How Should We Punish Murder, 94 Marq. L. Rev. 1241 (2010)
One of the â€šÃ„Ãºlaw jobsâ€šÃ„Ã¹ of the law of murder is to regulate the level of â€šÃ„Ãºpenal heatâ€šÃ„Ã¹ produced in society by violent crime and its state punishment. The history of the law of murder in both England and the United States can be read as a series of adjustments aimed at ventilating penal heat under particular historical conditions with the aim of protecting increasingly sensitive democratic political institutions from the damage caused by excessive penal heat. In distinguishing murder and manslaughter, and later recognizing degrees of murder and later still the potential for early parole release, the law of murder regulated penal heat by opening up a field in which both crimes and punishment could be ordered in morally satisfying and culturally coherent ways and by involving local decision makers, judges and juries, in decisions that determined the application of the harshest punishments. By these criteria, the contemporary law of murder is failing, producing a leveling in the grading of murder toward a flat and severe level. Ironically, the abolition of the death penalty, long a source of penal heat, is now helping to create a dangerous flattening of the law of murder toward the norm of life in prison. The result is a build up of penal heat, which is helping to anchor the larger spectrum of punishments for crime at too high a level. This article reviews the history of the law of murder in the United States and England from this penal heat perspective, and examines the contemporary situation California and England. The article concludes that criminal law can contribute to a rebalancing of our excessive level of punishment by self consciously seeking to restore the regulative role of the law of murder. Reprinted by permission of the publisher.