Negligent Homicide

Negligent Homicide

Model Penal Code § 210.4(1) defines the lowest grade of criminal homicide in a single sentence: criminal homicide constitutes negligent homicide when it is committed negligently.¹ The sentence is short because it borrows its content from two other provisions. Section 210.1 supplies the result, which is causing the death of another human being, and it lists negligently as one of the four mental states that can accompany that result.² The general culpability provision, § 2.02(2)(d), then defines acting negligently. The actor must be someone who should be aware of a substantial and unjustifiable risk that death will result from the conduct, and the risk must be of such a nature and degree that failing to perceive it, given the nature and purpose of the conduct and the circumstances known to the actor, is a gross deviation from the standard of care a reasonable person would observe in the actor's situation.³ The plain idea underneath is that the actor should have seen the danger and did not.

That definition has a risk component and a perception component, and the two do different work. The risk component uses the same measure as the reckless definition: the danger must be substantial and unjustifiable, so the gravity of the harm, the chance of it, and the purpose of the conduct are weighed together, as in the earlier sections.⁴ The perception component is what makes the offense distinctive. The actor is condemned for inadvertence. A person who takes up dangerous work, such as handling a firearm or driving a car, is expected to look for the dangers that work carries, and one who fails to look, or looks and misses what a careful person would see, has fallen short of what the community may demand. The offense therefore turns on a failure to notice, and an actor never shown to have chosen to run the risk can still be convicted.

The gross-deviation clause supplies the limit that keeps this from becoming a felony for every fatal oversight. Everyone fails to notice things at times, and almost every accidental death follows some lapse in attention. A rule that reached any failure to perceive would turn those lapses into crimes and would leave the line between criminal and merely civil fault where the Code's drafters found it, which was unclear.⁵ Requiring a gross deviation from the care a reasonable person would use reserves the offense for lapses serious enough to deserve condemnation as crime. The word gross also means that the Code's negligence is already a heavier standard than the ordinary carelessness that supports a damages award, a point the next section develops.

The two versions end in the same death and differ in what the hunter had reason to see. In the first, a reasonable hunter would have perceived a substantial risk to people, and the failure to look was a gross departure from ordinary care. In the second, the hunter took the precautions that care requires, so no risk of that size was there to be perceived. On an exam, the trap is to infer negligent homicide from the bare fact that a death was avoidable, when the statute demands a failure to perceive a substantial and unjustifiable risk and a gross departure in that failure.

The offense exists because of how the common law handled careless killings. The common law had no crime called negligent homicide, so a killing below the grade of manslaughter was innocent, and modern codes created the offense mostly by taking homicide through criminal negligence out of manslaughter and giving it its own name.⁶ The drafters of the Code saw a grading problem in the old arrangement, because involuntary manslaughter covered both the actor who consciously ran a homicidal risk and the actor who never noticed it. If both were graded as manslaughter, the inadvertent actor would receive a disproportionately severe sanction. If the penalty were reduced to suit the inadvertent actor, the one who saw the risk and ran it would receive the reduced penalty too.⁷ A separate provision with lighter sanctions lets each kind of actor be convicted at a grade that fits. The Code makes negligent homicide a felony of the third degree, below the second-degree felony of manslaughter.⁸

A second reason concerns juries. Where manslaughter was the only homicide charge available for a careless death, jurors who saw the defendant's lapse as one they might have committed themselves often declined to convict at all, and many states responded with homicide-by-automobile offenses punished less severely than manslaughter.⁹ A lower offense gives such a jury a verdict it can return without condemning the defendant as a manslaughterer, which is better than outright acquittal. The Code's offense is broader than those driving statutes, because it requires only inadvertence to the risk and is not limited to motor vehicles or to any other special danger.¹⁰ It reaches gross carelessness by an actor who was unaware of the risk.¹¹ In jurisdictions that define manslaughter in subjective terms as the Code does, negligent homicide looks much like involuntary manslaughter in jurisdictions that apply an objective test, so the label attached to a grossly careless killing varies from state to state.¹²

Two questions about the definition remain. The first is how the gross-deviation requirement separates criminal negligence from the ordinary negligence of tort law, and the second is how many of the defendant's own characteristics enter the standard of the reasonable person in the actor's situation. The sections below take them in that order.

Criminal Versus Civil Negligence

The word negligence already belongs to tort law, and a reader who carries the tort meaning into the Code's homicide offense will convict far too easily. Ordinary negligence means conduct that creates an unreasonable risk of injury to others, and it generally supports tort liability.¹⁴ Fault is commonly graded upward from that floor: conduct that creates a high degree of risk may be called gross negligence, and a high-degree risk that the actor realizes is recklessness.¹⁵ The Code's definition of negligence uses the reasonable person as its yardstick but adds a condition tort does not impose, namely that the failure to perceive the risk be a gross deviation from the care a reasonable person would observe in the actor's situation.¹⁶ Because the Code's definition of recklessness also demands a gross deviation, the two grades share a requirement of marked departure, and the difference between them is awareness.¹⁷

Courts reached a similar place well before the Code, though by an untidy road. Early manslaughter cases defined the offense by an unlawful act, a category that swept in torts as well as crimes, and the idea grew that a defendant who was negligent in the tort sense could be guilty of manslaughter.¹⁸ Virtually all courts have rejected that idea and require a higher degree of negligence for criminal liability generally and for homicide in particular, as in Fitzgerald v. State and State v. Weiner.¹⁹ In People v. Rodriguez a young child died in a house fire, and the California court reversed the defendant's manslaughter conviction because nothing showed the defendant could reasonably have foreseen a probability that a fire would start.²⁰ The most the evidence supported was ordinary negligence, and the court held that mere negligence does not support a conviction for involuntary manslaughter.²¹ The court's vocabulary, which speaks of a high degree of risk and knowledge actual or imputed that the act endangered life, differs from the Code's, but the refusal is the same: inattention or a mistake in judgment that ends in death is not criminal unless the quality of the act makes it so.²²

The reason for the higher bar lies in what each body of law does with a finding of negligence. A tort judgment allocates a loss between two parties, and ordinary lapses are a workable basis for that allocation because someone must bear the cost of the injury and the person whose lapse caused it is a sensible candidate. A criminal conviction for homicide carries a felony sentence and the community's condemnation of the defendant. Almost every fatal accident follows some lapse in attention, so a standard satisfied by any lapse would make nearly every accidental death a felony, and the line between criminal and civil fault would disappear in practice. The gross-deviation requirement preserves that line by asking for a failure to perceive that falls so far below ordinary care that it, and not the bare fact of an avoidable death, justifies blame. That is how the Code's drafters framed it: inadvertence to risk is the basis of condemnation for negligence, coupled with the judgment that the failure to perceive was a gross deviation from reasonable care.²³

The second driver fits the standard illustration of criminal negligence, an extremely careless automobile driver who kills someone, and the first driver does not.²⁴ Criminal negligence is commonly defined as gross negligence so extreme that it is punishable as a crime, and the same idea travels under the labels culpable negligence and gross negligence.²⁵ A statute or opinion that uses those labels is usually pointing at this higher degree of fault. Legislatures that use them have often left unsaid what the extra element beyond tort negligence is, whether greater risk, awareness of the risk, or both, and courts have supplied different answers.²⁶ For homicide the Code settles the question by making gross deviation the extra element for negligence and adding awareness only at the reckless grade.²⁷

Tort law also offers a shortcut that criminal law declines to follow. Most courts treat the violation of a safety statute as negligence per se when the victim belongs to the protected class and suffers the kind of harm the statute guards against, on the theory that the legislature has fixed the standard of care.²⁸ A violation does not establish the greater negligence that criminal law requires, though it is some evidence of it.²⁹ A traffic-code violation that ends in death can therefore settle the tort question while leaving the criminal question open.

The victim's conduct marks a second, clearer difference. A victim's own carelessness is often a partial or complete defense in a civil suit, but it has never been a defense to criminal homicide.³⁰ In Dickerson v. State the defendant drove into a car that its drunken driver had stopped in the middle of the road with its lights off, and the Mississippi court held that contributory negligence is no defense to manslaughter, because the homicide laws protect every living person within the jurisdiction.³¹ The victim's conduct can still bear on whether the defendant's conduct was a proximate cause of the death, so it enters the case through causation and not as a defense.³²

On an exam, the common error is to find negligent homicide because the defendant was plainly careless, which treats ordinary carelessness as enough. Carelessness settles only the tort question. The criminal question is whether the failure to perceive the risk was a gross departure from reasonable care, and facts showing a momentary misjudgment under ordinary conditions answer it against the prosecution.

The Actor's Situation

The Code's definition of negligence does not ask what a reasonable person would have perceived in the abstract. It asks whether the actor's failure to perceive the risk was a gross deviation from the care a reasonable person would observe in the actor's situation.³⁴ The last three words of that phrase raise the question this section takes up, which is how much of the real defendant goes into the imagined reasonable person. At one extreme, every defendant is held to the same fixed yardstick whatever the defendant's experience, education, or beliefs. At the other, the standard absorbs everything about the defendant, including a sincere conviction that the act was safe, and the inquiry shrinks to what this defendant actually perceived, which is the awareness question that already separates recklessness from negligence. A court that adopts an objective benchmark has to decide where between those poles to stand.

Each pole has a cost, and the costs explain why the question stays contested. Criminal law is concerned with the defendant's own culpability, so a yardstick that ignores the actor entirely can convict a person for a trait that carries no blame, such as never having been taught a danger that others learn. Fitting relevant characteristics into the standard cures that problem. The cure has its own limit, because every trait added moves the test closer to asking what this defendant would have seen, and a standard that absorbs enough of the actor stops being objective at all. Once an objective benchmark is chosen, the live issue is the degree to which it is individualized, and in a criminal case that degree matters a great deal.³⁵

Some parts of the actor's situation raise no controversy, because they are facts about the setting in which the actor was acting. Conduct is measured in light of all the circumstances, and the social value of whatever the actor was trying to accomplish is part of that measure.³⁶ A driver who kills a pedestrian by travelling fifty miles an hour in a thirty-mile residential zone may be grossly negligent if out for a pleasure drive, but not if rushing a critically ill spouse to the hospital.³⁷ The emergency changes the answer because a risk that has nothing to justify it may be justified when weighed against the danger of delay, and a reasonable person placed in the emergency would weigh it that way. External circumstances of this kind come with the actor into the standard. The harder category consists of the actor's own characteristics, such as prior experience, education, and sincerely held beliefs, because those describe the person who failed to perceive the risk and say nothing about the setting where the failure occurred.

The clearest example of individualizing is People v. Strong, where the defendant intentionally stabbed the victim with a hatchet and three knives but, based on prior experience and religious beliefs, truly believed the stabbing would not harm the victim.³⁸ The majority concluded that those characteristics should be part of the jury's reasonable-person standard, so the defendant might be liable only for criminally negligent homicide and not for second-degree murder, which is where a person without such beliefs or experience would surely land.³⁹ The result follows from the structure of the offense. A defendant who sincerely believed the stabbing was harmless did not perceive a risk of death, so the case becomes one of failure to perceive, and the remaining question is whether a reasonable person with that experience and those beliefs would have seen the risk. By placing the characteristics in the standard, the court let the jury ask that question instead of asking what a stranger with no such background would have seen.

The opposite treatment appears in State v. Williams, where a father was prosecuted for manslaughter after his child's tooth infection led to gangrene and death.⁴⁰ The father was poorly educated, did not know the infection could become fatal, held certain cultural beliefs, and feared that reporting the illness to the authorities might cost him the child permanently. The statute appeared to employ a tort-style negligence standard for manslaughter, and the court held that the trial court properly refused to consider any of those characteristics.⁴¹ That outcome fits the standard being applied, since a tort-style test measures conduct against the care an ordinary person would use and leaves little room for one defendant's limitations. The legislature soon amended the statute to require criminal negligence, but it did not directly address whether characteristics like these should count under the amended standard.⁴²

What separates the two decisions is the standard each court was applying. Strong discussed criminally negligent homicide, where the defendant's own culpability is the main focus, while Williams applied a statute that appeared to use the tort standard and was later amended without resolving the question. Because the cases arise under different statutes, neither tells a court in a third jurisdiction how far to individualize, and the Code's reference to the actor's situation does not supply the answer either.⁴³ The accurate statement is that courts often place at least some of the defendant's characteristics in the reasonable-person standard, and that how many varies with the statute and the court.⁴⁴

On an exam, the common error is to assume that the Code settles which characteristics count. The reference to the actor's situation supports an argument for including a defendant's relevant experience and beliefs, and Strong offers support for that argument, but the text does not decide the question, and a tort-style statute as in Williams points the other way. A strong answer states both positions, says which one the facts favor, and then checks the result against the gross-deviation requirement, because even an individualized standard must find the failure to perceive a marked departure from reasonable care.