Defining Recklessness

Defining Recklessness

The manslaughter clause turns on the adverb recklessly, and the Code does not leave that word to everyday usage. In ordinary speech a reckless person is simply someone who acts carelessly or without thinking, and a driver who never glanced at the road would readily be called reckless. The Code gives the word a narrower meaning in its general culpability provision, § 2.02(2)(c), which defines recklessness with respect to any material element of an offense. In a homicide prosecution the material element at stake is the death.¹ Paraphrased, a person acts recklessly as to a death by consciously disregarding a substantial and unjustifiable risk that the conduct will cause it, where the risk is of such a nature and degree that disregarding it, in light of the purpose of the conduct and the circumstances known to the actor, is a gross deviation from the standard a law-abiding person would observe in the actor's situation.²

That single sentence packs in three requirements, and they do different jobs. The first, conscious disregard, concerns the actor's mind: the actor must have perceived the danger and gone ahead anyway. The other two concern the risk itself, which must be substantial and unjustifiable, and whose disregard must amount to a gross deviation from lawful conduct. The Code therefore defines recklessness in terms of both greater risk and subjective awareness, so the word asks what the actor perceived and also how serious the thing perceived was.³ Whatever label a jurisdiction uses for its subjective standard, the test looks for a defendant who personally appreciated a risk and chose to take it anyway.⁴

The reason for building the definition this way becomes clear when each part is removed in turn. Awareness explains why the reckless killer is more blameworthy than the careless one: the reckless actor chose to expose another person to danger, while the careless actor merely failed to notice it. Awareness by itself cannot carry a homicide conviction, however, because nearly everyone who drives a car, performs surgery, or works on a roof knows that the activity can kill someone. If knowing about some risk were enough, every fatal accident involving an informed actor would be manslaughter.

The two filters on the risk prevent that result. They confine liability to danger that was serious enough, and unjustified enough, that running it departs sharply from what the law expects of a law-abiding person. The converse also holds: a high risk the actor never perceived leaves recklessness unsatisfied, and courts applying the subjective standard have refused manslaughter convictions of defendants who were negligent to a high degree but never realized how great the danger was.⁵ Taken together, the parts ensure that a death does not become a serious felony merely because something went wrong, since the actor must have chosen to run a risk that society regards as seriously out of bounds.

Two features of the wording connect the parts. The risk is weighed against the nature and purpose of the actor's conduct and the circumstances known to the actor, so the questions whether the risk was substantial and whether disregarding it was a gross deviation are asked about the situation the actor was actually in, and facts that surfaced only after the death do not enter the calculation.⁶ The risk must also be a risk of the right harm. Because the definition speaks of a risk that the material element will result, a homicide prosecution asks about a risk of death.⁷ Other offenses call for other harms, such as bodily injury for battery and property damage for malicious mischief.⁸

Students most often go wrong here by treating awareness of some risk as recklessness, or by calling a very dangerous act reckless without asking what the actor perceived. Each error drops one of the three parts. The sections that follow take the parts in order: conscious disregard of the risk, then what makes a risk substantial and unjustifiable, then the gross-deviation requirement. A later section also shows that some courts use the word reckless while applying a test that does not require awareness, which is why the Code's own definition is the one to apply to a Model Penal Code problem.⁹

Conscious Disregard of Risk

The first part of the Code's definition of recklessness concerns what was in the defendant's mind, and it does most of the work of separating manslaughter from the lesser homicide offense taken up later. The defendant must have been consciously aware of a risk of death and have gone ahead anyway, which is why this element is called conscious disregard.¹¹ Jurisdictions that apply this subjective test, meaning a test that asks what the particular defendant actually perceived rather than what a typical person would have perceived, usually describe the required mental state with words such as reckless or wanton. The label matters little, because under any subjective formulation the defendant must have personally appreciated a risk and chosen to take it.¹² The prosecution therefore has to prove actual awareness, and proof that the defendant should have been aware does not meet that burden.¹³

The reason the Code insists on awareness lies in what the label manslaughter says about the defendant. A person who sees the danger and goes ahead has chosen to rank some aim of their own above another person's life, and that choice is what justifies a felony conviction and the penalty attached to it. A person who merely fails to notice the danger has made no comparable choice, and the Code deals with that person at a lower grade under negligence.¹⁴ The requirement also does structural work. The entire difference between the two offenses is whether the actor consciously disregarded the risk or only should have been aware of it, so a failure to perceive that could satisfy recklessness would leave the lesser offense with nothing to cover.¹⁵

Courts that apply a subjective definition enforce the line even against defendants whose conduct was very careless. In Bussard v. State a Wisconsin court held that a defendant who was negligent in a high degree was still not guilty of gross-negligence manslaughter, because the defendant had not subjectively realized how great a risk the conduct carried.¹⁶ The court asked what the defendant perceived, and the unusual degree of carelessness did not answer that question. Outside the Code, common-law descriptions of the reckless form of involuntary manslaughter likewise center on a defendant who is aware of a substantial risk of death and proceeds anyway.¹⁷ In states that use recklessness or gross negligence as the standard, courts usually require actual awareness of the danger, although courts are divided on whether a defendant unaware of the risk may be convicted.¹⁸ The Code removes that division by writing the awareness requirement into the definition itself.¹⁹

The opposite situation arises when the facts themselves show that the defendant saw the danger. In a reported prosecution for manslaughter by recklessness, the defendant aimed a gun at his wife and pulled the trigger, thinking but not knowing that the gun was unloaded.²⁰ Thinking a gun is probably empty while knowing that the thought might be wrong is itself an appreciation of the risk that the gun is loaded, so the defendant perceived the danger and fired anyway. Because the undisputed facts could not be squared with inadvertence, the defendant could not recast the shooting as mere carelessness, and it was proper to withhold a negligent homicide instruction from the jury.²¹ That consequence for jury instructions is taken up when recklessness and negligence are compared later in this chapter. The gun case and Bussard differ in the one fact that matters here: the carelessness in Bussard was never matched by perception of the risk, while the gunman's own state of belief included the possibility of a loaded weapon.

Because awareness is a fact about the inside of a person's head, it is usually proved from circumstances rather than from an admission.²² Murray v. State shows how that proof works. A Wyoming court applying a Code-style definition of recklessness reviewed the case of a defendant who fired several shots at a victim's feet and testified that he had not realized he was doing anything dangerous because he aimed away from the victim.²³ The defendant had served in the army as a rifleman and machine gunner, had been rated a sharpshooter, had been told by both the army and his father never to point a gun at anyone, and was an avid hunter who admitted that discharging a gun is a terribly dangerous activity. The court held that a reasonable jury could infer from that experience that he was aware of, but consciously disregarded, the risk that a ricocheting bullet would injure the victim, and evidence that bullets struck the dirt near the victim's feet undercut his claim that he had aimed safely away.²⁴ The holding is that the jury could draw the inference, so experience and warnings reach the jury as evidence of what the defendant actually knew.

The trap in this element is treating how dangerous the act was as proof of what the defendant perceived. A high risk makes it easier for a jury to infer awareness, as Murray shows, but the inference runs through the defendant's circumstances, such as experience, warnings received, and the manner of the act. A risk that the defendant never perceived leaves recklessness unsatisfied however great it was.

Substantial and Unjustifiable Risk

Conscious disregard asks what the defendant perceived, and the second part of the definition asks how serious the perceived danger had to be. The Code builds that measure from two adjectives that do different work. A risk is substantial and unjustifiable when its size, counting the gravity of the harm along with the chance of it, is not outweighed by the reasons for running it, because the definition tells the factfinder to weigh the risk against the nature and purpose of the actor's conduct.²⁶ The tempting shortcut reads substantial as probable, and a Colorado case shows why that reading fails.

In People v. Hall a skier at Vail collided with another skier who was crossing the slope below and who died of traumatic brain injuries, and the prosecution charged reckless manslaughter under a Colorado statute that follows the Code's definitions.²⁷ The district court held that death had to be at least more likely than not, and because skiing too fast is not likely to kill anyone, it found no substantial and unjustifiable risk.²⁸ The Colorado Supreme Court rejected that threshold. It found that the defendant's conduct created a substantial and unjustifiable risk of death: he skied straight down a steep, bumpy slope, off balance and out of control for a considerable distance, at a speed high enough that the impact fractured the victim's skull.²⁹ A risk, the court explained, may be substantial even when the chance of harm is well below fifty percent.³⁰

The court's own illustration shows why probability cannot be the whole test. A person who holds a revolver with a single bullet in one of its chambers, points it at another's head, and pulls the trigger creates a substantial risk of death even though the odds of death are no better than one in six.³¹ Two facts carry that result. The harm at stake is death, which cannot be undone, and the game has no value that could set against it. If the law demanded a better-than-even chance of death before a risk counted as substantial, it would acquit the player of that game and every other low-probability gamble with a life. Weighing the size of the harm, the chance of it, and the usefulness of the conduct together lets the standard condemn those gambles without condemning every risky but useful activity.

The second adjective supplies the other side of that weighing. Because the definition tells the factfinder to consider the purpose of the conduct, the same danger can be justified in one setting and unjustified in another.³² A driver who kills a pedestrian while doing 50 miles an hour in a 30-mile-an-hour residential zone may have run an unjustifiable risk on a pleasure drive, but not while rushing a critically ill spouse to the hospital.³³ The speed and the danger are the same in both versions, and what differs is what the speed was for. The scale also slides in the other direction: where the conduct serves no social purpose at all, a chance of death below one percent may be enough.³⁴ Courts are quicker to find the required risk when the instrument is inherently dangerous, especially a firearm, because the potential harm is so large that even a small chance of a mishap carries heavy weight.³⁵

The kind of harm risked matters as well as its size. The harm required differs from offense to offense: manslaughter requires a risk of death or serious bodily injury, battery requires a risk of bodily injury short of serious injury, and malicious mischief requires a risk to property.³⁶ A driver who consciously runs only a risk of dented fenders or minor bruises has therefore not run the kind of risk that supports a homicide conviction, however probable that minor harm was. The Code's definition ties the risk to the result element, which in a homicide case is death, and the description of manslaughter as requiring a risk of death or serious bodily injury places the floor at the same grave level.

A contrast with knowledge keeps the standard in proportion. Knowledge, and the knowing form of intention, require consciousness that the result is almost certain, while recklessness requires only awareness that the conduct might cause the result.³⁷ A driver who weaves through a thickly settled district need not have believed that hitting someone was likely, or even a fifty-fifty chance, so long as the driver perceived a risk that was substantial and unjustifiable. A defendant who insists that no one was expected to die has therefore not denied recklessness. The question is whether a substantial risk was perceived, and the answer does not depend on whether the death was expected.

Not every danger reaches that level. In Williams v. State a Texas court held that a defendant who took her children from a house with utilities to one without, and left them in a room with a lit candle under the supervision of her boyfriend, had not created a substantial and unjustifiable risk that the children would be injured in a house fire.³⁸ That case arose under a charge other than homicide, so it is not a manslaughter holding, but it applies the same Code-style definition of risk and shows where the element can fail. Set beside Hall, the comparison is one of degree. A skier hurtling out of control down a steep slope makes a collision with someone below a serious danger with a catastrophic consequence, while a candle watched by an adult presents a possible harm of much smaller weight. What separates the cases is the size of the danger the conduct created, because the bare possibility of harm is present in both.

Students most often miss this element by importing a more-likely-than-not threshold, which was the district court's error in Hall. The opposite error treats any imaginable danger as substantial, which would make the defendant in Williams reckless as well. The first error leaves out the gravity of the harm, and the second leaves out the chance of it and the purpose of the conduct.

Gross Deviation From Lawful Conduct

Conscious disregard asks what the defendant perceived, and substantial and unjustifiable risk asks how serious the perceived danger was. The Code's definition of recklessness then adds a third requirement: the risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to the actor, disregarding it involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.⁴⁰ The Code's commentary lists this as a further condition on top of conscious disregard of a substantial and unjustifiable risk, which means it operates as its own filter.⁴¹ An actor who perceives some danger and proceeds anyway has satisfied the awareness element, and may even have run a risk that counts as substantial, yet still falls short of recklessness if disregarding that danger was not a gross departure from lawful conduct.

The reason for a separate filter lies in how much ordinary life involves risk to others. Driving, operating machinery, and doing a dangerous job each carry some chance of killing someone, and society accepts most of those activities because they are useful and cannot be performed at zero risk. If perceiving a danger and accepting it were enough for manslaughter, everyone who had ever knowingly run a small risk would face a felony of the second degree whenever a freak accident turned fatal.⁴² The Code's drafters also inherited a muddle: common-law homicide recognized three levels of risk-creation, one sufficient for murder, one sufficient for manslaughter, and one that supported only civil liability, and the lines among them were unclear.⁴³ Requiring a gross deviation answers that problem by reserving manslaughter for departures serious enough to deserve condemnation as crime, and it leaves ordinary lapses, including awareness of a small risk, to the civil law.

Two reference points structure the comparison. The yardstick is a law-abiding person placed in the actor's situation, so the jury asks what such a person would have done with the same task and the same facts in view. Some states phrase the yardstick as a reasonable person instead, as the Wyoming definition applied in Murray v. State does, but the comparison still measures the actor against ordinary conduct in the same situation.⁴⁴ The inputs to the comparison are the nature and purpose of the conduct and the circumstances known to the actor. Purpose matters because the same act can be a marked departure when done for no reason and an acceptable one when done for a pressing reason, which is the same weighing that helped decide whether the risk was unjustifiable. The word known ties the comparison to the facts the actor actually had in view, so a danger the actor never learned about plays no part in it.⁴⁵

The word gross tells the jury how large the departure must be. Almost every accident involves some departure from perfect care, so a definition satisfied by any departure would reach nearly every fatal accident. The Code supplies no number or percentage at which a departure becomes gross, because the answer depends on the whole picture of risk, purpose, and knowledge, and a jury is the body ordinarily asked to make that judgment of degree.

State v. Far West Water & Sewer, Inc. shows the element satisfied. Applying a Code-style definition, an Arizona court found a gross deviation where the defendant operated a sewage treatment facility, an inherently dangerous workplace with obvious and recognized health hazards, while consciously disregarding an unusually high risk of harm.⁴⁶ Operating a treatment plant is a lawful and useful enterprise, so the facts that carried the result were the dangerous setting, the obvious and recognized hazards, and the unusually high risk the operator knowingly ran. A lawful purpose does not erase a gross departure when the danger is that large and that plain.

The fourth step does the real work, and it is where students most often stop too early by treating knowing of some risk as the end of the analysis. Awareness only opens the door to recklessness, and the jury must still find a marked departure from lawful conduct before the killing is manslaughter. The same gross-deviation language reappears in the Code's definition of negligence, where it is measured against a reasonable person and applied to the failure to perceive a risk, so a lapse that is not gross fails there as well, a point taken up later in this chapter.⁴⁷