Friday, April 09, 2021

Why Second-Degree Murder is the Maximum Charge for Derek Chauvin--and Some Thoughts on the Broader Issue of Gaps Between the Law and Public Understandings

 by Michael C. Dorf

Someone who is not a lawyer (but is super smart and very well educated) recently asked me why Derek Chauvin wasn't charged with first-degree murder, given the evidence that has been thus far presented making pretty clear to most observers (including both the questioner and me) that Chauvin intended an act--placing and keeping his knee on George Floyd's neck/throat--that he knew would likely lead to Floyd's death. Even if Chauvin did not originally intend to kill Floyd and even if he did not know at the outset that the course of action on which he was embarking would lead to Floyd's death, as the encounter progressed it would likely have come to Chauvin's attention that Floyd was in grave danger, and yet Chauvin persisted. Or at least so it seems a jury could reasonably conclude beyond a reasonable doubt that Chauvin acted with the kind of intent or knowledge sufficient to prove intentional murder.

And indeed, Chauvin does stand accused of intentional murder. It's just that under Minnesota law, intentional murder as such is considered second-degree murder. Minnesota defines first-degree murder as intentional murder that is also pre-meditated. (There are some other circumstances that can turn what would otherwise be second-degree murder into first-degree murder, but none are relevant here). A few minutes of research reveals the following explanation in the Minnesota cases (quotation marks and citations omitted):

A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation. The state, however, must prove that before the commission of the act but after the defendant formed the intent to kill some appreciable time passed during which the defendant considered, planned, or prepared to commit the act.

Based on that definition/explanation, it appears that the prosecutors in the Chauvin case made the right call to charge the defendant with second but not first-degree murder. My interest here is in the gap between the legislative classification and the public understanding, both with respect to the Minnesota murder laws and more broadly. My tentative view is that, other things being equal, the law ought to reflect common-sense intuitions.

I believe that my interlocutor's non-expert view of murder is widely, albeit not universally, shared: Most people probably think that first-degree murder means intentional killing of a human being without justification, excuse, or defense. They think this despite the fact that many, though not all, states follow the same pattern as Minnesota, distinguishing first from second degree murder based on premeditation.

In principle, there's nothing wrong with the law using a technical definition of a term that differs from the vernacular use of the same term. Indeed, sometimes the same term can have different meanings in different statutes. For the legal system's purposes, that's not a problem, so long as the definitions are clear.

In practice, however, defining first-degree murder to include a premeditation element that is absent in second-degree murder is problematic because it results in a kind of failure of communication. Given the prevalence of the (mistaken) view that first-degree murder simply means intentional or knowing killing without justification, excuse, or defense, when someone is charged with second-degree murder, the public may get the sense that the prosecutors don't think that the murder is especially serious. That was the genesis for my interlocutor's question, and I suspect the view is fairly common. Casual observers of the Chauvin trial might think that by "only" charging Chauvin with second rather than first degree murder, the prosecutors are going easy on him in some way.

If there were some good policy reason to treat premeditated murder as categorically more serious than unpremeditated murder, then we would likely say that the miscommunication to the public is an acceptable cost or one that should be mitigated through public education. But it's not obvious that premeditation makes a murder or murderer worse. The theory under which premeditation makes murder worse is that it shows a kind of cold-bloodedness or ruthlessness. That is undoubtedly a negative trait, but so is its opposite: impulsive killing. Indeed, we might think that the person who sets out to commit a premeditated murder, while evil, will kill less frequently than the one who, without prior planning, flies into a rage and kills. Thus, it is not clear that the distinction makes sense as a matter of the aims of the criminal justice system: retribution and deterrence. And yet, in Minnesota as in some other states, the difference can be significant. First-degree murder results in a life sentence; a second-degree murder in Minnesota yields a sentence of no more than 40 years (which is, admittedly, extremely long by the standards of any advanced democracy other than the U.S.).

Accordingly, I conclude that states like Minnesota that categorize premeditated murder as first-degree and unpremeditated murder as second-degree should re-examine their grading. That said, there will sometimes be a sound reason for a gap between the law and people's lay understanding. I'll give a few examples.

Consider speed limits. In most U.S. jurisdictions, most drivers understand that they can drive about 5 mph above the speed limit without risking a ticket. Thus, if the posted speed limit is 55 mph, the "real" speed limit is about 60 mph. However, it wouldn't make any sense to adjust the speed limit to conform to the lay understanding, because changing the posted speed limit to 60 mph would simply lead people to conclude that the "real" limit is 65 mph. Meanwhile, announcing and then adhering to a policy of strict adherence to the posted speed limit would likely lead to a costly and somewhat unfair transition period. It's more sensible for lawmakers simply to set the speed limit at 5 mph slower than whatever the speed limit would be in a world of strict enforcement.

Consider another exception to the proposition that the law should generally conform to lay understandings. My former colleague and contracts scholar Bill Young has observed that it's useful that many laypeople hold the mistaken belief that contracts are only enforceable if written, because this misapprehension leads some number of them to put their contracts in writing, which then leads them to clarify terms and memorialize those terms in a way that reduces litigation costs if a dispute arises. Here too, we would not want to bring the law and lay understanding into harmony. Oral contracts are too useful to render unenforceable; but conversely, as Young observes, a program of educating the public about the enforceability of oral contracts would undermine the benefits of the extra written contracts to which the misapprehension leads. The gap between the law and the public's understanding of the law is salutary in this instance.

A final and highly problematic potential counter-example concerns over-criminalization and plea bargaining. Let's suppose that in a world in which everyone charged with a crime went to trial, the optimal penalty range for some class of crimes would be 5-8 years. However, we know that the criminal justice system would collapse if everyone went to trial. Thus we have what has been described as "a system of pleas." In order to induce defendants to plead guilty to a roughly appropriate crime and sentence, prosecutors need to be able to over-charge. Thus, for the crime for which the optimal range is 5-8 years, the prosecution might charge the defendant with a crime that carries a sentence of 15-20 years. To be able to do that within the bounds of the law, the legislature will have had to define crimes and sentencing ranges beyond what would be fair in a non-plea system. Hence, the need for pleas leads to over-criminalization.

The plea bargaining example is highly problematic because in order for the incentive structure to work, defendants need to be penalized for going to trial. If defendants know that a conviction after trial will result in the same 5-8 year sentence as a guilty plea, they will simply go to trial rather than plead guilty, because going to trial carries the potential of an acquittal. If we think that over-criminalization and punishing defendants for going to trial are problematic--and most observers do think so--then we might want to do something to change the system.

One solution would be to greatly expand the criminal justice system's ability to conduct trials by hiring more judges and calling citizens for jury duty more frequently. That hasn't happened and apparently won't, however.

Another solution would be decriminalization. The U.S. is substantially more punitive than comparably developed democratic countries. We have more crime than those other countries, to be sure, but that doesn't really explain why people who commit the same crime in the U.S. and, say, northern Europe, will be subject to such different penal regimes. If we punished each offender with less time in prison, we could reduce the degree to which charges overstate the severity of the offense.

There currently is a substantial and largely bipartisan push towards decriminalization in recognition that the U.S. over-incarcerates. However, its long-term fate is uncertain and could be undermined by a crime spike or other events. In the short run, at least, the system of pleas will awkwardly require continued over-charging and over-criminalization.

In sum: The presumption in favor of bringing public perception and the law into harmony can sometimes be overcome, sometimes even for good reasons, while other times out of necessity at best.


Steve Davis said...

I'm not so sure this really is a case of misunderstanding, though. Do you really think most people don't understand that there is a difference between a planned murder and an unplanned one and that one is punished more harshly than the other? I don't.

I think what we're seeing here is a case of people's judgment being affected by their emotional involvement in a specific case. In this case many people are rightly outraged by a white cop killing a black man in a way that was shocking and unjustified. To some extent I think what we are seeing is a public reaction that is common with respect to homicide cases -- the attitude, "I'm so outraged by this crime that I don't care what the details of the law are, I just want to see this person punished as much as possible." Sometimes that attitude is understandable. But sometimes it can be fueled by racism or bigotry or vengeance or blood lust. Sometimes if carried too far it can lead to people serving prison terms longer than they should.

It makes sense to me to punish planned murders more harshly than unplanned ones. And I suspect that most people, if you discussed the issue with them dispassionately outside the context of a particular case of public concern, would understand that the law does treat these two types of murder differently and that it should do so. So I'm not sure if this is a real case of misunderstanding.

Joe said...

Key portion of the law:

"some appreciable time passed during which the defendant considered, planned, or prepared to commit the act"

Again, I think the average person can understand the basic logic of this, even if it has to be explained to them.

Joe said...

I deleted a long comment. I don't think it's necessary.

I quoted the key phrase separately for clarity here.

I think the passage of time concept is fairly easy to understand, even if you have to explain it to the person. It also matches a common sense understanding of fairness.

It is more serious when you do something, especially something really bad, when you have time to contemplate it. If something is more "heat in the moment," even if at the moment decide to do it intentionally, it is not as bad.

The general idea of matching the law with common sense understanding is a good idea, including as a matter of fair notice. It is not always possible but it's a good idea. But, I don't think it is really violated from my understanding of the facts.

Greg said...

I agree with both Steve and Joe, I'm not convinced that, absent outrage at this particular act, that considered dispassionately most people would feel that the law is a mismatch with common sense understanding.

As for the plea system, I'm not sure there's a way to make it fair, but the reason it's fundamentally broken has little to do with over criminalization (though that is a problem.) The problem is that in a plea system, actual innocence becomes meaningless, and we effectively have substituted a system of guilty until proven innocent.

Under a plea-based system, if considering things dispassionately, a guilty person and an innocent person are making the same calculation: How good is the prosecution's case, versus how good is the plea bargain they are offering? If the math is "$1000 fine and time served, vs. $10,000 in legal bills and time served *even if I win*" then the logical choice is to take the plea, regardless of guilt. Often things aren't this straightforward, but often the rational choice is still to take the plea. We'd like to think that the prosecution's case will be much weaker with an innocent defendant, but there's no guarantee of that.

There's no system I can currently imagine that incentivizes innocent defendants to go to trial and defend their innocence but incentivizes guilty defendants to plea bargain.

Ryan said...

I’m pretty sure that I understood that first degree murder required premeditation before going to law school.

Joe said...

Plea bargaining to me is not horrible in concept but it has horrible results.

It would interest me to compare our system with some other country.

I think this is useful in general. For instance, Prof. Segall is a strong critic of our Supreme Court. It would be helpful if one could compare it specifically to another.

So, e.g., is the Canadian Supreme Court a "court," why or why not etc.

Michael C. Dorf said...

Just to clarify what I meant to say (and thought I did say):

1) I don't disagree that the concept of premeditation in the sense of some period of contemplation and planning before the crime is comprehensible by the average person.

2) How many people who haven't looked at the statute (which, of course, is nearly everyone) think or know that the distinction in Minnesota is between premeditated and non-premeditated murder? I don't know, but I'll bet it's substantial. Half? A quarter? Not trivial numbers.

3) The actual law varies from state to state. E.g., in Texas (a very populous state that has the death penalty), premeditation is not relevant to distinguishing some murders from others. In NY (another populous state), first-degree murder turns on the identity of the victim (e.g., police officer), not premeditation. The fact that lots of people "think" that first-degree means premeditation may not reflect actual knowledge of the law in the state in which they live, so much as a lucky guess.

4) I agree that there COULD be a rational for treating premeditated murder more seriously than nonpremeditated (but still intentional) murder; I think reasonable people disagree about that, however, as reflected in laws like those in Texas and NY. If one thinks that premeditated murder really is categorically worse, that could justify the gap between the views of (many in) the public and the law.

Greg said...


As far as what particular set of facts constitute first degree murder and what different set of facts constitute second degree murder, most non-lawyers just don't think about the law that way.

People think "hitting people is wrong, but killing people is worse." To the extent that they think about there being different kinds of murder, they can list various sets of circumstances that they believe make the murder "more wrong" thus justifying a greater punishment, or other circumstances that make the murder "less wrong" thus justifying a lesser punishment.

A set of laws that correctly reflects the common sentiment will codify some of these general common sense views of "more wrong" and "less wrong" into a set of crimes and punishments for those crimes.

In that vein, the Minnesota rules seem to fit the common sentiment that premeditated murder is "more wrong" than non-premeditated murder. Other states' rules likely reflect different value judgements about what facts warrant greater sentencing, but still hopefully reflect similar common sense judgements within those states.

Sometimes people's feelings about a particular occurrence, such as the killing of George Floyd will cause people to want a greater punishment, but codifying our collective common sensibilities into a set of laws allows a more clear-headed evaluation of what crime the perpetrator is really guilty of. Sometimes it can also cause us to re-think the currently codified laws, and make changes based on our new understanding of how we want to address future events, which is in a sense how new laws should be made or existing laws changed.

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Unknown said...

I enjoyed the post, but as a lawyer in Minnesota, I do have to correct one important point: Chauvin is charged with second-degree unintentional murder while committing a felony (or what is often called felony murder). Minnesota's second-degree murder statute has two subdivisions. The first subdivision mainly deals with intentional murder.

The second subdivision, as relevant here, makes a killing second-degree murder if the defendant, even if lacking the intent to cause death, causes death in the commission of nearly any felony. Chauvin is charged with killing George Floyd in the commission of a felony assault. So the State does not have to prove that Chauvin intended to kill Mr. Floyd, only that Chauvin killed Mr. Floyd while Chauvin was engaged in a felony assault.

Asher Steinberg said...

It seems to me that you make an incapacitationist argument for treating non-premeditated murder as seriously as or more seriously than premeditated murder, but that you basically acknowledge a retributivist approach to punishment cuts the other way ("The theory under which premeditation makes murder worse is that it shows a kind of cold-bloodedness or ruthlessness. That is undoubtedly a negative trait . . . ."). (You seem to suggest treating premeditated crimes more seriously doesn't make sense in terms of deterrence, but by that you must mean preventing future crimes by offenders themselves, not deterring people who aren't incapacitated from committing crimes; deterrence is still another reason it makes sense to treat nonpremeditated crimes less seriously than premeditated ones, as impulsive crimes are probably less susceptible to deterrence than planned ones.) So your question is a bit like asking why we treat intoxication, to the extent we do, as mitigating when people who kill when intoxicated seem to have a problem that makes them more likely to kill again than people who kill when sober. The answer is that we probably place greater weight on retributive justifications for punishment than the likelihood of recidivism.