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Defining Unintended Murder

Author(s): Alan C. Michaels

Source: Columbia Law Review, Vol. 85, No. 4 (May, 1985), pp. 786-811
Published by: Columbia Law Review Association, Inc.
Stable URL: http://www.jstor.org/stable/1122334
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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
This Note argues that unintended murder should be defined by the
defendant's state of mind. Part I traces the history of unintended mur-

1. In this Note, "intent" means "purpose" or "knowledge." These mental states

are defined as follows:
Kindsof Culpability Defined.
(a) Purposely.
A person acts purposely with respect to a material element of an offense
(i) if the element involves the nature of his conduct or a result thereof, it is
his conscious object to engage in conduct of that nature or to cause such a
result; and
(ii) if the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes that they exist.
(b) Knowingly.
A person acts knowingly with respect to a material element of an offense
(i) if the element involves the nature of his conduct or the attendant cir-
cumstances, he is aware that his conduct is of that nature or that such circum-
stances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result.
Model Penal Code ? 2.02(2) (Proposed Official Draft 1962).
A growing majority of states, as well as the Model Penal Code, use purpose and
knowledge to grade homicides. See id. ?? 210.2-210.4; Robinson, A Brief History of
Distinctions in Criminal Culpability, 31 Hastings L.J. 815, 816 (1980).
2. Model Penal Code ? 210.2(1)(b) (Proposed Official Draft 1962).


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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.


An actor has "intent" to kill when he either wants to kill or knows

he is killing.3 In the former case, he has a conscious objective of killing.
In the latter, the actor has a conscious awareness that a death will en-
sue. Intentional killings of both kinds are punished as murder.4 "Reck-
less" killings, in which the actor consciously and unjustifiably risks
causing a death, are punished as manslaughter.5
Between intentional murder and manslaughter lies a set of crimes
sharing some, but not all, of the characteristics of both offenses. Unin-
tended murder comprises killings that occur without intent, but deserve
society's harshest punishment. Despite the moral and legal importance
of clarity in the imposition of such sanctions, fundamental disagree-
ment remains about which unintentional killings should be treated as
murder. The historical development of unintended murder and the va-
riety of current attempts to define the offense reveal this disagreement.

A. The CommonLaw and MaliceAforethought

At common law, according to Blackstone, whether a homicide con-
stituted murder turned on the presence of "malice aforethought."6
Malice constituted" 'any evil design in general; the dictate of a wicked,
depraved, and malignant heart. . . .' "7 The "depraved heart" formu-
lation encompassed a broad variety of attitudes towards a killing. Mal-
ice could be found either with or without intent to kill as it is defined
When an actor killed another intentionally, malice or a "depraved

3. See supra note 1.

4. "(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes
murder when: (a) it is committed purposely or knowingly ...." Model Penal Code
? 210.2 (Proposed Official Draft 1962). See, e.g., Hawaii Rev. Stat. ? 707-701(1) (1976).
5. Model Penal Code ? 210.3 (Proposed Official Draft 1962). See infra note 16 for
the definition of "recklessly" as it is used in this Note.
6. 4 W. Blackstone, Commentaries 198.
7. Commonwealth v. Malone, 354 Pa. 180, 183, 47 A.2d 445, 447 (1946) (quoting 4
W. Blackstone, supra note 6, at 198).
8. See 4 W. Blackstone, supra note 6, at 197.

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heart" was assumed, absent claims of self-defense or heat of passion.

Presence of a "depraved heart" became a more problematic issue when
a killing was unintentional.9 If the accused had no express intent to kill,
courts searched for other indicia of "a wicked, depraved, and malignant
heart." Courts found malice aforethought on the basis of the number
of people put at risk,'0 the very great chance that a death would result
from the act," and the unnecessary brutality of the act.'2 No one of
these circumstances, however, was necessary to a finding of malice;
murder convictions for unintentional killings resulted from an array of

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

9. W. LaFave & A. Scott, Jr., Handbook on Criminal Law 541-45 (1972).

10. See, e.g., Banks v. State, 85 Tex. Crime.165, 166, 211 S.W. 217, 217 (1919)
(man fires pistol into passing train, killing brakeman; court finds malice toward the
group of persons necessarily on the train).
11. See, e.g., State v. Burris, 198 Iowa 1156, 198 N.W. 82 (1924) (intentional use of
loaded pistol results in shooting death).
12. See, e.g., State v. John, 172 Mo. 220, 227, 72 S.W. 525, 527 (1903) (dog
catcher, after threatening a crowd gathered to watch him work, fatally strikes a
13. See, e.g., Wiley v. State, 19 Ariz. 346, 170 P. 869 (1918) (policeman suspicious
of car ahead of him fires three shots at its tires to try to stop it, killing passenger); see
Note, The Negligent Murder, 28 Ky. L.J. 53 (1939).
14. Wechsler, The Model Penal Code and the Codification of American Criminal
Law, in Crime, Criminology and Public Policy 433-34 (1974).
15. A notable exception is the felony murder doctrine, under which an unintended
killing can be treated as murder when it occurs in connection with certain felonies which
are usually specified by statute. See, e.g., Model Penal Code ? 210.2(1)(b) (Proposed
Official Draft 1962). As long as the killing arises from the felony, the defendant often
need not actually commit the homicide. See, e.g., Ala. Code ? 13A-6-2(a)(3) (1982).
16. Under the Code, "unintentional" acts include those committed recklessly or
negligently. These mental states are defined as follows:
Kindsof Culpability Defined

(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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manifesting extreme indifference to the value of human life."''7 It is

hard to see how these words by themselves provide more definite gui-
dance than the common law's "depraved and malignant heart," but the
drafters felt that what constitutes "extreme indifference" homicide was
"not a question . . . that [could] be further clarified" by law.'8 Thus,
despite the widespread adoption of the Model Penal Code formulation
of unintended murder, the Code suggests no clear, consistent standard
to supplant the common law definitions.'9
State courts and legislatures, moreover, have not developed a uni-
form test for unintended murder20 beyond the threshold requirement
that the killer must have been aware that he was creating an unjustified
risk.2' Four distinct approaches dominate the modern treatment of un-

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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intended murder.22 Each approach isolates a particular aspect of an

actor's attitude or conduct in order to distinguish his crime from man-
slaughter and to justify its treatment as murder.
In some cases, each approach would reach the same result, but by
different routes. The case of a hypothetical terrorist illustrates this
point. Terrorist A, lacking all concern for injury to others, blows up a
car in a busy downtown street in order to make a political statement. A
bystander dies in the explosion. Even though A neither intended to kill
any person nor knew that someone would be killed, his crime would be
punished as murder under every approach. The reasoning used to
reach this result, however, would vary widely among the states. Indeed,
in some cases the reasoning would vary within the same state. The ap-
proaches described below, while supplying the bases for decisions in
most states, are not always followed in their purest form.
1. ObjectiveCircumstances. - One approach to unintended murder
uses the offender's physical conduct to distinguish murder from man-
slaughter.23 Under this analysis, the jury focuses on the objective cir-
cumstances surrounding the crime, not the actor's attitude towards his
victim's life.24 In New York, for example, a homicide committed reck-
lessly becomes murder instead of manslaughter when-by reference to
the objective circumstances of the crime alone-the jury finds the acts
themselves "brutal, callous, dangerous and inhuman."25 The particu-
lar circumstances necessary to make this determination, however, are
not enumerated in either statutory or case law. Thus, a jury could find
the terrorist, A, guilty of murder by finding that the act of blowing up a
car in the street is particularly"callous" and "dangerous." This objec-
tive circumstances analysis would exclude evidence of a defendant's
state of mind, beyond proof of recklessness. Hence, between two de-
fendants who kill with the same state of mind, only one might be con-
victed of murder, depending on the jury's assessment of the

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

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"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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4:00 A.M., when streets were deserted, would convict B of manslaugh-

ter, not murder.
3. MultipleVictim.- Under a multiple victim analysis, a defendant
is guilty of unintended murder only if his reckless act endangers more
than one individual.30 In a state following this approach, a jury could
find terrorist A guilty of murder since many people were threatened by
his placing of the bomb. In its exclusive focus on the facts surrounding
the defendant's act, this test resembles the objective circumstances ap-
proach, but limits its scrutiny to one "circumstance"-the endanger-
ment of many. If A only threatened one person, he could not be guilty
of murder under this standard.3'
4. Mens Rea. - Finally, some states analyze unintended murder
from the perspective of the defendant's state of mind.32 The courts
and legislatures, however, have not described that state of mind with
precision. In Delaware, for example, the judge must explain to the jury
that the unintended murder statute requires a mental element more
culpable than recklessness.33 The approved charge, however, describes
that mental element as "that general reckless disregard of human life
which proceeds from a heart and mind void of a just sense of social
duty and fatally bent on mischief."34 This "mens rea" approach35
stresses that the characterization of an unintended killing as murder
depends on the actor's mental state.36 The offender who does not care
if his victim lives or dies receives the murder sanction. In these states a
jury could convict A of murder upon determining that he did not care
whether his bomb caused death. The circumstances surrounding the

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

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act, including the number of people threatened, would be relevant only

to the extent they shed light on this determination.


Despite several attempts to define unintended murder, no single
theory has achieved dominance. Each analysis has shortcomings: arbi-
trariness, imprecision, or over- or under-inclusiveness. While each
standard has its strengths and weaknesses, no current approach is fully

A. TheObjectiveCircumstances
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;

37. See supra note 23.

38. For an example of an unintended murder under such circumstances, see People
v. Poplis, 30 N.Y.2d 85, 281 N.E.2d 167, 330 N.Y.S.2d 365 (1972).
39. See, e.g., NJ. Stat. Ann. ? 2C:14-2(a) (West 1982). Under the Model Penal
Rape is a felony of the second degree unless (i) in the course thereof the actor
inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary
social companion of the actor upon the occasion of the crime and had not pre-
viously permitted him sexual liberties, in which cases the offense is a felony of
the first degree.
Model Penal Code ? 213.1(1) (Proposed Official Draft 1962).
40. 155 Minn. 143, 193 N.W. 42 (1923).

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there is a broad consensus that such actors should be punished for

murder, and the objective circumstances approach does so.4'
Despite these advantages, the objective circumstances analysis suf-
fers from critical shortcomings both in theory and practice. It lacks def-
initeness and is inconsistent with schemes for grading homicides.
Unlike its aggravated crime cousins, the objective circumstances
approach does not delineate the factors that will lead to a conviction for
a higher degree of the offense42-in this case, for murder instead of
manslaughter. Instead, the relevant circumstances are defined by
courts and legislatures in terms no less vague (though perhaps less col-
orful) than those of the common law "depraved heart" formula.43 This
emptiness and lack of specificity engenders many of the problems that
definiteness in the law is designed to overcome,44 by allowing murder
convictions without any proof beyond well-packaged manslaughter.
Asking a jury to decide only whether conduct is "brutal, callous or hei-
nous" forces each juror to use unguided discretion in defining unin-
tended murder. A jury faced with an unadorned "objective
circumstances" charge may be led to decide by instinct, or worse, prej-

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
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

[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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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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incentive to sharpen the definition of the acts constituting the necessary

"objective circumstances" and to avoid vagueness challenges, courts
and legislatures have not done so. If lawmakers determined, for exam-
ple, that taking reckless chances with the life of a child under five years
of age was an objectively worse act than taking the same chance with
the life of an older person, the age of the victim could be enumerated
as an aggravating circumstance for reckless killing, much as similar pro-
visions define aggravated rape.49 Enumerated objective factors repre-
sent explicit value choices by the legislature. That the states have not
enumerated such factors in unintended murder statutes suggests that
objective circumstances are not the appropriate vehicle for value
choices in this area.
The objective circumstances standard also represents a departure
from principles generally used to grade homicides,50 which, like most
other crimes, are usually graded on the basis of mental states.5' Insis-
tence that state of mind makes no difference in deciding whether a kill-
ing is murder or manslaughter52is without parallel in grading homicide
except for the much maligned felony murder doctrine.53 Given these
problems, it is hardly surprising that this approach has produced curi-
ous results.54

B. The Degree of Risk Approach

The degree of risk approach finds unintended murder when the
actor's conduct created a chance of death much greater than the chance

49. See supra note 39.

50. See State v. Lagasse, 410 A.2d 537, 540 (Me. 1980).
51. "The basic premise that for criminal liability some meansrea is required is ex-
pressed by the Latin maxim actusnotfacit reumnisi menssit rea (an act does not make one
guilty unless his mind is guilty)." W. LaFave & A. Scott, Jr., supra note 9, at 192. Amer-
ican law generally accepts and follows this principle. Id. at 192-93.
52. See supra note 24.
53. "Principled argument in favor of the felony-murder doctrine is hard to find.
The defense reduces to the explanation that Holmes gave for finding the law 'intelligible
as it stands.'" Model Penal Code ? 210.2 commentary at 37 (1980). It is also worthy of
note that the Code and many states have succeeded in specifically enumerating the "cir-
cumstances" (i.e., the felonies) that will suffice to make a homicide murder under the
felony murder rule.
54. See, e.g., State v. Baratta, 242 Iowa 1308, 49 N.W.2d 866 (1951) (loser of bar-
room brawl fatally injured his head in falling; that defendant had called victim "yellow"
and ridiculed his glasses before the fight held sufficient circumstances to sustain convic-
tion of murder); Wangerin v. State, 73 Wis. 2d 427, 243 N.W.2d 448 (1976) (defendant,
involved in brawl, seeing victim seriously hurt, calls ambulance; subsequent vigorous
resisting of arrest, however, held relevant "to show . . . existence of a 'depraved
mind' "); State v. McGranahan,415 A.2d 1298 (R.I. 1980) (defendant hits baby once to
quiet it; when baby stops breathing, defendant attempts mouth-to-mouth resuscitation
and calls ambulance; conviction of murder and sentence of 35 years upheld). The injus-
tice, if any, in these cases is not that the defendants were sent to prison, but rather that
they were subject to the penalities for murder instead of manslaughter sanctions.

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of death in a typical manslaughter case.55 While not as popular as the

objective circumstances approach, this analysis has a significant
One advantage of the degree of risk approach is the simplicity of its
definition. Risk is a straightforwardconcept easily expressed in mathe-
matical terms. Moreover, it is a factor already prevalent in the grading
of homicides. Under any approach, "recklessness" is a threshold re-
quirement for a finding of unintended murder.57 The actor must have
at least consciously disregarded a substantial and unjustified risk.58
The degree of risk approach simply adjusts the risk boundary between
"recklessly" and "knowingly"-moving the borderline cases from the
manslaughter to the murder side. Because risk is used so pervasively in
criminal law, this displacement poses no difficult conceptual problems.
Although, strictly speaking, this standard provides no more bright
line definiteness than the objective circumstance doctrine, its vagueness
may be more acceptable. The fact that the degrees of risk necessary for
"recklessness" and "knowledge" are not defined in precise percentages
has never been an obstacle to defining these states of mind in terms of
risk.59 Under a degree of risk standard, moreover, a jury's inquiry is
clear and circumscribed. A jury could understand an instruction to fo-
cus on the probability that the defendant's act would cause death, and
to decide whether this chance was great enough to make the killing
murder rather than manslaughter. Reasonable consistency of result is
assured through appellate review.60
This approach is not, however, consistent with the Model Penal
Code's formulation of unintended murder and its statutory framework
for grading homicides. States applying a pure degree of risk approach
to the Code's "extreme indifference" murder formula move the ex-
isting risk boundary between manslaughter and murder. This result
could have been accomplished by simply expanding the scope of inten-
tional murder through a slight adjustment in the definition of "know-
ingly."'6' There would have been no need to introduce "extreme

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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indifference" murder as a distinct substantive offense. Following a de-

gree of risk analysis reduces the Code's separate category for murders
marked by "extreme indifference" to excess baggage.
Any degree of risk approach, however, fails to account for cases
where a conviction for unintended murder is clearly in order regardless
of the probability that death will occur. In Commonwealth v. Malone,62
the defendant pulled the trigger three times, knowing a bullet was in
one of the five chambers. A sixty percent chance the gun would fire was
sufficient for the court, applying a degree of risk approach, to designate
the killing murder instead of manslaughter. A factual determination of
the actual degree of risk will often be highly problematic,63 as indeed a
different analysis would have shown in the Malonecase.64 Leavingsuch
difficulties aside, however, if the gun had discharged on the very first
pull, the court would have been able to find only a twenty percent
chance of a killing. If the gun had had ten chambers instead of five,
Malone's three pulls would have produced only a thirty percent chance
of a killing. With the odds of the gun firing only twenty or thirty, rather
than sixty, percent, the court might have felt that only a manslaughter
conviction should follow. Yet, it is impossible to see why the design of
the gun or the slightly earlier death of Malone's companion should
change the outcome of the case. In terms of moral culpability, there is
no reason for punishing the discharge on the third pull any differently
from the discharge on the first. Malone's patent lack of concern for his
friend's life was not greater with each pull of the trigger. Nor would
the need to deter actors of Malone's state of mind vary from the first to
the second to the third pull. Finally, Malone's antisocial behavior
would have been as much in need of correction and modification had
the bullet fired on the first try.

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
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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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
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

65. See supra note 30.

66. See, e.g., Darry v. People, 10 N.Y. 120 (1854).
67. State v. Hanson, 286 Minn. 317, 176 N.W.2d 607, 614-15 (1970).
68. See supra note 30.
69. See, e.g., Colo. Rev. Stat. ? 18-3-102(l)(d) (1981). Colorado enacted this stat-
ute after its supreme court had declared the state's former unintended murder provi-
sion, which followed the objective circumstances approach, unconstitutional. See supra
note 47.
70. Technically speaking, saying that many people must be threatened by the reck-
less act does not provide a complete definition of extreme indifference murder; one
could still ask whether a particularcase that did threaten many people qualifies. Gener-
ally speaking, however, the cases where many people are threatened are sufficiently rare,
and the act in question is sufficientlycertain to cause death, that further inquiry does not
71. See Gegan, supra note 22 (decrying judicial abandonment of the multiple vic-
tim approach in New York).
72. It is reasonable to treat a killing more severely because it could have resulted in
many deaths. It may be more important to deter such acts. This rationale applies when
many people could be hurt-driving into a crowd-but not when many are threatened
but only one could be killed-firing a single shot into a crowd.
73. One court, in applying the multiple victim approach, claimed that it was the
doctrine of the common law. State v. Weltz, 155 Minn. 143, 193 N.W. 42 (1923). This
is not true of all jurisdictions. See, e.g., Mayes v. People, 106 Ill. 306 (1883) (Mayes
threw a glass at his wife holding oil lamp, lamp shattered and she burned to death.

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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

D. TheMens Rea Approach

Some states analyze unintended murder through an examination
of the defendant's state of mind, rather than the circumstances of his
act. This "mens rea" approach posits that murder depends on actual
"indifference"-whether the actor actually cared if his victim lived or
died.79 Under this analysis, the grading of the homicide, and the focus
of the jury's attention, centers on mens rea questions similar to those
involved in any other area of homicide.
The "mens rea" jurisdictions, however, have not succeeded in
describing the requisite indifferent state of mind with definiteness or
clarity.80 Without a standard more specific or concrete than "extreme
indifference to human life" to guide the jury, the approach suffers from
the vagueness and potential for confusion that plague the objective cir-
cumstances approach.8' The problem has been that the "mental state"
of indifference does not lend itself to simple definition in the same way

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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as intent82 or recklessness.83 Unlike intent, indifference to life may

arise when the resulting death is neither certain nor sought after. The
terrorist who sets off the bomb in the street does not know he will kill
someone, nor is killing his objective. Hence neither purpose nor cer-
tainty are necessary for this attitude. Unlike recklessness, however, to-
tal indifference necessarily subordinates a human life to some other
goal. The terrorist is unswayed, indeed unconcerned, by the damage
his bomb might and does do to the lives of others. The element of risk
taking alone cannot completely capture this state of indifference. The
drafters of the Model Penal Code, while advocating a mens rea analy-
sis,84 did not resolve these difficulties with a precise description of the
"extreme indifference" state of mind.85 Despite widespread adoption
of the Model Penal Code, and its mens rea framework for most of-
fenses, this framework has not been widely used to define unintended

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

82. See supra note 1.

83. See supra note 16.
84. "The extreme indifference standard states a culpability requirement in addition
to those used generally throughout the Model Code." Model Penal Code ? 210.2 com-
mentary at 22 n.37 (1980).
85. See supra note 18 and accompanying text.
86. In North Carolina, for example, this formulation was approved as ajury charge:
[Second degree murder can be found] where there is an act of culpable negli-
gence which carries danger to another and the act is so reckless or wantonly
done as to indicate a total disregard for human life . ...

[It is involuntary manslaughter] if carelessness or negligence is accompa-

nied by wanton or reckless behavior showing a total disregard for the rights and
safety of others . ...
State v. Wilkerson, 295 N.C. 559, 575-76, 247 S.E.2d 905, 914-15, 917-18 (1978). It is
hard to imagine a jury making a meaningful distinction between "a total disregard for
human life," and "a total disregard for the rights and safety of others."
87. These jurisdictions include Iowa, see State v. Emery, 236 Iowa 60, 17 N.W.2d
854, 856 (1945); Kansas, see State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022, 1024,
cert. denied, 449 U.S. 965 (1980); Maryland, see Lindsay v. State, 8 Md. App. 100,
104-05, 258 A.2d 760, 763-64 (1969); South Carolina, see State v. Mouzon, 231 S.C.
655, 662-63, 99 S.E.2d 672, 675-76 (1957).
88. State v. Nutter, 248 Iowa 772, 778, 81 N.W.2d 20, 23 (1957).

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murder for knowingly dropping a banana peel on the sidewalk if a per-

son slips on it and dies.89 In states that simply follow the common law,
the appellate courts are left with little guidance and much discretion.90
Every current definition of unintended murder has significant
drawbacks. No approach has surmounted these shortcomings and
achieved widespread acceptance. This failure may stem from a failure
to consider the justifications for punishing certain unintended killings
as murder. It is necessary to explore the underlying principles of crimi-
nal law in order to discover these justifications and develop a workable


Broad disagreement remains about the proper elements of unin-

tended murder among the states attempting to provide such a defini-
tion. Investigation of the justifications for punishing unintended
killings as murder, however, leads to a more accurate and precise defi-
nition of these elements. A survey of the rationales underlying criminal
punishment lends support to a mens rea definition of unintended

A. Murderand Mens Rea

A "mens rea" or guilty mind is an element of most crimes,9' and of
nearly all criminal homicides. Such a focus on mental attitude finds
strong support in both the utilitarian and retributive purposes of crimi-
nal law.
1. UtilitarianJustifications.- The basic utilitarian theories of pun-
ishment justify criminal sanctions as necessary to deter crime. General
deterrence theory argues that we should punish crime so that members
of society will understand that committing a crime has grave conse-
quences, and will be discouraged from committing such acts.92 Special
deterrence theory argues that the particular individual should be pun-
ished to dissuade him from committing the crime again.93 Deterrence
of both kinds creates a social benefit by reaching harmful conduct. Of

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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course, the punishment also entails disutility. The defendant who is

punished suffers a loss of liberty which a utilitarian would count as a
major social cost.94 Furthermore, the financial costs of the penal and
justice system generate additional disutility that must be weighed
against the utility gained from specific and general deterrence.95
Applying the utilitarian theory of punishment to the law of homi-
cide suggests a grading system based on a mens rea hierarchy.96 All
other things being equal, "intentional" actors, who want to kill, are
more likely to cause harm than "reckless" actors, who merely take con-
scious, unjustified chances of killing.97 Reckless actors are in turn more
dangerous than "negligent" actors, who take unjustified risks in igno-
rance. Utility therefore justifies harsher sanctions for intentional than
for reckless killings, and harsher sanctions for reckless killings than for
negligent ones.98 The more culpable99 the actor's mind the more dan-
gerous his acts, and therefore the greater the punishment justifiably im-
posed to prevent the social harm those acts may cause and to deter
others from similar acts.
A second major utilitarian basis for grading homicide according to
mental states looks to deterrence of the specific individual rather than
to deterrence of people in general.'00 Just as a more culpable mental
state leads to more harmful consequences and calls for greater deter-
rence, the more culpable the mental state the greater the threatened
punishment necessary to overcome that state and prevent the action
from being undertaken. A more culpable mental state requires harsher
sanctions for effective behavior control.
2. Retribution.- Retributive theory also requires the grading of
homicides by mental states. The retributivist rejects the utilitarian
practice of punishing individuals to protect society from harm caused

can be understood as a most extreme aspect of special deterrence. While he is in prison

the criminal cannot harm society at large.
94. See id. at 125. This disutility in punishing the defendant is the same, in terms
of loss of liberty, whether the defendant is guilty or innocent.
95. This factor should not be underestimated. The financial cost of the criminal
justice system clearly limits its scope in a utilitarian society. This can be seen in the
controversies surrounding plea bargaining as well as the "need" for more police and
more prisons.
96. See generally Wechsler & Michael, A Rationale of the Law of Homicide II, 37
Colum. L. Rev. 1261 (1937) (a utilitarianjustification for the punishment of homicide
closely tied to the Model Penal Code's "mental states" formulations).
97. The one exception to this might be the reckless actor who imposes a risk on
many;he may be more dangerous than the intentional actor. If the risk is great enough
for this to be so, however, the actor is very likely to be convicted of murder under the
formula proposed by this Note. See infra notes 107-22 and accompanying text.
98. Even negligent acts can be deterred. If we know we will be punished for care-
less accidents, we will be more careful; one need only refer to the law of torts.
99. "Culpable" in this discussion refers to the relative level of required mental
100. SeeJ. Murphy &J. Coleman, supra note 92, at 123.

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by their acts. Instead, the retributivist argues that each individual, as an

autonomous being warranting respect, may be punished only to the ex-
tent that he or she has failed to respect the autonomy of other members
of society.'0' According to this perspective, the penalty for a crime de-
pends solely upon the extent of the actor's moral wrong, defined as the
extent to which the actor violated other citizens' right to respect as au-
tonomous individuals,'02 and should be in proportion to that moral
wrong.'03 While "individual autonomy" can be given a variety of defi-
nitions, taking life will always be the greatest violation of such
In the law of homicide, this retributive approach leads to a grading
of killings by mens rea. An individual who intends to kill a person
shows a more fundamental disrespect for that person's autonomy than
someone who, in pursuit of some other goal, is merely willing to create
a chance of killing a person. The moral difference, of course, is that the
intentional killer totally subordinates the value of human life to some
other goal; the reckless killer who is merely willing to run some risk of
killing may not have made such an extreme judgment. A reckless killer,
in turn, displays a greater lack of respect, and hence commits a greater
wrong, than the actor negligently unaware that he is putting a life at
risk. The widespread practice of grading killings from intent down to
negligence thus accords with retributivist goals.
Given that both retributive and utilitarian theories argue for a
grading of homicide according to mens rea, one can hardly be sur-
prised that law has adopted mens rea as the principal yardstickfor crim-
inal punishment. In defining unintended murder, however, this
movement has been incomplete. One class of current approaches to
the problem looks exclusively to the actor's conduct to distinguish
manslaughter from murder.'04 Making conduct alone the standard for
unintended murder, by highlighting factual circumstances, cannot be
justified, because retributive and utilitarian theory demand that killings
be graded according to the actor's state of mind. Attention to the ob-

101. In this sense, retributivismis retrospective, just as utilitarianismis prospective.

Thus, a mens rea analysis looks in both directions.
102. SeeJ. Murphy &J. Coleman, supra note 92, at 126-27.
103. To the extent that members of society sense these retributive feelings, this
form of punishment serves a utilitarian purpose as well, although the retributivist does
not care about this. The utilitarian argues that to the extent society feels criminals are
getting what they deserve, general respect for the law, and thus its effectiveness and
utility, will be promoted.
104. Any definition requires a mental state of "recklessness" at a minimum. See
supra note 21. Under approaches that do not use means rea, this is as far as the mental
state element goes. Thus, for example, under the multiple victim approach, the extreme
indifference provision relates only to the act, independent of the actor's state of mind.
How many people were threatened is not a question of mens rea. The objective circum-
stances and degree of risk analyses also describe "extreme indifference" as an element
of the act rather than of the mind. See supra notes 37-64 and accompanying text.

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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

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-

105. See supra notes 79-85 and accompanying text.

106. See supra note 84. The criminal laws of many other countries, furthermore,
have long recognized indifference as a mens rea element of murder. In England, the
issue of murder versus manslaughter turns upon the actor's "willingness to kill." See
Gegan, supra note 22, at nn. 105-17 and accompanying text. In German and Soviet law,
it is murder when the actor "reconciles himself" or "makes peace" with the death that
will ensue from his actions. G. Fletcher, Rethinking Criminal Law ? 4.5.2 (1978).

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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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the Mens Rea Approach.

C. Implementing
An ideal analysis of unintended murder should tie its determina-
tion of guilt to whether the actor was actually indifferent to human life.
The fundamental problem encountered by current approaches to unin-
tended murder has been measuring that indifference. Current mens
rea approaches, while correctly looking to this mental attitude as the
crucial element in defining extreme indifference murder, have failed to
put the question of indifference to courts and juries in a sufficiently
concrete and definite manner.'08
1. A Proposal.- Extreme indifference can be discovered by asking
the finder of fact whether the actor would have committed the act hadhe
knownit would cause a death. This question goes to the very core of the
meaning of indifference. It discovers the "abandoned and malignant
heart" and willingness to kill that should define unintended murder.'09
If the answer to the question is yes, the defendant placed virtually no
value on human life and merits punishment for murder. If the answer
is no, human life retained significant value to him, and only punishment
for manslaughter is justified. "10 To convince a jury that a defendant's
reckless but unintentional killing constitutes murder instead of man-
slaughter, the prosecution should be required to show that the defend-
ant would have committed the fatal act even had he known that a death
would result. "'I
This mens rea approach, which asks the jury whether the defend-
ant would have committed the act had he known a death would result,
meets the requirements of theoretical consistency and definiteness bet-
ter than current analyses. The question's formulation of unintended
murder presents an issue of fact whose parameters are clear. It does
not depend on the jury's collective struggle to give content to adjec-
tives such as "heinous, brutal and callous."'"12 Nor does it rely exclu-
sively on an assessment of the precise probability of the outcomes the
act could have engendered. Instead, the standard poses a question well

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
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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within any jury's competence. Every jury, moreover, will understand

the question in the same fashion: it is asked to determine whether in a
particular factual situation, altered in only one respect from that which
the defendant actually faced, the defendant would have killed his vic-
tim. The inquiry is narrow, unlikely to be misunderstood,"I3 and prob-
ably fits well with shared intuitions about justice." 4
In a sense, the suggested mens rea analysis adopts parts of the
other approaches to unintended murder. The key elements each ap-
proach singles out may help persuade the jury of the defendant's indif-
ference, but in the end, the jury's assessment of the defendant's actual
state of mind would determine the verdict. By sharply defining a crite-
rion for unintended murder, this approach successfully resolves classic
problem cases where other approaches fail. The Malonecase, in which
the boy killed his friend while playing Russian roulette, provides an ex-
ample." 5 That case exposes the irrationality and impracticality of the
degree of risk approach."6 Under the proposed analysis, rather than
assessing the risk from the number of trigger pulls, the jury would have
been asked, "Would Malone have fired the pistol had he knownit would
discharge?" If the jury accepted Malone's claim that he believed that
the only bullet lay in the last chamber, he might well have been acquit-
ted of murder. Even if the jury did not believe Malone's story, the
question of his indifference would remain. In deciding whether Malone
wouldhavepulled the trigger knowing the gun would discharge, the jury
would need to consider Malone's relationship with his victim, and his
reaction to the shooting, as well as what the two boys were doing at the
time. Thus, the fact that the boys were two friends at play, and that
Malone may have expressed shocked remorse at the outcome, might
have led the jury to acquit on the charge of murder and instead convict
him of manslaughter. Instead, under the actual Malone approach, the

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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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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proach has been widely accepted.'20

Furthermore, the mens rea approach suggested would not repre-
sent a radical change even in those states employing actus reus analyses
of unintended murder. The evidence presented under this proposal
would be the same, and in many cases the result would be the same as
well.'2' All of the evidence determinative under other current ap-
proaches-the number of persons threatened, the chances of a death
occuring, and the circumstances surrounding the act-remain relevant
to the question of indifference. Ultimately, however, the actor's state of
mind would be decisive. Following this mens rea approach would sim-
ply focus the jury's attention on an inquiry it is capable of understand-
ing, prevent abuse of unintended murder doctrine, and reach the
correct result in those cases where other approaches miss the point.'22


Most states punish certain unintended killings as murder. Broad

disagreement remains, however, about which killings should be so pun-
ished. One attempt to define them focuses on the objective circum-
stances of the act itself while ignoring the actor's state of mind. This
approach is unsound. It is too vague, allows prejudice to play a central
role, and fails to conform to the general scheme for grading homicides.
Another approach, the degree of risk analysis, examines the precise

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

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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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