Troubling Murder Ruling May Be On Shaky Ground

Which Illinois Supreme Court criminal case most deserves to be overruled? I vote for People v. Lopez, 177 Ill.2d 441 (1995).

And a recent case suggests that some members of the court may share this view.

Here's why. Consider this hypothetical: Smith picks up a gun, points it at Jones, and says, "Jones, I am going to kill you." Smith fires one shot at Jones' head, killing him instantly. If there are no mitigating circumstances, Smith is guilty of first-degree murder (720 ILCS 5/9-1): he intended to kill Jones and he succeeded.

Now take exactly the same facts, except that Smith's shooting arose out of "sudden and intense passion resulting from serious provocation" -- perhaps a barroom brawl. As in the first example, Smith intended to kill Jones and succeeded. However, the provocation is a mitigating circumstance that reduces the offense from first-degree murder to second-degree murder (720 ILCS 5/9-3).

So far, so good. But now let's change one fact: assume that the victim does not die.

In the first hypothetical, if Jones dies, Smith is guilty of first-degree murder. Yet if Jones does not die. Smith has tried to kill a man and has failed. Smith has taken a "substantial step" toward an unjustified killing of a human being. 720 ILCS 5/8-4(a). Thus, he is guilty of "attempt first-degree murder."

In the second hypothetical, if Jones dies, Smith is guilty of second-degree murder. Yet if Jones does not die, Smith has still taken that "substantial step" toward an unjustified killing. Thus, he is guilty of some form of a murder attempt. However, the provocation is a mitigating circumstance that reduces the offense from "attempt first-degree murder" to "attempt second-degree murder."

In sum, if provocation can reduce first-degree murder to second-degree murder, then logically provocation should also reduce "attempt first-degree murder" to "attempt second-degree murder."

Recently, the Court of Appeals of Alaska noted that if provocation "did not apply to defendants charged with attempt murder, this would create severe and illogical disparities in sentencing." Dandova v. Alaska, 2003 Alas.App. LEXIS 124, *20 (June 20).

Unfortunately, "severe and illogical disparities in sentencing" is an accurate way of describing the state of "attempt murder" law in Illinois.

In Lopez the Illinois Supreme Court refused to recognize the offense of "attempt second-degree murder." This means that if a defendant intentionally kills while he is in a state of "sudden and intense passion resulting from serious provocation," he is guilty of second-degree murder, a Class 1 felony punishable by 4-20 years in prison. 730 ILCS 5/5-8-1(a)(1.5). Yet if the victim does not die, the crime is "attempt first-degree murder," a Class X offense punishable by 6-30 years in prison. 725 ILCS 5/8-4(c)(1); 730 ILCS 5/5-8-1(a)(3).

Thus, the law in Illinois rewards those defendants who actually succeed in killing their victims! If a "sudden and intense passion" defendant fires one shot that fails to kill his victim, he is facing a maximum of 30 years in prison for "attempt first-degree murder." But he can lop 10 years off his maximum and reduce his crime to second-degree murder by firing additional shots to make sure the victim dies!

If you think I am making this up, then read the Lopez opinion. Lopez notes that the Illinois attempt statute states that a defendant must have the "intent to commit a specific offense." 725 ILCS 8-4(a). "Second-degree murder" requires not only an intent to kill but also the presence of mitigating circumstances: "sudden and intense passion resulting from serious provocation." Thus, the court reasons, to attempt second-degree murder, "The defendant must intend the presence of a mitigating factor, which is an impossibility." At 449.

There are two obvious flaws with this reasoning. First, the court simply does not understand the meaning of the term "specific offense" as used in the attempt statute. First-degree murder and second-degree murder are not two specific offenses.

In Illinois we have one specific offense called "murder" that is divided into two degrees. The Illinois Supreme Court itself has recognized that second-degree murder is not a specific offense, but is merely a "lesser mitigated offense of first-degree murder." People v. Jeffries, 164 Ill.2d 104, 122 (1995).

Thus, where a defendant who is guilty of "attempt first-degree murder" and a second defendant who is guilty of "attempt second-degree murder" each intended to commit the same specific offense -- murder. Each has intended to kill a human being without the presence of justification. That is murder. If there is no mitigation, it is "attempt first-degree"; if there is mitigation, however, it is "attempt second-degree." Regardless, each was intending to kill.

Second, the court simply does not understand the difference between criminal intent and criminal conduct. Lopez insists that for a defendant to be guilty of "attempt second-degree murder," he would have to "intend the presence of a mitigating factor," which the court calls an "impossibility."

Yet this confuses three very different elements in criminal law: mental state, conduct and attendant circumstances.

The mental state for a murder attempt is intent to kill a human being. The "conduct" is the act that comprises the substantial step toward commission of the murder. With these two elements the crime of "attempt murder" is complete.

The Model Penal Code defines "attendant circumstances" as "the objective situation that the law requires to exist." Model Penal Code, commentary to section 5.01. For second-degree murder, the attendant circumstance is a "sudden and intense passion resulting from serious provocation." This fact is not the "mental state" nor is it "conduct" nor is it an "element" that the state must prove beyond a reasonable doubt. It is an attendant circumstance that explains why the defendant is thinking and acting the way he is. Contrary to Lopez, no one "intends" the presence of a mitigating factor. Rather, the attendant circumstance of the mitigating factor simply explains the mental state and conduct of the defendant.

Lopez is that anomaly of the easy case making bad law. To say that Lopez should be overruled would be the legal understatement of this new century.

Fortunately, the Illinois Supreme Court has taken a giant step toward this goal through its recent decision in People v. Morgan, 203 Ill.2d 470 (2003). The issue was the constitutionality of Public Act 91-404, a law that punished certain murder attempts more severely based on the presence of aggravating factors. The court held the statute was unconstitutional because it violated the proportionate penalties clause of the Illinois Constitution. And the source of the trouble was the failure of Lopez to recognize "attempt second-degree murder." The court expressed concern that Public Act 91-404 could operate to provide much more severe sentences for those "attempt firstdegree murder" defendants whose victims survived than for those whose victims died and who were guilty of only second-degree murder.

It is significant that Morgan was written by Chief Justice Mary Ann G. McMoorrow, author of a perceptive dissent in the Lopez case.

Certainly the legislature could cure this problem by simply revising the Criminal Code to include the offense of "attempt second-degree murder." Yet Lopez itself may be a precedent that is on very shaky ground.