A PUNISHMENT IN SEARCH OF A CRIME: STANDARDS FOR CAPITAL PUNISHMENT IN THE LAW OF CRIMINAL HOMICIDE* FRANKLIN E. ZIMRING** GORDON HAWKINS*** The substantive criminal law is rarely discussed in debates about the wisdom and utility of the death penalty. But the criminal law of homicide, important in its own right, also provides insight into the problems of selection, moral coherence, and practical ad- ministration that bedevil attempts to harness the punishment of death for public purposes. If that task is to be performed, the sub- stantive criminal law must be the mechanism by which it is accom- plished. Yet, since mid-century, the attempt to fashion standards for capital sentencing has been a fight against historical forces stronger than the power of legal classification. The current juris- prudence of death thus demonstrates the futility of the exercise. In this essay, we discuss the development of standards for the death penalty in the Model Penal Code (the Code), analyze the influ- ence of the Code provisions on modem death penalty legislation in the states, and question whe.ther legal standards are closely linked to the propensity to condemn murders and conduct executions. We conclude that efforts to provide a legal rationale for executions oc- curred far too late in the progress toward abolition of capital pun- ishment in Western Society to have any hope of success. I. A PENAL PARADIGM The most ambitious attempt to define the principles of substan- tive criminal law, at least in this century, is the American Law Insti- tute's Model Penal Code. A product of reform efforts in the 1950s and 1960s, the Code addressed the issue of standards for capital punish- * A version of this essay was delivered by Frank Zimring as the Simon E. Sobeloff lecture in March 1986 at the University of Maryland School of Law and will appear later in 1986 as Chapter 4 in ZIMRING & HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA, published by the Cambridge University Press. •* Professor of Law and Director of the Earl Warren Legal Institute, University of California at Berkeley. B.A., Wayne State University, 1963; J.D., University of Chicago, 1967. •** Visiting Fellow, Earl Warren Legal Institute, University of California at Berkeley; Retired Director, Institute of Criminology, University of Sydney Law School. B.A., Uni- versity of Wales, 1950. HeinOnline -- 46 Md. L. Rev. 115 1986-1987 116 MARYLAND LAW REVIEW [VOL. 46:115 ment despite the opposition of its advisory committee to capital punishment. Ironically, the Code's death penalty standards have had a greater impact on state legislation on this subject than on any other. The Code defines murder as follows: Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or at- tempting to commit robbery, rape or deviate sexual inter- course by force or threat of force, arson, burglary, kidnapping or felonious escape.' This definition of murder differs from those found in the major- ity of American jurisdictions because it does not establish degrees of murder. The most common definitions of first and second degree murder originated from the Pennsylvania Act of 1794. The Act lim- ited first degree murder to premeditated, deliberate homicide ("[a]ll murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing") and homicide occurring in the course of or in the attempt to commit certain felonies ("or which shall be committed in the per- petration or attempt to perpetrate any arson, rape, robbery or bur- glary"). Second degree murder encompassed all other homicides that would have been murder at common law ("and all other kinds of murder shall be deemed murder in the second degree").2 1. MODEL PENAL CODE § 210.2(1) (1980). Section 210.3(1)(b) refers to circum- stances in which a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable ex- planation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. 2. Wechsler & Michael, 4 Rationale of the Law of Homicide, 37 COLUM. L. REV. 701, 704-05 & nn.13-15 (1937). Wechsler and Michael explained that the primary objective of this distinction was to restrict the use of the death penalty to a limited class of murders. Id. at 703. The preamble to the Pennsylvania statute states that "it is the duty of every government to endeavor to reform, rather than exterminate offenders, and the punishment of death ought never to be inflicted, where it is not absolutely necessary to the public safety . I..."Id. Thus, the deliberation and premeditation formula and the felony-murder rule simply identified those homicides that might be capitally punished. HeinOnline -- 46 Md. L. Rev. 116 1986-1987 1986] PUNISHMENT IN SEARCH OF A CRIME The murder classifications drawn by most statutes have been much criticized. Interpreting "deliberation" and "premeditation" has been a particularly troublesome task. As Judge Cardozo argued: The presence of a sudden impulse is said to mark the divid- ing line, but how can an impulse be anything but sudden when the time for its formation is measured by the lapse of seconds? Yet the decisions are to the effect that seconds may be enough. What is meant as I understand it, is that the impulse must be the product of an emotion or passion so swift and overmastering as to sweep the mind from its moorings. A metaphor, however, is, to say the least, a shifting test whereby to measure degrees of guilt that mean the difference between life and death.3 In many cases, as the Commentary to the Model Penal Code (the Com- mentary) notes, "it was a task of surpassing subtlety to say what the 'deliberate and premeditated' formula did require." 4 The felony-murder rule has proved to be no less ambiguous and problematic. Wechsler and Michael remarked that "[con- ceding the ever-present legislative necessity for reconciling ex- tremes by drawing arbitrary lines the justice of which must be viewed from afar, the limits of intelligent casuistry have clearly been reached." 5 The Commentary devotes more than thirteen pages to discussion of the "essential illogic" of the felony-murder rule.6 The American Law Institute, although adopting no position on whether death should be an authorized sentence for murder, in- cluded a lengthy provision on capital punishment in the Code: Section 210.6 Sentence of Death for Murder; Further Proceedings to Determine Sentence (1) Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree if it is satisfied that: (a) none of the aggravating circum- stances enumerated in Subsection (3) of this Section was established by the evidence at the trial or will be estab- lished if further proceedings are initiated under Subsection (2) of this Section; or (b) substantial mitigating circumstances, established by the evidence at the trial, call for leniency; or 3. B. CARDOZO, LAW AND LITERATURE 99-100 (1931). 4. MODEL PENAL CODE, supra note 1, § 210.6 commentary at 126. 5. Wechsler & Michael, supra note 2, at 716. 6. MODEL PENAL CODE, supra note 1, § 210.2 commentary at 29-43. HeinOnline -- 46 Md. L. Rev. 117 1986-1987 MARYLAND LAW REVIEW [VOL. 46:115 (c) the defendant, with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty to murder as a felony of the first degree; or (d) the defendant was under 18 years of age at the time of the commission of the crime; or (e) the defendant's physical or mental condition calls for leniency; or (f) although the evidence suffices to sus- tain the verdict, it does not foreclose all doubt respecting the defendant's guilt .... (3) Aggravating Circumstances. (a) The murder was committed by a con- vict under sentence of imprisonment. (b) The defendant was previously con- victed of another murder or of a felony involving the use or threat of violence to the person. (c) At the time the murder was commit- ted the defendant also committed another murder. (d) The defendant knowingly created a great risk of death to many persons. (e) The murder was committed while the defendant was engaged or was an accomplice in the com- mission of, or an attempt to commit, or flight after commit- ting or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, bur- glary or kidnapping. (f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effect- ing an escape from lawful custody. (g) The murder was committed for pe- cuniary gain. (h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. (4) Mitigating Circumstances. (a) The defendant has no significant his- tory of prior criminal activity. (b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. (c) The victim was a participant in the defendant's homicidal conduct or consented to the homici- dal act. (d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.