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First-degree murder

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First-degree murder

"Murderer" redirects here. For other uses, see Murderer (disambiguation).
For other uses, see Murder (disambiguation).

Murder is the unlawful killing, with malice aforethought, of another human, and generally this premeditated state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter). A person who commits murder is called a murderer.[1]

As the loss of a human being inflicts enormous grief upon the individuals close to the victim, and the commission of a murder is highly detrimental to the good order within society, most societies both present and in antiquity have considered it a most serious crime worthy of the harshest of punishment. In most countries, a person convicted of murder is typically given a long prison sentence, possibly a life sentence where permitted, and in some countries, the death penalty may be imposed for such an act – though this practice is becoming less common.[2]

Definition

William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder, which by this definition occurs

when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.[3]

The elements of common law murder are:

  1. Unlawful
  2. killing
  3. of a human
  4. by another human
  5. with malice aforethought.[4]

The Unlawful – This distinguishes murder from killings that are done within the boundaries of law, such as an execution, justified self-defense, or the killing of enemy soldiers during a war.[5]

Killing – At common law life ended with cardiopulmonary arrest[4] – the total and permanent cessation of blood circulation and respiration.[4] With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.[4]

of a human – This element presents the issue of when life begins. At common law a fetus was not a human being. Life began when the fetus passed through the birth canal and took its first breath.[4]

by another human – at early common law suicide was considered murder.[4] The requirement that the person be killed by someone other than the perpetrator excluded suicide from the definition of murder.

with malice aforethought – originally malice aforethought carried its everyday meaning – a deliberate and premeditated killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice."

The four states of mind recognized as constituting "malice" are:

  1. Intent to kill,
  2. Intent to inflict grievous bodily harm short of death,
  3. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
  4. Intent to commit a dangerous felony (the "felony-murder" doctrine).

Under state of mind (i), intent to kill, the deadly weapon rule applies. Thus, if the defendant intentionally uses a deadly weapon or instrument against the victim, such use authorizes a permissive inference of intent to kill. In other words, "intent follows the bullet." Examples of deadly weapons and instruments include but are not limited to guns, knives, deadly toxins or chemicals or gases and even vehicles when intentionally used to harm a victim.

Under state of mind (iii), an "abandoned and malignant heart", the killing must result from defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. An example of this is a 2007 law in California where an individual could be convicted of third-degree murder if he or she kills another person while operating a motor vehicle while being under the influence of alcohol, drugs, or controlled substances.

Under state of mind (iv), the felony-murder doctrine, the felony committed must be an inherently dangerous felony, such as burglary, arson, rape, robbery or kidnapping. Importantly, the underlying felony cannot be a lesser included offense such as assault, otherwise all criminal homicides would be murder as all are felonies.

Many jurisdictions divide murder by degrees. The most common divisions are between first and second degree murder. Generally, second degree murder is common law murder, and first degree is an aggravated form. The aggravating factors of first degree murder are a specific intent to kill, premeditation, and deliberation. In addition, murder committed by acts such as strangulation, poisoning, or lying in wait are also treated as first degree murder.[6]

As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation.

At common law

According to Blackstone, English common law identified murder as a public wrong.[7] At common law, murder is considered to be malum in se, that is an act which is evil within itself. An act such as murder is wrong/evil by its very nature. And it is the very nature of the act which does not require any specific detailing or definition in the law to consider murder a crime.[8]

Some jurisdictions still take a common law view of murder. In such jurisdictions, precedent case law or previous decisions of the courts of law defines what is considered murder. However, it tends to be rare and the majority of jurisdictions have some statutory prohibition against murder.

Exclusions

General

Although laws vary by country, there are circumstances of exclusion that are common in many legal systems.

  • Self-defense: acting in self-defense or in defense of another person is generally accepted as legal justification for killing a person in situations that would otherwise have been murder. However, a self-defense killing might be considered manslaughter if the killer established control of the situation before the killing took place. In the case of self-defense it is called a "justifiable homicide".[9]
  • Unlawful killings without malice or intent are considered manslaughter.
  • In many common law countries, provocation is a partial defense to a charge of murder which acts by converting what would otherwise have been murder into manslaughter (this is voluntary manslaughter, which is more severe than involuntary manslaughter)
  • Accidental killings are considered homicides. Depending on the circumstances, these may or may not be considered criminal offenses; they are often considered manslaughter.
  • Suicide is not considered murder in most societies. Assisting a suicide, however, may be considered murder in some circumstances.
  • Killing of enemy combatants by lawful combatants in accordance with lawful orders in war, although illicit killings within a war may constitute murder or homicidal war crimes. (see the Laws of war article)

Specific to certain countries

  • Capital punishment: some countries practice the death penalty. Capital punishment ordered by a legitimate court of law as the result of a conviction in a criminal trial with due process for a serious crime.
  • Euthanasia, doctor assisted suicide: the administration of lethal drugs by a doctor to a terminally ill patient, if the intention is solely to alleviate pain, is seen in many jurisdictions as a special case (see the doctrine of double effect and the case of Dr John Bodkin Adams).[10]
  • A killing simply to prevent the theft of one's property may or may not be legal, depending on the jurisdiction. In the US, such a killing is legal in Texas.[11] In recent years, Texas has been the scene of some very controversial incidents that involved killing to protect property, that have led to discussions of the laws and social norms of the state (see Joe Horn shooting controversy). In a highly controversial case, in 2013, a jury in south Texas acquitted of man who killed a prostitute, who, after receiving $150 from the man in exchange for sex, refused to have sex with the man, and attempted to run away with his money. The man's lawyer argued that the man was trying to retrieve property which was stolen during night time, an action which allows for the use of deadly force in Texas. The jury accepted this defense. There was major controversy in this case, due to the fact that there were questions about whether the money was in fact stolen, since the man had given it voluntarily to the prostitute, and the "contract" of prostitution is in fact an illegal contract in Texas, since both buying and selling sex are criminal offenses.[12][13]
  • Killing an intruder who is found by an owner to be in the owner's home (having entered unlawfully): legal in most US states (see Castle doctrine).
  • Killing to prevent specific forms of aggravated rape/sexual assault - killing of attacker by the potential victim or by witnesses to the scene; this is especially the case in regard to child rape- legal in parts of the US and in various countries[14]
  • in some parts of the world, especially in jurisdictions which apply Sharia law, the killing of a woman or girl in specific circumstances (e.g., when she commits adultery and is killed by husband or other family members) known as honor killing, is not considered a homicide. For example, in Jordan, part of article 340 of the Penal Code states that "he who discovers his wife or one of his female relatives committing adultery and kills, wounds, or injures one of them, is exempted from any penalty."[15]

Victim

All jurisdictions require that the victim be a natural person; that is a human being who was still alive at the time of being murdered. In other words, under the law, one cannot murder a cadaver, a corporation, a non-human animal, or any other non-human organism such as a plant or bacterium.

California's murder statute, Penal Code Section 187, was interpreted by the Supreme Court of California in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction.[16] This holding has two implications. The first is a defendant in California can be convicted of murder for killing a fetus which the mother herself could have terminated without committing a crime.[16] The second, as stated by Justice Stanley Mosk in his dissent, because women carrying nonviable fetuses may not be visibly pregnant, it may be possible for a defendant to be convicted of intentionally murdering a person he did not know existed.[16]

Mitigating circumstances

Some countries allow conditions that "affect the balance of the mind" to be regarded as mitigating circumstances. This means that a person may be found guilty of "manslaughter" on the basis of "diminished responsibility" rather than murder, if it can be proved that the killer was suffering from a condition that affected their judgment at the time. Depression, post-traumatic stress disorder and medication side-effects are examples of conditions that may be taken into account when assessing responsibility.

Insanity

Mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia and dementia, and excuse the person from the need to undergo the stress of a trial as to liability. Usually, sociopathy and other personality disorders are not legally considered insanity, because of the belief they are the result of free will in many societies. In some jurisdictions, following the pre-trial hearing to determine the extent of the disorder, the defense of "not guilty by reason of insanity" may be used to get a not guilty verdict.[17] This defense has two elements:

  1. That the defendant had a serious mental illness, disease, or defect.
  2. That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what he or she was doing was wrong.

Under New York law, for example:

§ 40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.

Under the French Penal Code:

Article 122-1
  • A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions.
  • A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.

Those who successfully argue a defense based on a mental disorder are usually referred to mandatory clinical treatment until they are certified safe to be released back into the community, rather than prison.[18]

Post-partum depression

Some countries, such as Brazil, Canada, Mexico, Italy, Norway, Sweden, the United Kingdom, New Zealand and Australia, allow postpartum depression (also known as post-natal depression) as a defense against murder of a child by a mother, provided that a child is less than two years old (this may be the specific offense of infanticide rather than murder and include the effects of lactation and other aspects of post-natal care).

Unintentional

For a killing to be considered murder, there normally needs to be an element of intent. A defendant may argue that he or she took precautions not to kill and that the death could not have been anticipated or was unavoidable. As a general rule, manslaughter[19] constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.[20]

Diminished capacity

In those jurisdictions using the Uniform Penal Code, such as California, diminished capacity may be a defense. For example, Dan White used this defense[21] to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk.

Aggravating circumstances

Murder with specified aggravating circumstances is often punished more harshly. Depending on the jurisdiction, such circumstances may include:

  • Premeditation
  • Poisoning
  • Murder of a police officer, judge, fireman or witness to a crime[23]
  • Murder of a pregnant woman[24]
  • Crime committed for pay or other reward[25]
  • Exceptional brutality or cruelty

In the United States, these murders are referred to as first-degree or aggravated murders. In 2004, American Ryan Holle was convicted of first-degree murder for lending his car to a friend, who used the car in a burglary during which a murder was committed. Holle was convicted under a legal doctrine known as the felony murder rule.[26]

Year-and-a-day rule

Main article: Year and a day rule

In some common law jurisdictions, a defendant accused of murder is not guilty if the victim survives for longer than one year and one day after the attack.[27] This reflects the likelihood that if the victim dies, other factors will have contributed to the cause of death, breaking the chain of causation. Subject to any statute of limitations, the accused could still be charged with an offence representing the seriousness of the initial assault.

With advances in modern medicine, most countries have abandoned a fixed time period and test causation on the facts of the case.

In England and Wales, due to medical advancements, the "year-and-a-day-rule" is no longer in use. However, if death occurs three years or more after the original attack then prosecution can take place only with the Attorney-General's approval.

In the United States, many jurisdictions have abolished the rule as well.[28][29] Abolition of the rule has been accomplished by enactment of statutory criminal codes, which had the effect of displacing the common-law definitions of crimes and corresponding defenses. In 2001, the Supreme Court of the United States held that retroactive application of a state supreme court decision abolishing the year-and-a-day rule did not violate the Ex Post Facto Clause of Article I of the United States Constitution.[30]

In Philadelphia, Pennsylvania, a 74-year-old man, William Barnes, was acquitted of murder charges on May 24, 2010. He was on trial for murder for the death of Philadelphia police officer Walter Barkley. Barnes shot Barkley on November 27, 1966, and served 16 years in prison for attempted murder. Barkley died on August 19, 2007, allegedly from complications of the wounds suffered nearly 41 years earlier.[31]

Origins and history


In the past, certain types of homicide were lawful and justified. Georg Oesterdiekhoff wrote that:

Evans-Pritchard says about the Nuer from Sudan: "Homicide is not forbidden, and Nuer do not think it wrong to kill a man in fair fight. On the contrary, a man who slays another in combat is admired for his courage and skill." (Evans-Pritchard 1956: 195) This statement is true for most African tribes, for pre-modern Europeans, for Indigenous Australians, and for Native Americans, according to ethnographic reports from all over the world. ... Homicides rise to incredible numbers among headhunter cultures such as the Papua. When a boy is born, the father has to kill a man. He needs a name for his child and can receive it only by a man, he himself has murdered. When a man wants to marry, he must kill a man. When a man dies, his family again has to kill a man.[32]

One of the oldest known prohibitions against murder appears in the Sumerian Code of Ur-Nammu written sometime between 2100 and 2050 BC. The code states, "If a man commits a murder, that man must be killed." The payment of weregild was an important legal mechanism in early Germanic society. If someone was killed, the guilty person would have to pay weregild to the victim's family. The other common form of legal reparation at this time was blood revenge.

In Judeo-Christian traditions, the prohibition against murder is one of the Ten Commandments given by God to Moses in (Exodus: 20v13) and (Deuteronomy 5v17). The Vulgate and subsequent early English translations of the Bible used the term secretly killeth his neighbour or smiteth his neighbour secretly rather than murder for the Latin clam percusserit proximum.[33][34] Later editions such as Young's Literal Translation and the World English Bible have translated the Latin occides simply as murder[35][36] rather than the alternatives of kill, assassinate, fall upon or slay.

In 25:68]

The term 'Assassin' derives from Hashshashin,[37] a militant Ismaili Shi-ite sect, active from the 8th to 14th centuries. This mystic secret society killed members of the Abbasid, Fatimid, Seljuq and Crusader elite for political and religious reasons.[38] The Thuggee cult that plagued India was devoted to Kali, the goddess of death and destruction.[39][40] According to some estimates the Thuggees murdered 1 million people between 1740 and 1840.[41] The Aztecs believed that without regular offerings of blood the sun god Huitzilopochtli would withdraw his support for them and destroy the world as they knew it.[42] According to Ross Hassig, author of Aztec Warfare, "between 10,000 and 80,400 persons" were sacrificed in the 1487 re-consecration of the Great Pyramid of Tenochtitlan.[43][44]

Incidence


An estimated 520,000 people were murdered in 2000 around the globe. Two-fifths of them were young people between the ages of 10 and 29 who were killed by other young people.[45] Because murder is the least likely crime to go unreported, statistics of murder are seen as a bellwether of overall crime rates.[46]

Murder rates vary greatly among countries and societies around the world. In the Western world, murder rates in most countries have declined significantly during the 20th century and are now between 1 and 4 cases per 100,000 people per year. Murder rates in Japan, Ireland and Iceland are among the lowest in the world, around 0.5 cases per 100,000 people per year; the rate of the United States is among the highest of developed countries, around 5.5 in 2004,[47] with rates in larger cities sometimes over 40 per 100,000.[48] In the United States, 666,160 people were killed between 1960 and 1996.[49]

Approximately 90% of murders are committed by males [50] Between 1976 and 2005, 23.5% of all murder victims and 64.8% of victims murdered by intimate partners were female. [51] For women in the US, homicide is the leading cause of death in the workplace.[52] There is a sharp peak in the age distribution of murderers between the ages of 18 and 30. People become less likely to commit a murder as they age.

The following absolute murder counts per-country are not comparable because they are not adjusted by each country's total population. Nonetheless, they are included here for reference, with 2010 used as the base year (they may or may not include justifiable homicide, depending on the jurisdiction). There were 52,260 murders in Brazil, consecutively elevating the record set in 2009.[53] More than 500,000 people died from gun violence in Brazil between 1979 and 2003.[54] 33,335 murder cases were registered across India,[55] about 19,000 murders committed in Russia,[56] approximately 17,000 murders in Colombia (the murder rate was 38 per 100,000 people, in 2008 murders went down to 15,000),[57] approximately 16,000 murders in South Africa,[58] approximately 15,000 murders in the United States,[59] approximately 26,000 murders in Mexico,[60] approximately 13,000 murders in Venezuela,[61] approximately 4,000 murders in El Salvador,[62] approximately 1,400 murders in Jamaica,[63] approximately 550 murders in Canada[64] and approximately 470 murders in Trinidad and Tobago.[63] Pakistan reported 12,580 murders.[65]

In the US, murder is the leading cause of death for African American males aged 15 to 34. Between 1976 and 2008, African Americans were victims of 329,825 homicides.[67][68] In 2006, Federal Bureau of Investigation's Supplementary Homicide Report indicated that nearly half of the 14,990 murder victims were Black (7421).[69] In the year 2007 non-negligent homicides, there were 3,221 black victims and 3,587 white victims. While 2,905 of the black victims were killed by a black offender, 2,918 of the white victims were killed by white offenders. There were 566 white victims of black offenders and 245 black victims of white offenders.[70] The "white" category in the Uniform Crime Reports (UCR) includes non-black Hispanics.[71] In London in 2006, 75% of the victims of gun crime and 79% of the suspects were "from the African/Caribbean community."[72] Murder demographics are affected by the improvement of trauma care, which has resulted in reduced lethality of violent assaults – thus the murder rate may not necessarily indicate the overall level of social violence.[73]

Workplace homicide is the fastest growing category of murder in America.[52]

Development of murder rates over time in different countries is often used by both supporters and opponents of capital punishment and gun control. Using properly filtered data, it is possible to make the case for or against either of these issues. For example, one could look at murder rates in the United States from 1950 to 2000,[74] and notice that those rates went up sharply shortly after a moratorium on death sentences was effectively imposed in the late 1960s. This fact has been used to argue that capital punishment serves as a deterrent and, as such, it is morally justified. Capital punishment opponents frequently counter that the United States has much higher murder rates than Canada and most European Union countries, although all those countries have abolished the death penalty. Overall, the global pattern is too complex, and on average, the influence of both these factors may not be significant and could be more social, economic, and cultural.

Despite the immense improvements in forensics in the past few decades, the fraction of murders solved has decreased in the United States, from 90% in 1960 to 61% in 2007.[75] Solved murder rates in major U.S. cities varied in 2007 from 36% in Boston, Massachusetts to 76% in San Jose, California.[76] Major factors affecting the arrest rate include witness cooperation[75] and the number of people assigned to investigate the case.[76]

History

According to scholar Pieter Spierenburg homicide rates per 100,000 in Europe have fallen over the centuries, from 35 per 100,000 in medieval times, to 20 in 1500 AD, 5 in 1700, to below two per 100,000 in 1900.[77]

In the United States, murder rates have been higher and have fluctuated. They fell below 2 per 100,000 by 1900, rose during the first half of the century, dropped in the years following World War II, and bottomed out at 4.0 in 1957 before rising again.[78] The rate stayed in 9 to 10 range most of the period from 1972 to 1994, before falling to 5 in present times.[77] The increase since 1957 would have been even greater if not for the significant improvements in medical techniques and emergency response times, which mean that more and more attempted homicide victims survive. According to one estimate, if the lethality levels of criminal assaults of 1964 still applied in 1993, the country would have seen the murder rate of around 26 per 100,000, almost triple the actually observed rate of 9.5 per 100,000.[79]

A similar, but less pronounced pattern has been seen in major European countries as well. The murder rate in the United Kingdom fell to 1 per 100,000 by the beginning of the 20th century and as low as 0.62 per 100,000 in 1960, and was at 1.28 per 100,000 as of 2009. The murder rate in France (excluding Corsica) bottomed out after World War II at less than 0.4 per 100,000, quadrupling to 1.6 per 100,000 since then.[80]

The specific factors driving this dynamics in murder rates are complex and not universally agreed upon. Much of the raise in the U.S. murder rate during the first half of the 20th century is generally thought to be attributed to gang violence associated with the Prohibition. Since most murders are committed by young males, the near simultaneous low in the murder rates of major developed countries circa 1960 can be attributed to low birth rates during the Great Depression and World War II. Causes of further moves are more controversial. Some of the more exotic factors claimed to affect murder rates include the availability of abortion[81] and the likelihood of chronic exposure to lead during childhood (due to the use of leaded paint in houses and tetraethyllead as a gasoline additive in internal combustion engines).

Southern slave codes did make wilful killing of a slave illegal in most cases.[82] For example, the 1860 Mississippi case of Oliver v. State charged the defendant with murdering his own slave.[83] In 1811, the wealthy white planter, Arthur Hodge, was executed for murdering several of his slaves on his plantation in the British West Indies.[84]

In Corsica, vendetta was a social code that required Corsicans to kill anyone who wronged the family honor. It has been estimated that between 1683 and 1715, nearly 30,000 out of 120,000 Corsicans lost their lives to vendetta,[85] and between 1821 and 1852, no less than 4,300 murders were perpetrated in Corsica.[86]

Country-specific murder law

Degrees of murder by country

Certain countries employ the concept of first-, second-, and third-degree murder. Canadian law distinguishes first- and second-degree murder. Both the United States and Peru have respective degrees of first-, second-, and third-degree murder. See Degrees of murder in the United States and Murder (Peruvian law).

See also

  • List of types of murder
  • List of murders
  • Homicide
Topics related to murder

References

Bibliography

  • Lord Mustill on the Common Law concerning murder
  • Sir Edward Coke Co. Inst., Pt. III, ch.7, p. 50

External links

  • )
  • "This Could Never Happen to Me - A Handbook for Families of Murder Victims and People Who Assist Them" - Hosted by the Texas Department of Criminal Justice
  • Introduction and Updated Information on the Seville Statement on Violence
  • U.S. Centers for Disease Control "Atlas of United States Mortality"
  • Cezanne's depiction of "The Murder"
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