Honestly, I don’t know is this the right thread to ask this question. But I have a question about murder in the second degree law.
I am a Law and Order fan. I really like that show. But it confuses me that so many people get indicted on the murder in the second degree, even criminals who obviously committed the murder intentionally, even planned it weeks or months ahead. From the top of my head, I remember the case where woman put deadly poison in the man’s food, the case where a reverin planted a car bomb, guy who comes to a conference with a gun, shoots at the political activist but ends up killing a bystander instead… every one of these people were indicted on the murder in the second degree. The only cases that I remember where Jack McCoy indicted someone of the murder in the first degree are the cases where somebody murdered someone while committing another felony.
And this isn’t the only show with such inconsistencies. Another example is Oz, TV show that also takes place in New York City (presumably). For example, Lemuel Idzik (a guy who killed Kareem) goes to visit Kareem in prison under false pretenses, with a gun, and once Kareem meets with him, he pulls out a gun and shoots him twice. Kareem dies and Lemuel gets indicted on the murder in the second degree. (He got life without parole but still…) Or Augustus Hill: cops go over to his house to arrest him, he tries to run away because he has narcotics in his possession, shoots and kills a cop while running away and gets convicted of murder in the second degree. While Bob Rebadow stabs a man once during an argument, killing him, and gets convicted of murder in the first degree. And gets sentenced to death (later commuted to life).
Are laws different in New York City? Or is it a mistake on writer’s part? I thought that murder in the second degree means committing a murder with an intent to harm but not with the intent to kill (for example you beat up a guy and he ends up dying due to the injuries) or the murder that was intentional but still committed in the heat of the moment (for example you catch someone sleeping with your wife, pull out a gun and shot him).
In the first part here you are confusing second degree murder with manslaughter. Murder in United States law - Wikipedia
As for the rest of your post I suspect it has to do with the American system of plea bargaining and the willingness of juries to convict someone on flimsier evidence on a lesser charge, but IANAL or even an American.
One of the strongest arguments against the death penalty in the UK is the fact that juries are less likely to convict a murderer if they know he/she will hang (or whatever). I wonder if that means that prosecutors will opt for a lesser charge, especially if they know the sentence on conviction will be life.
At on time in New York, First Degree Murder for a long time was reserved for the murder of police officers, or, at least, that’s what I was taught when I was a child there. It now includes judges and corrections officers, and possibly thoses were always included, but maybe it expanded at some point. It did expand after 9/11 to include acts of terrorism and torture-murder (which I think sometimes includes rape-murder).
There are a couple of other things for which a person can be charged with first degree murder in New York, and again, I don’t know when the law changed, or if it did, but those are felony murder, and killing witnesses after the fact, as well as murder for hire.
Everything else is either second degree murder or manslaughter, so that means that in New York, things are second degree murder which might be first degree murder elsewhere. What you have to understand, though, is that second degree murder carries pretty tough penalties in NY. You can go away for 25 years for second degree murder, and if the victim was under 14, you can go away for life.
If you are watching Law & Order, bear in mind that the show was on for 20 years, and the New York law changed several time during those years.
Mislav–
I don’t know whether or not you are from the US, but you should know that penal codes differ from state to state. Law & Order did a very good job of reflecting the actual law in New York at any given time. Other shows maybe not so much. Some shows may be set in one state, but reflect California laws, where they are filmed. She are filmed in an unknown state, and reflect a generic law that “sounds right.”
If you watch a show like Criminal Minds and they happen to mention what someone will probably be charged with (or what a past criminal was charged with), it might not sound right, but it may in fact be right for whatever state that case takes place in.
Regardless of the name of the specific charges a person faces, they usually face similar numbers of years for certain actions, other than drug crimes, where sentences vary widely by state, and of course, some states have the death penalty and some don’t, with three death penalty states performing about 90% of all executions.
I’m not familiar with NY law, but generally the requisite elements of second degree murder are similar to those of first degree murder except for the element of intent. If a prosecutor can prove the elements of 1st degree murder, he can also likely meet the elements of 2nd degree murder (in fact, he would have an easier time because he has one less element to prove). Remember, the prosecutor does not need to prove the defendant lacked intent – just that the rest of the elements of present. I’ve been involved with trials where a defendant was charged with both statutory rape and attempted rape, and eventually pled to over ten counts of attempted rape (even when the 13 y.o. victim obviously was raped, as she subsequently gave birth). See lesser included offenses.
For whatever value comparisons might have, here’s Virginia’s statutory scheme for homicide:
[ul]
[li]Capital murder – homicide with the presence of certain aggravating factors, examples being by poison, for hire, during an abduction, during a rape, of a law enforcement officer, of more than one person at a time, or of a person under 14[/li][li]First degree murder – willful, deliberate, and premeditated[/li][li]Second degree murder – all murder that isn’t capital or first degree, or accidental killing while in the commission of certain other felonies[/li][li]Voluntary manslaughter (defined at common law basically as unintended death as the result of intentional criminal agency)[/li][li]Involuntary manslaughter (basically unintended death as the result of criminal negligence; drunk driving that causes a death is the classic example)[/li][/ul]
In New York, Murder in the Second Degree is essentially what most people would call “normal” murder. Murder in the First Degree is murder plus. Murder in the First Degree is when you go above and beyond the circumstances of a regular murder.
Murder in the First Degree (in NY) is when somebody kills a judge, a police officer, a firefighter, or a prison guard; when a prisoner who’s already serving a life sentence commits another murder; when somebody kills a witness to prevent them from testifying; when somebody gets paid to commit murder; or some other unusual circumstances like multiple murders, terrorist acts, or torture murders.
As for Oz, it was not a realistic depiction of New York prisons. The show hinted that it was set in New York but never specifically said so, so the writers had an out to make up their own legal procedures. And, as RivkahChaya pointed out, laws change over time. Bob Rebadow was convicted in 1965 and Augustus Hill was convicted in 1995.
Rebadow’s history shows that Oz wasn’t set in the real New York. He was sentenced to death in 1965 and the prison attempted to carry out the execution. But a power blackout stopped the electrocution and before it could be repeated the state ended the death penalty.
In the real world, the last execution in New York was in 1962. The law officially abolishing the death penalty (except for the murder of police officers) was signed in May 1965. The Great Northeast Blackout, which supposedly stopped Rebadow’s execution, occurred in November 1965.
This is the answer.
Law & Order was pretty consistent with using New York law. For instance several plotlines revolved around going after someone for 2nd degree murder because of “depraved indifference.” In most states the circumstances would call for a manslaughter charge.
As for the murder one change, it has mostly been answered. So just some cites. There are 12 aggravating factors which will raise the charge from 2nd degree to 1st degree in the New York penal code.
SO – If dude is already in prison for life (for Murder 2) and commits another murder in prison, that’s a case for Murder 1? And there’s no capital punishment in NY any more?
So what are you going to do to your perp now? What’s the point?
(Make him serve two simultaneous life terms in two separate prisons simultaneously?)
Prisonception.
Thank you all for the answers, I really appreciate them I understand how that works in New York now.