Introduction

Reckless and Negligent Homicide

Introduction

Under the Model Penal Code, a person commits criminal homicide by purposely, knowingly, recklessly, or negligently causing the death of another human being.¹ Homicide by itself means only that one person killed another, and many homicides are lawful, as when a soldier kills in open combat or a person uses deadly force in justified self-defense. Criminal homicide is the subset that the law forbids and punishes.² The four adverbs in the definition make up the Code's entire vocabulary of mental states, ranked in descending order of culpability in the general provision, § 2.02, which replaced the many overlapping mental-state words that legislatures had scattered through their criminal statutes.³ Section 210.1(2) then sorts all criminal homicide into three grades: murder, manslaughter, and negligent homicide.⁴ Because those grades track the actor's mental state as to the death, a reader who can place a defendant on the four-word ladder of culpability can usually place the offense on the three-grade ladder of homicide.

That arrangement is easier to appreciate against the law it replaced. At early common law every unlawful killing was punishable by death, so the question of how much criminality attached to a particular killing never had to be answered.⁵ The law later divided unlawful killing into murder, the more heinous offense, and manslaughter, and it used malice aforethought to tell them apart. That phrase is a term of art, and a killing can satisfy it without any ill will in the ordinary sense and without any advance planning.⁶ Legislatures then split murder into degrees and manslaughter into voluntary and involuntary forms, and many states added separate offenses for reckless, negligent, or vehicular homicide, chiefly to reach highway deaths where juries were reluctant to convict a driver of murder or manslaughter.⁷ The Code drops malice aforethought and the first-degree and second-degree division altogether.⁸ A single general label has to cover every killer, from the cold planner to the careless driver, and so it cannot say how much a particular actor appreciated about the danger. By using the same four culpability words at every level, the Code defines each grade by what the actor knew or failed to notice about the risk of death, and that is what lets its lowest grades be defined with precision.

This chapter covers those lowest grades, the killings the actor did not set out to commit. Murder sits above them, reserved for purposeful and knowing killings and for reckless killings that show extreme indifference to the value of human life.⁹ Below it, manslaughter committed recklessly is defined in § 210.3(1)(a), and negligent homicide in § 210.4(1).¹⁰ A killing the actor did not intend can still be criminal. A driver who knows that children are playing near a school zone posted at 25 miles an hour, and who drives through at 100 anyway, wishes no one dead, yet has consciously disregarded a serious risk and so acts recklessly, while an actor who fails to perceive a danger that a reasonable person would have perceived acts only negligently.¹¹ The Code's definitions of recklessly and negligently sit in § 2.02(2)(c) and (d), and both turn on awareness of a substantial and unjustifiable risk, which the reckless actor has and the negligent actor lacks.¹² Causation, the link between the defendant's conduct and the death, is assumed throughout this chapter. The lesson climbs from the bottom: it begins with the manslaughter provision itself, then gives recklessness its content, then turns to negligent homicide and the line between the two, and finally to how the Code grades and limits these offenses.