The 2nd degree murder definition paradox allows a lesser sentence for an actual killing and a harsher sentence if victim lives.

People v. Guyton, 2014 IL APP (5th) 110450 (07/15/2014).

2nd Degree Murder Definition

Second degree murder is a “lesser mitigated offense” of first degree murder and is distinguished from self-defense only in terms of the nature of the defendant’s belief at the time of the killing.

If a jury finds that a defendant committed a killing because he felt he was acting under an unreasonable self defense or if the defendant was acting under a sudden and intense passion resulting from a serious provocation, then a murder charge turns into a second degree conviction.

See 720 ILCS 5/9-2(a)(1), (a)(2).

Same Act Different Outcome

Imagine two different guys committed identical criminal acts.

Situation A

Albert (guy A) shoots a gun into a car. The bullet hits a person in the car. The person is immediately taken to the hospital but died of his wounds in the surgery room. Albert is charged and convicted of murder. In his trial, Albert testifies that he thought he saw someone in the car point a gun at him. Albert told the jury he fired into the car in self defense. The judge allows the jury to consider a second degree murder instruction. The jury finds Albert guilty of second degree murder. This basically means they believed that Albert was acting in an “unreasonable” self defense. 

Situation B 

Bernie (guy B)  also shoots a gun into a car. The bullet hits a person in the car. The person is immediately taken to the hospital and survives after surgery. Bernie is charged and convicted of attempted murder. In his trial, Bernie testifies that he thought he saw someone in the care point a gun at him. Bernie told the jury he fired into the car in self defense. The judge does not allow the jury to consider a second degree attempted murder instruction because the law does not allow it. The jury finds Bernie guilty of attempt murder. 

Unexpected Outcomes

Albert was sentenced to 18 years for second degree murder. Second degree murder is a class 1 felony punishable from between 4 to 20 years. 

Bernie was sentenced to 36 years for attempted murder. Attempted murder is a class X felony punishable from between 6-30 years with a mandatory 20 years sentence for personal discharge of a weapon. 

The paradox is that the guy who actually killed someone got a lesser sentence than the guy who did not kill someone!

Real Case

Well, this actually happened. In the case of  People v. Guyton, 2014 IL APP (5th) 110450 (07/15/2014).

The difference is that this case only involved one shooter. Guyton shot a gun into a car. The driver was killed and the passenger was only injured. Guyton was charged with murder and attempted murder. The jury heard his self defense claim but could only sign a lesser verdict form for second degree murder. He was convicted of both second degree murder and attempted murder. 

Guyton received a harsher sentence for the guy that did not die and a lesser sentence for the guy that actually died.

In the law, this is a known and acceptable outcome.

Paradox Explained

How can this be?

The answer is simple. At the risk of sounding like a smart-ass, let me say that the answer is that that is the law.

To be more specific, I can point out that the criminal law only reduces one crime to a lesser classification for the same act. The act of intentionally killing a person is murder. Under certain circumstances a person can be convicted of the lesser “crime” of second degree murder if a jury believes certain things.

There Is No Attempted Second Degree Murder 

If a jury finds that a defendant committed a killing because he felt he was acting under an unreasonable self defense or if the defendant was acting under a sudden and intense passion resulting from a serious provocation, then a murder charge turns into a second degree conviction.

This is the only situation where the law allows the reason for the criminal behaviour as an excuse to lower the classification offense and give less punishment.

Thus, when a victim dies, the defendant then has an opportunity for a second degree murder instruction. If the victim survives. The defendant can’t be charged with any form of murder other than attempt murder. Unfortunately, for the defendant there is no recognized form of “attempted second degree murder”. The jury would only get the instructions for attempted murder.

Attempted murder then is punished more harshly because It is a class X offense, there is no lower classification level available for it, and the so called gun add-ons kick in.

The Legislature Can Change This 

Interestingly enough, this paradox has been known by legal writers and professors for a while.

The “remedy” was to allow for a class 1 sentencing in attempt murder situations when and only when the defendant acted under a sudden and intense passion resulting from a serious provocation.  The jury never is asked to consider this “defense”.  This is only an option available at sentencing. So this is not considered to be an attempted second degree murder charge.

See 720 ILCS 5/8-4(c)(1)(E).

However, Guyton won the instruction for an “unreasonable” self defense so this sentencing provision did not apply to him at sentencing for the attempted murder conviction.

Most judges on appeal are found of saying that the legislatures know how to lower the classification of offenses and know how to offer mitigation at sentencing. Most judge won’t “fix” any paradoxes that they think should be fixed by the law makers.