Illinois murder jurisprudence in the absence of capital punishment.

Author:Santschi, Michael

On March 9, 2011, the State of Illinois became the sixteenth state to outlaw capital punishment. (1) Governor Pat Quinn, in commenting on his decision, stated: "[O]ur experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment." (2) His comment is well founded in fact. The reason for this is that Illinois has experienced a capital punishment error rate of 5.9% in the forty-odd years since the Supreme Court in Furman v. Georgia declared that the existing system of capital punishment practices was cruel and unusual for producing arbitrary and capricious results. (3) Currently, Illinois' murder statute combines aspects of the Pennsylvania Approach and the Model Penal Code, dividing murder into degrees and assigning different levels of punishment to each, but making the distinction depend upon aggravating and mitigating factors instead of the traditional premeditation/deliberation analysis. (4) This approach is superior, in many ways, to both the approaches upon which it is based, but it still has its own difficulties. Now, with the death sentence off the table, the complexity of the system has become outdated and counter-productive. Therefore, for the sake of consistency and judicial economy, Illinois should follow the example of other states, such as Texas: abandon the Pennsylvania Approach, and adopt a simplified statutory scheme that is more like the approach promulgated in the Model Penal Code.

This Note will begin with a historical survey of murder jurisprudence. First, it will consider the common law origins of murder as a felony and the way in which the Pennsylvania Approach altered the common law to limit the application of the death penalty by separating criminal homicide into categories and degrees. Next, this Note will delve into the Model Penal Code approach in an effort to show how the Code sought to simplify murder jurisprudence and impose utilitarian values upon the justice system. Then, this Note will turn to the current state of the law in Illinois, showing how Illinois employs some aspects of both the Pennsylvania Approach and the Model Penal Code. Finally, this Note will look at Illinois law in light of the State's recent abolition of the death penalty and consider what, if any, changes ought to be made to Illinois' murder statutes. In particular, this Note will consider whether or not there is any viable justification for maintaining a complicated homicide scheme that divides murder into degrees, and ultimately, this Note will reject the viability of said justifications, concluding that there is no reason to maintain the current, graded scheme of murder in Illinois.


    "At common law, murder was defined as the unlawful killing of a human being with 'malice aforethought.'" (5) The actus reus element of common law murder is not very difficult to determine, the question being simply whether the criminal defendant acted in such a way as to cause the death of another. As such, the vast majority of litigation in murder prosecutions focused upon the mens rea requirement. However, deciding whether a person acted with "malice aforethought" proved problematic. Over time, it became an "arbitrary symbol" for judges, creating confusion and unpredictability. (6) Generally speaking, malice aforethought was considered to encompass four distinct states of mind: intent to kill, intent to cause grievous injury, depraved-heart murder, and intent to commit a felony. (7) Therefore, the scope of malice aforethought was extremely broad at common law. Considering the death penalty was mandatory in all cases of common law murder, it was executed far more frequently than it is today. (8)

    The broad application of the death penalty at common law proved problematic as social perspectives on capital punishment changed in the eighteenth century. (9) In 1794, Pennsylvania adopted a statutory construction that divided intentional homicides into several categories, creating distinctions based upon mens rea. (10) Specifically, the statute (hereinafter referred to as the "Pennsylvania Approach"), which was adopted by nearly all of the other states following its enactment in Pennsylvania, divides criminal homicides into "(1) first-degree murder, (2) second-degree murder, (3) voluntary manslaughter, and (4) lesser manslaughters." (11) The critical distinction is the one between first-and second-degree murder. Under the Pennsylvania Approach, first-degree murder requires "premeditation and deliberation" (unless the killing is committed during the commission of certain felonies which inherently show deliberation and premeditation) in addition to malice, whereas second-degree murder only requires malice. (12)


    The distinction between first-and second-degree murder, though subtle, is important. Under the 1794 version of the Pennsylvania Approach, the common law mandatory death sentence was confined to the more serious offense of first-degree murder, while the jury had discretion to impose the death penalty for second-degree murder. (13) Over the course of the nineteenth and twentieth centuries, many state legislatures moved further away from the common law mandate. Most eliminated mandatory capital punishment in nearly all circumstances, making the imposition of capital punishment discretionary for first-degree murder, and making it impossible to execute a defendant convicted of second-degree murder. (14) Thus, the Pennsylvania Approach has greatly reduced the application of the death penalty; however, it has created its own serious problems. In particular, the deliberation/premeditation formula has proved to be incredibly difficult to apply, spawning vast amounts of litigation.

    The premeditation/deliberation requirement of the Pennsylvania Approach was designed to ensure that only the most heinous murders would be afforded the most severe punishment. Nevertheless, the results of this formula are not always in line with its purpose. For example, in People v. Anderson, the California Supreme Court found that there was insufficient evidence to support a conviction for first-degree murder when the defendant inflicted more than sixty stab wounds on a ten-year-old girl, because the court found his conduct was not deliberate and premeditated. (15) This case highlights an intrinsic weakness of the Pennsylvania Approach. When creating blameworthiness distinctions based solely on mens rea, the Pennsylvania Approach "sometimes gets it backward, punishing lesser crimes more severely and depreciating the seriousness of more blameworthy offenses." (16) A second weakness of the Pennsylvania Approach is the haziness of the line between malicious murder and deliberate/premeditated murder. This haziness is based upon a legal fiction that makes it inherently difficult to apply. Traditionally, courts have formulated the premeditation/deliberation requirement as follows:

    To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation.... To premeditate is to think of a matter before it is executed. The word premeditated would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction. (11) This passage shows the difficulty faced by courts when confronted with the premeditation/deliberation issue: how much time must elapse for a person to have premeditated, and how do we know if they had formed a so-called "plan of destruction?" Some courts have used multi-factored balancing tests, considering things such as: provocation by the victim, conduct and statements by the defendant, history of ill-will between the parties, brutality of the murder, and helplessness of the victim at the time the lethal blow was struck. (18) However, even within the bounds of such a test, courts have often reached diametrically opposed conclusions. For example, in State v. Forrest, the North Carolina Supreme Court found premeditation where the defendant had shot his victim five times at point blank range, which showed deliberate intent according to the court, but in People v. Anderson, the California Supreme Court found no premeditation because the fact that the defendant had inflicted sixty stab wounds on a child demonstrated that he had suffered from an emotional disturbance sufficient to prevent him from forming the requisite intent. (19) Finally, some courts have held that premeditation merely requires "a sufficient interval between the initial thought and the ultimate action ... long enough to afford a reasonable man an opportunity to take a 'second look' at his contemplated actions." (20) It is difficult to believe there is actually a way to determine, as a bright-line rule, the exact moment a person goes from merely intending to commit a crime to "premeditating" its commission. Any such mental Rubicon is merely a legal fiction created for the purpose of artificially distinguishing between two similar acts and finding one to be more blameworthy.


    The Model Penal Code takes a very different approach to murder. Most importantly, the Model Penal Code recombines first- and second-degree murder into one section, entitled "Murder"; murder consists of any criminal homicide which is committed purposely, knowingly, or recklessly. (21) Model Penal Code [section] 2.02 further defines each of these various states of mind. A person acts "purposely" when either (1) his "conscious object" was "to engage in conduct of that nature or to cause such a result," or (2) "if the element involves the attendant circumstances, [the defendant was] aware of the existence of such circumstances or he believes or hopes...

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