legislatively prescribed standards. The approach of the Model Penal Code, which meets this test, has been widely adopted. The degree formula is still used to distinguish noncapital murders of unequal culpability; most often, as in the original Pennsylvania statute, the circumstances of first-degree murder are prescribed and other cases are grouped generally as second-degree murder.