Gaps Between the Law and Public Understandings
Why Second-Degree Murder is the Maximum Charge for Derek Chauvin--and Some Thoughts on the Broader Issue of Gaps Between the Law and Public Understandings

 by Michael C. DorfSomeone who is not a lawyer (but is super smart and very well educated) recently asked me why Derek Chauvin wasn't charged with first-degree murder, given the evidence that has been thus far presented making pretty clear to most observers (including both the questioner and me) that Chauvin intended an act--placing and keeping his knee on George Floyd's neck/throat--that he knew would likely lead to Floyd's death. Even if Chauvin did not originally intend to kill Floyd and even if he did not know at the outset that the course of action on which he was embarking would lead to Floyd's death, as the encounter progressed it would likely have come to Chauvin's attention that Floyd was in grave danger, and yet Chauvin persisted. Or at least so it seems a jury could reasonably conclude beyond a reasonable doubt that Chauvin acted with the kind of intent or knowledge sufficient to prove intentional murder.And indeed, Chauvin does stand accused of intentional murder. It's just that under Minnesota law, intentional murder as such is considered second-degree murder. Minnesota defines first-degree murder as intentional murder that is also pre-meditated. (There are some other circumstances that can turn what would otherwise be second-degree murder into first-degree murder, but none are relevant here). A few minutes of research reveals the following explanation in the Minnesota cases (quotation marks and citations omitted):A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation. The state, however, must prove that before the commission of the act but after the defendant formed the intent to kill some appreciable time passed during which the defendant considered, planned, or prepared to commit the act.Based on that definition/explanation, it appears that the prosecutors in the Chauvin case made the right call to charge the defendant with second but not first-degree murder. My interest here is in the gap between the legislative classification and the public understanding, both with respect to the Minnesota murder laws and more broadly. My tentative view is that, other things being equal, the law ought to reflect common-sense intuitions.I believe that my interlocutor's non-expert view of murder is widely, albeit not universally, shared: Most people probably think that first-degree murder means intentional killing of a human being without justification, excuse, or defense. They think this despite the fact that many, though not all, states follow the same pattern as Minnesota, distinguishing first from second degree murder based on premeditation.In principle, there's nothing wrong with the law using a technical definition of a term that differs from the vernacular use of the same term. Indeed, sometimes the same term can have different meanings in different statutes. For the legal system's purposes, that's not a problem, so long as the definitions are clear.In practice, however, defining first-degree murder to include a premeditation element that is absent in second-degree murder is problematic because it results in a kind of failure of communication. Given the prevalence of the (mistaken) view that first-degree murder simply means intentional or knowing killing without justification, excuse, or defense, when someone is charged with second-degree murder, the public may get the sense that the prosecutors don't think that the murder is especially serious. That was the genesis for my interlocutor's question, and I suspect the view is fairly common. Casual observers of the Chauvin trial might think that by "only" charging Chauvin with second rather than first degree murder, the prosecutors are going easy on him in some way.If there were some good policy reason to treat premeditated murder as categorically more serious than unpremeditated murder, then we would likely say that the miscommunication to the public is an acceptable cost or one that should be mitigated through public education. But it's not obvious that premeditation makes a murder or murderer worse. The theory under which premeditation makes murder worse is that it shows a kind of cold-bloodedness or ruthlessness. That is undoubtedly a negative trait, but so is its opposite: impulsive killing. Indeed, we might think that the person who sets out to commit a premeditated murder, while evil, will kill less frequently than the one who, without prior planning, flies into a rage and kills. Thus, it is not clear that the distinction makes sense as a matter of the aims of the criminal justice system: retribution and deterrence. And yet, in Minnesota as in some other states, the difference can be significant. First-degree murder results in a life sentence; a second-degree murder in Minnesota yields a sentence of no more than 40 years (which is, admittedly, extremely long by the standards of any advanced democracy other than the U.S.).Accordingly, I conclude that states like Minnesota that categorize premeditated murder as first-degree and unpremeditated murder as second-degree should re-examine their grading. That said, there will sometimes be a sound reason for a gap between the law and people's lay understanding. I'll give a few examples.Consider speed limits. In most U.S. jurisdictions, most drivers understand that they can drive about 5 mph above the speed limit without risking a ticket. Thus, if the posted speed limit is 55 mph, the "real" speed limit is about 60 mph. However, it wouldn't make any sense to adjust the speed limit to conform to the lay understanding, because changing the posted speed limit to 60 mph would simply lead people to conclude that the "real" limit is 65 mph. Meanwhile, announcing and then adhering to a policy of strict adherence to the posted speed limit would likely lead to a costly and somewhat unfair transition period. It's more sensible for lawmakers simply to set the speed limit at 5 mph slower than whatever the speed limit would be in a world of strict enforcement.Consider another exception to the proposition that the law should generally conform to lay understandings. My former colleague and contracts scholar Bill Young has observed that it's useful that many laypeople hold the mistaken belief that contracts are only enforceable if written, because this misapprehension leads some number of them to put their contracts in writing, which then leads them to clarify terms and memorialize those terms in a way that reduces litigation costs if a dispute arises. Here too, we would not want to bring the law and lay understanding into harmony. Oral contracts are too useful to render unenforceable; but conversely, as Young observes, a program of educating the public about the enforceability of oral contracts would undermine the benefits of the extra written contracts to which the misapprehension leads. The gap between the law and the public's understanding of the law is salutary in this instance.A final and highly problematic potential counter-example concerns over-criminalization and plea bargaining. Let's suppose that in a world in which everyone charged with a crime went to trial, the optimal penalty range for some class of crimes would be 5-8 years. However, we know that the criminal justice system would collapse if everyone went to trial. Thus we have what has been described as "a system of pleas." In order to induce defendants to plead guilty to a roughly appropriate crime and sentence, prosecutors need to be able to over-charge. Thus, for the crime for which the optimal range is 5-8 years, the prosecution might charge the defendant with a crime that carries a sentence of 15-20 years. To be able to do that within the bounds of the law, the legislature will have had to define crimes and sentencing ranges beyond what would be fair in a non-plea system. Hence, the need for pleas leads to over-criminalization.The plea bargaining example is highly problematic because in order for the incentive structure to work, defendants need to be penalized for going to trial. If defendants know that a conviction after trial will result in the same 5-8 year sentence as a guilty plea, they will simply go to trial rather than plead guilty, because going to trial carries the potential of an acquittal. If we think that over-criminalization and punishing defendants for going to trial are problematic--and most observers do think so--then we might want to do something to change the system.One solution would be to greatly expand the criminal justice system's ability to conduct trials by hiring more judges and calling citizens for jury duty more frequently. That hasn't happened and apparently won't, however.Another solution would be decriminalization. The U.S. is substantially more punitive than comparably developed democratic countries. We have more crime than those other countries, to be sure, but that doesn't really explain why people who commit the same crime in the U.S. and, say, northern Europe, will be subject to such different penal regimes. If we punished each offender with less time in prison, we could reduce the degree to which charges overstate the severity of the offense.There currently is a substantial and largely bipartisan push towards decriminalization in recognition that the U.S. over-incarcerates. However, its long-term fate is uncertain and could be undermined by a crime spike or other events. In the short run, at least, the system of pleas will awkwardly require continued over-charging and over-criminalization.In sum: The presumption in favor of bringing public perception and the law into harmony can sometimes be overcome, sometimes even for good reasons, while other times out of necessity at best.
