Theorists have consistently critiqued premeditation as being both over and under inclusive in capturing the worst killers. It is over inclusive because it covers a mercy killer, who emotionally deliberates about putting a loved one out of his misery. It is under inclusive because it does not include hot blooded, angry attacks that reveal deep indifference to the value of human life.
This symposium contribution argues that the problem is that premeditation can only partially capture the most culpable choices. Culpability is complex. Culpability assessments include the analysis of risks imposed; the reasons why they were imposed; the defendant’s thoughts about the killing — either identifying with the wrong or displaying utter indifference to it; the quality of the defendant’s reasoning process; the number of choices the defendant made in killing; and the defendant’s responsibility for prior choices that may lead to degradation of his later reasoning. With all of these factors, it is simply no wonder that premeditation cannot capture the most culpable killers. No one test could. Moreover, because different aspects of choice yield different conceptions of why premeditation is culpable, abandoning premeditation will result in greater doctrinal clarity than simply suggesting supplements to it.
Part II of this article surveys the messy doctrinal terrain. Part III explains the normative objections to premeditation. Part IV performs the autopsy of the culpable choice, analyzing the various aspects of choice and why they are constitutive of culpability. Part V begins by sketching the total recasting of the criminal law that Larry Alexander and I propose in our book, but then offers suggestions for how to more modestly reform the criminal law to better capture the myriad aspects of culpability. One test cannot possibly capture all of the worst killers, and it is time that jurisdictions abandoned their efforts to contort premeditation in order to do so.
criminal law, premeditation, first degree murder
Ferzan, Kimberly Kessler, "Plotting Premeditation's Demise" (2012). Faculty Scholarship at Penn Law. 2334.