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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?
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.

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