Homicide: Legal Aspects

The extent to which criminal homicide can be characterized as a single crime or family of crimes is indicated by the fact that the less serious categories are treated as lesser included offenses within the more serious. In a prosecution for first-degree murder, for example, the jury is likely to be instructed on second-degree murder, as well as voluntary manslaughter and even involuntary manslaughter, if any view of the evidence would support those verdicts. The taking of human life, as the harm to be avoided, rather than a common type or measure of culpability, is what binds the whole together.

That element has been critical in efforts to reform or rationalize homicide offenses according to general principles of the criminal law. Although criminal responsibility is thought not to be properly based on fortuities, whether of not death results from an act is often fortuitous from the point of view of the actor and may have large consequences because the severity of the penalty increases so dramatically if death does result. When the circumstances of a death do not allow one to regard it as an ordinary event in human experience, the need for explanation is strong and includes the assignment of blame if that is plausible.

The replacement of strict rules and categories, such as those that characterized voluntary manslaughter, with more general and open principles that refer directly to our primary concerns, may not further the purpose of rationalizing the law of homicide as much as we should like. The exercise of judgment or discretion is, in the end, guided by the same basic impulses as those that led to the more rigid structure. Thus, for example, despite insistence that the doctrine of felony murder is not consistent with basic premises about criminal responsibility, it persists in one form or another. Perhaps the most significant and constant thread in the long development of the law of homicide has been the progressive narrowing of the application of capital punishment. That has not been the product of greater understanding of the bases of liability for homicide so much as a drawing away from capital punishment as such.