Manslaughter Versus Malignant-Heart Murder

Manslaughter Versus Malignant-Heart Murder

Involuntary manslaughter sits at the bottom of the unintended killings that the law treats as criminal homicide, and its upper edge is murder. An unintended killing is murder rather than manslaughter when the defendant acted with reckless indifference to an unjustifiably high risk to human life, a state of mind that common law describes as an "abandoned and malignant heart."¹ That description sounds odd for a defendant who never wanted anyone to die, and the oddity disappears once you recall what murder requires. Murder is an unlawful killing committed with malice aforethought, and malice does not have to take the form of an intent to kill. The law also implies malice from conduct, and reckless indifference to an unjustifiably high risk to life is one of the implied forms.² A defendant who kills without intending death can therefore still be a murderer, provided the attitude toward the risk reaches that level.

The boundary falls where it does because the grade of homicide follows how nearly the defendant's attitude toward human life resembles the attitude of someone who intends to kill. A person who disregards a very high risk of killing shows a contempt for life almost as great as the contempt of one who sets out to cause harm, and that closeness is what justifies implying malice. A person who creates a lesser risk, one that is still criminally culpable, is blameworthy but has not shown contempt of that degree, so the killing is graded as manslaughter. Both offenses can be described as reckless, which means the label cannot decide which one applies. What decides it is the degree of risk: abandoned and malignant heart murder involves a higher degree of risk to human life than involuntary manslaughter based on recklessness.³ Drawing the line there lets the severity of the punishment track the severity of the culpability, which a line drawn at the mere presence of risk could not do, because nearly every reckless killing involves some risk.

The second question is where students most often go wrong. Having just learned that conscious risk-taking supports manslaughter, they see a death, a risky act, and some awareness of danger, and they jump to murder. The step-two question corrects that instinct, because a reckless killing is not automatically murder, and the charge rises to murder only when the risk reaches the unjustifiably high level that marks an abandoned and malignant heart.⁶ The next subsection takes up the first question, why this state of mind counts as malice at all, and the one after it takes up the second, how to measure the risk that separates the two offenses.

Reckless Indifference as Implied Malice

The first question in the two-step analysis is whether a defendant's state of mind amounts to implied malice, and answering it requires knowing what malice means at common law. Murder is the unlawful killing of another human being committed with malice aforethought.⁷ That phrase is a legal term of art whose meaning departs from everyday speech: a killing need not be malicious in the ordinary sense of ill will, and it need not have been thought out beforehand, to qualify.⁸ In most states, for example, a person who kills a dying, beloved spouse at the spouse's request is guilty of murder, which shows how little the label has to do with hatred.⁹ The term describes the defendant's attitude toward human life, and the law recognizes more than one attitude bad enough to count.

When no doctrine excuses the homicide or reduces it to voluntary manslaughter, malice aforethought exists if the defendant acted with any one of several mental states.¹⁰ The usual list includes intent to kill, intent to inflict serious bodily harm, outrageously reckless conduct, and certain killings committed during particular felonies.¹¹ Intent to kill is the paradigm and is usually called express malice. The remaining states are ways the law finds malice without a purpose to kill, and the one that matters for an unintended killing is reckless indifference to life. A defendant who never meant to kill or injure anyone cannot satisfy the first two states, and felony-murder malice, which attaches to deaths during qualifying felonies, is a separate doctrine. For an unintended killing outside a qualifying felony, reckless indifference is therefore the only route to murder.

The implied form at issue is reckless indifference to an unjustifiably high risk to human life, which common law often describes as acting with an "abandoned and malignant heart."¹² The phrase is old-fashioned shorthand for extreme recklessness: the defendant perceives that the conduct is very likely to kill someone and goes ahead as though the lives at stake did not matter. The word indifference carries the awareness element, because a person can be indifferent only to a danger the person has noticed. A defendant who never perceived the risk therefore lacks this state of mind, however obvious the risk would have been to someone else. The common-law formulation says the same thing from the other side, since malice requires either the intent to kill or an act showing so little regard for human life that it can be called the product of a malignant heart.¹³

The reason the law lets an attitude stand in for intent lies in what the murder grade is meant to capture. A killer who intends death shows the gravest disregard for human life, and the heaviest penalties attach to that disregard. A defendant who knowingly drives into an extreme risk of death shows disregard of nearly the same degree, because the defendant has treated other people's lives as cheap enough to gamble with. If murder required aim at a victim, that defendant could say that no one in particular was the target and escape the murder grade by the simple choice not to pick someone, even though the contempt for life was just as plain. Implying malice closes that gap, which is why the doctrine reaches a defendant who spreads danger indiscriminately.

How much danger supports malice is easiest to see in two stock illustrations, a speedboat driven through a group of bathers and a bullet fired into a crowded room. These examples are often presented under the deadly-weapon rule, which is a separate doctrine about inferring harmful intent from the instrument used, and they appear here only to show the level of risk that supports malice.

The contrast case removes the awareness that made those killings murder.

Two errors are common here. The first is to ask whether the defendant wished the victim harm, find that the defendant did not, and stop; students lose this issue when they look for ill will toward the victim instead of asking how the defendant regarded the danger to life. The second runs the other way: because manslaughter by recklessness also involves conscious risk-taking, a student sees awareness of danger and calls the killing murder. Awareness alone does not reach malice. The risk must be unjustifiably high in the extreme sense described above, and measuring that risk, so as to separate murder from reckless manslaughter, is the work of the next subsection.

Drawing the Line on Risk

The first rung was the subject of earlier sections, and the work here lies in separating the second rung from the third. The rule treats that separation as a matter of degree: murder involves a higher degree of risk to human life than recklessness-based involuntary manslaughter, which still involves a criminally culpable risk of its own.¹⁸ The risk and indifference that suffice for manslaughter are lower than those depraved-heart murder requires.¹⁹ The Model Penal Code draws the same boundary in its own vocabulary. Conscious disregard of a substantial and unjustifiable risk is enough for manslaughter, while murder calls for the further judgment that the disregard shows extreme indifference to the value of human life.²⁰ The words substantial and unjustifiable therefore describe the manslaughter side of the line, and they do not by themselves carry a case up to murder.

The boundary is drawn by degree because the two grades carry very different penalties. Sentences for murder and manslaughter can differ by decades of prison time or even death,²¹ so the dividing line has to track a real difference in blameworthiness, and the probability of death supplies one. The more likely the death and the less justification the conduct has, the more the defendant's attitude toward other people's lives resembles the attitude of someone who means to harm them. A modest but criminal risk, run for a poor reason, shows serious disregard for life. An extreme risk, run for no reason that could justify it, shows something close to contempt for life. Placing the murder line at an unjustifiably high risk reserves the severe penalties for the second kind of defendant, while leaving manslaughter below that line means the first kind of defendant is still punished for the death.

Because risk runs along a continuum, no formula marks the exact point where manslaughter ends. Students often look for a clean line between wanton recklessness and ordinary recklessness, and none exists: whether a given defendant's recklessness amounts to murder or only manslaughter is ultimately a question for the jury or judge at trial.²² The factfinder is not left without guidance. It weighs the size of the risk, meaning how likely death was and how grave the harm would be, together with the purpose of the conduct and the circumstances the defendant knew, since the gross-deviation judgment looks to the nature and purpose of the conduct and the circumstances known to the actor.²³ A risk taken for a worthwhile purpose is easier to excuse than the same risk taken for a thrill, and a danger the defendant had just seen realized is harder to dismiss than one that was only theoretical.

A charging decision shows the same continuum at work. Stan, an associate who has been awake for 36 straight hours, knows he is exhausted, has dozed at his desk several times, and knows that driving while sleep deprived is dangerous, yet he drives home, drifts into the opposite lane, and kills Lisa.²⁴ His conscious risk-taking supports involuntary manslaughter, and a prosecutor could still charge murder on the theory that his recklessness was wanton enough to show depraved indifference to the value of human life. The jury would then decide whether the recklessness reached that level, and a guilty verdict on the murder count would absorb the lesser manslaughter count.²⁵

Because examiners often write facts that can be argued either way, the analysis on paper is persuasive rather than mechanical. The steps below keep it organized:

The step students most often skip is the third. They write that the defendant was reckless and stop at the word reckless, even though both manslaughter and malignant-heart murder can be described that way, so the label cannot choose between them.²⁷ Only the size of the risk and the defendant's indifference to it can do that.