On the Third Degree
Current events: murder! he wrote
Upon overhearing that 23-year-old rapper Cassidy is now being charged with Third, not First degree murder in a sensational case involving, I gather, multiple injuries, at least one death, many shots being fired by Cassidy's associates, and cries of outrage on both sides...
I felt that now was a good time to post on some of the basics of criminal law.
The definition of Third degree, but first, a totally irrelevant digression
Third degree murder, by way of introduction, has no one defintion, just like First degree murder. For crimes in general, First degree is more serious. (Warning: massive digression ahead! May contain needless musings on the use and meanings of words!)
Back now to our regularly scheduled discussion on murder and crime.
End of digression: on gradations of crime, and deterrence
Many felonies and a number of misdemeanors involve gradations, levels of severity. First degree this versus second-degree (less serious) that. Again, the definitions vary from place to place. The reason for differentiation is that we want people to not commit crime; failing that, we want them to commit the least crime, or the safest crime, possible. So, if you're going to be killing people, we want you to stop at one, or if you must kill more than one, to not kill them in really-really-bad ways. That's why we have First Degree murder, which is not necessarily the same as capital murder, but can be; capital murder just means the death penalty is on the table. Usually a lesser charge than 1st degree cannot be capital, but again it's up to the legislature to make that kind of call.
[note: The Smallest Defender (tSD) takes issue with the above, which I think I largely cribbed from my (wildly interesting, but certainly not universally agreed-with) criminal law professor. tLD argues,
Frankly, I don't feel qualified to say which is the "right" interpretation of our sentencing and criminal justice systems, and so I present you with both interpretations in hopes they are interesting or useful. Now, on with my own argument!]
A legislature could choose to be silly, and allow the death penalty for involuntary manslaughter (off-the-cuff definition: by the creation of a substantial and unjustifiable risk of injury or death to another, inadvertently but recklessly causing a death).
Compare involuntary man to voluntary manslaughter, where the act is intentional but the circumstances are slightly more understandable, excusable, or justifiable (depending on your theory of excuse, justification, and dessert). That is, if you come home and discover your beloved cat in the arms of another owner, and fly into a rage, you probably are not justified in killing them or anyone else. But a spouse, and the law tends to accept that you had a real good reason to fly into a rage, and though it was wrong, it was not as wrong as if you had not been
I intentionally avoided the word "under the influence," which has another meaning in a different context.
So, if you have the death penalty for tax fraud and for jaywalking and for assault and battery and for third degree murder, then the cost-benefit calculus is all wrong. If I commit an unarmed robbery (threatening someone with my big muscles, say) and then flee with the loot, and in the process am chased by police, a "rational" criminal might compare their options. I can submit, and face prison (or death, in my example above), or I can run, risking greater jail time but possibly gaining a chance at escaping the long arm of the law.
Or, to change the hypothetical if I know that by committing armed robbery during which I shot and wounded an innocent bystander I am almost certain to receive a death sentence, I have nothing to lose and _everything_ to gain by killing witnesses, killing police officers, and slaughtering everyone I come across. After all, we don't have punishments more severe than death. Logically, then, punishments as severe as death should be reserved. Not just for deaths; but for extraordinary deaths.
If the armed robber knows that he's up for life in prison (armed robbery, felony assault with a deadly weapon, evading arrest, reckless endangerment, this is such a wide-open issue-spotting exam-type question that most law students could identify possible crimes for half an hour of scribbling without exhausting the possibilities) already, we want him to try to escape carefully, if he must try to escape. No firing wildly at police officers. No running down pregnant women in the street. We want him to drive away slowly.
In any case, Cassidy is up for Third, not First, degree murder. So instead of a likely life in prison sentence, he is probably facing a sentence of 20 to 40 years if convicted and not pardoned.
Summary of the various kinds of homicide
Involuntary manslaughter, as I mentioned above, is a "risk-creation" offense (usually). Voluntary manslaughter, as I also discussed, is an intent crime with a mitigating (not aggravating) factor: high emotional disturbance caused by a "legally adequate provocation" (usually; check your local listings for time and station).
Murder is the intentional unlawful and unjustified killing of another (lets out military service, unless you happen to also commit a wrongful killing there, say of fellow soldiers or officers, or civilians, etc.), and also lets out suicide. Suicide may be a crime (who you prosecute?) but it's not a crime _against another_ unless you are also committing another crime, like insurance fraud). First degree requires premeditation or other aggravating factors on top of an unlawful intentional killing. Second degree is the same without the aggravating factor. Third degree is... well, it depends. Is it an intentional killing under forgiveable circumstances? Is it the same as voluntary manslaughter, but more so? In many jurisdictions, including I believe Pennsylvania, Third Degree Murder is defined along these lines:
There's also lesser risk-creation crimes, like "negligent homicide," which requires only that the death of another was wrongfully caused by the negligent or unintentionally careless acts of the defendant.
In other news: Third degree (not First degree) in Allegheny; also the Train Wreck case
Scott Werner, 47, of West Deer in Allegheny County, PA, was convicted after more than 12 hours of jury deliberation, of the same crime: Third degree murder. His crime apparently involved a highly personal and highly upsetting set of facts: stabbing his wife to death after a heated argument, taking his then-9 year old daughter to Clarion County, and planning to kill himself. Ugly stuff, but also a fairly good case for third degree murder. Some were disappointed on each side; the defense argued for a manslaughter conviction, and the prosecution wanted a First degree conviction.
First degree involves some aggravating factor over and above intentional murder. If I picked up an object at random on my desk, say a telephone, and suddenly turned to the window and targeted someone down there and threw the telephone intending to kill them, it's probably second degree murder if I do in fact kill them, unless we invent more facts. If I purchase a gun intending to attack someone the same way, I would think it was evidence of premeditation, which is the kind of aggravation which can produce First degree. Other aggravating factors vary by jurisdiction, but may include
At DUIblog, there has been excellent coverage of "vehicular manslaughter" versus "murder by intoxicated driving," which is a bizarre and unjustifiable extension of the law of premeditation and intoxication to turn drunk driving (a bad idea, risky, stupid) into First degree murder (utterly evil, intentional, premeditated). There is also a legally interesting analysis of the infamous train wreck disaster from January, 2005, see Overkill: DUI, Train Wrecks and Murder. Money quote:
Emphasis mine.
I intend to post in the near future (over the next few months) about white collar crime, conspiracy, hearsay and other evidential problems in litigation generally, and international crimes. Fortunately, White Collar Crime Prof Blog, JuryGeek, and Crime & Federalism are out ahead of me here, and most likely I will be able to collect their posts of interest, add my thoughts, and voila: instant relevance.
Upon overhearing that 23-year-old rapper Cassidy is now being charged with Third, not First degree murder in a sensational case involving, I gather, multiple injuries, at least one death, many shots being fired by Cassidy's associates, and cries of outrage on both sides...
I felt that now was a good time to post on some of the basics of criminal law.
The definition of Third degree, but first, a totally irrelevant digression
Third degree murder, by way of introduction, has no one defintion, just like First degree murder. For crimes in general, First degree is more serious. (Warning: massive digression ahead! May contain needless musings on the use and meanings of words!)
(show)
Back now to our regularly scheduled discussion on murder and crime.
End of digression: on gradations of crime, and deterrence
Many felonies and a number of misdemeanors involve gradations, levels of severity. First degree this versus second-degree (less serious) that. Again, the definitions vary from place to place. The reason for differentiation is that we want people to not commit crime; failing that, we want them to commit the least crime, or the safest crime, possible. So, if you're going to be killing people, we want you to stop at one, or if you must kill more than one, to not kill them in really-really-bad ways. That's why we have First Degree murder, which is not necessarily the same as capital murder, but can be; capital murder just means the death penalty is on the table. Usually a lesser charge than 1st degree cannot be capital, but again it's up to the legislature to make that kind of call.
[note: The Smallest Defender (tSD) takes issue with the above, which I think I largely cribbed from my (wildly interesting, but certainly not universally agreed-with) criminal law professor. tLD argues,
I think I disagree that the gradations of crime are to encourage people to commit the least crime possible. Instead, I would say that in american jurisprudence we have a very strong notion that the punishment should fit the crime as exactly as possible (that is, except for drug possession, where public outcry has run roughshod with sentencing). Thus, gradations for a crime are rubrics that allow for the assessment of the actual act done in order to assess the correct penalty.
Frankly, I don't feel qualified to say which is the "right" interpretation of our sentencing and criminal justice systems, and so I present you with both interpretations in hopes they are interesting or useful. Now, on with my own argument!]
A legislature could choose to be silly, and allow the death penalty for involuntary manslaughter (off-the-cuff definition: by the creation of a substantial and unjustifiable risk of injury or death to another, inadvertently but recklessly causing a death).
Compare involuntary man to voluntary manslaughter, where the act is intentional but the circumstances are slightly more understandable, excusable, or justifiable (depending on your theory of excuse, justification, and dessert). That is, if you come home and discover your beloved cat in the arms of another owner, and fly into a rage, you probably are not justified in killing them or anyone else. But a spouse, and the law tends to accept that you had a real good reason to fly into a rage, and though it was wrong, it was not as wrong as if you had not been
- actually under the effects of
a sudden, violent passion, brought on by
certain adequate provocation.
I intentionally avoided the word "under the influence," which has another meaning in a different context.
So, if you have the death penalty for tax fraud and for jaywalking and for assault and battery and for third degree murder, then the cost-benefit calculus is all wrong. If I commit an unarmed robbery (threatening someone with my big muscles, say) and then flee with the loot, and in the process am chased by police, a "rational" criminal might compare their options. I can submit, and face prison (or death, in my example above), or I can run, risking greater jail time but possibly gaining a chance at escaping the long arm of the law.
Or, to change the hypothetical if I know that by committing armed robbery during which I shot and wounded an innocent bystander I am almost certain to receive a death sentence, I have nothing to lose and _everything_ to gain by killing witnesses, killing police officers, and slaughtering everyone I come across. After all, we don't have punishments more severe than death. Logically, then, punishments as severe as death should be reserved. Not just for deaths; but for extraordinary deaths.
If the armed robber knows that he's up for life in prison (armed robbery, felony assault with a deadly weapon, evading arrest, reckless endangerment, this is such a wide-open issue-spotting exam-type question that most law students could identify possible crimes for half an hour of scribbling without exhausting the possibilities) already, we want him to try to escape carefully, if he must try to escape. No firing wildly at police officers. No running down pregnant women in the street. We want him to drive away slowly.
In any case, Cassidy is up for Third, not First, degree murder. So instead of a likely life in prison sentence, he is probably facing a sentence of 20 to 40 years if convicted and not pardoned.
Summary of the various kinds of homicide
Involuntary manslaughter, as I mentioned above, is a "risk-creation" offense (usually). Voluntary manslaughter, as I also discussed, is an intent crime with a mitigating (not aggravating) factor: high emotional disturbance caused by a "legally adequate provocation" (usually; check your local listings for time and station).
Murder is the intentional unlawful and unjustified killing of another (lets out military service, unless you happen to also commit a wrongful killing there, say of fellow soldiers or officers, or civilians, etc.), and also lets out suicide. Suicide may be a crime (who you prosecute?) but it's not a crime _against another_ unless you are also committing another crime, like insurance fraud). First degree requires premeditation or other aggravating factors on top of an unlawful intentional killing. Second degree is the same without the aggravating factor. Third degree is... well, it depends. Is it an intentional killing under forgiveable circumstances? Is it the same as voluntary manslaughter, but more so? In many jurisdictions, including I believe Pennsylvania, Third Degree Murder is defined along these lines:
"Any murder that is not first- or second-degree murder" which apparently includes or possibly equals "A murder committed in the perpetration of a felony not listed" among certain enumerated ones, chosen by the legislature.
There's also lesser risk-creation crimes, like "negligent homicide," which requires only that the death of another was wrongfully caused by the negligent or unintentionally careless acts of the defendant.
In other news: Third degree (not First degree) in Allegheny; also the Train Wreck case
Scott Werner, 47, of West Deer in Allegheny County, PA, was convicted after more than 12 hours of jury deliberation, of the same crime: Third degree murder. His crime apparently involved a highly personal and highly upsetting set of facts: stabbing his wife to death after a heated argument, taking his then-9 year old daughter to Clarion County, and planning to kill himself. Ugly stuff, but also a fairly good case for third degree murder. Some were disappointed on each side; the defense argued for a manslaughter conviction, and the prosecution wanted a First degree conviction.
First degree involves some aggravating factor over and above intentional murder. If I picked up an object at random on my desk, say a telephone, and suddenly turned to the window and targeted someone down there and threw the telephone intending to kill them, it's probably second degree murder if I do in fact kill them, unless we invent more facts. If I purchase a gun intending to attack someone the same way, I would think it was evidence of premeditation, which is the kind of aggravation which can produce First degree. Other aggravating factors vary by jurisdiction, but may include
- killing the victim of a kidnapping
- killing a witness to another crime in order to prevent them from testifying (compare this to "professional fouls" in the rules of soccer; committing a foul in order to avoid a negative result - a goal being scored - is very serious, and should result in ejection from the match), or
killing a police officer in the line of duty.
At DUIblog, there has been excellent coverage of "vehicular manslaughter" versus "murder by intoxicated driving," which is a bizarre and unjustifiable extension of the law of premeditation and intoxication to turn drunk driving (a bad idea, risky, stupid) into First degree murder (utterly evil, intentional, premeditated). There is also a legally interesting analysis of the infamous train wreck disaster from January, 2005, see Overkill: DUI, Train Wrecks and Murder. Money quote:
A deeply disturbed man, trying to commit suicide, sits in his car on the train tracks and just before the collision panics and jumps out of the car. The offense should be obvious: multiple counts of involuntary manslaughter . (By a great stretch of logic, one could argue 2nd degree murder due to "conscious/willful disregard for the lives of others", although that seems refuted by his mental state and wandering through the carnage afterwards crying out "I'm sorry, I'm so sorry".)
Yesterday, however, he was charged with eleven counts of murder. And the media has been loudly reporting (hoping?) that the D.A.'s office will be seeking the death penalty. Even the staid New York Times reported that the District Attorney, "his voice firm with anger", said that "Because this man was distressed, 11 people are dead from his selfishness" and that he was considering the death penalty.
When did we start executing people because they were distressed or selfish? Or, as in DUI cases, stupid or reckless? Whatever happened to "cold, calculating and premeditated"?
Emphasis mine.
I intend to post in the near future (over the next few months) about white collar crime, conspiracy, hearsay and other evidential problems in litigation generally, and international crimes. Fortunately, White Collar Crime Prof Blog, JuryGeek, and Crime & Federalism are out ahead of me here, and most likely I will be able to collect their posts of interest, add my thoughts, and voila: instant relevance.
