Stuart P. Green (Rutgers Law School), Stefanie Bock (University of Marburg), and Findlay Stark (University of Cambridge) have posted “Grading” Murder (in Kai Ambos et al. eds., Core Concepts in Criminal Law and Justice, vol. V (Hart Publishing), forthcoming) on SSRN. Here is the abstract:
All homicides everywhere involve the same basic actus reus—namely, causing the death of a human being. Yet homicides can differ markedly in how they are labeled, graded, and punished. What factors should be considered in determining which killings are more blameworthy than others, thereby subjecting an offender to the criminal law’s harshest sanctions? The three jurisdictions we consider here—England and Wales, Germany, and the U.S.—sometimes agree, but often differ, about how to answer this question. We focus on the extent to which each jurisdiction relies on two basic types of factors: (1) ‘subjective’ factors (such as intent to kill or cause grievous bodily injury, premeditation, dolus eventualis, and extreme indifference to human life, as well as various malign motives); and (2) ‘objective’ factors (such as modus operandi, victim characteristics, and contemporaneous offending). We conclude that the most prominent role in the grading of murders should be played by mens rea. We recommend against including motives in offence definitions, preferring to see them considered at the individualised sentencing phase. We also argue that various objective factors should be jettisoned at the offence-definition stage, insofar as they are proxies for subjective factors and therefore may lead to ‘double counting.’
Recommended.
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