About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

94 Marq. L. Rev. 1241 (2010-2011)
How Should We Punish Murder

handle is hein.journals/marqlr94 and id is 1251 raw text is: HOW SHOULD WE PUNISH MURDER? JONATHAN SIMON' One of the law jobs of the law of murder is to regulate the level of penal heat produced in society by violent crime and its state punishment. The history of the law of murder in both England and the United States can be read as a series of adjustments aimed at ventilating penal heat under particular historical conditions with the aim of protecting increasingly sensitive democratic political institutions from the damage caused by excessive penal heat. In distinguishing murder and manslaughter, and later recognizing degrees of murder and later still the potential for early parole release, the law of murder regulated penal heat by opening up a field in which both crimes and punishment could be ordered in morally satisfying and culturally coherent ways and by involving local decision makers, judges and juries, in decisions that determined the application of the harshest punishments. By these criteria, the contemporary law of murder is failing, producing a leveling in the grading of murder toward a flat and severe level. Ironically, the abolition of the death penalty, long a source of penal heat, is now helping to create a dangerous flattening of the law of murder toward the norm of life in prison. The result is a build up of penal heat, which is helping to anchor the larger spectrum of punishments for crime at too high a level. This article reviews the history of the law of murder in the United States and England from this penal heat perspective, and examines the contemporary situation California and England. The article concludes that criminal law can contribute to a rebalancing of our excessive level of punishment by self consciously seeking to restore the regulative role of the law of murder. I. INTRODUCTION .................................. ............1242 II. EVOLUTION OF MURDER AS PENAL MODERATOR ...... .......1257 A. The Common Law System: Murder and Manslaughter.......1257 B. Degrees of Murder ...........................1262 C. 20th Century Reform: Abolition and Parole.... ......1267 Adrian A. Kragen Professor of Law, UC Berkeley. This Article is a revised version of the George and Martha Barrock Lecture on Excessive Punishment and the Structure of the Law of Murder, which the author gave at Marquette University Law School on Januarry 24, 2011. The author is grateful for the comments and corrections of Andrew Ashworth, James Chalmers, Richard Jones, and Richard Sparks.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most