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.