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Criminal Law Spring 2017

III.B.i. First v. Second Degree Murder

There are many ways to murder someone. Over time, Anglo-American criminal systems have come to distinguish between degrees of murder. With such a weighty crime and potentially serious punishments, the instinct to subdivide the offense according to degrees of blameworthiness seems like a reasonable way to accommodate the “proportionality principle”—the idea that crimes of different levels of blameworthiness should be treated differently. The best-known distinction between types of murder is between first- and second-degree murder. The line between first- and second-degree murder is supposedly clear: premeditation. As the cases in this section suggest, however, defining premeditation can be difficult, and courts have taken different approaches. As you read these cases, consider also how the distinction between first- and second-degree murder serves the goals of criminal punishment. Which is more blameworthy, and thus more deserving of punishment as a matter of retribution? Who is more dangerous, and should be incapacitated longer, or permanently? Who can be deterred—and who can’t?

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