Malice Versus Premeditation

Malice Versus Premeditation

The phrase malice aforethought invites a misreading that the earlier sections of this chapter have already begun to dispel. “Aforethought” sounds like thought beforehand, and a reader meeting the phrase for the first time naturally concludes that murder requires planning. Yet the previous section showed a prosecutor proving an intent to kill from nothing more than the weapon and the way it was aimed, and an intent proved that way says nothing about whether the defendant reflected before acting. The two ideas therefore have to be kept apart. Malice is the mental state that makes an unlawful killing murder in the first place, while premeditation and deliberation are a further layer that statutes use to pick first-degree murder out of the larger class of murders.

Malice aforethought is a term of art, meaning a label whose content comes from the law and not from everyday speech, and common-law murder is the unlawful killing of another human being with that mental state.¹ The label covers several distinct mental states: an intent to kill, an intent to inflict grievous bodily harm, extreme reckless indifference to the value of human life, and an intent to commit a dangerous felony.² Only the first of these is a design to kill, and the others involve no wish for anyone's death. A killer who acts with extreme indifference to human life therefore has malice even though no plan to kill ever formed in his mind, which settles that the word cannot demand reflection. Standard legal vocabulary does list “premeditated malice” and “preconceived malice” among the other names for malice aforethought, and that vocabulary feeds the confusion, yet the definition given beside those names is built entirely from the four states just listed.³

The confusion reached the Supreme Court through a Maine prosecution. In Mullaney v. Wilbur the federal habeas courts read Maine's murder statute, which defined murder as an unlawful killing with malice aforethought, express or implied, to make malice aforethought the element that separated murder from manslaughter, and the First Circuit equated that malice aforethought with premeditation.⁴ The Maine Supreme Judicial Court answered in State v. Lafferty that premeditation was not an element of murder in Maine, and that the federal court had mistaken a presumption of malice for a presumption of premeditation.⁵ Maine's own formulation shows why the equation failed. Malice there could be implied from a cruel act committed suddenly and without considerable provocation, a description that cannot coexist with any requirement of prior thought.⁶

The record in Mullaney points the same way. The trial judge had described express malice as a premeditated design to kill, but he also made clear that malice would be implied from the unlawful killing unless the defendant proved heat of passion, so the instruction on premeditated express malice proved unnecessary.⁷ The Maine court explained that malice aforethought connotes no substantive fact such as premeditation. On its reading, the same intent underlies both murder and manslaughter, and the two differ in whether sudden provocation produced that intent.⁸ The Supreme Court accepted the Maine court's reading of Maine law, which is why Mullaney appears here only for its terminology; what the case decided about burdens of proof is taken up in a later section.⁹

Jury instructions from a jurisdiction that does demand more for first degree show the separation in operation. The charge reproduced in Fisher v. United States listed malice, premeditation, and deliberation as separate elements of first-degree murder, each to be proved beyond a reasonable doubt, and described malice as the basic element of murder in both the first and second degrees.¹⁰ It warned that in everyday speech malice means anger or ill will, but that the law gives the word a special meaning: the intentional doing of a wrongful act to the injury of another, under circumstances that do not legally justify or palliate it.¹¹ Premeditation then received its own definition, giving thought before acting to the idea of taking a human life and reaching a definite decision to kill, and deliberation received a third, consideration and reflection upon the preconceived design to kill, turning it over in the mind.¹²

Other states describe the same two-tier structure in their own terms. West Virginia courts treat the intent to kill, or malice, as an element of both first-degree and second-degree murder, and the feature that distinguishes first degree is premeditation and deliberation.¹³ Statutes elsewhere layer the offense in a similar way. According to one survey, California, New York, and Ohio punish intentional killing as second-degree murder, while Florida, North Carolina, and Virginia define premeditated intentional killing as first-degree murder.¹⁴ In each arrangement the lower tier is reached by proving malice, and the upper tier requires proof of something more.

The reason for two layers lies in the different job each one does. Malice has to be broad, because the law wants every unjustified, unexcused, and unmitigated killing of comparable culpability to count as murder. By the time American legislatures acted, English courts had stretched malice aforethought to reach even those who did not intend death but created a great risk of it, so the word could no longer single out the worst killers.¹⁵ The legislatures responded by dividing murder into degrees and reserving the death penalty for killings that were premeditated, willful, and deliberate, a marker aimed at the cold-bloodedness of the killing.¹⁶ If malice itself required premeditation, an impulsive intentional killing would fall outside murder altogether, and no jurisdiction wants that result. Keeping the layers apart convicts the impulsive killer of murder and leaves first degree for the killer who reflected. One caution applies: many courts stretched premeditation to cover a decision made an instant before the act, and in some jurisdictions the term now describes little more than intentional killing, a point the discussion of timing returns to.¹⁷

Because the two requirements are separate layers, an intentional-killing problem is best analyzed in the order the doctrine is built, with malice settled before degree is reached. The steps are these:

The second and third steps do different work, and the common exam error is to collapse them. Evidence that proves an intent to kill, such as a point-blank shot to the chest, completes step two and stops there. Students lose points when they read aforethought as premeditation and move a killing into first degree on proof that shows only intent. The facts that carry a case into first degree concern reflection before the act, and the later sections catalogue them. The one adjustment is local: where a jurisdiction has diluted premeditation until a moment's intent suffices, step three adds little, so the governing formula has to be checked before the layers are applied.