New York and 1st Degree Murder (UPDATED)

9 Feb
Barbed tape at a prison

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Yesterday, Ray Walter suggested that I write about why it is that New York’s 1st Degree murder statute doesn’t cover situations such as the Hassan murder.  New York’s Penal Law enumerates 13 special circumstances, any one of which must be present for 1st degree murder to apply. None of them were present here.  So, it gets charged as 2nd Degree.

New York’s criminal statute is based on the Model Penal Code, which was devised  in the hopes that many states would adopt it, leading to a degree of uniformity in state criminal charges across the country. It was most recently updated in 2009.  The New York statute doesn’t track the Code exactly, (using “intentionally” instead of “purposefully”, e.g.).

The state has made the value judgment that murder is very bad indeed, resulting in a sentence of 15-25 years to life, whereas 1st degree murder’s special circumstances render it even worse.  A person convicted of 1st degree murder may be sentenced to life without parole.

Back in the long long ago, there was still a pretense of sending people to jail not just for punitive reasons, but also to rehabilitate them.  Even murderers.  While Muzzammil Hassan may be eligible for parole when he’s in his early 70s, he seems to be beyond rehabilitation and will likely stay in jail for the rest of his life – most importantly because he has no self-awareness of his own responsibility for his actions.

On the other hand, if a young kid commits murder and rehabilitates himself in jail, availing himself of every possible program to better himself, educate himself, learn skills, and be penitent, then the parole board may very well give people like that a second chance.  25 years is a very long time, and people should be paroled on a case-by-case basis.

Rest assured that Mo Hassan isn’t going anywhere, ever.

UPDATE: I wanted to add this in because it occurred to me after posting.  There is a general ideological parallel between people who advocate in favor of a death penalty, but also advocate against hate crime legislation.  The two concepts, when implemented, rely on the same underlying factor – the perpetrator’s state of mind. Any 1L can explain that a criminal act requires a criminal state of mind (mens rea), and the criminal act itself (actus reus).

In Hassan’s case, the actus reus was never in dispute – the entire trial was over his state of mind. New York’s first degree murder statute’s aggravating factors are generally situational – they don’t really differentiate between states of mind or the act of murder as compared with 2nd degree murder – they just acknowledge other circumstances; the victim was a cop, the victim was a criminal witness, it was committed in connection with a robbery or burglary, etc.  The viciousness of Hassan’s crime was a result of his state of mind (a narcissistic & sociopathic abusive spouse), but not a special circumstance.  Compare Hassan and our 1st degree murder statute to oft-controversial hate crime legislation, which specifically treats the perpetrator’s state of mind as a special circumstance.  For instance, Helmut didn’t just kill Johnny randomly – he killed Johnny because Johnny is a Jew, or because Johnny is a homosexual.  Again – these are values that we as a society have codified through legislation passed by people we elect.  I’m in favor of hate crime laws, and against the death penalty; I’d much rather that the worst of the worst rot for decades in a SuperMax facility. But it’s not solely up to me – it’s up to all of us how we want crimes defined & punished.

22 Responses to “New York and 1st Degree Murder (UPDATED)”

  1. Jesse February 9, 2011 at 8:00 am #

    Thanks for tihs, Alan.

    It’s depressing to note the bloodthirsty America is making a mini-comeback in WNY with this trial. I hear this morning that some of the dopes in the Senate are going to try to bring back the death penalty, but at least the Assembly will block it (or vice versa). I also hear one of the same dopes is going to try and create a special circumstances extra special buttery classification for beheadings. As if being beheaded is any worse than being dead by any other means.

  2. Bill Altreuter February 9, 2011 at 8:30 am #

    It’ll never happen, of course, but think for a moment about the big money New York could save if it normalized its sentencing laws with the rest of the Western world. Unfortunately what we get instead are proposals for making prison a more expensive proposition– nice work, New York State Senate.

  3. Ray Walter February 9, 2011 at 8:48 am #

    Thank you Alan. I agree that “even murderers” in some circumstances should have an opportunity to be rehabilitated and get a chance at parole. But in the most egregious cases, such as Hassan, there should be a 1st degree option with 2nd degree being a lesser included offense for the close calls. As the statute is written now a 20 year old kid who ends up killing someone while robbing a convenience store can be charged with 1st degree murder but Hassan can’t? That seems like it is overinclusive in one respect and underinclusive in the other. Let me ask you this. Does Judge Franczyk have the discretion to sentence him to Life w/o parole?

  4. Ray Walter February 9, 2011 at 8:51 am #

    Bill – the problem with NY sentencing laws isn’t with murderers its with small time drug offenses. The vast majority of our prisons are filled with non-violent drug offenders and that is ridiculous. I am happy to pay tax dollars to keep Hassan in jail for life.

  5. Alan Bedenko February 9, 2011 at 9:06 am #

    You guys got me thinking about the punishment of mens rea and hate crime legislation, so I updated the post a bit. 

  6. Brian Castner February 9, 2011 at 9:17 am #

    What does it matter if they were beheaded? Does it matter if they were dragged along behind a truck? Or does it matter more that they were gay, and the truck dragging was simply the method?

    Alan – does NY not have hate crime laws? Or did this not qualify? I guess I’m in favor of giving the judge lots of options, and not tying his hands. Possible hate crime? Let the judge/jury decide. Extra kicker for beheading? Up to the judge. Doesn’t state of mind go to the method? From what you wrote, it seems NY cares more about the status of the victim than the method or reasoning of the crime. That doesn’t feel right, but not being a lawyer, I’m having a hard time articulating why.

    • Alan Bedenko February 9, 2011 at 9:24 am #

      Hate crime laws apply specifically to acts resulting from a form of animus that stems from federal and state anti-discrimination statutes.

      For instance, if you’re a landlord, it’s ok to discriminate against a prospective tenant because they’re unable to pay their bills. Or because they smell. Or for any other reason not specifically considered under the law to be a forbidden form of discrimination – usually gender, race, age, religion, etc.

      So, all murder can certainly be a “hate crime” in that it’s not generally the result of great love to commit a homicide. But since society has deemed it absolutely unacceptable to subject another person to harm solely on the basis of who they are – a condition that they cannot change – then those crimes are sometimes punished more harshly.

      Hassan didn’t murder his wife because she was a woman. Or because she was Pakistani. Or because she was a Muslim. He killed her because of the reasons I submitted in my earlier post. The reasons he killed weren’t because of who Aasiya was, but because of who he is.

  7. MJC February 9, 2011 at 9:19 am #

    Hassan has zero chance of being paroled. In my experience, even the rehabilitated guys have a hard time making parole.

    The parole boards are pretty conservative in this state, despite what you may guess.

  8. Brian Castner February 9, 2011 at 9:38 am #

    Alan – Ok, I get that – but what about the visciousness of a beheading vs shooting someone once? There is no sliding scale for being extra bloodthristy? The race or religion of the victim matters more? Or is that the judge’s discretion at sentencing? In the case in Wyoming where the kid was dragged behind the truck to die because he was gay, where does the victim status come in, vice the cruelty of the method of killing? Once you start parsing this out, it seems backward that punishment seems to rely on the status of the victim more than how heinous the actual crime was. Or perhaps I am misreading it all.

    • Alan Bedenko February 9, 2011 at 9:46 am #

      It doesn’t stem solely from the status of the victim, but that the victim’s status caused such animus in the perpetrator that he committed the crime. It’s a “without which not” analysis; but for the victim being gay/female/black/Mormon, etc., the crime wouldn’t have occurred.

      The crime here was murder; intentional homicide. It doesn’t much matter what means you used to perpetrate the actus reus – Aasiya was dead before the beheading took place. Desecrating the body doesn’t make her extra-dead.

  9. Brian Castner February 9, 2011 at 9:51 am #

    “Aasiya was dead before the beheading took place.” In this case, certainly, but if beheading was the method of death, or shooting her with a gun, or poisoning her, or stabbing her twenty something times, its all murder so the law looks at all those the same? There is no “cruel and unusual” statute? Am I asking a question that doesn’t even make sense in the eyes of the law/legal system?

    • Alan Bedenko February 9, 2011 at 10:26 am #

      The act of homicide is homicide. Doesn’t really matter what tool is used to commit the act. Once you’ve established a criminal homicide took place, the inquiry turns to the perpetrator’s state of mind – if accidental, maybe it’s manslaughter. If it’s intentional, it’s murder.

  10. Sean February 9, 2011 at 9:53 am #

    There are tens of domestic homicides in the US every year, over 99% of which are committed by non-muslims.
    All the muslim-haters have jumped on this murder as “honor killing” to further  paint them as evil, to go drop bombs on them, kill them and ravage their countries.   
    there is nothing in Islam that sanctions killing your loved ones no matter what.  In fact, this guy would get much harsher punishment in most Muslim counties such as Pakistan, iran, and turkey, than in the US.  
    “honor killing” has been a cultural issue and not a religious one, and not something unique to Muslims countries.  They have done in India, in China, in Europe, etc. In the old Roman Empire, men were obligated to kill their adulterer wives, because the gov would kill them in a worse way. 
    there is no evidence this crime by Hassan was an honor killing. there is a term for this kind of crime in criminology:  “crime of passion”.

  11. Mark Poloncarz February 9, 2011 at 10:00 am #

    You are going to regret ever saying: “I am happy to pay tax dollars … .” Oh Joy! Oh Joy! 🙂
    And you almost sound liberal there criticizing the Rockefeller drug laws that threw drug related prisoners in prison for a long time. Are we finally turning you into the lefty I knew you were?

  12. Ray Walter February 9, 2011 at 10:45 am #

    I’m really focused on the cold blooded pre-meditated calculated nature of the crime. How he was lying in wait and set the whole thing up to get her alone and then kill her. It definitely hinges on the state of mind of the killer as displayed by his actions. In this case it was crystal clear and I believe it exposed a flaw in the penal law. I’m just going to ignore Mark – he likes to amuse himself at my expense – don’t you have a press release to wirte.

  13. Mark Poloncarz February 9, 2011 at 10:53 am #

    Ray and I have a running amusement at each other’s expense, all in good fun though. I sat through the Hassan trial a number of times. Clearly a cold blooded killer who believed he could manipulate the system. While justice has been delievered it does not bring back Aasiya. I am not looking forward to his numerous appeals. Based on his testimony and attempt to question witnesses, it appears he will nevere accept the fact that she was the victim, not him. Hence I assume he will appeal the conviction to every possible court of last resort.

  14. Ward February 9, 2011 at 11:59 am #

    Hassan, by virtue of the degree of the offense, will be confined to one of NY’s maximum security prisons, in the company of other violent offenders. (Best guess is upstate–Comstock, Malone or Dannemora.)
    When his new neighbors get a taste of his personality, he may have some trouble getting along with them. After a while, he may have the kind of trouble that makes parole a moot point.

  15. Brian February 9, 2011 at 1:11 pm #

    Ward is quite correct.  And I’m here to tell you that Dannemora is horribly intimidating from the OUTSIDE.  Drive past it some day.  

    Hassan is going to seriously urinate somebody off in a max security joint.

  16. MJC February 9, 2011 at 1:57 pm #

    Anyone who believes that prisons are too soft has clearly never been to one. This guy has no idea what he is in for.

    And they are going to control his activities in a manner that he could only dream of doing to his wife.

    Furthermore, even if he is eventually transferred to a closer prison – say Attica – no one is visiting. He is going to live in an isolated, controlled, lonely hell for several more years, and then he is going to die there. A fitting punishment.

  17. DJ February 9, 2011 at 2:36 pm #

    I think some of you watch too much television. While prison isn’t the nicest place to live your life, it isn’t the hellhole you seem to think – and that includes max joints. There is no reason to believe that Hassan will be under any Bucky Phillips-like restrictions while incarcerated unless he brings them on himself. He will most likely be in general population after reception, because frankly, while his trial may have been big news in Buffalo, he’ll be just another wife murderer upstate.

  18. RaChaCha February 10, 2011 at 2:29 pm #

    So how does he pay for all these appeals–? I’ve read that he withdrew $90K from a joint bank account — I’m sure partly out of spite to deprive his wife of funds, but perhaps also because he figured he’d have some BIG legal bills coming up…

    Could he be using that money to pay legal bills — or might that money have been seized by the courts and turned over for purposes of supporting the children–?

    I love being a student at the WNYMedia school of law online — especially the Latin parts!

    • Alan Bedenko February 10, 2011 at 2:37 pm #

      He’s a prisoner. I think they get fee waivers. Also, he’ll clearly be doing the work himself. After that bangup job he did as his own attorney, what other option is there?

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