Could a state legalize murder?

[npe]

My intuition is that the Government can use the taxing and spending power to coerce the state. Also, I am not sure that the plenary police powers would allow the state to override the state common law charge of murder. The police power is generally held to be valid if it promotes the general welfare of the people of the state. Not sure that a persuasive argument could be had there.

lolwut? The common law isn't some kind of default that states have to overcome. It exists in the background, filling gaps and such. States are unquestionably free to depart from it, for good reasons, bad reasons, or no reasons at all.

Go to class. Murder was a common law crime before it became a statutory crime in all states. If the states get rid of the statute, the common law crime would be upheld by the courts.

So, basically what I was saying is that a state could not use its police power to make murder legal, all it could do is decriminalize it via repealing the statute, but then the common law would take over.

No. If a state got rid of the statute, the courts would recognize the legislative intent to decriminalize murder.

[Unitas]

lolwut? The common law isn't some kind of default that states have to overcome. It exists in the background, filling gaps and such. States are unquestionably free to depart from it, for good reasons, bad reasons, or no reasons at all.

Go to class. Murder was a common law crime before it became a statutory crime in all states. If the states get rid of the statute, the common law crime would be upheld by the courts.

So, basically what I was saying is that a state could not use its police power to make murder legal, all it could do is decriminalize it via repealing the statute, but then the common law would take over.

No. If a state got rid of the statute, the courts would recognize the legislative intent to decriminalize murder.

If a state got rid of the murder statutes, prosecutors and solicitors wouldn't/couldn't bring charges.

Civil charges could still apply though.

[03121202698008]

18 U.S.C. § 1111

Murder is a federal crime as well. A state could repeal their law and enact a statute prohibiting the imposition of CL murder, but it'd still be a crime under federal law.

[Unitas]

18 U.S.C. § 1111

Murder is a federal crime as well. A state could repeal their law and enact a statute prohibiting the imposition of CL murder, but it'd still be a crime under federal law.

2 things:

1.: Not sure if the updated version fixes the unconstitutional nature and didn't read the case, but should be noted.
Unconstitutional or Preempted Prior Version Recognized as Unconstitutional by U.S. v. Ealy4th Cir.(Va.)Apr 02, 2004
Go 4th circuit.
2.:
From the statute:
(a) Murder is the unlawful killing of a human being with malice aforethought

If it is made lawful by the state it wouldn't fit would it? Like murder has to be an unlawful killing and it isn't unlawful anymore.

[03121202698008]

18 U.S.C. § 1111

Murder is a federal crime as well. A state could repeal their law and enact a statute prohibiting the imposition of CL murder, but it'd still be a crime under federal law.

2 things:

1.: Not sure if the updated version fixes the unconstitutional nature and didn't read the case, but should be noted.
Unconstitutional or Preempted Prior Version Recognized as Unconstitutional by U.S. v. Ealy4th Cir.(Va.)Apr 02, 2004
Go 4th circuit.
2.:
From the statute:
(a) Murder is the unlawful killing of a human being with malice aforethought

If it is made lawful by the state it wouldn't fit would it? Like murder has to be an unlawful killing and it isn't unlawful anymore.

I only skimmed it but I see nothing in that case that suggests Congress could not declare a federal crime using one of their enumerated powers. Nor do I see any holding that Title 18 is unconstitutional.

Even if a state made murder lawful under state law, it could still be unlawful under federal law. Further, if Congress found an enumerated power to hang such a law on, and the state went the other way, the Court would probably deem it to be pre-empted and the states law unconstitutional for getting in Congress's way.

[Unitas]

18 U.S.C. § 1111

Murder is a federal crime as well. A state could repeal their law and enact a statute prohibiting the imposition of CL murder, but it'd still be a crime under federal law.

2 things:

1.: Not sure if the updated version fixes the unconstitutional nature and didn't read the case, but should be noted.
Unconstitutional or Preempted Prior Version Recognized as Unconstitutional by U.S. v. Ealy4th Cir.(Va.)Apr 02, 2004
Go 4th circuit.
2.:
From the statute:
(a) Murder is the unlawful killing of a human being with malice aforethought

If it is made lawful by the state it wouldn't fit would it? Like murder has to be an unlawful killing and it isn't unlawful anymore.

I only skimmed it but I see nothing in that case that suggests Congress could not declare a federal crime using one of their enumerated powers. Nor do I see any holding that Title 18 is unconstitutional.

Even if a state made murder lawful under state law, it could still be unlawful under federal law. Further, if Congress found an enumerated power to hang such a law on, and the state went the other way, the Court would probably deem it to be pre-empted and the states law unconstitutional for getting in Congress's way.

So we're saying the state passes a statute specifically authorizing murder?

I think the argument is that a state repeals all it's murder statutes implicitly making murder legal - and probably some statement of intent to do so. In other words there is no criminal statute to cover murder, therefore it is not illegal. (Not sure how this would work cause you'd have to do away with all assault charges too otherwise could go after assault instead of murder and so forth)

Where besides under this statute is killing unlawful under federal law? Like this crime defines murder as being an unlawful killing, but if the state doesn't deem it unlawful how could the feds?

[03121202698008]

18 U.S.C. § 1111

Murder is a federal crime as well. A state could repeal their law and enact a statute prohibiting the imposition of CL murder, but it'd still be a crime under federal law.

2 things:

1.: Not sure if the updated version fixes the unconstitutional nature and didn't read the case, but should be noted.
Unconstitutional or Preempted Prior Version Recognized as Unconstitutional by U.S. v. Ealy4th Cir.(Va.)Apr 02, 2004
Go 4th circuit.
2.:
From the statute:
(a) Murder is the unlawful killing of a human being with malice aforethought

If it is made lawful by the state it wouldn't fit would it? Like murder has to be an unlawful killing and it isn't unlawful anymore.

I only skimmed it but I see nothing in that case that suggests Congress could not declare a federal crime using one of their enumerated powers. Nor do I see any holding that Title 18 is unconstitutional.

Even if a state made murder lawful under state law, it could still be unlawful under federal law. Further, if Congress found an enumerated power to hang such a law on, and the state went the other way, the Court would probably deem it to be pre-empted and the states law unconstitutional for getting in Congress's way.

So we're saying the state passes a statute specifically authorizing murder?

I think the argument is that a state repeals all it's murder statutes implicitly making murder legal - and probably some statement of intent to do so. In other words there is no criminal statute to cover murder, therefore it is not illegal. (Not sure how this would work cause you'd have to do away with all assault charges too otherwise could go after assault instead of murder and so forth)

Where besides under this statute is killing unlawful under federal law? Like this crime defines murder as being an unlawful killing, but if the state doesn't deem it unlawful how could the feds?

Uh, have you taken Con law? They are two separate bodies of law. The state can define whatever it wants, as can the feds. A lawful killing is one that is specifically excused by statute or common law (e.g. self-defense), not one that is not spoken of at all. All murder is unlawful under common law (both state and federal common law) unless specifically made lawful.

If the state just repealed their murder statutes, CL murder would still exist. (Although the state supreme court may strike it based upon the legislatures intent...but probably not. This is as close to your "implicitly" making lawful there is.) The state would have to actually pass a law making murder lawful.

And, the state cannot pass any law that conflicts with federal law because federal law is the supreme law of the land under the Constitution. Congress would need to pass under one of their enumerated powers, but would have little difficulty in passing a murder statute under the guise of the commerce clause (as they did with Title 18). Since congress has a regulatory scheme in place, ala murder, the state cannot pass a law which would defeat Congress's intent.

[Mroberts3]

My intuition is that the Government can use the taxing and spending power to coerce the state. Also, I am not sure that the plenary police powers would allow the state to override the state common law charge of murder. The police power is generally held to be valid if it promotes the general welfare of the people of the state. Not sure that a persuasive argument could be had there.

lolwut? The common law isn't some kind of default that states have to overcome. It exists in the background, filling gaps and such. States are unquestionably free to depart from it, for good reasons, bad reasons, or no reasons at all.

Go to class. Murder was a common law crime before it became a statutory crime in all states. If the states get rid of the statute, the common law crime would be upheld by the courts.

So, basically what I was saying is that a state could not use its police power to make murder legal, all it could do is decriminalize it via repealing the statute, but then the common law would take over.

haha. G. T. L. Rev. did go to class, graduated at the top, and is now a federal clerk... (not that this makes his/her opinion on this necessarily right, but pay attention to who you think you are putting in their place).

G. T. L. Rev. I felt the same in response to vamedic03, but im curious about what your nagging feelings were on (1). I my mind there is the argument that somehow the 14th Amendment protects you from a state decriminalizing murder, but as someone else said, this wouldn't be an issue of state action. The problem with arguing that the state has a duty to act is we've read some cases basically saying the Constitution only protects negative liberties, not entitlements. However, there seems to be something different about the state allowing private murder that I can't quite put my finger on.

I think part of my hesitation is that if you allow murder then you implicitly allows almost all crimes (theft, arson, etc) because the threat of murder is no longer illegal -- I can threaten to kill you unless you give me everything you own. (I don't know if that adds anything legally,)


despite the snarky comments of some 0Ls, this is an interesting question -- even though I should be studying the stuff that will actually be on my con law final tomorrow...

[03121202698008]

haha. G. T. L. Rev. did go to class, graduated at the top, and is now a federal clerk... (not that this makes his/her opinion on this necessarily right, but pay attention to who you think you are putting in their place).

G. T. L. Rev. I felt the same in response to vamedic03, but im curious about what your nagging feelings were on (1). I my mind there is the argument that somehow the 14th Amendment protects you from a state decriminalizing murder, but as someone else said, this wouldn't be an issue of state action. The problem with arguing that the state has a duty to act is we've read some cases basically saying the Constitution only protects negative liberties, not entitlements. However, there seems to be something different about the state allowing private murder that I can't quite put my finger on.

I think part of my hesitation is that if you allow murder then you implicitly allows almost all crimes (theft, arson, etc) because the threat of murder is no longer illegal -- I can threaten to kill you unless you give me everything you own. (I don't know if that adds anything legally,)


despite the snarky comments of some 0Ls, this is an interesting question -- even though I should be studying the stuff that will actually be on my con law final tomorrow...

Edit: I take this back as I was mistaken who he was referring to...reading fail. My apologies G.T.L.

[Mroberts3]

I'm not sure the argument over federal power works here. How would a statute making murder legal be any more related to commerce than Lopez? You can't aggregate non commercial activity to show a significant effect on commerce (Morrison).

I mean in practice commerce would be decimated and everyone would leave the state, but I'm still not convinced that Congress can make a solid commerce argument.

If there is a way to prevent states from legalizing murder I think it is going to come from the 14th Amendment, but in a way I can't quite figure out (if at all).

The only federal power I could see is taxing and spending.
The people who mentioned taxing and spending are right in that Congress could offer money to the states and tie it to keeping murder illegal (a la Dole), but I'm not sure they could, say, withhold all federal funds to the state.

[Mroberts3]

I was referring to CG telling G. T. L. Rev to "go to class," not passing judgment on whether G. T. L. was necessarily right or not.

[03121202698008]

I'm not sure the argument over federal power works here. How would a statute making murder legal be any more related to commerce than Lopez? You can't aggregate non commercial activity to show a significant effect on commerce (Morrison).

I mean in practice commerce would be decimated and everyone would leave the state, but I'm still not convinced that Congress can make a solid commerce argument.

If there is a way to prevent states from legalizing murder I think it is going to come from the 14th Amendment, but in a way I can't quite figure out (if at all).

Eh, murder has always been illegal under both the CL of the US and England. So, I still think you'd need a solid argument (specific statute) to say that was over-ruled even by a state.

I agree that Morison makes it a harder argument and it would be new law, but given the severity of the result I think the Court would reach. I'm pretty sure they would see it as substantially interfering with interstate commerce even with aggregating it. E.g. Truck drivers are instrumentalities of commerce and they wouldn't drive through a state where they would be murdered at will for their cargo, etc.

Besides, this isn't theoretical. Title 18 exists and is current law. Murder is illegal under federal law and a state making it legal would have no effect on its federal status. Look at medical marijuana. It's illegal under federal law but not in some states. The feds just don't enforce it.

[CanadianWolf]

Feds need to have jurisdiction, however.

[CyLaw]

I covered 18 USC 1111, on the last page. Does not apply here

Regarding the Federal murder law, 18 USC 1111, it only applies within the "special marinetime and territorial jurisdiction of the United States." It does not cover normal murders within state jurisdictions, thus I don't believe supremacy is an issue here.

[CG614]

haha. G. T. L. Rev. did go to class, graduated at the top, and is now a federal clerk... (not that this makes his/her opinion on this necessarily right, but pay attention to who you think you are putting in their place).

G. T. L. Rev. I felt the same in response to vamedic03, but im curious about what your nagging feelings were on (1). I my mind there is the argument that somehow the 14th Amendment protects you from a state decriminalizing murder, but as someone else said, this wouldn't be an issue of state action. The problem with arguing that the state has a duty to act is we've read some cases basically saying the Constitution only protects negative liberties, not entitlements. However, there seems to be something different about the state allowing private murder that I can't quite put my finger on.

I think part of my hesitation is that if you allow murder then you implicitly allows almost all crimes (theft, arson, etc) because the threat of murder is no longer illegal -- I can threaten to kill you unless you give me everything you own. (I don't know if that adds anything legally,)


despite the snarky comments of some 0Ls, this is an interesting question -- even though I should be studying the stuff that will actually be on my con law final tomorrow...

Good for him. I found his "lolwut" insulting. Probably should not have responded in kind, but hey I am stressed out from exams, so I overreacted.

[03121202698008]

I covered 18 USC 1111, on the last page. Does not apply here

Regarding the Federal murder law, 18 USC 1111, it only applies within the "special marinetime and territorial jurisdiction of the United States." It does not cover normal murders within state jurisdictions, thus I don't believe supremacy is an issue here.

Wrong. Look at that statute again:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

The jurisdictional limits apply only to the capital sentence portion of the offense. §1811 is actually prosecuted now on occasion in conjunction with murders by drug traffickers. It allows them to have a single federal trial instead of a separate criminal action for the murder within the state.

[CyLaw]

I covered 18 USC 1111, on the last page. Does not apply here

Regarding the Federal murder law, 18 USC 1111, it only applies within the "special marinetime and territorial jurisdiction of the United States." It does not cover normal murders within state jurisdictions, thus I don't believe supremacy is an issue here.

Wrong. Look at that statute again:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

The jurisdictional limits apply only to the capital sentence portion of the offense.

No, it is the jurisdictional limit for when it can be punished at all.

Congress has enacted legislation defining and punishing various degrees of homicide, and attempts to commit homicide, when committed within the special maritime and territorial jurisdiction of the United States.

Edit: Also United States v. Laden, 92 F. Supp. 2d 189, 204 (S.D.N.Y. 2000)

Counts 234 and 235 of the Indictment are predicated on 18 U.S.C. § 1111. Section 1111(a) defines murder in the first and second degrees. Section 1111(b) specifies the penalties for each of these two types of murder, and limits the reach of Section 1111 to murders committed “[w]ithin the special maritime and territorial jurisdiction of the United States.”

[BeenDidThat]

The first issue is a basic separation of powers question.

The legislature makes laws. (Nearly) every state codified criminal laws. The common law does not apply in those states for the crimes codified. If the legislature chose to enact a new criminal code, one which repeals the prohibition on murder, and specifically said that murder is not a crime, the judiciary would be way out of bounds if it allowed someone to be convicted of murder.

The second issue: can the Feds outlaw murder in all states, not on Fed property or under admiralty law?

That's a rather straight-forward Lopez analysis. Is murder a commercial activity? Not generally...hiring a hit man would be, but that's a different issue. No ICC power there.

But as someone mentioned, the Feds could strongly incentivize states to criminalize murder a tax/spend, necessary & proper for the general welfare.

[03121202698008]

I covered 18 USC 1111, on the last page. Does not apply here

Regarding the Federal murder law, 18 USC 1111, it only applies within the "special marinetime and territorial jurisdiction of the United States." It does not cover normal murders within state jurisdictions, thus I don't believe supremacy is an issue here.

Wrong. Look at that statute again:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

The jurisdictional limits apply only to the capital sentence portion of the offense.

No, it is the jurisdictional limit for when it can be punished at all.

Congress has enacted legislation defining and punishing various degrees of homicide, and attempts to commit homicide, when committed within the special maritime and territorial jurisdiction of the United States.

Edit: Also United States v. Laden, 92 F. Supp. 2d 189, 204 (S.D.N.Y. 2000)

Counts 234 and 235 of the Indictment are predicated on 18 U.S.C. § 1111. Section 1111(a) defines murder in the first and second degrees. Section 1111(b) specifies the penalties for each of these two types of murder, and limits the reach of Section 1111 to murders committed “[w]ithin the special maritime and territorial jurisdiction of the United States.”

Hmm, interesting...I concede the statute but I still think Congress passes a new law. So i guess my answer is, yes a state could legalize murder (by specific statute doing so, not just repeal of the current statutes) but it would ultimatley have little effect.

Alright, enough procrastination...law review application time.

[CyLaw]

Hmm, interesting.

Note, this is only for 1111. Other homicides, such as killing federal officials, murders by escaped federal prisoners, or federal felony murder, do not have this jurisdictional limitation. It only applies to the general murder statute.

[03121202698008]

Hmm, interesting.

Note, this is only for 1111. Other homicides, such as killing federal officials, murders by escaped federal prisoners, or federal felony murder, do not have this jurisdictional limitations. It only applies to the general murder statute.

Clearly congress could change this limitation and thus preempt the states if a state went rogue and legalized murder though. In fact, the jurisdictional limit was probably only emplaced so as to not preempt state murder laws that differ.

[UCLAtransfer]

Hmm, interesting.

Note, this is only for 1111. Other homicides, such as killing federal officials, murders by escaped federal prisoners, or federal felony murder, do not have this jurisdictional limitations. It only applies to the general murder statute.

Exactly. The reason that most murder charges are not brought in federal court is not merely because states normally handle them, but because in order to support a murder charge under federal law, there has to be federal jurisdiction, which is NOT anywhere in "CONUS" (or whatever that quickly deleted post said, haha).

In order to have federal jurisdiction for murder there must be one of a number of special statutes/situations (like CyLaw mentioned above), or there must be some specialized circumstances that create federal jurisdiction under the commerce clause, such as a murder for hire, murders committed during a bank robbery (b/c of FDIC), murders that arise under circumstances in which state lines are crossed, or murders that occur on a federal enclave (indian reservation, federal building, post office, military installation, etc.).

[03121202698008]

which is NOT anywhere in "CONUS" (or whatever that quickly deleted post said, haha).

The feds have concurrent jurisdiction everywhere CONUS. I misread the definition of that statute which says it must be reserved for the US. This statute has been limited to not apply everywhere, but the federal government has concurrent jurisdiction everywhere. And before you dispute...I had federal law enforcement powers for 10 years. I was wrong on §1111 applying but not on where I had authority.

[UCLAtransfer]

Clearly congress could change this limitation and thus preempt the states if a state went rogue and legalized murder though. In fact, the jurisdictional limit was probably only emplaced so as to not preempt state murder laws that differ.

Nope, see my post above. The only way the jurisdictional limit could be changed is if SCOTUS changed course, overruled Lopez, and found that any old murder could now fall under Congress's commerce clause power. (Not to say this wouldn't happen if some state did go rogue, but under the current state of the law, congress would not be able to just pass a new law outlawing any old murder.)

[03121202698008]

Clearly congress could change this limitation and thus preempt the states if a state went rogue and legalized murder though. In fact, the jurisdictional limit was probably only emplaced so as to not preempt state murder laws that differ.

Nope, see my post above. The only way the jurisdictional limit could be changed is if SCOTUS changed course, overruled Lopez, and found that any old murder could now fall under Congress's commerce clause power. (Not to say this wouldn't happen if some state did go rogue, but under the current state of the law, congress would not be able to just pass a new law outlawing any old murder.)

I still argue they could under the commerce clause as a murder free-for-all would have a substantial affect on interstate commerce without aggregation and therefor not violate Morrison. There are plenty of statutes post-Morrison which have less apparent effects that that. Hell, Congress got around Lopez and re-enacted the Gun-Free act because the gun had moved in interstate commerce.

Imagine the effects on interstate commerce if everyone in one state started whacking each other. Interstate travel would be affected, cargo wouldn't move, materials manufactured for interstate transport wouldn't move. This isn't a tangental effect like in Lopez.

While it wouldn't hit all, they could at a minimum use the same model as the gun-free act and say "Anyone who, with any weapon, product, or item that moved in interstate commerce is used to..." That would at least get all murders by weapon/beating with an item/etc. The only thing left would be with bare hands and they could maybe try "anyone who has moved or whose employment affected IC..." (Though this is close to Morrison.) Add in the substantial affect and they're covered.