Critiquing Crump: The Strengths and Weaknesses of Professor Crump's Model Laws of Homicide

Date

2007

Authors

Loewy, Arnold H.

Journal Title

Journal ISSN

Volume Title

Publisher

West Virginia Law Review

Abstract

David Crump should be commended for his prodigious effort in rethinking the law of homicide. I am particularly impressed by his call for abolishing "malice aforethought" as an independent element of murder. I am less sure of the wisdom of totally abolishing the category of willful deliberate and premeditated murders as among those deserving special harshness.

In regard to voluntary manslaughter, Professor Crump overstates the problems and understates the benefits of the MPC's "Extreme Emotional Disturbance" test. Consequently, he wrongly calls for its rejection. He similarly understates the importance and overstates the problems with depraved heart murder, and would eliminate that too without an adequate substitute.

I partially disagree with Professor Crump's felony murder analysis. If the felony murder rule is to be maintained, I would limit it to the most serious felonies, and not worry about whether ex ante the ultimately fatal act appeared dangerous. More fundamentally, I would clearly apply the merger rule to assault to prevent prosecutorial bootstrapping, a problem to which Professor Crump gives insufficient consideration.

Description

Keywords

Malice aforethought, Model penal code, Premeditation, Provocation, Depraved heart murder, Felony murder

Citation

109 W. Va. L. Rev. 369