An Addendum to the Addendum: More on Bail, “Murder,” and Juvenile Suspects
In last night’s Addendum episode of the Undisclosed Podcast, we again discussed the denial of bail to Adnan Syed in connection with his murder prosecution. In the prior episode, I had noted that about 60% of murder suspects are given some type of bail package. That statistic came from this Bulletin by the Bureau of Justice Statistics (BJS), which noted that 40% of murder defendants are denied bail. But what exactly is a murder defendant?
According to a comment on this blog post, the BJS has said that
“Murder includes homicide, non-negligent manslaughter, and voluntary homicide. Excludes attempted murder (classified as felony assault), negligent homicide, involuntary homicide, or vehicular manslaughter, which are classified as other violent offenses.”
This is consistent with my assumption that the BJS would include all killings with “malice aforethought” under the definition of murder. Let’s now break down what the BJS’s explanation of murder means.
Let’s start with “malice aforethought.” It’s the mental state that distinguishes involuntary manslaughter from murder. Different states have different definitions of malice aforethought. For instance, in South Carolina, the term malice aforethought encompasses four different mental states: (1) intent to kill; (2) intent to inflict grievous bodily harm; (3) extremely reckless indifference to the value of human life (depraved heart murder); and (4) intent to commit a foreseeably dangerous felony (felony murder).
If a defendant kills a victim with malice aforethought, he can be convicted of murder. Some states, like South Carolina, have a single crime of murder. Other states distinguish first-degree-murder from second-degree murder.* In these latter states, the difference is premeditation. A killing with premeditation is first-degree murder. A killing without premeditation is second-degree murder.
You might think that premeditation means that a person must have deliberated about a killing for hours or days before the fatal act. This is incorrect because premeditation doesn’t need to take more than a few seconds. Indeed, in Maryland, a person can “snap,” start strangling the victim, and still be deemed to have acted with premeditation.
Currently, thirty-one states and the federal government have the death penalty. In most states, the prosecution can seek the death penalty in first-degree murder cases as long as it can prove at least one aggravating factor beyond a reasonable doubt. Again, aggravating factors vary from state to state. Here’s the list of aggravating circumstances in South Carolina, including the killing of a child and the killing of two or more persons. There’s no right to bail for capital defendants under the U.S. Constitutions, and many states don’t allow for bail for such defendants.
Voluntary manslaughter is a killing with malice aforethought, but the crime is downgraded based upon the defendant being able to establish two other factors: (1) provocation; and (2) lack of cooling off. Assume, for example, that a victim yells racial slurs and throws his drink at the defendant, who fatally shoots him. While this killing would ordinarily be murder, it could be downgraded to voluntary manslaughter based upon (1) provocation (slurs/thrown drink would inflame the passions of the average person); and (2) lack of cooling off (the passage of mere seconds or minutes between the provocation and the killing).
So, these are the crimes included in the BJS’s definition of murder (non-negligent manslaughter and voluntary homicide are just different labels for voluntary manslaughter).
By way of contrast, involuntary manslaughter is a killing without malice aforethought. Some states define involuntary manslaughter as a reckless killing while others define it as a criminally negligent killing. A reckless killing is a killing that occurs when the defendant consciously disregards a substantial risk of serious bodily harm or death. Imagine a parent letting his young child play with his loaded gun. A criminally negligent killing is a killing that occurs when the defendant fails to be aware that he is creating a substantial risk of serious bodily harm or death. Imagine a parent who accidentally leaves the keys to his gun safe on his child’s dresser.
Involuntary manslaughter is basically the same thing as negligent homicide, involuntary homicide, or vehicular manslaughter (which is also sometimes called reckless homicide). Attempted murder occurs when a person commits a substantial step/overt act in furtherance of an intentional plan to kill a victim but fails (e.g., the gun misfires, or the bullet misses the victim). As the BJS has noted, these crimes are not classified as “murders” in its bail statistics.
So, where did that leave Adnan? I don’t know. I figure a very high percentage of capital murder defendants are denied bail while a smaller percentage of voluntary manslaughter defendants are denied bail. Beyond that, I don’t know.
According to this BJS Study, 10% of those convicted of murder are under age eighteen. Presumably, the percentage of those who are charged with murder and under eighteen is similar. As I’ve noted before, minors can’t be given the death penalty. Ideally, we would have statistics regarding minors charged with first-degree murder who were and were not given release, but I don’t think that they exist. I do know that Zack Witman was a minor represented by Cristina Gutierrez at the same time as Adnan who was given pretrial release despite being charged with first-degree murder.
Otherwise…we’ll see. I would love to see if minors with no priors who are charged with first-degree murder are denied bail with any frequency.
______________
*Some states even have third-degree murder.
-CM