Murder by Premeditation
Pauley, Matthew A., American Criminal Law Review
Murder began as a common law crime. In Anglo-American legal history, murder was first defined, and made a crime, by judges. Judges did not divide murder into degrees, however. That was done by legislatures. It is to legislatures, then, that we owe the now all too familiar term premeditation, which is often today the dividing line between degrees of murder.(1)
In pre-Revolutionary America, William Penn insisted that premeditation be the word used to describe the most culpable murders. Under Penn's guidance, and mindful of the fact that English judges had required the death penalty for planned murder--murder with "malice prepensed," the old English equivalent of premeditated murder--as far back as the 1500s, the Pennsylvania legislature revised the law of homicide in 1682 and 1683, restricting the death penalty to willful or premeditated murder. A Pennsylvania Supreme Court Justice said, at the time, capital punishment should be reserved for deliberate, premeditated assassinations.(2)
By 1794, a Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, premeditated, and deliberate killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree."(3) In time it became clear that Pennsylvania would allow the death penalty only for willful, premeditated, and deliberate murders.(4)
Soon, many states copied the Pennsylvania premeditation/deliberation distinction.(5) Today, in England and in a minority of American states, there is no differentiation of murder into degrees.(6) But, in most American states, there are degrees of murder,(7) and premeditation remains a very common dividing line between murders of the first and second degree.(8) For example,, in Virginia, premeditation and deliberation are what makes first degree murder distinct from second degree murder, and premeditation is also required for capital murder.(9) The New Mexico murder statute also uses the term "willful, premeditated, and deliberate" to distinguish first and second degree intentional murder.(10)
It is important to remember that these terms--premeditated, willful, and deliberate--often mean the difference between the death penalty and prison, or between very long and much shorter prison terms.(11) For instance, in Virginia, premeditation and deliberation determine whether the defendant will get five to twenty years in prison for second degree murder or, possibly, the death penalty for capital murder.(12) In New Mexico, an intentional murder which is also willful, premeditated, and deliberate is first degree murder and subject to punishment ranging from a minimum of thirty years without parole to the death penalty; by contrast, second degree murder is punishable by a maximum of nine years in prison.(13) In short, premeditation matters.
In Parts II and III of this Article, I will carefully review the two primary approaches to the meaning of premeditation, offering an in-depth analysis of one case to illustrate each approach.(14) In Part V, I will discuss problems inherent in the term premeditation. In Part VI, I will very briefly review some alternatives to the premeditation/deliberation distinction for degrees of murder and consider some suggestions for future legislative reforms that might permit courts and juries better to separate the most heinous murders from all other murders.
II. THE CARROLL APPROACH TO PREMEDITATION
A. The Carroll Case
In Commonwealth v. Carroll,(15) the defendant was convicted, after a bench trial, of first degree murder of his wife and sentenced to life imprisonment.(16) He appealed, contending that the evidence sustained a conviction no higher than murder in the second degree. …