Concept

Where Manslaughter Ends

MPC reckless manslaughter and negligent homicide

Where Manslaughter Ends

The Code arranges criminal homicide as a ladder of three grades: murder, manslaughter, and negligent homicide.¹ Reckless manslaughter sits on the middle rung, because a killing committed recklessly is manslaughter under § 210.3(1)(a).² The rung above it is murder, and the Code reaches that rung without inventing a new mental state for the defendant. A purposeful or knowing killing is murder outright, and a reckless killing becomes murder only when it is committed under circumstances manifesting extreme indifference to the value of human life.³ Many jurisdictions mark the line between murder and manslaughter with premeditation and degrees of murder, while the Code abolishes the term malice and the first-degree and second-degree distinction and sorts killings by the actor's attitude toward the death.⁴ This section covers where reckless manslaughter stops and murder begins, and then a related point on which the Code departs from the common law: what an intent to injure does to the grade.

The Extreme-Indifference Line

A defendant charged with murder on a recklessness theory must satisfy everything manslaughter requires and one thing more. The floor is shared: the defendant consciously disregarded a substantial and unjustifiable risk that the victim would die.⁵ What murder adds is a further judgment about that same recklessness, namely whether, under the circumstances, the conscious disregard manifests extreme indifference to the value of human life.⁶ Extreme indifference thus grades the recklessness the defendant already had, and it asks the factfinder to decide how bad that recklessness was.

The Code gives the jury no formula for that judgment. The drafters took the position that whether recklessness is extreme enough cannot be clarified further and must be left directly to the trier of fact, under instructions that recklessness which can fairly be assimilated to purpose or knowledge is murder and that less extreme recklessness is manslaughter.⁷ The reason lies in how wide recklessness is. At one end sits a bad gamble taken for a reason the actor thought worth the danger, and at the other sits a disregard of human life so complete that the actor stands close to someone who aims at a death or knows it will follow. Any verbal test fine enough to sort every case between those ends would have to rank countless combinations of facts in advance, so the Code supplies a benchmark, purpose or knowledge, and asks the jury where the case falls against it. Murder is thereby kept for the worst reckless killers, and manslaughter covers the large middle range. The common law met the same difficulty in depraved-heart murder, where a student searching for a clear line between wanton recklessness and ordinary recklessness will not find one, because the question is left to the judgment of the jury or judge at trial.⁸

The surrounding circumstances, rather than probability in the abstract, drive that judgment. A bullet fired through a window carries the same physical risk whether the window belongs to an abandoned cabin in a deserted town or to an occupied city home, yet what the shooter knows of the surroundings can lead a factfinder to treat the two shots differently.⁹ Two decided applications show the line from either side. In People v. Hall a skier barreled down a steep, bumpy slope out of control and killed another skier, and the case was prosecuted as recklessly causing death, because the risk was substantial and unjustifiable, which fits the manslaughter grade.¹⁰ The danger there came from a lawful recreation pursued too heedlessly, which is the ordinary recklessness the middle rung exists to punish. On the other side, a person who fires into a passing train consciously disregards a substantial and unjustifiable risk that someone will die, and if the circumstances manifest extreme indifference to the value of human life, the killing is murder under the Code's third category and not manslaughter.¹¹ Both defendants were aware of a risk of death, so awareness cannot separate the cases. The separation comes from the extreme-indifference judgment, which asks whether the disregard approaches the level of purpose or knowledge.

Hypothetical Illustration

Two drivers each travel at ninety miles an hour, each knows that driving that fast can kill someone, and each strikes and kills a pedestrian. The first was on an empty rural highway at night, where a pedestrian on the shoulder was a remote possibility the driver had weighed and dismissed. The second was passing a crowded school crossing at dismissal time with children plainly in view. Both consciously disregarded a substantial and unjustifiable risk of death, so both are at least reckless. A jury could treat the first driver's gamble as ordinary recklessness and stop at manslaughter, while a jury could find that the second driver's speed through visible children manifested extreme indifference to the value of human life, which would make the killing murder. The speed, the awareness, and the death are identical in the two versions, and the surrounding circumstances moved the judgment. No formula decides the second case, so the jury decides it under the instruction. (Assume causation is established in both versions.)

The Code narrows the jury's latitude in one setting. Recklessness and extreme indifference are presumed when the actor is engaged in, or is an accomplice in, the commission of, an attempt to commit, or flight after committing or attempting robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.¹² The listed felonies are themselves dangerous, so a death in their course supports an inference of the indifference the murder grade requires. This presumption is all that remains of felony murder in the Code, which keeps the doctrine only as a presumption attached to the extreme-indifference category and creates no separate route to murder.¹³

Exam Analysis Steps

Because the murder line is a second judgment layered on a first, the analysis runs best in a fixed order. The steps are these:

Confirm that the defendant caused a death while consciously disregarding a substantial and unjustifiable risk of death, since without recklessness there is neither reckless manslaughter nor reckless murder.¹⁴
Check whether the death occurred during or in flight from one of the listed felonies, which raises the presumption of recklessness and extreme indifference.¹⁵
Ask whether the circumstances, including what the defendant knew, show a disregard of human life that can fairly be assimilated to purpose or knowledge.¹⁶
Treat the answer to step three as a question for the jury, and conclude murder if the jury finds extreme indifference and manslaughter if it finds only ordinary recklessness.

On an exam, the usual error is to treat conscious disregard of a risk of death as enough for murder. That awareness is the floor shared by manslaughter and extreme-indifference murder, so it cannot decide between them. An answer that stops at awareness has proved manslaughter and nothing more, and the points come from analyzing what the circumstances show about how close the disregard comes to purpose or knowledge.

Intent to Injure

At common law, an intent to inflict serious bodily harm was one of the states of mind that made a killing murder, so a person who meant only to injure and accidentally killed was guilty of murder.¹⁹ The Code gives that intent no special significance. It handles such cases under the standards of extreme recklessness in § 210.2(1)(b) and ordinary recklessness in § 210.3(1)(a).²⁰ The reason follows from how the Code grades homicide, by the actor's attitude toward the death. An intent to injure is a state of mind about a different result, an injury, and it can coexist with complete inattention to whether anyone will die. An actor who inflicts serious injury by means that obviously risk death will usually be aware of that risk, which is why most traditional examples of murder by intent to injure fall within the Code's recklessness categories.²¹ The intended injury stays relevant, because its nature and gravity bear on whether the actor was reckless as to death and on whether extreme indifference is present.²²

A narrow residue remains. In the rare case of purposeful infliction of serious injury without recklessness as to death, the commentary points to some version of aggravated assault or, perhaps, negligent homicide.²³ The word perhaps deserves weight. Negligent homicide requires that the death be caused negligently, so it is available only if the evidence satisfies its own elements, and an intent to injure does not by itself supply them.²⁴

Hypothetical Illustration

An assailant sets out to break a rival's arm and shoves the rival off a four-foot loading dock. The rival lands on the head and dies, and the evidence, if believed, shows the assailant never thought about any risk of death. The intended injury was serious, yet the assailant was not reckless as to death, so reckless manslaughter is unavailable. The prosecutor turns to aggravated assault and, if the evidence shows a failure to perceive the risk amounting to a gross deviation from reasonable care, to negligent homicide. Change one fact: the assailant intends the same broken arm but pushes the rival from a fifth-floor balcony. A jury could now find that the assailant was aware a fall from that height can kill and went ahead, so the case is at least reckless manslaughter, and the intended injury becomes part of the evidence of recklessness. The injury intended is the same in both versions, and the risk of death the assailant perceived moved the grade.

The error to avoid on an exam is carrying the common-law intent-to-injure rule into a jurisdiction that follows the Code. An answer that announces murder because the defendant meant to cause serious injury has skipped the question the Code asks, which is how the defendant treated the risk of death. The analysis should ask whether the defendant consciously disregarded a risk of death, and whether that disregard manifested extreme indifference. If neither is shown, the case belongs to assault or, if its elements are met, negligent homicide.