Unborn Victim of Violence Act

[Deleted]

I'm not sure about California's law, Joseph, but many states' criminal codes are based on a "model penal code" where the difference between first and second degree murder was the existence or absence of premeditation. The difference between second degree murder and manslaughter (aka involuntary murder) was the existence or absence of malice (expressed or implied). Second degree murder serve the purpose, IMHO, to allow the jury to convict a defendant of what is called a "lesser included offense" versus acquitting him altogether when they don't feel the prosecution has proven his guilt for first degree murder beyond a reasonable doubt. Especially useful when the defendant puts on an especially convincing "it was an accident" defense or the "I didn't mean to" defense.

I know this does not answer your question particularly well, but I thought it might still be useful information for other people who read your post and were wondering *generally* what the difference is between the different degrees of murder (and not necessarily based on any particular state's laws).

[josephdphillips]

little said:

I'm not sure about California's law, Joseph, but many states' criminal codes are based on a "model penal code" where the difference between first and second degree murder was the existence or absence of premeditation. The difference between second degree murder and manslaughter (aka involuntary murder) was the existence or absence of malice (expressed or implied). Second degree murder serve the purpose, IMHO, to allow the jury to convict a defendant of what is called a "lesser included offense" versus acquitting him altogether when they don't feel the prosecution has proven his guilt for first degree murder beyond a reasonable doubt. Especially useful when the defendant puts on an especially convincing "it was an accident" defense or the "I didn't mean to" defense. I know this does not answer your question particularly well, but I thought it might still be useful information for other people who read your post and were wondering *generally* what the difference is between the different degrees of murder (and not necessarily based on any particular state's laws).

See, that's the best answer I've had so far. Thank you very much, Little.

The murderer that tells me "Hey, I never meant to kill that guy" doesn't get far with me. If you want to rob someone without killing him, don't put bullets in the gun. It's that simple.

If Plan "B" results in homicide, it's still first-degree murder, to me. The premeditation is there -- he loaded a pistol with live ammunition. Malice is there -- he either flees the scene of the crime, lies to the police, wipes the crime scene of prints he might have left, or wears a mask. It's all there. It may not have been the criminal's original intent but his crime was nevertheless one of choice.

[Deleted]

Ah, but now what you are talking about is what is sometimes called "felony murder." It is the same as first degree murder except the requisite intent to commit certain crimes (robbery, rape, kidnapping, aggravated assault, etc.) and the use of a deadly weapon in carrying out the underlying felony, essentially take the place of the premeditation element to the murder. (Note: this is the super duper "abridged" explanation of felony murder, it is actually a little more complicated/complex in practice.)

Here is an example of second degree murder: I am in a heated argument with you over $200--I say I loaned it to you, you say I owed it to you. You get in my face yelling "bring it" then push me against a wall and punch me a couple times before I duck away. Not one to run from a fight, I accept your invitation and, in response, I punch you in the face and give you a bloody nose and a cut lip. You run away promising that "you will get me next time." Your nose bleed ends up being fatal and you bleed to death because, unbeknown to me, you were a hemophiliac.

In that situation, I would be charged with second degree murder: I have malice of forethought, I acted recklessly, but I had no premeditated intent to kill nor was the assault of you aggravated in any way since I did not use a deadly weapon nor did I intend to cause serious bodily injury, I simply chose to engage in a physical altercation that you, the victim, initiated. It was not self defense--I did not fear for my life when you pushed me. It was not accidental--I meant to whack you in the nose. However, my actions cannot go unpunished, though they were not such that they fit the conduct prohibited under the first degree or felony murder statutes.

The moral of the story is this: DON'T MESS WITH LITTLE.

[josephdphillips]

little said:

Ah, but now what you are talking about is what is sometimes called "felony murder." It is the same as first degree murder except the requisite intent to commit certain crimes (robbery, rape, kidnapping, aggravated assault, etc.) and the use of a deadly weapon in carrying out the underlying felony, essentially take the place of the premeditation element to the murder. (Note: this is the super duper "abridged" explanation of felony murder, it is actually a little more complicated/complex in practice.) Here is an example of second degree murder: I am in a heated argument with you over $200--I say I loaned it to you, you say I owed it to you. You get in my face yelling "bring it" then push me against a wall and punch me a couple times before I duck away. Not one to run from a fight, I accept your invitation and, in response, I punch you in the face and give you a bloody nose and a cut lip. You run away promising that "you will get me next time." Your nose bleed ends up being fatal and you bleed to death because, unbeknown to me, you were a hemophiliac. In that situation, I would be charged with second degree murder: I have malice of forethought, I acted recklessly, but I had no premeditated intent to kill nor was the assault of you aggravated in any way since I did not use a deadly weapon nor did I intend to cause serious bodily injury, I simply chose to engage in a physical altercation that you, the victim, initiated. It was not self defense--I did not fear for my life when you pushed me. It was not accidental--I meant to whack you in the nose. However, my actions cannot go unpunished, though they were not such that they fit the conduct prohibited under the first degree or felony murder statutes. The moral of the story is this: DON'T MESS WITH LITTLE.

Under California law, Little, that's not even 2nd degree murder. That's manslaughter, or even mayhem.

Just goes to show how radically different one state can be from another.

[Deleted]

Joseph, it would probably end up as manslaughter in most states even if it was charged as second degree. Juries will split the baby because they unconsciously blame weak victims who die for injuries that most people would have survived. Like vehicular homicide by a drunk driver, jury psychology tells us they are unconsciously sympathetic to the drunk driver when the defense hammers on the fact that the victim's vehicle was speeding or otherwise reckless; that the victim was drinking; that the victim wasn't wearing his seatbelt; or that the road conditions contributed to the severity of the wreck. It is not a perfect system, but our jury system is the only one like it in the world.

All things equal with the DP as an option, if my life was a stake and I had the choice of our jury system over some other form of criminal adjudication, I would choose our jury system every time over everu other system of criminal adjudication in the world.

[josephdphillips]

little said:

Joseph, it would probably end up as manslaughter in most states even if it was charged as second degree. Juries will split the baby because they unconsciously blame weak victims who die for injuries that most people would have survived. Like vehicular homicide by a drunk driver, jury psychology tells us they are unconsciously sympathetic to the drunk driver when the defense hammers on the fact that the victim's vehicle was speeding or otherwise reckless; that the victim was drinking; that the victim wasn't wearing his seatbelt; or that the road conditions contributed to the severity of the wreck. It is not a perfect system, but our jury system is the only one like it in the world. All things equal with the DP as an option, if my life was a stake and I had the choice of our jury system over some other form of criminal adjudication, I would choose our jury system every time over everu other system of criminal adjudication in the world.

I would, too, as long as juries don't decide sentencing. That's just wrong.

[Deleted]

josephdphillips said:

I would, too, as long as juries don't decide sentencing. That's just wrong.

Then is it horribly wrong that the USSC charged our juries with making the decision about whether a murderer should be sentenced to LWOP or death? In some states, the bench is made up of judges who are a bunch of spineless, bleeding hearts. The only chance prosecutors have to see that a convicted murderer will be sentenced to die, is because a jury will be making that decision instead of the judges.

[josephdphillips]

little said:

Then is it horribly wrong that the USSC charged our juries with making the decision about whether a murderer should be sentenced to LWOP or death? In some states, the bench is made up of judges who are a bunch of spineless, bleeding hearts. The only chance prosecutors have to see that a convicted murderer will be sentenced to die, is because a jury will be making that decision instead of the judges.

Actually, according to Furman v. Georgia, juries wanted the right to recommend sentencing because too many judges showed no mercy. Read it for yourself.

tinyurl.com/crtsu

_{The Court in McGautha v. California, 402 U.S. 183, 198 , noted that in this country there was almost from the beginning a "rebellion against the common-law rule imposing a mandatory death sentence on all convicted [408 U.S. 238, 246] murderers." The first attempted remedy was to restrict the death penalty to defined offenses such as "premeditated" murder. 9 Ibid. But juries "took the [408 U.S. 238, 247] law into their own hands" and refused to convict on the capital offense. Id., at 199. "In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact." Ibid.}

Anyway, when I say I don't want juries to decide or recommend sentencing, I wasn't implying judges should, either. The judge is there to conduct a fair trial. Juries decide guilt. The electorate through its representative should define punishments in the criminal statutes, in order to be fair to all citizens.

[Deleted]

Ah, yes, but recall that in Ring v. Arizona, the Court was very clear about the need for a jury to be involved in capital sentencing. For a capital sentencing determination to be constitutional (using the scheme most states adopted in reaction to the USSC string of decisions in late 1970s), the findings of fact that certain aggravating/mitigating circumstances exist can only be done by a jury and, thus, the jury must make the final sentencing decision in capital cases:

Of the 38 States with capital punishment, 29 generally commit sentencing decisions to juries. See Ark. Code Ann. § 5-4-602 (1993); Cal. Penal Code Ann. § 190.3 (West 1999); Conn. Gen. Stat. § 53a-46a (2001); Ga. Code Ann. § 17-10-31.1 (Supp. 1996); Ill. Compo Stat. Ann., ch. 720, § 5/9-1(d) (West 1993); Kan. Stat. Ann. §21-4624(b) (1995); Ky. Rev. Stat. Ann. § 532.025(1)(b) (1993); La. Code Crim. Proc. Ann., Art. § 905.1 (West 1997); Md. Ann. Code, Art. 27, § 413(b) (1996); Miss. Code Ann. § 99-19-101 (1973-2000); Mo. Rev. Stat. §§ 565.030, 565.032 (1999 and Supp. 2002); Nev. Rev. Stat. Ann. § 175.552 (Michie 2001); N. H. Rev. Stat. Ann. § 630:5(II) (1996); N. J. Stat. Ann. § 2C:11-3(c) (Supp. 2001); N. M. Stat. Ann. § 3120A-1 (2000); N. Y. Crim. Proc. Law §400.27 (McKinney Supp. 2001-2002); N. C. Gen. Stat. § 15A-2000 (1999); Ohio Rev. Code Ann. § 2929.03 (West 1997); Okla. Stat., Tit. 21, § 701.10(A) (Supp. 2001); Ore. Rev. Stat. Ann. § 163.150 (1997); 42 Pa. Cons. Stat. § 9711 (Supp. 2001); S. C. Code Ann. § 16-3-20(B) (1985); S. D. Codified Laws §23A-27A-2 (1998); Tenn. Code Ann. §39-13-204 (Supp. 2000); Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 2001); Utah Code Ann. § 76-3-207 (Supp. 2001); Va. Code Ann. § 19.2-264.3 (2000); Wash. Rev. Code § 10.95.050 (1990); Wyo. Stat. Ann. §6-2-102 (2001).

Other than Arizona, only four States commit both capital sentencing factfinding and the ultimate sentencing decision entirely to judges. See Colo. Rev. Stat. § 16-11-103 (2001) (three-judge panel); Idaho Code § 192515 (Supp. 2001); Mont. Code Ann. §46-18-301 (1997); Neb. Rev. Stat. § 29-2520 (1995).

Four States have hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations. See Ala. Code §§ 13A-5-46, 13A-5-47 (1994); Del. Code Ann., Tit. 11, § 4209 (1995); Fla. Stat. Ann. § 921.141 (West 2001); Ind. Code Ann. § 35-50-2-9 (Supp. 2001).

For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U. S., at 647-649. Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," Apprendi, 530 U. S., at 494, n. 19, the Sixth Amendment requires that they be found by a jury.

***

"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered .... If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it." Duncan v. Louisiana, 391 U. S. 145, 155-156 (1968).

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. The judgment of the Arizona Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Ring v. Arizona, 536 U.S. 584, 608-609 (2002)