Homicide
It is the
causing of death of a human being. Not all homicides are crimes, only those
that are culpable.
Not culpable
homicides are justifiable or excusable, such as the execution of a person to
death, a soldier’s killing of an enemy during wartime, a police officer
shooting a person in the course of duty.
Culpable
homicide is murder, manslaughter or infanticide.
Murder
A. Definition of “murder”: There is no simple definition of “murder” that is sufficient to distinguish killings that are murder from killings that are not. At the most general level, murder is defined as the unlawful killing of another person with malice aforethought.
Types of Murder:
(i) INTENT TO KILL MURDER: A person means to cause the death of another human being, FIRST DEGREE or
(ii) INTENT TO COMMIT SERIOUS BODILY-INJURY MURDER: a person means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not –there must be intention (to cause bodily harm), knowledge (that this may cause death) and recklessness (SECOND DEGREE)
(iii) TRANSFERRED INTENT: if one of the above, the person causes –by accident or mistake- causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being. (SECOND DEGREE)
(iv) FELONY-MURDER: A person, for an unlawful purpose (indictable offense), does something that he knows or ought to know that is likely to cause death, which he causes even if he desired just to do the unlawful act (set house on fire for revenge on girlfriend but also kills the two children sleeping there).
(FIRST DEGREE if hijacking aircraft,
sexual assault, kidnapping and forcible confinement). All others second
degree.
Examples of hijacker where the flight attendant kills a passenger or even a hijacker kills another hijacker.
B. First-degree murder: Most states recognize at least two degrees of
murder. First-degree murder in most states is a killing that is “premeditated
and deliberate.” (Planned and Deliberate in Canada).
1. Only short time required for premeditation: Courts do not require a long period of premeditation. Traditionally, no substantial amount of time has needed to elapse between formation of the intent to kill and execution of the killing. Most modern courts require a reasonable period of time during which deliberation exists, but even this is not a very stringent requirement — five minutes, for example, would suffice in most courts even today.
2. a. Planning, motive or careful manner of killing: Like any other form of intent, premeditation and deliberation can be shown by circumstantial evidence. Typical ways of showing that D premeditated are: (1) planning activity occurring prior to the killing (e.g., purchase of a weapon just before the crime); (2) evidence of a “motive” in contrast to a sudden impulse; and (3) a manner of killing so precise that it suggests D must have a preconceived design. [249]
3. Certain felony murders: The Code makes certain felony-murders (hijacking aircraft, sexual assault, kidnapping and forcible confinement) first-degree.
C. Second-degree murder: Murders that are not first-degree are second-degree. These typically include the following classes:
No premeditation: Cases in which there is no premeditation.
Intent to seriously injure: Cases where D may have premeditated, but his intent was not to kill, but to do serious bodily injury (a mens rea sufficient for murder).
Transfer intent.
4. Felony-murders: Killings committed during the course of felonies other than those specified in the first-degree murder statute. EXAMPLE OF LIQUOR STORE STICK-UP.
Sentences: both first and second degree
murders: life imprisonment, but eligibility for parole for first degree murder
–25 years, and for second degree 10 years (up to 25).
If the culpable homicide is not murder (or infanticide) then it is manslaughter.
NO MALICE AFORETHOUGHT, NO PRIOR EVIL INTENT.
By an unlawful act:
Heat of passion caused by provocation:
There must be legally sufficient provocation: Defendant is provoked, e.g., adultery, fear, battery, assault, mutual combat, illegal arrest, etc.
In defense of one’s person but under circumstances which preclude self-defense.
Test: (i) whether the wrongful act was of sufficient nature to deprive an ordinary person of self-control, and (ii) whether the provoked person acted upon the sudden before his or her passion had time to cool off.
Infanticide
· Mother killing child of less than 12 months, who [mother] is mentally disturbed as a result of the birth
· Maximum sentence, 5 years
Multiple Murderers
·
Professional state employed torturers & murderers. They are more
effective in killing than serial killers & mass murderers.
·
Presidents & genocide. Bush. But nobody wants to talk much about
this.
·
Serial murderer: they operate over a long period of time and can be
distinguished from mass murderers who kill many victims in a single incident.
Murders provide revenge and a lifelong celebrity career.
·
Mass murderers: they kill many victims in a single incident. Murders
constitute his suicide note in which they state which social category has
excluded him.
Multiple murders have been dismissed as simple psychiatric or genetic
freakiness. There is an ancient chord in our civilization which insists that
such terrible acts be interpreted in terms of possession by evil spirits or
witchcraft. And a more modern variation of this theme similarly dismisses the
acts with notions of possession by mental disease.
It would be most comforting if we could continue to accept such
explanations, for they satisfyingly banish guilt beyond our responsibility. But
to do so would beg the question, why does modern America produce so many of
these freaks?
They are no freaks. They can only be understood as representing the
logical extension of many of the central themes in our culture –worldly
ambition, success and failure, and manly avenging violence.
They are the prime embodiment of their civilization, not a twisted
derangement.
The mid-1980’s were years of unprecedented growth, experimentation &
innovation among multiple murderers.
James Oliver
Huberty was a sociologist who worked in a plant for several years until it
closed. He was married & had two daughters. He also owned a house, which he
had to sell when the plant closed. He moved to CA but could get no job. Then he
moved to Tijuana but spoke no Spanish at all and was unable to get a job. His
hatred of Hispanics began to grow. Then he moved back to San Diego. He applied
for a job at McDonald’s but was rejected.
The following day, after taking their family to the San Diego Zoo, he
went to McD and shot 40 people, killing 21 and injuring 19.
The reaction
of the government was almost as tragic as the massacre itself. The state gave
therapy and other psychological assistance to the victims, such as the ones
that we saw last class. But these are not enough. The government avoided the
questions: are these killings inevitable? Why did he Huberty choose to kill
& die among the Hispanic customers who he hated? Was there any connection
between his decline in social hierarchy & his assault on Hispanics? Was
there a deep social meaning to his act? Scientists were instructed to dissect
his brain to look for mysterious lesions rather than analyzing the social
content of his acts.
The causes of
homicide remain unknown (absolute poverty, inequality & subculture). But
the multiple murderer is different. He is often in the margins of the upper
working class or lower middle classes, he is usually a profoundly conservative
man who comes to feel excluded form the class he so devoutly wishes to join. He
murders people unknown to him but who represent to him the class that has
rejected him.
With varying degrees of explicitness multiple murderers see themselves
as soldiers. It is no wonder that they feel neither remorse for their victims,
nor regret for launching their bloody crusades. Moreover, the public treats
them as major celebrities. No one ever became famous by beating his wife to
death in an alley. But virtually all our multiple murderers achieve true and
lasting fame. They are the subjects of books, radio and television shows –for
the rest of their lives. And they thus attain an immortality denied to the
common man. During their trials, they will almost certainly be surrounded by
admiring women. Sometimes like with Ted Bundy, a member of the public will
marry the multiple murderer during his trial and have a child. He will be
besieged with letters & communications from special-interest groups who see
in him some weighty philosophical hero. The Son of Sam, e.g., declared that he
thought that the public was cheering him while he killed.
They don’t kill merely for the pleasure they derive from the act. They
are a kind of sub-political and conservative protest which nets the killer a
substantial social profit of revenge, celebrity, identity & sexual relief.
They conceive the killings as a kind of mission or crusade. It is a kind of
primitive rebellion against the social order. But they are no radicals. They
have enthusiastically embraced the established order only to discover that it
offers them no place. Their rebellion is a protest against their perceived
exclusion form society, not an attempt to launch a revolution. This fundamentally
rebellious –not revolutionary- nature of their protest is undoubtedly why so
few government and police resources are allocated to the capture of these
killers, compared to, e.g., the huge police apparatus that monitors political
dissidents, or terrorism organizations, for they pose no threat to the
established order.
Our task is to learn to read the suicidal note, to pore over the killings and speeches of the killers searching for meaning. We must not be content with superficial explanations which focus merely on psychological problems and short-term satisfactions.