Murder Under the Code

Murder Under the Code

Every felony-murder question under the Code begins one step before the felony, with the general homicide offense that the presumption is meant to help prove. Section 210.1(1) makes a person guilty of criminal homicide if the person purposely, knowingly, recklessly, or negligently causes the death of another human being, and § 210.1(2) divides criminal homicide into murder, manslaughter, and negligent homicide.¹ The result element is the same at every level, the death of a human being, which the Code defines as a person who has been born and is alive.² What changes from one offense to the next is the actor's mental state in causing that death. A person who acts recklessly neither purposes death nor knows that death is practically certain; instead the person consciously disregards a substantial and unjustifiable risk that death will result.³ Purpose and knowledge sit above recklessness in culpability, and negligence sits below it, so the four words in § 210.1 mark out a scale that the Code then divides into three grades.

Reading the ladder from the bottom shows where murder begins. A killing committed recklessly falls on the manslaughter rung, and what lifts it to murder is the added circumstance that it manifests extreme indifference to the value of human life.⁷ Section 210.2(1) therefore reaches murder by two routes: under subsection (a), a criminal homicide is murder when it is committed purposely or knowingly, and under subsection (b), when it is committed recklessly under circumstances manifesting extreme indifference.⁸ The felony presumption is the second sentence of subsection (b), so it works as a way of proving the second route and adds no third one; the next two subsections take the routes in turn. Both routes carry one qualification from the start. The lead-in to § 210.2(1) excepts § 210.3(1)(b), under which a homicide that would otherwise be murder is manslaughter if it is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, judged from the viewpoint of a person in the actor's situation under the circumstances as the actor believes them to be.⁹ The doctrine of that reduction belongs to the study of manslaughter, but its presence means that a killing meeting the murder definition can still be graded down.

These facts fit the first route. The shooter caused the death of a human being and did so purposely, which is murder under § 210.2(1)(a) and a felony of the first degree under § 210.2(2).¹⁰ The Code asks no separate question about planning, because any homicide that older law would have called premeditated and deliberate falls within the Code's categories of purpose or knowledge.¹¹ The shooter's careful preparation is therefore evidence of the mental state, and the mental state is the only thing the murder definition requires on this route.

The Code is organized around mental states because it discarded the older vocabulary. The pre-Code approach asked whether a killing was done with malice aforethought, then whether it was premeditated, deliberate, and willful, and sorted the answer into first-degree or second-degree murder.¹² Article 210 abolishes the term malice and the first-degree and second-degree distinction, and it treats as death-eligible every killer who causes death purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.¹³ The substitution hands the fact-finder a question that evidence can answer. A label such as malice aforethought does not tell a jury what to look for in a particular defendant's mind, whereas a question about whether the actor purposed death, knew it was practically certain, or consciously disregarded a substantial risk of it does. The same design explains why felony murder appears in the Code only as a presumption. Every murder must fit one of the two mental-state routes, so the Code cannot declare a killing during a robbery to be murder outright; it can only make the mental state easier to establish, which is what the rebuttable presumption in the second sentence of § 210.2(1)(b) does.¹⁴

With the degree split gone, murder is a single grade. Section 210.2(2) makes it a felony of the first degree, with a bracketed clause permitting a death sentence under § 210.6.¹⁵ The brackets are there because some states have no capital punishment and would not need the clause, and without it a first-degree felony sentence has a maximum of life imprisonment.¹⁶ Because the Code does not grade murders by degree, features that other systems might build into the offense, such as the identity of the victim or the method of killing, can be weighed at sentencing instead.¹⁷

The first driver is guilty of criminal homicide for recklessly causing death, but without the extra circumstances that § 210.2(1)(b) requires, the offense is manslaughter, a felony of the second degree.¹⁸ The trap in this area is treating any reckless killing as murder. Recklessness alone is the manslaughter rung, and the whole difference between that rung and murder is extreme indifference, which depends on how the killing was done and the circumstances surrounding it.¹⁹ That is also why the felony presumption carries so much weight when it applies: it supplies the extreme indifference as well as the recklessness, so the prosecution reaches murder without having to prove from the particular circumstances that the actor's disregard of the risk was extreme.

Purposeful or Knowing Murder

The first route to murder is also the most familiar one. Section 210.2(1)(a) makes a criminal homicide murder when it is committed purposely or knowingly, so the statute asks only about the actor's mental state in causing the death.²¹ A person acts purposely when causing the death is the person's conscious object, the result the person is trying to bring about.²² A person acts knowingly when aware that death is practically certain to follow, even if the person would prefer that it did not.²³ The Code puts the two side by side because a killer who is practically certain a death will result, and proceeds anyway, has accepted that death in every sense that matters to blame. Whether the death was the goal or only a byproduct changes little about how dangerous or blameworthy the choice was.

Because (a) turns on what the actor aimed at or was aware of, it captures the killers whom older law placed in its most serious category. A homicide that older law called premeditated and deliberate fits comfortably within purpose or knowledge, so a killer who planned the death never needs a presumption to reach murder.²⁴ The prosecution proves these mental states the way it proves any state of mind, from the circumstances: the weapon chosen, where the shot was aimed, what was said beforehand. A felon who kills is no different, as the following pair of robberies shows.

The second robbery exposes the limit of this route. The second robber may have meant to steal and may even have meant to frighten, but did not aim at a death and did not foresee one as practically certain. The same is true of a felon who beats a victim intending only to injure, because the Code does not list an intent to inflict serious bodily injury as a separate category of murder.²⁵ The trap on an exam is treating the absence of purpose or knowledge as the end of the murder inquiry. When (a) fails, the analysis moves to (b), which reaches a killing committed recklessly under circumstances manifesting extreme indifference to the value of human life.²⁶

That gap explains why the Code has a second route at all. Robbery, burglary, arson, and the other listed felonies regularly put people at risk of death even when the felon is aiming only at property, and in those killings proof of conscious purpose is often missing. If (a) were the only way to murder, the prosecution would have to establish extreme indifference from the circumstances of each such killing without any help. The second sentence of (b) supplies that help by presuming recklessness and extreme indifference when the death occurs during one of the listed felonies.²⁷ The next subsection therefore turns to (b) itself, beginning with what extreme indifference requires.

Extreme-Indifference Recklessness

The first sentence of § 210.2(1)(b) makes a criminal homicide murder when it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.²⁹ That sentence contains two separate findings, and keeping them apart is the work of this subsection. The first is recklessness, which is a question about what was going on in the actor's mind. The second is extreme indifference, which is a judgment about how serious the conduct was in light of everything surrounding the killing. The felony presumption in the second sentence of the same provision, taken up in the next section, stands in for both findings at once, so a reader who does not know what each one demands cannot tell what the presumption replaces.

Recklessness, as the Code defines it, is subjective. An actor who acts recklessly neither purposes death nor knows that death is practically certain; the actor instead consciously disregards a substantial and unjustifiable risk that death will result.³⁰ The word consciously carries the weight. A person who never perceived the risk has disregarded nothing, however obvious the danger would have looked to anyone else, and the Code requires that the defendant subjectively recognize the risk of death before a killing can be reckless at all.³¹ The reason for insisting on awareness is that murder is the Code's most serious homicide offense, and a conviction of that gravity should rest on a choice the defendant actually made. A failure to notice a danger is the mark of negligence, and negligence belongs on a lower rung.

Awareness of a risk is only the entry point, because ordinary recklessness is already the manslaughter rung of the ladder.³² In a murder prosecution the Code asks a further question: whether the actor's conscious disregard of the risk, under the circumstances, manifests extreme indifference to the value of human life.³³ The drafters added that requirement because they judged that one kind of reckless homicide cannot fairly be graded below a purposeful or knowing killing.³⁴ The Code does not try to define the point at which recklessness crosses that line. It leaves the question to the trier of fact, with the instruction that recklessness fairly assimilated to purpose or knowledge is murder and that less extreme recklessness is manslaughter.³⁵ Two defendants who each consciously ran a serious risk of death can therefore end up on different rungs, and the difference lies in the circumstances that show how little weight each gave to the lives at stake.

The phrase leaves open how a factfinder should measure the risk, and the answer is that the measure depends on what the defendant knew and why the defendant acted. The same bullet carries the same mathematical chance of killing an occupant whether it is fired into a window of an apparently abandoned cabin or into a window of a well-kept city home, yet the first may fall short of murder while the second may reach it, because what counts is the degree of risk in light of the surrounding circumstances the shooter knows.³⁶ The risk must also be unjustifiable, which brings in the social value of the conduct. Speeding through crowded streets to rush a passenger to an emergency operation may not support murder, while the same driving done only for the thrill of it may.³⁷ Because the defendant's knowledge and the value of the conduct both move the line, the danger that murder requires cannot be expressed as a percentage.³⁸ The trap here is treating the question as one of abstract odds, as though a stated chance of death marked the boundary between manslaughter and murder.

The number of people exposed to a known danger shows the same variable at work. A hunter who shoots at a deer with one lone companion nearby, and unluckily kills the companion, has created a lower known risk, so the killing may fall short of murder and be manslaughter if the hunter consciously disregarded the danger. The same shot fired in a wooded area the hunter knows is filled with other hunters can support murder when one of them is killed.³⁹ The only fact that changed is how many people the shooter knew stood in the line of fire, and that fact moves the risk from one that is serious but contained to one that can manifest extreme indifference.

Conduct that qualifies tends to endanger people in general rather than a chosen target. The drafters' examples include shooting into a crowd or into an automobile and playing Russian roulette with another person.⁴⁰ The indifference that matters is directed at human life generally and does not require any deliberate aim at the person who died.⁴¹ That is why an actor with no grudge against the victim, and no wish to kill anyone in particular, can still be a murderer under this provision.

This category is the Code's version of what older law called depraved-heart murder. The pre-Code formulas, such as an abandoned and malignant heart or a heart void of social duty and fatally bent on mischief, described killers whose recklessness was bad enough to count as murder, and the Code's third category was written to cover those same killers.⁴² What changed is the language. A phrase like abandoned and malignant heart gives a jury no particular fact to look for and invites a verdict on the defendant's character, whereas extreme indifference to the value of human life points the jury at the circumstances of the killing and is stated in ordinary words that jurors can apply.⁴³

Everything in this subsection describes what the prosecution must show when it relies on the first sentence of (b) alone: a defendant who consciously disregarded a serious risk of death, in circumstances showing extreme indifference. When a death occurs during a store robbery, that proof can be hard to assemble, because the robber's aim was property. The second sentence of (b) eases the burden by presuming both the recklessness and the extreme indifference when the actor is engaged in one of the listed felonies, and the next section turns to what triggers that presumption.⁴⁴