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Monday, May 18, 2020

Line Drawing in the Dark (by Adam Kolber)

Posted as part of the Legal Discontinuities Online Symposium:

Suppose one hundred women line up by height, and you must decide exactly where along the line the women are “tall.” Aside from the familiar (sorites) problem of distinguishing between women very close in height, there is also a problem of meaning. You might very well ask: How tall? Tall for what purpose? To reach the top shelf of some particular closet? To play professional basketball? Absent information about the purpose of the cutoff and what it signifies, it is difficult to draw a meaningful line. When we draw lines across spectra with little information to guide us, I call the creation of such cutoffs “line drawing in the dark.”

Turning to law, many jurisdictions follow the Model Penal Code in recognizing a spectrum of recklessness that can make an instance of homicide either manslaughter or murder. At trials where a defendant’s conduct could plausibly constitute either manslaughter or murder, it will usually be the jury’s job to draw the line between the two. For example, jurors will be asked to decide whether a driver murdered a pedestrian by driving “recklessly under circumstances manifesting extreme indifference to the value of human life” or whether the driving did not manifest such extreme indifference such that the defendant should be convicted at most of manslaughter.

Of course, the line between these two kinds of homicide isn’t carved by nature. Holding all else constant, the appropriate amount of punishment seems to increase smoothly as a defendant’s mental state becomes increasingly reckless (or, if you prefer, as evidence of that recklessness increases). For example, one might gradually increase punishment to reflect greater culpability or need for deterrence. To decide between manslaughter and murder, we must draw a line at some point and call certain reckless homicides “manslaughter” and others “murder.”

Many courts recognize that manslaughter and murder can exist along a spectrum of recklessness. Telling us to draw the line where recklessness represents “extreme indifference to the value of human life” reveals little about where along the spectrum the cutoff is located. Some conduct will be reckless in ways that manifest a little, a good bit, or even a lot of indifference to the value of human life before creeping right up to the line where extreme indifference is manifested. The language of “extreme indifference to the value of human life” adds little shared meaning, other than establishing that a spectrum exists.

According to one appellate court in Washington state, “extreme indifference” “need[s] no further definition.” (State v. Barstad, 93 Wash. App. 553, 567 (Ct. App. Wash, 1999).) According to the court, “the particular facts of each case are what illustrate its meaning,” and “[t]here is no need for further definition.” This view gets matters backwards. If jurors are supposed to apply facts to law, they need to know something about where the law draws lines. Jurors are not supposed to both evaluate facts and determine where the law should draw the line—particularly when they are given too little information to decide. 

If recklessness came in clearly defined units, the law could specify precise places along a spectrum (call them “flagpoles”) where legal consequences change. Absent flagpoles, however, it’s not clear how jurors are supposed to complete their task. Recall the challenge to determine where one-hundred women in height order switch from “non-tall” to “tall.” Some might group the tallest 10% into the “tall” category, while others might group the tallest 40%. There’s simply no meaningful way to draw a line along a spectrum without additional information. Are we using “tall” to mean “WNBA tall” or “taller than average” or “likely to make people say, ‘Gee, she’s tall.’”?

There will be easy cases of “tall” for just about any purpose, just as there will be easy cases of murder or manslaughter. But for a wide range of cases, especially those likely to proceed to trial, we are asking jurors to locate a cutoff without meaningful information about how to do so. This is the sense in which we ask jurors to engage in line drawing in the dark. It’s not just that the task we give jurors is difficult, as it often will be. The manslaughter-murder cutoff seems essentially impossible to get right in any principled way because we withhold information required to promote retribution, deterrence, prevention, or whatever one take the criminal law’s goals to be.

We could try to add meaning through sentencing information. At least if jurors knew the sentencing implications of their decisions, they could decide whether the conduct at issue warrants one or another sentencing range. Perhaps jurors could draw meaningful distinctions if we said, for example, that manslayers in this jurisdiction receive zero to ten-year sentences and murderers receive eleven-year to life sentences. They might assess whether the defendant’s culpability (or dangerousness or some combination of factors) warrants a sentence greater or less than ten years and then select a conviction accordingly. Yet this is precisely the sort of information we have but ordinarily hide from jurors.

Line drawing in the dark can also occur when courts rely on precedents from other jurisdictions. Suppose a judge in State A lacks a clear precedent as to whether the case at bar presents sufficient evidence to constitute an extremely reckless murder as opposed to just reckless manslaughter. The judge might turn to precedent in State B to help decide, implicitly assuming that words like “murder” and “manslaughter” have the same or similar meaning across jurisdictions. But while they are rooted in a shared common law tradition, the tremendous variation in sentencing practices across U.S. jurisdictions casts doubt on the view that every jurisdiction means the same thing by “murder” and “manslaughter” even when they use the same statutory language to describe them.

Assume murderers in State A receive sentences of 11 years to life while manslayers in State A receive sentences of less than 11 years. In State B, by contrast, the division between manslayers and murderers is at the 15-year mark. Murder and manslaughter seem to mean somewhat different things in State A and State B. We cannot accurately compare the two offenses, particularly in cases that fall near the border of murder and manslaughter, without considering sentencing consequences. Homicide warranting ten years’ incarceration happens to be called manslaughter in State A and murder in State B.

Cross-jurisdictional comparison cases will only rarely be both substantively analogous and have sufficiently similar sentencing schemes to offer meaningful comparisons. I gave examples where the sentences for offenses along a spectrum do not overlap and have a clear boundary between them. In reality, such sentences (including murder and manslaughter) will often overlap to varying degrees and require more complicated analysis. Moreover, even when sentences appear the same in name, the jurisdictions will likely have prison systems with different levels of severity and different collateral consequences upon release. Even if two jurisdictions used absolutely identical sentencing regimes, they could vary in their relative punitiveness, meaning that we cannot assume they draw the same lines between murder and manslaughter simply because they punish them with the same prison terms. Taken together, these and related concerns cast doubt on the possibility of ever meaningfully comparing criminal cases across jurisdictions. In my draft paper, I argue that line drawing in the dark occurs in many places throughout the law, afflicting judges, juries, lawyers, and scholars.

This post is adapted from a draft paper, Line Drawing in the Dark, to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 18, 2020 at 08:04 AM in Adam Kolber, Symposium: Legal Discontinuities | Permalink


ProfDrDr makes some interesting points. First a clarification. You write, "It sounds like you want to criticize the fact that juries rely on their common sense to make judgments." I wouldn't put it that way. I emphasize instead that we put jurors in an impossible position. We ask them to make a determination of great importance (e.g., manslaughter vs. murder) without telling them relevant information--namely, what such words really mean. And saying what they mean *probably* requires revealing information related to sentencing that we usually keep secret from jurors. In the absence of giving them good information, juror common sense may be the best we can hope for.

A number of your other points might be summarized as: "Kolber is arguing that we draw lines in the dark because of inadequate information but, really, what basis do we have for drawing the lines in particular places in the first place." That's a good point. One way to put what I'm doing, then, is: Even if the law were based on good theories with well-constructed lines, we'd still be drawing lines in the dark because we ignore or hide relevant information.

Posted by: Adam Kolber | May 25, 2020 9:31:09 AM

It sounds like you want to criticize the fact that juries rely on their common sense to make judgments. This is "drawing lines in the dark". Some thoughts:

1) Maybe scholars, legislators, and judges drew lines in the dark at the historical point(s) at which they began to separate recklessness from intention. Ie sometime in the last 150 years. It took many decades for the legal definitions of recklessness in tort or crime to even settle down to the point of relative stability.

1b) Maybe the law shouldn't be so complex in some areas that it is hard to draw lines?

2) Is the antidote to "drawing lines in the dark" coming up with technically accurate criteria? Eg, "For the purposes of sorting the women, tall is defined as above 6 feet". Maybe we can add some bigger words and law & economics language to the criterion to pretend that it is "scientific" and "empirical". But after that intellectual effort - centralizing, standardizing, enforcing conformity to true truth of the new scientifically valid criteria - have we still done nothing more than continue to "draw lines in the dark"?

3) An alternative view: perhaps we should let juries, judges, and legislators rely on community norms and common sense, to some extent?

4) Are scientific / social-scientific criteria really any better than drawing lines in the dark? Is it ok when intellectuals do it but not ordinary people or democratically-elected representatives?

5) Propositions can be deduced from other propositions but eventually we get to a line drawn in the dark in another sense: an assumption. Assumptions are necessary. We cannot just pretend that assumptions are all invalid, or else we will be as intellectually dishonest as Bertrand Russell and the logical positivists. (Ie, "all propositions are either true, false, or nonsense", the foundation of the "genius" Russell's theory. But this proposition itself is an assumption that cannot be proven true or false!) The point: assumptions exist. Deal with it.

6) Is there a danger of saying "My lines in the dark are better than your lines in the dark. How could you be so foolish as to draw lines in the dark? Tsk tsk."

Posted by: ProfDrDr | May 24, 2020 7:29:53 PM

Just illustrations, what are or is, the real problem in the criminal system (among others, and, they are in fact inherent).

The FBI lab scandal ( hair - sample analysis, that led to many false convictions) here for example:


Posted by: El roam | May 18, 2020 10:29:51 AM

Just correction to my comment:

Instead of:

" But, anyway, with start we the legal and mental configuration "

Should be:

But, anyway, we start with the legal and mental configuration.....

Posted by: El roam | May 18, 2020 10:09:04 AM

Important one. But, problems exist whatever. Even in accurate or totally empiric sciences. Surly, knowing the degree of sentences wouldn't solve nothing. We are not sure many times, that conviction, based on statistic and scientific evidence, is not false per se. What counts in criminal law, is not to draw lines. But, first to understand, what happened actually. To observe and define, in subjective and as clearly as possible in objective terms, what have happened.

If you start with it, and try to figure out, what first was, the subjective mental state of the perpetrator, then, we don't have typically issues. Suppose:

You know, that the perpetrator, had premeditated approach. And how ? He had prepared the weapon. Maps indicating his goal or location of commission. There is suppose contract ( hit contract ) . He got money. We have transcription of phone calls or phone conversations, suggesting clearly what was his purpose. Then, there is no problem. For then, we first, establish, the factual and mental configuration, and then, we attach to it the right legal definition.

But, this is an easy case. What if:

The perpetrator, was really pissed off. And spontaneously killed the person while confronting him. No premeditation. No preparation. But, anyway, with start we the legal and mental configuration ( clearly established) then, we deal with definitions or criminal classification. We might suggest:

That, although, wasn't premeditate, yet, reasonable expectation, of one person, hitting another, in such manner, as with baseball bat on his head ( for example) and, over and over, might result in death. This is objective, natural, probable, occurrence or result. Then:

The person,maybe, had no wishful volition or thinking of killing, but, objective probability, suggests that such strikes, may kill one person. Then we have, one or tow units, less than murder ( premeditated one).

So, your spectrum, looks totally different, when you start with facts and mental state of the perpetrator.

And that is what judges or courts, do actually.


Posted by: El roam | May 18, 2020 9:00:34 AM

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