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Monday, February 21, 2011

Depravity -- or, Legal Moralism's Protective Dimension

Criminal law teachers and scholars know that an unintentional killing evincing a "depraved mind" (or "heart") historically has constituted murder -- one whose culpability is generally on a par with an intentional killing.  As part of my efforts this year to learn and teach more New York law to my criminal law students, I have been greatly enjoying the rich local doctrine in this area.  The New York Penal Law uses the "depraved indifference" formulation, and, in a nutshell, the Court of Appeals relatively recently held that depravity is its own mental state, and cannot be captured by "objective" factors which relate solely to the degree of risk-taking.  The latter was the older rule in a case from the early 1980s, People v. Register, where the aim had been in part to shear away what was perceived as a kind inappropriate legal moralism in the concept of "depravity" and to make it more neutral, more "objective."  The result was that prosecutors began to charge defendants with both intentional and depraved indifference  homicide -- an outgrowth of the fact that depravity no longer retained its own independent sense of culpability.  It was the desire to do away with the distinctive moral opprobrium that attaches to depraved indifference which occasioned the prosecutorial practice of gamely bringing two charges that have no business standing side-by-side.  Roughly five years ago, Register was overruled.

In my (limited) experience teaching criminal law, students have a difficult time wrapping their minds around the idea of depravity -- they want to think about it purely in terms of excessive risk-taking -- really, really excessive (murder) as compared with just plain old excessive (manslaughter).  But the New York experience suggests that the older, morally laden language is more protective of defendants -- more protective exactly because keen to retain the distinctly culpable quality of "extreme wickedness, or abject moral deficiency," People v. Suarez, 6 N.Y.3d 202 (2005), that is the distinctive flavor of depravity.

As it happens, I'm working on a paper dealing with the thought of Sir James Fitzjames Stephen, an important Victorian-era jurist and one of the leading 19th century expositors of English criminal law.  His descriptions of the culpability of particular offenses, often drawn from cases that he tried, are masterful.  For criminal law teachers who are thinking about how to transmit the concept of the depraved heart, may I suggest the following tract, from the third volume of Stephen's magnificent History of the Criminal Law of England:

“Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and the man who stabs another in the chest with no definite intention at all as to the victim’s life or death, but with a feeling of indifference whether he lives or dies?  It seems to me that there is nothing to choose between the two men, and that cases may be put in which reckless indifference to the fate of a person intentionally subjected to deadly injury is, if possible, morally worse than an actual intent to kill.  For instance, the master of a ship, by a long series of brutal cruelties intended not to kill but to inflict prolonged and exquisite torture which may or may not end in death, does actually kill his victim.  This shows more cold-blooded, disgusting cruelty than if he had killed by a single blow intended to kill.  Or, again, a man wishing to cheat an insurance office, and so to obtain a small sum of money, sets fire to his own dwelling-house well-knowing that six people – all of whom are burnt to death – are sleeping above the room that he sets on fire.  Morally, this seems to me a murder quite as horrible as poisoning a person in order to inherit from him.  Whether cruelty shows itself in that most hateful of all forms, delight in the infliction of pain, or in callous indifference to the destruction of life, it is in my opinion equally revolting and abominable, and the question whether the wretch who feels it wishes that his victim should live in order that his murderer may enjoy his sufferings; or that he should die in order that his murderer should inherit from him; or is indifferent whether he lives or dies so long as the murderer gains some object of his own by the deadly violence inflicted, seems to be irrelevant to his guilt.”

Posted by Marc DeGirolami on February 21, 2011 at 10:24 PM | Permalink


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I see - that makes a great deal of sense. And, I agree with you - I think that criminal law does likely have the greatest direct and obviously relationship to morality of any of the branches of law.

Thank you for taking the time to respond!


Posted by: Jonathan | Feb 23, 2011 9:13:59 AM

Jonathan, I'm not certain about that. There are plenty of deep-rooted moral reactions in criminal law, more so maybe than in any other field. There is no question in my mind that students understand that when we are dealing with the degrees of murder, for example, or with whether force ought to be included as a requirement for a rape charge, there are questions of morality brewing just below the surface, and they are eager to voice them.

But depraved indifference is in some ways special (though probably not unique) for a couple of reasons: first, we're talking about a mens rea threshold which does depend in part on extreme risk taking (just not, at least in New York, exclusively), which means that the students are already oriented toward thinking in terms of recklessness. I agree with you that objective, exterior tests are easier to capture -- and in fact, that is part of what the term itself has been interpreted to include. And second, it's the archaic sound of the term "depravity" itself which perhaps contributes to the confusion -- what could it really mean, today, to evince a depraved mind? It's not a term that people use very frequently (unlike, for example, "intention" or "extreme mental or emotional disturbance -- how often does one hear that someone or other is "mentally disturbed") and so it cries out for explanation.

Posted by: Marc DeGirolami | Feb 22, 2011 6:04:48 PM


My apologies - the pointing out was unintentional, as I just cut and pasted from your paragraph above. (Glad that helped, though.)

Do you also think that we've become so used to Austinian positivism, or at least the idea that law and morality are (and ought to be) separate animals, that seeing a distinctly moral term in the statutes of the law throws individuals for a loop?

This particular idea - "they want to think about it purely in terms of excessive risk-taking" is very interesting. It implies an objective, exterior test, rather than a subjective, interior test seemingly indicated by the idea of "depravity."

Posted by: Jonathan | Feb 22, 2011 2:25:11 PM

Jonathan, thanks for pointing out the typo, which I've fixed. I don't know why this is the case. One thought I have is that there is a natural inclination to believe that intentional killings must necessarily be worse than unintentional killings. And so when one hears that there is a category of unintentional killing which is often considered as grave as an intentional killing, it's perhaps difficult to imagine why. The turn is then naturally to the circumstances of the killing itself -- what facts made the killing more extreme with respect to the risks taken -- rather than to the distinctive cast of mens rea involved (after all, ultimately, it's still unintentional).

But these are just guesses.

Posted by: Marc DeGirolami | Feb 22, 2011 9:48:34 AM

"In my (limitied) experience teaching criminal law, students have a difficult time wrapping their minds around the idea of depravity -- they want to think about it purely in terms of excessive risk-taking -- really, really excessive (murder) as compared with just plain old excessive (manslaughter)."


To me, that is one of the most interesting parts of this writing. Why would students have difficulty wrapping their mind around this?


Posted by: Jonathan | Feb 22, 2011 8:44:39 AM

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