Modern Status of the Rule

Modern Status of the Rule

The limits taught above, which are proximate cause, the malum in se and malum prohibitum divide, dangerousness, and the bar on strict-liability predicates, matter only in a jurisdiction that still recognizes the unlawful-act route to involuntary manslaughter, and that threshold question has no single answer. Some legislatures have written the rule into their homicide statutes, the Model Penal Code and many states have rejected it, and courts in states that keep it still sustain convictions on facts that startle a first-time reader.¹ Estimates of how many states retain the rule differ, so the accurate description is variation rather than a headcount.

The disagreement has a single source. Where the rule applies, commission of a misdemeanor stands in for the culpability about death that involuntary manslaughter would otherwise require, so a prosecutor can convict without proving that the defendant was reckless or negligent as to the risk of death.² Whether that substitution is a sound way to deter lawbreaking or an unjustified shortcut is a policy judgment, and legislatures and courts have answered it differently. The sections below take the statutory forms first, then the Model Penal Code's rejection, and then the evidence that the rule still has force, and they close with a method for handling it on an exam.

Statutory Versions

Where the rule survives, it frequently does so through statutory text, and the wording fixes how far it reaches. California's provision is typical and descends from Blackstone's formulation: involuntary manslaughter is a killing "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."³ The first limb is the unlawful-act route taught in this chapter, and the second limb reaches a lawful act performed carelessly, which is why one statute hands the prosecution both of its theories. Oklahoma states the unlawful-act route more bluntly, making homicide manslaughter when it is perpetrated "without a design to effect death by a person while engaged in the commission of a misdemeanor."⁴ Neither provision, as quoted, says anything about dangerousness or foreseeability, so any limit in those states comes from judicial construction and not from the words themselves.

Other statutes put a limit into the text or push the rule further. Kansas confines the doctrine to a killing in the commission of a misdemeanor enacted for the protection of human life or safety, which writes a dangerousness-type screen directly into the statute.⁵ Michigan moves the other way: a driver who exceeds the speed limit by a single mile in a construction zone and thereby kills a worker may be held strictly liable for manslaughter and face up to fifteen years in prison.⁶ A regulatory infraction with no fault element thus produces a serious homicide sentence, and a court applying an explicit provision of that kind has less room to read in the culpability limits that courts elsewhere have supplied. Statutes can also retire older applications of the common-law rule. The Delaware conviction of a driver who failed to obey a stop sign in violation of a traffic ordinance, in State v. Hupf, has since been superseded by statute.⁷

The wording can decide a case on identical facts. A shoplifter takes a twenty-dollar item, a misdemeanor, and in bolting from the store collides with an entering shopper, who falls and dies; assume the flight is treated as part of the offense and the causal link is established. Under a text like Oklahoma's, which asks only whether the defendant was engaged in the commission of a misdemeanor, the theft can serve as the predicate, subject to any dangerousness or foreseeability limit the state's courts have added. Under a text like Kansas's, the theft statute protects property rather than life or safety, so the predicate fails at the threshold and the prosecution is left with criminal negligence about the flight itself. Only the statute's description of the qualifying misdemeanor changed between the two, and that description decided the result.

Model Penal Code Rejection

The Model Penal Code rejects misdemeanor manslaughter entirely, and many states have followed that lead.⁹ Abolition removes the substitution described above and returns involuntary manslaughter to its ordinary baseline, a killing committed recklessly or with high negligence.¹⁰ The unlawfulness of the defendant's act still has a role in such a jurisdiction, since a violation of law may be offered as evidence that the defendant was reckless or negligent about the risk to life, but it no longer replaces proof of that fault. Abolishing the unlawful-act route therefore closes only that route, and the negligence route stays open on every set of facts.

Two criticisms explain the reform, and they rest on different features of the rule. The first is harshness. In a retaining jurisdiction, an intentional battery that causes an unintended and unforeseeable death, as when a moderate punch kills a victim with an undiagnosed weak heart, is almost universally treated as involuntary manslaughter, and critics have objected that this result is harsh and lacks any rational theory-of-punishment basis. The objection belongs to a broader modern trend against "constructive crime," meaning liability assembled from guilt of some other offense rather than from the mental state the homicide itself would demand.¹¹ The second criticism is overlap. A misdemeanor dangerous enough to qualify under the limits taught above will usually also show carelessness about the risk of death, so the negligence theory already reaches those defendants. The rule does independent work only where the defendant was not culpable about the death, which is the situation in which a homicide conviction is hardest to defend. Retaining jurisdictions answer that a person who chooses to break the law should bear the risk of what follows, and the choice between those positions is the split described at the start of this section.

The lineage of the idea is itself contested. In Coke's formulation, a thief shooting at a deer in another's park, whose arrow glanced off and killed a boy hidden in a bush, committed murder, while the park's owner shooting at his own deer with the same result committed only misadventure, because the owner's act was lawful.¹² Critics of that statement say it lacked authority and rested on a misreading of Bracton, who said only that such killings would be unlawful, and Hale declined to extend the rule to every unlawful act, classing some killings during unlawful acts as manslaughter and others as murder.¹³

The red-light driver shows the practical difference. A driver who runs a red light and kills a pedestrian can be prosecuted on a criminal-negligence theory or, in a retaining jurisdiction, on the theory that the traffic violation was an unlawful act that caused the death.¹⁴ Where the rule is abolished, only the first theory remains. If the driver entered on a light that had just turned red, at ordinary speed and with a clear view, the carelessness may fall short of criminal negligence, so an abolishing jurisdiction will not convict of manslaughter while a retaining one can proceed on the violation, subject to its limits. If the driver instead accelerated through a long-red light into a crowded crosswalk, the negligence theory is satisfied and both kinds of jurisdiction can convict. Only the driver's culpability changed between the two scenes, and that is the fact the abolishing jurisdiction examines.

Continued Vitality

Rejection by the Code has not ended the rule. A number of states never revised their older codes and so still carry it, and others kept it when they reformed their homicide law, with California the most frequently cited example.¹⁶ The reason it persists is the incentive argument from the start of this section: a legislature or court that wants to deter minor lawbreaking from spilling into fatal harm can accept that a person who commits the offense takes the risk of its consequences.

Courts in those states have sustained convictions on striking facts. In United States v. Walker a defendant carrying a pistol without a license dropped it in the stairwell of an apartment building, the gun fired, and a bystander died, and the court treated the licensing misdemeanor as dangerous in itself even though the defense offered expert testimony that the uncocked pistol would fire on impact only if dropped at a particular angle, making the death an unforeseeable accident.¹⁷ The court reasoned that an unlicensed person may lack the mental health, sobriety, or safety training a license screens for.¹⁸ The assault cases run the same way. A moderate blow that kills a victim with a weak heart is manslaughter, and so is approaching someone with intent to strike when the victim, who has an undiagnosed heart condition, dies of a seizure brought on by fright, even though the defendant never touched the victim.¹⁹ In each scene the defendant's own unlawful act supplies the fault, and the victim's unforeseen frailty does not break the chain between that act and the death.

The first step does the most work, since it decides whether steps two through four are run at all. When a problem names no statute and simply asks about manslaughter for a death during a misdemeanor, treat the unlawful-act route as part of common-law involuntary manslaughter and run those steps with the limits as taught above, while noting that a jurisdiction following the Model Penal Code would require the ordinary culpability instead.

Statutory Versions

Where the misdemeanor-manslaughter rule survives, it often does so in statutory text, and the wording of that text fixes how far the rule reaches. A legislature that codifies the rule has to decide what kind of unlawful act will serve as the predicate, whether the text will require a causal link between that act and the death, and whether any category of minor violation will be excluded. The codifications below answer those questions differently, which is why two states can treat the same fatal event in opposite ways.²⁶

California's involuntary-manslaughter provision descends from Blackstone's formulation and has two limbs. The first covers a killing committed in the course of an unlawful act that does not amount to a felony, and the second covers a killing committed in the course of a lawful act that might produce death but is done in an unlawful manner or without due caution and circumspection.²⁷ The first limb is the unlawful-act route taught in this chapter and the second is a negligence-style theory, so a single statute hands the prosecution both of the theories described earlier. Oklahoma states the unlawful-act route more bluntly: a homicide committed without a design to kill, by a person engaged in the commission of a misdemeanor, is manslaughter.²⁸ On their faces, California's phrase unlawful act is wider than Oklahoma's word misdemeanor, because it names a kind of conduct instead of a grade of offense. Neither text asks whether the defendant was careless about the risk of death, and neither mentions dangerousness or foreseeability, so any limit in those states has to come from judicial construction.

Kansas writes a limit into the statute itself. Its involuntary-manslaughter provision reaches a reckless killing, a killing during a lawful act done in an unlawful manner, and a killing during a felony other than the inherently dangerous felonies that support first-degree murder or during a misdemeanor, where the offense is one enacted for the protection of human life or safety.²⁹ The purpose screen has a straightforward logic. A statute enacted to protect life or safety already embodies a legislative judgment that violating it endangers people, so a death that follows falls within the very risk the legislature was guarding against. A licensing, revenue, or property offense carries no such judgment, and the Kansas text therefore excludes it from the predicate list without any need for a court to apply a malum in se or dangerousness test.

Ohio's provision pushes the rule outward in one direction and pulls it back in another. It makes a death that occurs as a proximate result of committing a misdemeanor of any degree, or a regulatory offense that is not itself a crime, a manslaughter, so the predicate reaches below the ordinary misdemeanor into administrative violations.³⁰ The words proximate result put the causation requirement into the text, which means a court applying the statute asks the causal question directly. The pull-back comes from a carve-out: a minor misdemeanor under the state's motor-vehicle code cannot serve as the predicate, and neither can a municipal ordinance that is substantially equivalent to such a violation, whatever penalty the city attaches to it.³¹ The carve-out removes the most commonplace and least culpable infractions, the sort a driver commits in a moment of inattention, and the equivalence clause prevents a city from restoring the predicate by raising the ordinance's penalty. The same Ohio section also grades a death proximately resulting from any felony as involuntary manslaughter, which shows how a code can take a felony that falls outside its murder provision and place it in the manslaughter tier.³²

Michigan shows the rule at its broadest. A driver who exceeds the speed limit by a single mile per hour in a construction zone and thereby kills a worker may be held strictly liable for manslaughter and face up to fifteen years in prison.³³ The predicate is a regulatory speeding violation and the statute requires no fault about the death, so a conviction rests on the violation and the causal link alone. Judicial limits such as a bar on strict-liability predicates are constructions of ambiguous text, and a statute that names both the offense and the consequence expressly leaves little to construe. Statutes can also retire older applications of the common-law rule. In State v. Hupf, a Delaware driver was convicted of involuntary manslaughter after failing to obey a stop sign in violation of a traffic ordinance and killing a pedestrian, and that result has since been superseded by statute.³⁴

Hold the facts constant and let only the statute vary. A driver goes one mile per hour over the limit in a posted construction zone, and a worker steps into the lane and is killed. Under the Michigan provision, the speeding violation is itself the basis for manslaughter liability.³⁵ Now assume the same collision occurs in a state with an Ohio-style provision, and that the construction-zone speeding offense there is graded as a minor misdemeanor under the motor-vehicle code. The carve-out removes the violation from the predicate list, so the prosecution must proceed on the criminal-negligence theory, which a one-mile excess is unlikely to satisfy.³⁶ Only the statutory text differs between the two scenes, and it decides whether the violation can serve as the predicate at all.

The same lesson governs an exam problem that quotes a homicide statute. The analysis starts with the text's description of the qualifying act: what kind of unlawful act it names, whether it states a causal link, and whether it excludes any category of minor violation. Students lose this issue when they apply the general common-law formula to a problem that supplies a statute, because the quoted text controls the predicate and the limits that follow from it.

Model Penal Code Rejection

The statutes just surveyed show how far a legislature can extend the unlawful-act route, and the Model Penal Code marks the opposite pole by rejecting the misdemeanor-manslaughter rule entirely.³⁸ Many states followed the Code's lead and abolished the doctrine outright, in response to criticism that paralleled the criticism of felony murder.³⁹ Under the Code, manslaughter requires a reckless killing, meaning one committed with subjective awareness of the risk of death. A killing committed with criminal negligence, which involves no actual awareness but a gross deviation from what a reasonable person would have perceived, is the lesser offense of negligent homicide.⁴⁰ A misdemeanor therefore substitutes for neither mental state. The unlawfulness of the act keeps a place in the case, because a jury may treat the violation as evidence bearing on whether the defendant was reckless, but it is one fact to be weighed and cannot replace the proof the offense requires.

The Code's reasons can be read off the structure of the common-law rule, which has two features that the Code answers separately. The first is grading. The unlawful-act rule sets the grade of a homicide by the culpability a defendant showed toward some other legal duty, such as renewing a license, keeping taillights working, or obeying a speed limit. A person can break those duties without a thought about death, so the rule can place that person in the same offense category as a killer who knowingly ran a lethal risk. The second is the signal that punishment sends. A manslaughter conviction can influence only choices that the actor perceives as risky, and a defendant who never glimpsed a danger had no occasion to choose differently. Requiring recklessness or gross negligence ties the penalty to a failure the law can fairly ask a person to correct, which is the failure to notice or heed a serious risk to life. Treating the violation as evidence also keeps what the older rule was reaching for, since dangerous lawbreaking will often supply the proof that the defendant knowingly took a risk.

Two drivers who both break the traffic law show where the Code draws the line. One speeds through a school zone at dismissal time, sees children gathered at the curb, and keeps going, and a child is killed. Because that driver consciously disregarded a substantial and unjustifiable risk to others, the violation is evidence of recklessness and the Code supports a manslaughter conviction.⁴¹ The other driver is doing 50 in a 35 zone and kills a pedestrian, but nothing in the drive shows recklessness or gross negligence. In a jurisdiction that retains the common-law rule, the speeding violation can serve as the predicate, and if it proximately caused the death the driver can be convicted of involuntary manslaughter without more.⁴² Under the Code, the same driver is not guilty of manslaughter, because the prosecution cannot prove the mental state the offense demands.⁴³ Both drivers violated the speed statute, so the fact that moved the answer was the driver's awareness of the risk, which the common-law rule never asks about.

The gap between the two approaches is widest when the defendant never noticed the violation. A driver whose taillights failed without his knowledge, and whose driving is followed by a death, has committed the equipment misdemeanor whether or not he was careless. Under the unlawful-act rule he is guilty of involuntary manslaughter even if his failure to notice the defect was not negligent at all.⁴⁴ The Code rejects that result and requires proof that his failure to know of the problem was a gross deviation from what a reasonable driver would have noticed.⁴⁵ That question concerns the defendant's own inattentiveness, measured against an ordinary driver, so it is a more demanding inquiry than whether a regulation was broken. If the answer is no, the taillight violation alone yields no homicide liability, and if the answer is yes, the Code reaches criminal negligence and the lesser grade of negligent homicide.

Some states arrive at nearly the same place without adopting the Code. Montana, in State v. Strobel, required proof of criminal negligence in addition to the misdemeanor, and a requirement of that kind effectively rejects the rule.⁴⁶ The reason is that criminal negligence already suffices for involuntary manslaughter, since that offense normally means a killing committed recklessly or with high negligence.⁴⁷ Once the prosecution must prove that mental state, the misdemeanor adds nothing to what it has to establish, and the unlawful act survives only as one more fact pointing toward the defendant's negligence. The two approaches still differ in form. A Strobel-type state keeps the misdemeanor on the books as an element and attaches a negligence requirement to it, while the Code drops the unlawful-act category and grades by mental state alone, so a reckless killing is manslaughter and a criminally negligent one is negligent homicide.⁴⁸

On an exam, the cue is the jurisdiction. A problem that says the state follows the Model Penal Code, or that it requires criminal negligence in addition to the misdemeanor, closes the unlawful-act route, and the analysis moves to the defendant's mental state about the death. Students lose this issue when they stop at the observation that a minor offense was committed, because the violation alone cannot carry the charge where the rule is rejected.

Continued Vitality

The Model Penal Code and many states have abandoned the unlawful-act route, yet it has not disappeared from the law. California and roughly a dozen other states continue to accept it, and about a dozen more that revised their criminal codes kept the common-law rule in the reformed text.⁵⁰ Retention rests on a judgment about deliberate lawbreaking. A person who knowingly commits an offense and thereby causes a death has chosen to act outside the law, and a legislature may decide that this choice, rather than the person's carefulness about the death, should fix the homicide grade. The same structure explains the criticism, since the rule reaches defendants who never glimpsed any danger to life. Two decisions from the 1990s show how far the rule can carry a prosecution on the facts.

In State v. Ervin a New Jersey court upheld a homicide conviction against a defendant who had procured cocaine for himself and his girlfriend, after which she died from it.⁵¹ The court reasoned that his distributing the cocaine to her caused her death.⁵² The stated reasoning is about causation. The girlfriend herself took the drug, a step that a negligence inquiry would want to examine closely, but the court placed the weight on the link between the defendant's unlawful act and the death. Once that link was found, the conviction followed without any separate showing that he anticipated a fatal result.

The Ohio Supreme Court went further on facts that contain no fault at all. In State v. Weitbrecht a woman rendered unconscious by a heart attack crossed the centerline and killed three people, and the court upheld her prosecution for involuntary manslaughter even though she had crossed the line non-negligently.⁵³ Crossing the centerline is a traffic violation, so the unlawful-act route supplied the predicate and the three deaths supplied the consequence. No inquiry into carelessness was needed, which is the practical meaning of the statement that under this theory the prosecution need only show that the unlawful act caused the death.⁵⁴ That result also fits the structure of the Ohio provision taken up earlier in this chapter, which makes proximate result of the violation the touchstone.

The contrast with the abandoning jurisdictions shows what the retained rule is doing. Carry the Weitbrecht facts into a state that no longer recognizes the unlawful-act doctrine: a motorist loses consciousness without fault, drifts across the centerline, and kills three people. There the motorist can be convicted of involuntary manslaughter only on proof of criminal negligence, and on these facts that proof is missing.⁵⁵ A state that follows the Montana approach in State v. Strobel, requiring criminal negligence in addition to the misdemeanor, reaches the same answer, and so does the Model Penal Code, which rejects the rule entirely.⁵⁶ The driving, the violation, and the deaths are identical in the two jurisdictions. Only the governing rule differs, and it decides whether a blameless defendant faces a manslaughter conviction or walks free of homicide liability.

Because the answer depends on the jurisdiction, an exam problem that involves a death during a minor offense is best run in a fixed order. Students lose this issue when they treat the rule as obsolete on the strength of the Model Penal Code's rejection, since the controlling law is the jurisdiction's own.