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Could a state decriminalize killing other people in all cases? (Obviously they wouldn't and shouldn't, but could they legally/constitutionally?)

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  • It seems if it is completely legal then in some cases federal laws would take over. You might ask if a state can set the punishment for murder to one day in jail instead, in case that makes a legal difference.
    – gnasher729
    Commented Nov 1, 2022 at 17:05
  • I wonder whether the real question is “can states establish laws that the federal government really, really doesn’t like”.
    – gnasher729
    Commented Nov 1, 2022 at 22:35
  • @gnasher729 it was mainly a 14th Amendment question. Is a state "depriv[ing a] person of life... without due process of law" if someone who is not a government agent kills that person, and is allowed to do so by a state law?
    – Someone
    Commented Nov 1, 2022 at 22:57
  • Thanks for the clarification. I thought it would be interesting to compare the rights of the 50 US states say in comparison to the rights of the 50 counties in the UK in relation to the state itself.
    – gnasher729
    Commented Nov 2, 2022 at 0:22
  • @gnasher729 In England and Wales, if central government really doesn't like the actions of a county, the Secretary of State for Levelling Up, Housing and Communities can draft an order to abolish that county, get it approved by a single, simple-majority resolution in each house of Parliament, then that county no longer exists. Recent example here. Commented Nov 2, 2022 at 18:37

4 Answers 4

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Yes, it Could

A state can repeal or modify its laws against any particular crime, or just decline, as a matter of policy, to enforce such laws. It is in my view quite unlikely that a state would do this in the case of murder, but legally it could.

Such action by a state would not affect the federal murder statute is at 18 USC 1111. But that only applies under a rather limited set of situations. According to "When is murder a federal offense?" it applies when:

  1. The murder is of a federal judge or a federal law enforcement official (for example, an agent of the FBI, TSA, or ATF),1
  2. the killing is of an immediate family member of a federal law enforcement official.
  3. the murder is of an elected or appointed federal official (for example, the President, a Supreme Court Justice, a member of Congress, or the murder of a federal judge)
  4. the killing is committed during a bank robbery [or other Federal crime].
  5. the killing takes place aboard a ship at sea (for example, on a vessel that is engaged in interstate commerce per the Commerce Clause of the U.S. Constitution).
  6. the murder was designed to influence a court case.
  7. the killing takes place on federal property (for example, on national parks or a Native American reservation).

The vast majority of murder cases do not come under the current Federal law.

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  • This answer neglects that a U.S. State is still under federal jurisdiction and supposing that murder is still illegal at the federal level, all the state decriminalization of murder would do would take away the state's ability to prosecute them. If anything murders in this state would get harsher treatment because Federally, parole is almost non-existent and states without the death penalty will now have their citizens on the hook for federal murder which can open them to capital punishment.
    – hszmv
    Commented Jun 30, 2022 at 17:42
  • @hszmv The federal murder statute is at [18 USC § 1111] (law.cornell.edu/uscode/text/18/1111) It normally applies only to murder on the high seas or on aircraft, murder on a federal; reservation such as a national park or a military base, or murder of a federal official. The vast majority of murder cases do not come under the Federal law. But i will update the answer to cover this edge case. Commented Jun 30, 2022 at 20:13
  • I wish that any downvoters would leave a comment indicting what they think is wrong with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. If the issue is the applicability of Federal law, I have addressed that. If anyone thinks my answer is incorrect or incomplete, please say so and say why so i can perhaps fix it. Commented Jun 30, 2022 at 23:54
  • I didn't downvote, but aside from your bad typing, you offer no evidence for the claim "A state can repeal or modify its laws against any particular crime, or just decline, as a matter of policy, to enforce such laws." Which is the central point of the question.
    – Stuart F
    Commented Jul 1, 2022 at 10:06
  • There's also the fact that the U.S. is a common law jurisdiction and there are some states, like the one I presently live in, where there is no codified legal definition of murder because the courts have ruled murder illegal so consistently that the legislature's only needed action was to write the rules on sentencing.
    – hszmv
    Commented Jul 1, 2022 at 11:23
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With some limited exceptions, yes.

Decriminalization

Could a state decriminalize killing other people in all cases?

Probably, although if it only partially decriminalized killing other people, and there was a distinction between legal killings and illegal killings that constituted constitutionally impermissible discrimination under the 14th Amendment (e.g. decriminalizing killing white people but not Asian people), or constitutionally impermissible differential treatment for exercising a constitutionally protected right (e.g. decriminalizing the killing of people who vote, but not people who do not vote), this would not be within a state's authority.

It also isn't obvious that genocide, more generally, could be lawfully decriminalized, at least so long as the U.S. is party to the Geneva Conventions.

Denial Of Any Legal Remedy

Also, there is a still narrow, but larger class of killings for which denying any legal remedy including money damages would be unconstitutional, even though a criminal penalty would not be required.

For example, a state probably could not deny any remedy, even money damages, to someone killed by a state actor in many circumstances (e.g. to appropriate their bones for research purposes), or through the deliberate indifference of state actor having custody over that person. The 5th Amendment (as incorporated through the 14th Amendment) to the U.S. Constitution, and the right to have remedies for certain other constitutional rights would prohibit this.

Examples of Legal Killings

This said, there are lots of kinds of intentional killings that are not crimes and aren't even a valid basis for a lawsuit.

The federal government, acting under the War Power, for example, did not commit a crime or legally actionable civil wrong under U.S. law, for example, when it dropped nuclear bombs on Hiroshima and Nagasaki, knowing that this would kill tens or hundreds of thousands of innocent civilians in Japan only a small minority of which were legitimate military or governmental targets, in a nation with which the U.S. was in a declared war at at the time.

More generally, a soldier acting under war power authority is authorized to and indeed legally obligated to intentionally kill other people in all sorts of circumstances that are largely a function of their commanding officer's orders except at the very outer limit of what constitutes war crimes.

The death penalty authorized intentional killings with premeditation of persons determined by a court to be guilty of capital offenses.

Private citizens are authorized by law to kill others in defense of themselves or others, if necessary, and the U.S. Supreme Court in Heller held in dicta that this right to use deadly force for the purpose of self-defense of oneself or one's family was a constitutional right that could not be taken away.

The scope of the right to use deadly force in self-defense differs from state to state, however, and acts that would be criminal murder in some states are justified self-defense in others. One major expansion of the right to use deadly force in self-defense arose from the repeal of the marital exception to forcible rape laws in various U.S. jurisdictions, one by one. Prior to that change in forcible rape laws, a wife could not use deadly force in self-defense against her husband raping her. After that change in the law, a wife who uses deadly force in self-defense to prevent her husband from raping her has not committed a crime.

Law enforcement and prison guards, can and are authorized to use deadly force to apprehend suspected criminals and escapees in circumstances where the right to self-defense would not be present for an un-deputized private citizen.

Historically, merely negligent as opposed to intentional killings were not criminalized, although they could be a basis for a civil lawsuit for money damages, although there are some exceptions to that rule in cases of extreme "criminal negligence."

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    Should be pointed out that there is a legal difference between "Homicide" (the killing of a human by another human) and a murder (an unjustified homicide as opposed to a justified homicide).
    – hszmv
    Commented Nov 1, 2022 at 13:23
  • @hszmv Absolutely, although some states with sloppy wording in criminal code legislation muddy the waters.
    – ohwilleke
    Commented Nov 1, 2022 at 18:46
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Yes. Absent a state constitutional provision to the contrary, which is unlikely, a state legislature could legalize murder; and of course a state could also amend its own constitution to remove even that impediment. Any preexisting common law prohibitions would be trumped by a legislative act. Of course, Congress has made murder a federal crime in certain rather narrow instances and could expand on that, but how much is not clear. It is traditionally considered black-letter constitutional law that general police powers are reserved to the states, but the Supreme Court's expansive commerce clause jurisprudence has arrogated powers to Congress of such scope that today this understanding may be of questionable practical significance.

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It had been done in the past

People state that states couldn't (order the) murder or people outright forget that in the past, there were several countries that regularly made people disappear or had them outright murdered on the streets or in concentration camps, or whatever other name those institutions went by.

California - 10 years of Hunting Native Americans Legally.

The USA often forgets that their military and settlers had taken part in dozens of massacres outside of formally declared wars. The state didn't object or prosecute in most cases, in some cases even congratulated the perpetrators. As a random example, let's take the 1850s:

California enacted a law in 1850 that allowed enslaving Native Americans (esp. under the California Statutes of 1850, Chapter 133), and in 1851 they allowed settlers to kill Native Americans when forming 'militias' and have the state pay for the expenses of such lynch mobs. The general stance of California toward the Native Americans at that time was very hostile(different mirror):

That a war of extermination will continue to be waged between the races, until the Indian race becomes extinct, must be expected. While we cannot anticipate the result but with painful regret , the inevitable destiny of the race is beyond the power or wisdom of man to avert

Governor Peter H Burnett: Governor's Annual Message to the Legislature, January 7th, 1851. In: Journal of the Senate and Assembly of the State of California at the second Session of the Legislature, 1851-1852, San Francisco (1852), p. 15.

When the first white settlers arrived in Round Valley in 1854, they immediately started with killing natives and abducting them into slavery, often selling them as slaves and brides to gold diggers. Between 1856 and 1859, less than 30 white men accounted for the death of more than a thousand Native American males. Over the years, by stealing the kids and women as well as the almost regular massacres, the settlers managed to decimate the native population from about 20000 to about 300 in 1864.

This literal hunting of people to enslave them was technically legal. It was not just government-allowed and financed, it was even government-ordered: In 1859, a settler got a letter from the Californian Gouverner that allowed him to kill natives. 1860 saw expenses of more than 9300 USD paid for this campaign of murder.

It took the US Army to halt any further violence in 1862 and the 1851/52 laws that allowed the enslavement and murder of native Americans in California were revoked in 1862. There are little to no attempts to rectify this chapter of Californian History.

Over the edge: Similar situations worldwide

Whenever a government sought to decriminalize murder, it did so for its own gain, usually pointing to a specific group that was to be attacked to further the goals of those in power. Often, the legal situation is much murkier though than in the picture painted by California - the laws are sometimes of dubious legality in themselves. But just to illustrate, let me grab three examples of similar murder-campaigns from history:

Nazi Germany - 6-8 Million religious & cultural victims

In Germany, (technically illegal) laws were passed, and people were deported under those laws and fed to the death machinery of the Holocaust. Those laws were outright illegal even under german law of the time, and people acting on them are still prosecuted for murder these days - Murder doesn't have a statute of limitations.

Soviet Union - ~1 Million political victims + untold others

A different picture appears in the Soviet Union. Stalin had anyone he didn't like shot or sent to Gulags on fictive charges - where they were worked to death, starved to death, or just shot for showing uppity. At times his right hand just filled lists to meet quotas in the Great Purge. Unlike the Holocaust, those acts often didn't even attempt to appear lawful. The rest used sham courts to get people - opposition as well as innocents - convicted on paper. But in any way, there were several cases of murder ordered by the state, where people were just... shot in a back alley on the governance's order. The accounting is wonky, and there is and was no serious attempt at trying to make the surviving victims or their families whole.

Cambodia - ~2 million from every slice of life

Cambodia fell under the Khmer Rouge in about 1951, and Pol Pot ordered the extinction of several groups of people. Religious groups were just as targeted as the educated. But also those wearing Glasses, speaking more than one language and anyone even seeming to be educated were among the targeted groups. Genocide followed. Sure, it might have been technically illegal to kill those people for the Khmer Rouge, but the situation was pretty... lawless under Pol Pot.

It took the followup government to enact a new law in 1979 (Decree Law No. 1) to be able to prosecute the Khmer Rouge. There are serious attempts to try and vindicate the victims, but... it's slow.

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