Change in Punishment for Second-Degree Murder

Senate Bill 105, which passed both chambers of the General Assembly overwhelmingly and appears certain to become law (either with the Governor’s signature or because of the passage of time without her veto), increases the penalty for most second-degree murders. Second-degree murder is currently a B2 felony, but for offenses committed on or after December 1, 2012, it’s going to be a B1 felony – unless malice is established based on recklessness or the murder results from drug distribution, in which case, second-degree murder will remain a B2 offense. What follows are a couple of quick thoughts about the change, including, at the end, a couple of comments about interesting implementation issues presented by the bill.

• Historical context. The punishment for second-degree murder has varied quite a bit over the years. Under the Fair Sentencing Act, second-degree murder was a Class C felony. It carried a possible prison term of 0 to 50 years, with a presumptive term of 15 years. Prior to Fair Sentencing, second-degree murder was an unclassified felony, punishable by two years to life in prison.
• Longer sentences. According to Sentencing Commission data, the average sentence length for a conviction of a B2 felony in FY 2010/11 was 170 months minimum. By contrast, the average sentence length for a conviction of a B1 felony was 230 months minimum. Looking at it another way, for a defendant in prior record level III, the top of the presumptive range is 207 months minimum for a B2, but 317 months minimum for a B1. So there will be something like a 50% increase in sentence length for most second-degree murders.
• Plea bargains? Part of the impetus behind the bill was the idea that the state would be more likely to offer plea bargains in first-degree murder cases if second-degree convictions carried longer sentences. Whether that’s true remains to be seen, but the possibility makes the ultimate effect of the bill on the prison population – and the budget – somewhat uncertain: second-degree murderers will serve longer sentences, but there may be fewer first-degree murderers serving life without parole. Some of these issues are discussed in the fiscal note on the bill.
• Will the B2 row on the grid fade into insignificance? Second-degree murder was, for a long time, the only B2 felony, and it still accounts for the vast majority of B2 felony convictions. According to the Sentencing Commission’s list of felony offenses by class, there are now three B2 felonies: second-degree murder, second-degree fetal homicide (since 2011), and repeat felony death by vehicle (since 2006). The latter two together are dwarfed in terms of the number of cases by the first. But the B2 row on the grid won’t fall entirely into desuetude: as noted above, some second-degree murders will remain B2 felonies, and an attempt or conspiracy to commit a Class A or Class B1 offense also results in Class B2 punishment. G.S. 14-2.4 (conspiracy); G.S. 14-2.5 (attempt).
• B1 isn’t just for sex crimes anymore. In general, B1 felonies are serious sex crimes, like first-degree rape, first-degree sexual offense, and aggravated incest. The only non-sex crimes that are B1 felonies are certain offenses related to chemical, biological, and nuclear weapons of mass destruction – offenses that are virtually never charged. Adding second-degree murder to the list of B1 felonies will change the composition of that offense class significantly.
• Implementation. Because the type of malice involved will determine the offense class, it appears that the jury returning a verdict of second-degree murder will need to make findings regarding the theory or theories of malice at issue. This will require changes both to the jury instructions and to the verdict sheet in such cases. I don’t think that there will need to be any changes at the charging stage, though I haven’t thought very carefully about it.
• Prior record level. Under G.S. 15A-1340.14(c), prior convictions are given points based on the current classification of the offense of conviction. Does this mean that after December 1, any defendant with a prior second-degree murder conviction who commits a new crime will have 9 prior record points for the murder (for a prior B1) rather than 6 (for a prior B2)? I doubt it. Remember that not all second-degree murders will be B1 felonies. Furthermore, it may be difficult to determine whether a defendant’s prior second-degree murder conviction involved malice based on recklessness or resulted from drug distribution. Thus, many or maybe even all defendants with prior second-degree murder convictions will be able to argue that their records are ambiguous and that any ambiguity should be resolved in their favor, i.e.,  that they should still receive only 6 prior record points.

If readers have thought of other possible implications of this bill, please chime in.