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INTRODUCTION
On a cloudy, drizzly summer night in 2006, Martin Heidgen met a friend for drinks after work. Later in the evening, he attended a party where he continued to drink. By two o'clock in the morning he had become highly intoxicated. He left the party and proceeded to drive home. During the trip, he drove his car onto a divided parkway heading in the wrong direction towards oncoming traffic. He struck a limousine head on, killing the fiftynine-year-old driver and a seven-year-old girl. He was convicted of second-degree murder.
"Thou shalt not kill."1 One of the most fundamental and intuitive maxims of human law and morality is the prohibition of murder. The killing of another person has long been regarded as a lurid and intolerable wrong against society. Laws prohibiting murder have existed for thousands of years and have evolved considerably as society and the legal system have become more advanced. The modern understanding of the word murder is complex. Even more complex is the law that applies to homicide generally. The law of homicide is a law of degrees, hinging on delicate issues of circumstance, human action, culpability, causation, mental state, emotion, risk, and semantics. This complexity can be a valuable tool for dealing with the infinite number of variables present in the real world: The ability to account for subtle differences and to administer punishment that is custom fitted to the crime committed is an ideal way to achieve fairness and promote justice. Unfortunately, this complexity can also cause confusion, resulting in a misapplication of the law and undermining the very purpose these statutes were meant to achieve.
At common law, murder was defined simply as "unlawful homicide done with 'malice aforethought.' "2 The term malice aforethought encompassed, among other things, killings committed with "extremely reckless indifference to the value of human life (the so-called abandoned and malignant heart)."3 This brand of murder applied to actions that carried a high likelihood of death without being aimed at anyone in particular, but were perpetrated with a full awareness of the probable consequences.4 Such killings were considered as culpable as intentional murder.5 This designation remains in New York's murder statute today, which includes as second-degree murder a reckless killing committed "[u]nder circumstances evincing a...