Academic journal article Missouri Law Review

Does the Punishment Fit the Crime? A Comparative Note on Sentencing Laws for Murder in England and Wales vs. the United States of America

Academic journal article Missouri Law Review

Does the Punishment Fit the Crime? A Comparative Note on Sentencing Laws for Murder in England and Wales vs. the United States of America

Article excerpt

I. INTRODUCTION

Since the time Cain first raised his hand against Abel, (1) punishment for murder was considered necessary for any culture to justly function. (2) Any structured society needs retributive justice and deterrent action to serve as a consequence to murder, for murder is not just a crime against the one killed, but also a crime against the state and mankind. (3) Citizens look to the state to take action against the murderer, not only to impose upon him what he justly deserves, but also to keep others from following in his footsteps. Different jurisdictions handle punishment in accordance with their own cultural views and societal norms, but what about those jurisdictions that share a singular history or have evolved from the same starting point? The United States and United Kingdom are two such jurisdictions. Many American laws evolved from British law, as it was the British who founded the colonies that would later constitute the United States. In light of those common roots, how did these two nations turn away from one another with regard to punishment for the basic crime of murder?

In England and Wales, (4) there are no divisions of murder into first and second degrees like Americans are accustomed to; there is only one definition of murder, with varying degrees of sentencing if the defendant is under eighteen years of age, between the ages of eighteen and twenty-one, or over twenty-one. (5) American attorneys will debate in court--or in private sentencing negotiations with the prosecutor--about whether the defendant committed first- or second-degree murder because those degrees have an enormous impact on the defendant's punishment. (6) Murder is very state-centric in the United States. The federal system only prosecutes 100-150 homicides per year, whereas some states prosecute more than ten times that amount. (7)

For the purposes of this Note, the state of Missouri and its laws will be used as a representative of the American criminal justice system, because Missouri criminal laws are similar to those in many other states. (8) In the state of Missouri, a defendant commits first-degree murder "if he knowingly causes the death of another person after deliberation upon the matter." (9) The punishment for first-degree murder is death or life imprisonment without the possibility of parole. (10) In Missouri, a person commits murder in the second-degree if he: (1) "[k]nowingly causes the death of another person, or with the purpose of causing serious physical injury to another person, causes the death of another person"; or (2) a person is killed in the attempt or execution of another felony. (11) The punishment for second-degree murder is ten to thirty years in prison or life in prison. (12)

In England and Wales, much of the discretion for varying sentences was taken away with mandatory sentencing for murder, in part due to England and Wales not implementing varying degrees of murder. (13) In contrast, the British are perturbed by the United States' use of prosecutors, specifically the way in which American prosecutors negotiate plea bargains with a defendant and agree to seek specific sentences with defense counsel without the discretion of the judge. (14)

This Note explores the differences between the American legal system's sentencing procedures for murder with the procedures of England and Wales. This Note attempts to determine how this divide occurred and whether the two countries chose the appropriate way to sentence their murderers. In particular, this Note focuses on England's and Wales's lack of degrees of murder and the United States' practice of plea bargaining.

Part II discusses the history of American and English criminal law and how these countries similarly evolved from their origins to the late nineteenth century. Part III explores modern criminal law theory progressing from the early twentieth century to present time. Part IV studies the manner in which modern procedures, government structure, and politics have influenced sentencing for murder. …

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