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NOTES
DEFINING UNINTENDED MURDER
INTRODUCTION
Most state criminal statutes, and the Model Penal Code, distin-
guish murder from manslaughter on the basis of whether the actor in-
tended to kill his victim.' Since the days of the common law, however,
certain actions, while not undertaken with intent to kill, have been
deemed equivalent to murder when they caused a death. For example,
a terrorist,A, who plants a bomb in a car on a busy street, may be found
guilty of murder when someone is killed in the explosion although A
neither knew nor cared that the bomb would kill anyone. In the lan-
guage of the Model Penal Code, A is guilty of "extreme indifference
murder."2 Despite widespread agreement that certain unintended kill-
ings should be treated as murder, states continue to struggle in search
of a satisfactory means of distinguishing such killings from manslaugh-
ter. States have taken numerous approaches in attempting to define
unintended murder according to varying aspects of the defendant's act,
or by some facet of his state of mind. None of the approaches has
worked.
This Note argues that unintended murder should be defined by the
defendant's state of mind. Part I traces the history of unintended mur-
786
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1985] UNINTENDEDMURDER 787
der, from the common law, through its incorporation into the Model
Penal Code, to its current broad but varied application among the
states. Part II examines the most widely used approaches, arguing that
none of them successfully defines the offense. To reach a proper defi-
nition, Part III examines the philosophical underpinnings of criminal
law in general, and the law of homicide in particular. The Note con-
cludes that unintended murder is best defined by looking to an actor's
state of mind, and proposes discovering that state of mind by asking
whether the defendant would have acted had he known that a death
would result from his actions.
I. UNINTENDED MURDER
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788 COLUMBIALAW REVIEW [Vol. 85:786
to UnintendedMurder
B. ModernApproaches
Concern over the indeterminacy and ad hoc nature of the common
law concept of malice strongly influenced modern criminal law reform
and the drafting of the Model Penal Code. '4 The approach that has
emerged uses intent to distinguish murder from other homicides.'5
This definition of murder, however, highlights the difficulty of identify-
ing killings that, though unintentional, nonetheless deserve treatment
as murder. The Model Penal Code does not cope with this category of
homicide satisfactorily. Under the Code, an unintended killing'6 can
be murder only when "it is committed recklessly under circumstances
(c) Recklessly.
A person acts recklessly with respect to a material element of an offense
when he consciously disregards a substantial and unjustifiable risk that the ma-
terial element exists or will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and purpose of the actor's con-
duct and the circumstances known to him, its disregard involves a gross devia-
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1985] UNINTENDEDMURDER 789
tion from the standard of conduct that a law-abiding person would observe in
the actor's situation.
(d) Negligently.
A person acts negligently with respect to a material element of an offense
when he should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such a na-
ture and degree that the actor's failure to perceive it, considering the nature
and purpose of his conduct and the circumstances known to him, involves a
gross deviation from the standard of care that a reasonable person would ob-
serve in the actor's situation.
Model Penal Code ? 2.02(2) (Proposed Official Draft 1962).
17. Id. ? 210.2(1)(b).
18. Model Penal Code ? 210.2 commentary at 22 (1980); cf., e.g., State v. Howland,
119 N.H. 413, 418, 402 A.2d 188, 192 (1979) ("No definition of the disputed phrase has
been brought to our attention.").
19. The Code's extreme indifference formulation has not resulted in systematic
clarity. Indeed, some states have found that their revised statutes, although based on
the Code, simply adopt the state's prior law of unintended murder. See, e.g., North-
ington v. State, 413 So. 2d 1169, 1170 (Ala. Crim. App. 1981).
20. Compare, e.g., State v. Burris, 198 Iowa 1156, 1158, 198 N.W. 82, 84 (1924)
(Malice "does not mean mere spite, hatred or ill will."), with State v. Satter, 90 S.D. 485,
490 n.*, 242 N.W.2d 149, 152 (1976) (Standard is one of" 'ill-will, hatred, spite or evil
intent.' ") (quoting South Dakota PatternJury Instructions (Criminal) 3-7-310c). Com-
pare also State v. Lafferty, 209 A.2d 642, 672 (Me. 1973) ("[H]omicides . . . are ren-
dered [murder] . . . by the high objective tendency of [the actor's] conduct to produce
death.") (emphasis in original), with Waters v. State, 443 A.2d 500, 504 (Del. 1982)
("[T]he words 'cruel, wicked, and depraved indifference to human life,' are intended to
define a particularstate of mind which must be found to have existed in the defendant at
the time the crime was committed-the mensrea.").
21. W. LaFave & A. Scott, Jr., supra note 9, at 544-45. This is also the position of
the Model Penal Code. Model Penal Code ? 210.2(1)(b) (Proposed Official Draft 1962)
provides that the act must be committed "recklessly," a mental state that requires actual
awareness. See supra note 16. Justice Holmes, however, believed that a person could
be found guilty of murder without realizing the risk of his conduct, if a reasonable per-
son would have been so aware. See Commonwealth v. Chance, 174 Mass. 245, 252, 54
N.E. 551, 554-55 (1899). Few, if any, still adhere to this objective view. But see W.
LaFave & A. Scott, Jr., supra note 9, at 544 (discussing English murder conviction sus-
tained without showing of subjective awareness of risk).
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790 COLUMBIALAW REVIEW [Vol. 85:786
22. See Gegan, A Case of Depraved Mind Murder,49 St. John's L. Rev. 417 (1974)
(discussing these approaches and relating them to the law of New York).
23. The following jurisdictions allow convictions under this doctrine: Florida, see
State v. Bryan, 287 So. 2d 73, 76 (Fla. 1973), cert. denied, 417 U.S. 912 (1974); Ken-
tucky, see Hamilton v. Commonwealth, 560 S.W.2d 539, 540 (Ky. 1978); Maine, see
State v. Hickey, 459 A.2d 573, 582 (Me. 1983); Nevada, see Thedford v. Sheriff, 86 Nev.
741, 476 P.2d 25 (1970); New Hampshire, see State v. Torres, 121 N.H. 828, 830, 435
A.2d 527, 528 (1981); New York, see People v. LeGrand, 61 A.D.2d 815, 815, 402
N.Y.S.2d 209, 211 (mem.), cert. denied, 439 U.S. 835 (1978); Rhode Island, see State v.
McGranahan,415 A.2d 1298, 1302 (R.I. 1980); Wisconsin, seeJones v. State, 70 Wis. 2d
41, 49, 233 N.W.2d 430, 435 (1975).
24. "[A]cting 'under circumstances evincing a depraved indifference to human life,'
is a qualitativejudgment to be made by the jury in determining the extent of defendant's
criminal action; it is not a description of the mens rea involved in the commission of the
crime .... People v. LeGrand, 61 A.D.2d 815, 815, 402 N.Y.S.2d 209, 211 (mem.),
cert. denied, 439 U.S. 835 (1978).
25. New York Comm. on Crim. jury Instructions, CriminalJury Instructions 321
(1979).
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1985] UNINTENDEDMURDER 791
"circumstances" alone.26
2. Degreeof Risk. - Some states follow a degree of risk approach,27
which limits extreme indifference murder to cases in which the actor's
deed created a particularly significant chance of causing a death-
greater than the chance of death in manslaughter cases. The seminal
case applying the degree of risk approach, Commonweath v. Malone,28il-
lustrates this point. Malone involved a game of Russian roulette in
which one boy held a revolver loaded with a single bullet to his friend's
head and pulled the trigger three times. As it happened, the third of
the five chambers contained the bullet; the third pull mortally wounded
the victim. The court upheld Malone's unintended murder conviction
on the grounds that "[t]he killing . . . [was] at least sixty percent cer-
tain from his thrice attempted discharge of a gun known to contain one
bullet."29 Under this analysis, a jury could find A guilty of murder be-
cause setting off a bomb on a crowded street is particularlylikely to kill
a bystander. Cases identical in every respect, save for a lesser degree of
risk, would be classified as manslaughter instead of murder. A court
applying this standard to a second terrorist, B, whose attitudes and mo-
tives were identical to A's, but who happened to set off her bomb at
26. Consider two barroom brawls initiated by the same defendant, C. In both
cases, C is totally indifferent to the life of the individual he attacks, although he does not
intend to kill him. In one case, the victim is Dr. Eggshell, who, due to his concealed
fragility, dies of a hemorrhage after a single light blow to the head. In the second brawl,
the victim, Sugar Ray Bronson, puts up a tough defense to a protracted and bloody
assault before succumbing to C. A jury following an objective circumstances charge
might convict C of murdering Bronson, based on the "brutal"nature of his assault. But
for killing Eggshell, C might be punished only for manslaughter, since a single blow in
itself may not be deemed "callous."
27. The following jurisdictions follow the degree of risk approach: Alaska, see
Neitzel v. State, 655 P.2d 325 (Alaska Ct. App. 1982); Arkansas, see Johnson v. State,
270 Ark. 992, 606 S.W.2d 752 (1980); District of Columbia, see United States v. Dixon,
419 F.2d 288, 293 (D.C. Cir. 1969) (Levanthal,J., concurring); Illinois, see People v.
Johnson, 66 Ill. App. 3d 84, 383 N.E.2d 648 (1978); Oregon, see State v. Mattingly, 23
Or. App. 173, 541 P.2d 1063 (1975); Pennsylvania, see Commonwealth v. Young, 494
Pa. 224, 431 A.2d 230 (1981). The degree to which the defendant must have been
aware of the risk varies between jurisdictions. See infra note 29.
28. 354 Pa. 180, 47 A.2d 445 (1946).
29. Id. at 188, 47 A.2d at 449. The child's defense was that he thought the bullet
was in the last chamber. He claimed that he was only playing a game and had no inten-
tion of firing the gun. The appellate court may or may not have believed him.
Under the more primitive degree of risk approaches that look only to actual risk, a
jury would have convicted Malone whether or not it believed his version of the story,
since his mistaken belief could not affect the actual degree of risk. Other states claim to
examine the degree of risk that the actor was actually aware of, in which case the court might
not have found murder if it believed the boy. See, e.g., State v. Mattingly, 23 Or. App.
173, 541 P.2d 1063 (1975). Of course, both approaches require a subjective awareness
of at least some risk, see supra note 21. If Malone's story was to be believed in light of
the surrounding circumstances, surely his conviction for murder was unjust. See infra
text accompanying notes 115-16.
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792 COLUMBIALAW REVIEW [Vol. 85:786
30. States following the multiple victim analysis include Alabama, see Northington
v. State, 413 So. 2d 1169 (Ala. Crimt App. 1981); Minnesota, see State v. Hanson, 286
Minn. 317, 176 N.W.2d 607 (1970); New Mexico, see State v. DeSantos, 89 N.M. 458,
553 P.2d 1265 (1976); Washington, see State v. Anderson, 94 Wash. 2d 176, 616 P.2d
612 (1980) (en banc), cert. denied, 459 U.S. 842 (1982); Colorado, Colo. Rev. Stat.
? 18-3-102(1)(d) (Supp. 1984).
31. See, e.g., State v. Anderson, 94 Wash. 2d 176, 616 P.2d 612 (1980) (en banc)
(baby unintentionally killed by immersion in scalding water; conviction reduced to man-
slaughter because only one person threatened), cert. denied, 459 U.S. 842 (1982).
32. The following states explicitly approve of mens rea as the distinguishing charac-
teristic of unintended murder: Arizona, see State v. Walton, 133 Ariz. 282, 650 P.2d
1264 (Ariz. Ct. App. 1982); California, see People v. Burden, 72 Cal. App. 3d 603, 140
Cal. Rptr. 282 (1977); Delaware, see Waters v. State, 443 A.2d 500 (Del. 1982); Georgia,
see Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980); West Virginia, see State v.
Sanders, 161 W. Va. 399, 242 S.E.2d 554 (1978) (dictum).
33. Waters v. State, 443 A.2d 500, 506 (Del. 1982).
34. Id. at 505 (quoting State v. Winsett, 205 A.2d 510, 515 (Del. Super. Ct. 1964)).
35. Mens rea is defined as "the mental state required by the definition of the of-
fense to accompany the act that produces . . . the harm." S. Kadish, S. Schulhofer & M.
Paulsen, Criminal Law and its Processes 267-68 (4th ed. 1983).
36. Of course, the mens rea aspect in these states serves merely as a means of dis-
tinguishing murder and manslaughter. The crimes have causation and act elements as
well.
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1985] UNINTENDEDMURDER 793
A. TheObjectiveCircumstances
Approach
The objective circumstances approach insists that unintended mur-
der be distinguished from manslaughter by looking only to the circum-
stances surrounding the crime, not to the actor's attitude. This analysis
has gained wide acceptance.37 Its advantages are manifest. First, it re-
quires an inquiry that a jury may be capable of undertaking. For exam-
ple, many reckless killings result from child abuse. Where an adult has
mutilated or repeatedly beaten a child, the defendant's behavior, and
its consequences to the victim, may be so horrifying that a jury can eas-
ily distinguish the case38 from one in which a child died from a single
slap intended to quiet it. The jury can determine, on the basis of the
act and the circumstances, that the former incident calls for harsher
treatment than the latter, without reference to the defendant's goals or
attitudes towards risk.
Another advantage of grading killings by their objective circum-
stances is that such an approach has precedent in other areas of the law.
For example, many states recognize the concept of a more serious ver-
sion of rape, "aggravated" by the circumstances of the offender's act.39
Furthermore, attention to objective circumstances yields results that
often seem reasonable. In Statev. Weltz,40for example, Weltz was con-
victed of murder after killing a pedestrian with his car. Weltz had not
known his victim, but in a fit of anger had deliberately driven his car off
the road and into a crowd. The appalling nature of this act was enough
for the jury to convict Weltz of murder. Such a driver is like terroristA;
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794 COLUMBIALAW REVIEW [Vol. 85:786
41. The objective circumstances approach also convicts if a person shoots into a
crowd-the paradigmatic extreme indifference murder. For example, Doug Hatfield is
very angry with the McCoy family. He takes his shotgun to a local bar, which he knows is
frequented by the McCoy clan, and fires several random shotgun blasts into the estab-
lishment from across the street, killing a patron. Whether or not the victim is a McCoy,
Hatfield cannot be convicted of "intentional" murder. If he does not intend to kill any-
one, and death is not "substantially certain" to result from his act, the killing is not
conventional murder. Under the objective circumstances approach, however, he might
be convicted of murder because the circumstances of his act, the spiteful shooting of a
shotgun into a crowded bar, are more "brutal" or "callous" than merely reckless
conduct.
42. For example, the infliction of a serious bodily injury and the absence of any
prior relationship between the rapist and his victim raises the crime of rape to an aggra-
vated level. See supra note 39. Other examples of this approach under the Code in-
clude burglary, Model Penal Code ? 221.1(2) (Proposed Official Draft 1962) (punished
more severely if committed at night or if the actor was armed with a deadly weapon or
explosives), and criminal mischief, id. ? 220.3(2) (four different gradings ranging from
felony to violation, depending upon specifically enumerated circumstances).
43. Compare Cal. Penal Code ? 188 (West 1970) (malice implied where "circum-
stances attending the killing show an abandoned and malignant heart"), with the re-
cently revised formulation of Me. Rev. Stat. Ann. tit. 17-A, ? 201(1-A) (West Supp.
1984-85) (" 'Depraved' means outrageous, revolting, savage, brutal or shocking
44.
[V]ague statutes offend due process by failing to provide explicit standards for
those who enforce them, thus allowing discriminatory and arbitraryenforce-
ment. . . . The absence of specificity in a criminal statute invites abuse on the
part of prosecuting officials, who are left free to harass any individuals or
groups who may be the object of official displeasure.
Parker v. Levy, 417 U.S. 733, 775 (1974) (Stewart, J., dissenting) (footnote omitted,
citation omitted).
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1985] UNINTENDEDMURDER 795
udice.45 The vague and descriptive nature of the standard supplies the
prosecutor with a powerful and tempting tool for threatening and ob-
taining murder convictions.46 Finally, the approach furnishes inade-
quate guidelines for appellate control. Since the law does not state
which objective circumstances are relevant, it is difficult to determine
whether a "reasonable jury" could have found them. Indeed, one state
found this problem so severe that it declared the objective circum-
stances doctrine unconstitutionally void for vagueness.47 Other states'
high courts, while following the objective circumstances approach, have
been forced to threaten and cajole prosecutors and trial courts not to
take advantage of the law's broadness and susceptibility to abuse.48
The states' failure to specify what will lead to an "objective circum-
stances" conviction for unintended murder also suggests that this ap-
proach is not a suitable way to define the offense. Despite the powerful
45. Justice Stewart has pointed out that statutorytoy language of such a stand-
ardless sweep allows . . . prosecutors[] and juries to pursue their personal predilec-
tions.'" Id. at 775 n.4 (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)).
46. See infra notes 47-48. Because of the adversarialnature of our criminaljustice
system, prosecutors are unlikely to be able to resist the temptation to seek an extreme
indifference murder conviction. For example, when a prosecutor has strong evidence of
a reckless killing, she is unlikely to settle for a guilty plea on a charge less than man-
slaughter. The defendant may be unwilling to plead guilty. A prosecutor forced to go
to trial will seek a more serious punishment than the one she found acceptable at the
plea bargain stage; if she does not, defendants will have no incentive to plead guilty.
Thus, the prosecutor faces pressures to skew the facts as unsympathetically as possible
to make out a case of extreme indifference murder.
47. See People v. Marcy, 628 P.2d 69 (Colo. 1981) In Marcy, the Colorado
Supreme Court reduced the first degree murder conviction of a drunken man who had
shot and killed his wife while she was allegedly attempting to commit suicide. Colorado
had previously adopted the objective circumstances approach under a statute that made
it first degree murder to, "[u]nder circumstances manifesting extreme indifference to
the value of human life . . . knowingly engage[] in conduct which creates a grave risk of
death. ... Id. at 75. The court found that the words "under circumstances manifest-
ing extreme indifference to human life" did not add anything to the test the jury was
required to employ. Id. at 78. The statute was declared unconstitutional, and the con-
viction reversed.
48. Allowing convictions on the basis of such undefined circumstances permits any
case of manslaughter to be raised to murder if the prosecutor can paint a sufficiently
unsympathetic picture of the defendant. In State v. Lagasse, 410 A.2d 537 (Me. 1980),
the Maine SupremeJudicial Court sustained a manslaughter conviction, but recognized
this problem. Indeed, the court warned prosecutors to exercise restraint in employing
their objective circumstances provision:
[W]e are constrained to utter a word of caution to prosecutors. . . . In fulfil-
ling their ethical responsibility, prosecutors must recognize that depraved in-
difference murder constitutes a narrow and limited exception to the
fundamental principle of our Criminal Code that a person may not be proven
guilty of a crime without proof that he possessed one of the enumerated culpa-
ble states of mind.
Id. at 540 (footnote omitted).
Given the pressures to convict that district attorneys face, the court's appeal to ethi-
cal standards is hardly an ideal solution.
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796 COLUMBIALAW REVIEW [Vol. 85:786
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1985] UNINTENDEDMURDER 797
55. Under the Code, if the actor's conduct creates a risk so great that there is a
"substantial certainty" that death will result, the homicide is committed "knowingly"
and is automatically treated as murder. Model Penal Code ?? 2.02(2)(b), 210.2(l)(a)
(Proposed Official Draft 1962). Shooting a person who is standing in front of a rifle
target is murder even if the goal was only to hit the target. If, on the other hand, the risk
of death is extremely slight, the Code imposes no criminal liability whatsoever. If two
children are playing catch and a throw hits one of them in the head, resulting in that
child's death, no crime has been committed. Between "certainty" and slight risk lie
reckless killings in which the risk was substantial enough to create criminal liability, but
not large enough to warrant a conviction for murder.
56. See supra note 27.
57. See supra note 21.
58. Model Penal Code ? 2.02(2)(c) (Proposed Official Draft 1962).
59. See supra notes 1, 16.
60. See, e.g., State v. Mattingly, 23 Or. App. 173, 541 P.2d 1063 (1975).
61. The Model Penal Code already defines as murder those acts where the actor
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798 COLUMBIALAW REVIEW [Vol. 85:786
was substantiallycertain a death would result. Indeed, one state repealed its unintended
murder statute after having found that the degree of risk approach that applied in that
state rendered the provision superfluous. Hawaii Rev. Stat. ? 707-701 commentary at
344-47 (1976).
62. 354 Pa. 180, 47 A.2d 445 (1946). See supra notes 28-29 and accompanying
text.
63. In People v. Causey, 66 -Ill. App. 3d 12, 383 N.E.2d 234 (1978), for example,
the defendant struck his ex-wife on the side of the head with ajar of pennies. The blow
caused a blood clot in the woman's brain, and the victim died. Illinois follows the de-
gree of risk approach. Not surprisingly, however, the appellate record speaks of no tes-
timony, expert or otherwise, about the chance of such a fatal clot developing. It is
difficult to imagine the jury trying to calculate that risk accurately. Nonetheless, the
murder conviction was affirmed.
Inevitably, of course, the jury in such cases will reach its decision based not on a
precise risk calculation, but simply on their prejudices and proclivities concerning the
case. Thus in Causey,defendant's menacing of his ex-wife with an axehandle, and his
sexual abuse of her while she was unconscious, probably had more to do with the mur-
der conviction than the "degree of risk."
64. At the time of the third pull, there were three chambers left and one bullet.
Strictly speaking, therefore, there was a 33%ochance that the gun would discharge on
that pull.
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1985] UNINTENDEDMURDER 799
C. TheMultipleVictimApproach
Some states follow a multiple victim approach to distinguish unin-
tended murder.65 The defining characteristic of this analysis, derived
from some of the classic common law cases,66 is that the reckless act
must threaten a large number of victims. In the terms of the Model
Penal Code "extreme indifference" formulation, this approach focuses
on indifference to "human life" in general, rather than to the life of any
particular person or persons.67 Either by judicial interpretation,68 or
by legislation,69 a significant number of states have decided that such
indifference can be shown only by an act which threatens the lives of
many.
The seductiveness of the multiple victim approach lies in the clear
limits it places on which homicides can be treated as murder,70and the
protection these limits afford against abuses of the doctrine at the
hands of courts, prosecutors, and juries.7' Consistent, correct results
can be expected from a jury asked to determine whether or not more
than one or two people were endangered by a particular reckless act.
Although this approach is both reasonable and defensible as one
basis for grading unintended homicides,72 it ultimately fails because it
excludes too much. By restricting unintended murder to cases where
many people are threatened, this approach denies that an unintended
killing can ever be as bad as murder if it threatens only one or two
individuals. Due to this underinclusiveness, the approach fails when
faced with certain paradigmatic examples of unintended murder.73
Child killings, for example, may result from physical abuse over a
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800 COLUMBIALAW REVIEW [Vol. 85:786
long period of time. The course of abuse in such cases often suggests
that although the defendant did not intend to kill the child in the partic-
ular episode that caused the death, he did not care whether the child
lived or died. Such cases display a level of indifference to human life
reminiscent of murder, yet the multiple victim approach would bar a
finding of murder.74 Because of underinclusiveness problems, some
states which once followed the doctrine have felt compelled to overrule
it judicially75 or statutorily.76 Other states have implicitly abandoned
the doctrine without acknowledging the fact.77 Others have retained it
for lack of a manageable alternative.78
Although she was the only one threatened, the court found an abandoned and malignant
heart in the defendant.).
74. E.g., Massie v. State, 553 P.2d 186 (Okla. Crime.App. 1976) (four-year old vic-
tim of severe abuse dies from resultant head injuries-conviction reversed); State v. An-
derson, 94 Wash. 2d 176, 616 P.2d 612 (1980) (en banc) (baby killed by immersion in
scalding bath-conviction reversed), cert. denied, 459 U.S. 842 (1982). The statute in-
volved in Massiewas subsequently revised to abandon the multiple victim approach. See
infra note 76.
75. People v. Poplis, 30 N.Y.2d 85, 281 N.E.2d 167, 330 N.Y.S.2d 365 (1972). In
Poplisthe court dropped the multiple victim requirement when faced with a three-year
old child beaten to death over a period of five days.
76. Okla. Stat. Ann. tit. 21, ? 701.8 (West 1976).
77. Compare State v. Hanson, 288 Minn. 317, 176 N.W. 2d 607 (1970) (reckless-
ness directed at any particular individual insufficient for murder) with State v. Mytych,
292 Minn. 248, 194 N.W.2d 276 (1972) (only two particularvictims threatened; extreme
indifference murder sustained).
78. See, e.g., State v. Anderson, 94 Wash. 2d 176, 190-91, 616 P.2d 612, 619
(1980) (en banc), cert. denied, 459 U.S. 842 (1982).
79. See supra note 32.
80. See Waters v. State, 443 A.2d 500, 504 (Del. 1982) (The commonly accepted
meanings of "the words 'cruel, wicked and depraved indifference to human life,' are
intended to define a particular state of mind.").
81. See supra notes 44-47 and accompanying text.
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1985] UNINTENDEDMURDER 801
E. OtherApproaches
Not all states have devoted sufficient jurisprudential effort to de-
velop any consistent standard for the puzzle of unintended murder. In
some states the judge merely reads a vaguely worded definition of unin-
tended murder to the jury, allowing jury members to draw their own
conclusions.86 Other jurisdictions adhere to hollow common law for-
mulations.87 In Iowa, for example, the courts ask only whether an un-
intended killing resulted from a "wrongful act [done] intentionally
without legal justification or excuse."88 To the extent that courts have
construed this phrase, it seems theoretically possible to be convicted of
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802 COLUMBIALAW REVIEW [Vol. 85:786
89. To date, the Iowa courts have put no limit on the "wrongful act without just
cause or excuse" standard. Thus, strictly speaking, dropping the banana peel would be
wrongful as littering. Assuming there were a garbage can nearby, it would also be with-
out just cause or excuse. Thus, a murder conviction when someone slipped and cracked
their skull would be within the law. No such absurd results, however, have been re-
corded so far. A more typical "wrongful act" would be an assault with a deadly weapon.
See, e.g., State v. Leedom, 247 Iowa 911, 76 N.W.2d 773 (1956).
90. See, e.g., Commonwealth v. Estremera, 383 Mass. 382, 394-96, 419 N.E.2d
835, 843-44 (1981); Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 25, 27 (1970); State
v. Mouzon, 231 S.C. 655, 662-63, 99 S.E.2d 672, 675-76 (1957).
91. See supra note 51.
92. See J. Murphy&J. Coleman, The Philosophy of Law: An Introduction tojuris-
prudence 123-24 (1984).
93. Id. at 123. Incapacitation of a criminal during punishment (i.e., imprisonment)
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1985] UNINTENDEDMURDER 803
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804 COLUMBIALAW REVIEW [Vol. 85:786
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1985] UNINTENDEDMURDER 805
jective circumstances of an act will overcome this flaw only to the extent
that such an inquiry into acts discovers indicia of culpability.
Jurisdictions which focus on mens rea attempt to examine the ac-
tor's culpability directly, and hence define unintended murder in a way
justified by the goals of criminal law. These states, however, have been
unable to apply a mens rea test in a consistent, workable fashion.
Although mental states should be the yardstick by which to measure
unintended murder, better definition of the necessary mental attitude
requires further analysis. Simply choosing mens rea to define which
reckless killings will be treated as murder does not answer all the ques-
tions;'05 the critical mental element that makes certain homicides more
comparable to intentional killings than to merely reckless ones must be
identified.
as a Mental State
B. Indifference
Using mens rea to draw a line between two levels of punishment
for killing requires a clear definition of the mental element on which
the distinction rests. An analysis of unintended murder reveals that the
crucial mental element is a state of indifference to human life.
1. UtilitarianJustifications.- The Model Penal Code, a document
explained on utilitarian grounds, adopts the expression "extreme indif-
ference to human life" to define reckless murders, and recognizes this
indifference as a form of mens rea. 106 Utilitarianjustifications for pun-
ishment suggest two reasons why complete indifference to human life
should be the test for murder. First, the utilitarian seeks to deter more
forcefully persons with certain mental states, because individuals acting
with that state of mind are more likely to kill. An actor so indifferent to
the lives of others that he is willing to subordinate human lives to per-
sonal goals poses graver risks than one who attaches at least some value
to not killing. To prevent more homicides, greater deterrence of per-
sons exhibiting this extreme indifference is needed.
Second, greater punishment will be necessary to deter those who
are totally indifferent to human life. Because even the most severe con-
sequences to their victims would not dissuade them from acting, actors
with a mental state of total indifference can be checked only by threats
of the harshest sanctions. Certainly, the sanction must be greater than
that needed to deter the actor who is only willing to take a chance of
killing. This merely reckless actor has some concern for human life; as
the odds of a resulting death are raised, he becomes more likely to re-
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806 COLUMBIALAW REVIEW [Vol. 85:786
rain from acting because he accords a positive value to that life. Full-
fledged murder sanctions, therefore, are required only for the indiffer-
ent actor.
2. Retribution.- The retributive theory of punishment endorses a
definition of unintended murder which hinges on an actor's actual in-
difference to human life and to its corollary-a willingness to kill in
pursuit of other goals. A person who does not care whether his act kills
shows that he places no value on the autonomy or humanity of other
individuals. This is precisely that lack of respect which, according to
retributivejustifications, requires the punishment of intentional killings
as murder. Killing recklessly with such extreme indifference therefore
requires the same punishment that murder does. If the actor does care
whether a person lives or dies, however, his mental state does not ex-
hibit the same lack of respect for others, and he cannot justly suffer the
same punishment. His act may still be heinous and worthy of harsh
sanction, but for the retributivist the harsher sanction must be reserved
for the greater moral wrong.
3. Common LawAntecedents. - Using indifference to designate unin-
tended killings as murder is consonant with the common law treatment
of the problem as well. "Malice aforethought," the test for murder at
common law, included killings where, without justification or excuse, a
person killed with indifference to the life of his victim. Malice, defined
as "an abandoned and malignant heart," often looked to the actor's
attitude towards the consequences of his act rather than to what the
actor intended to achieve through his actions. Adopting indifference to
human life as a necessary element of unintended murder, as the com-
mon law did, will properly resolve cases where the actor's attitude
should be the decisive factor though his goal may not have been to kill.
Murder defined by indifference to life thus fills the gap in the criminal
law between intentional murder, where the goal is to kill, and man-
slaughter, where risks are disregarded but death is not a goal. Indeed,
all of the approaches discussed in Part II can be seen as attempts to
approximate the results that would be achieved were judges and juries
able to gauge indifference directly.'07
107. Under the objective circumstance approach, this attempt is explicit. The jury
is asked to look for circumstances that show a callous attitude towards human life.
Under this theory, such circumstances are a sufficient proxy for indifference-and such
circumstances are easier to show than indifference.
Similarly, the degree of risk and multiple victim analyses can be seen as attempts to
approximate the results a mens rea approach would achieve. The higher the degree of
risk that an act would result in a death, the more likely that the actor did not care
whether such a result occurred. When many people are threatened by a particularreck-
less action, it seems unusually likely that the actor did not care if someone died. These
tests remain only approximations, however, and thus will not match perfectly the actual
indifference that actors may exhibit. See, e.g., Johnson v. State, 270 Ark. 992, 606
S.W.2d 752 (1980) (defendant, aiming at A, shoots B; murder conviction reversed, be-
cause shooting did not create sufficient degree of risk). As an example of this failure in
the degree of risk approach, see the discussion of the Malone case, supra notes 28-29,
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1985] UNINTENDEDMURDER 807
62-64 and accompanying text. Such approaches are successful only to the extent that
these independent measures parallel our true measures of culpability. See infra notes
114, 121-122 and accompanying text.
108. See supra text accompanying notes 80-85.
109. See People v. Burden, 72 Cal. App. 3d 603, 620, 140 Cal. Rptr. 282, 292
(1977).
110. Indeed, in all homicides, the actor was either averse to the consequences of his
act or he was not. The former category makes up the lesser degrees of homicide. The
latter category is called murder and is comprised of two parts: intentional murder,
where the nonaversion is express, and extreme indifference murder, where it is implicit.
This proposal suggests that all the cases of such nonaversion should be punished as
murder when a death results.
111. The paradigmatic case of extreme indifference murder, Doug Hatfield firing
into the local bar, see supra note 41, is easily handled by the mens rea approach. A jury
could conclude that Hatfield did not care if someone died when he shot into the bar-
indeed, it is difficult to imagine why he would have done so otherwise.
1 12. See supra note 25 and accompanying text.
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808 COLUMBIALAW REVIEW [Vol. 85:786
113. Indeed, this mens rea formulation provides a bright line distinction between
manslaughter and extreme indifference murder. While bright lines insufficiently tai-
lored to culpability may be unacceptable in the criminal law, where severe sanctions are
involved, they nonetheless do promote efficiency and thus, other things being equal, are
probably to be preferred.
114. While not a formal criterion for a definition of extreme indifference murder, a
good fit with our intuitions about justice may be necessary if a rule is to endure. In this
regard, the mens rea approach suggested does rather well. Most people would probably
accept its characterizationof the homicides that it designates as murder. It seems right
to punish someone who kills, and who would have acted in the same manner had he
known that his actions would kill, with the same severity as those who kill intentionally.
The homicides that the mens rea approach relegates to manslaughter also seem prop-
erly placed. When someone acts foolishly, but not in a manner that is certain to cause
death, and with a state of mind that would have refrained from acting had that death
been a certainty, it cannot be said that the actor wanted or hoped to kill. Punishment on
the same level as murder for such acts seems wrong as an intuitive matter.
115. 354 Pa. 180, 47 A.2d 445 (1946). See supra text accompanying note 62.
116. See supra text accompanying notes 62-64.
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1985] UNINTENDEDMURDER 809
jury would have had to rely on statistical comparisons about the likeli-
hood of a gun going off at the critical moment.
The case of the terrorist bomber A is also easily handled by the
suggested mens rea approach. The jury would be likely to conclude
that A would have blown up the building, even had he known that
someone's death would result. Only powerful evidence could cast rea-
sonable doubt on this finding, which otherwise would produce a verdict
of unintended murder.
2. A PotentialObjection.- Use of a hypothetical question to deter-
mine the difference between manslaughter and murder may raise an
objection that the question is irrelevant. If the defendant actually had
knowndeath would result from his act, the objection states, this knowl-
edge would make him a murderer. On the other hand, the objection
continues, if he did not know,it is pointless to ask what his behavior would
havebeengiven knowledge of an impending death. Such an objection is
misguided for two reasons. It fails to understand that the suggested
approach examines an actual state of mind, and it ignores analogous
precedents in the law for posing hypothetical questions to the jury.
Mens rea approaches to criminal punishment depend upon a de-
scription of the defendant's actual, not hypothetical, state of mind at
the time he committed the act."7 In cases of unintended killings it is
crucial to know whether that state of mind was one of indifference to
human life, one so indifferent that knowledge that death would result
would not have affected the actor's conduct. The hypothetical question
posed concerning conduct is a means of measuring the indifference,
but the indifference itself, for which the actor is being punished, is real.
The defendant's actual mental state either was or was not such that his
behavior would have been affected by the knowledge that a death
would result from his action.
Moreover, there is precedent in the law of intoxication for the
more extreme step of punishing a defendant for a purely hypothetical
state of mind. Under the Model Penal Code, "[w]hen recklessness es-
tablishes an element of the offense, if the actor, due to self-induced
intoxication, is unaware of a. risk of which he would have been aware
had he been sober, such unawareness is immaterial.""l8 Thus, under
the Code and the states that follow its lead, drunken actors who take
unjustified risks without being aware of them are subject to the same
criminal liability that would have been imposed had they been sober.
The jury can only imagine the state of the defendant's awareness had
he been sober-a truly hypothetical state of mind."19 Yet, this ap-
117. See Waters v. State, 443 A.2d 500, 504 (Del. 1982).
118. Model Penal Code ? 2.08(2) (Proposed Official Draft 1962).
119. In practice, of course, this reduces recklessness among intoxicated actors to a
negligence standard, provided the jury finds the defendant to be a "reasonable man"
when sober.
States which follow both the degree of risk approach and the objective circum-
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810 COLUMBIALAW REVIEW [Vol. 85:786
CONCLUSION
stances approach may have adhered to these standards in fear of providing an intoxica-
tion defense. See, e.g., Pears v. State, 672 P.2d 903, 909-10 (Alaska Ct. App. 1983);
People v. LeGrand, 61 A.D.2d 815, 815, 402 N.Y.S.2d 209, 211, cert. denied, 439 U.S.
835 (1978). Intoxication would not be a defense under the proposed mens rea ap-
proach. If the actor were truly indifferent to human life, and would have acted anyway
had he known a death would result, the fact that his indifference was brought on by
intoxication does not reduce his culpability.
120. W. LaFave & A. Scott, Jr., supra note 9, ? 45 at 346-47; see, e.g., NJ. Rev.
Stat. ? 2C:2-8(b) (1982).
121. This is true, because the mens rea approach can draw upon the key elements
of the other approaches when necessary. See supra text following note 114.
122. As a final illustration, consider a political terrorist, Quadaffi, who blows up
banks. He chooses to blow up a bank at 3:00 A.M. because he believes there is less
chance of his being caught at night. If someone is killed, under the mens rea and the
objective circumstances approaches, Quadaffi would clearly be guilty of murder. Under
the multiple victim and degree of risk approaches, we would need to know more, but a
murder conviction seems likely since so many were placed at risk.
Now, however, imagine a different terrorist, Gandhi, who blows up the bank under
circumstances identical in every respect but one. Gandhi blows up the bank at 3:00 A.M.
because that is when there is the least chance of anyone being harmed. While he wants
to destroy capitalism, Gandhi loves people in general, and does not want to harm them.
Under the three non-mens rea approaches, the Gandhi case cannot be distinguished in
any way from the Quadaffi case. The result mustbe the same because all the objective
circumstances of the setting of the bomb, including the risks it created, are the same.
Under the mens rea approach, the outcome would be less certain. Ajury could go either
way, but they would be forced to take a closer look at the actor's "indifference to human
life."
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1985] UNINTENDEDMURDER 811
chance that the actor's conduct would produce a death. It too does not
succeed because it relies solely on a criterion that is often irrelevant to
the actor's degree of culpability, and hence reaches overly arbitraryre-
sults. A third approach, the multiple victim analysis, requires that many
people be threatened by the dangerous act. It fails, however, because it
does not include certain acts that, though clearly as bad as murder,
threaten only one individual.
The philosophical justifications for punishment call for a definition
of unintended murder based on a mental state of indifference. Adopt-
ing an indifference standard requires asking whether the defendant
would have committed the act had he known a death would result.
Such an approach gives the law both justification in theory and rational-
ity in practice by creating a clear moral standard which meets the re-
quirement of definiteness, and provides the jury with a task it is well
suited to perform. Current mens rea approaches have failed to supply
these virtues. Furthermore, because it is able to draw upon the best
parts of the other approaches in reaching a determination, the ap-
proach does not suffer from their over- and under-inclusiveness.
Alan C Michaels
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