Reckless Manslaughter

Reckless Manslaughter

The manslaughter section of the Code is built from alternatives, and only one of them concerns the killings this chapter covers. Section 210.3(1) says that criminal homicide constitutes manslaughter when either of two conditions is met, listed as clauses (a) and (b).¹ Clause (a) is the reckless manslaughter route: criminal homicide is manslaughter when "it is committed recklessly."² The word "it" points back to criminal homicide, so the clause borrows the harm that every criminal homicide shares and states the mental state at which that harm becomes manslaughter.

Seeing how the two provisions fit together shows what the prosecution must prove. Section 210.1(1) makes a person guilty of criminal homicide who purposely, knowingly, recklessly, or negligently causes the death of another human being.³ That provision supplies the result element: the defendant's conduct caused a death, and the person who died was a human being, which § 210.0 defines as someone who has been born and is alive.⁴ Section 210.3(1)(a) then takes one of the four mental states listed in § 210.1(1) and attaches the manslaughter label to it. Because the culpability word modifies the causing of death, the mental state the prosecution must show is directed at the death itself, and a defendant who never wished anyone dead can still satisfy it.

Recklessness as to a death means that the defendant consciously disregarded a substantial and unjustifiable risk that the defendant's conduct would cause it.⁵ The Code places manslaughter at this level because of the kind of blame the mental state carries. The reckless defendant did not aim at death, and so lacks the purpose or knowledge that marks murder. Yet the reckless defendant did more than overlook a danger: the defendant perceived it and chose to run it. That choice is a serious wrong, and the Code reflects this by grading manslaughter as a felony of the second degree, a classification taken up later in this chapter.⁶

Clause (b) is a separate route to the same label, and it belongs to a different lesson. It applies to a homicide that would otherwise be murder but is committed under extreme mental or emotional disturbance for which there is reasonable explanation or excuse, and it reduces that homicide to manslaughter.⁷ The American Law Institute proposed it as a modern refinement of the common-law heat-of-passion idea, so it mitigates killings that would otherwise be murder, typically purposeful or knowing ones, rather than the unintended killings this chapter covers.⁸ Murder under § 210.2(1) is expressly made subject to this clause, which is how the two grades interlock.⁹ For present purposes the point is that clause (a) stands on its own: a reckless killing is manslaughter whether or not any emotional disturbance is present.

The Code's insistence on recklessness answers a problem in the older law. Early common-law decisions treated a defendant who killed while committing an unlawful act as guilty of involuntary manslaughter, and the category of unlawful acts included torts as well as crimes.¹⁰ The classic illustration sets two roofers side by side, each of whom throws a beam down to the street. The roofer in a crowded city who kills a passerby is guilty of manslaughter, while the roofer in a remote area who kills someone is not, and the courts were unclear about why. The sensible explanation is that the first roofer's conduct was reckless or negligent and the second's was not.¹¹

Trouble began when some courts described the two roofers as negligent and non-negligent in the tort sense, which fed the idea that a tortiously negligent actor could be convicted of manslaughter. Virtually all courts rejected that idea and required a higher degree of negligence for criminal liability generally and for homicide in particular.¹² Carelessness that would support a civil claim therefore does not by itself make a killing manslaughter. The reason lies in what each kind of liability does. Tort law asks whether the actor fell short of ordinary care so that a loss can be shifted onto the person who caused it, whereas a homicide conviction brands the defendant a felon and so calls for a more serious fault.

The drafters of the Code saw a further difficulty in sweeping all unintended killings into one offense. The common-law lines separating the risk that sufficed for murder, the risk that sufficed for manslaughter, and the risk that sufficed only for civil liability were unclear, and a single involuntary manslaughter category that lumped conscious risk-taking together with inadvertence forced a bad choice in grading. If the offense carried the penalty of voluntary manslaughter, merely negligent conduct drew disproportionate punishment; if it carried a reduced penalty, persons guilty of serious wrongdoing benefited from sharing a category with less culpable actors.¹³ Section 210.3(1)(a) resolves the problem by requiring proof of conscious disregard of the perceived homicidal risk, and negligent homicide is moved to a separate provision carrying lesser sanctions.¹⁴

Run the two roofers through the Code and the difference turns on what each actor appreciated. A roofer working above a crowded street who sees pedestrians below, knows that a falling beam could kill, and throws the beam anyway has consciously disregarded a substantial and unjustifiable risk of death, so a death caused this way is reckless manslaughter.¹⁵ A roofer in a remote area who drops a beam with no reason to expect anyone nearby has perceived no such risk. When a hiker unexpectedly steps into the beam's path, there is no conscious disregard of a substantial risk of death, and § 210.3(1)(a) is not satisfied.¹⁶

The three roofers show how the elements divide the work. The remote roofer never perceived a substantial risk of death, because the setting gave no reason to expect one. The unaware city roofer faced a substantial risk that went unperceived, and only the roofer who saw the pedestrians below both faced the risk and chose to run it. The unaware roofer is not necessarily free of liability, because causing a death negligently is itself criminal homicide under the Code, a lesser offense addressed in a later section.¹⁷ Everything that separates manslaughter from that lesser offense therefore depends on the phrase "consciously disregards a substantial and unjustifiable risk," and the next section takes its parts one at a time.¹⁸