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38 U.S.F. L. Rev. 261 (2003-2004)
With Malice Toward All: The Increased Lethality of Violence Reshapes Transferred Intent and Attempted Murder Law

handle is hein.journals/usflr38 and id is 271 raw text is: With Malice Toward All: The Increased Lethality of Violence Reshapes Transferred Intent and Attempted Murder Law By MITCHELL KEITER* WHAT MAKES SOME crimes worse than others? As crimes require both a mens rea and an actus reus, some commentators have deemed the corresponding concepts of culpability and harm the elements that determine the severity of a crime.' The factors operate on a sliding scale whereby more of one compensates for less of the other. There is a third element, however, that is often overlooked: the danger posed by the offender's conduct. As Professor Arnold Loewy has observed, dangerousness, like culpability and harm, works on a sliding scale in determining severity; additional danger may compensate for less harm, just as it may compensate for less culpability.2 Although danger is a third variable in evaluating the seriousness of a crime, criminal law fails to attach adequate weight to danger in many contexts. Fuller con- sideration of danger will render both the law more coherent and soci- ety more secure. A prominent example of weighing danger is the assignment of murder liability for dangerous conduct that results in unintended death. Known in different jurisdictions as depraved heart, extreme indifference, constructive intent, wanton disregard, implied mal- ice, or any combination of these terms,3 a common thread is the re- * Judicial Attorney, California Supreme Court, Chambers of Justice Janice R. Brown; the author participated in the Supreme Court decisions of People v. Ochoa, 28 P.3d 78 (Cal. 2001) and People v. Bland, 48 P.3d 1107 (Cal. 2002). The author wishes to thank Sheila Tuller Keiter, Blair Hoffman, and Professor Arnold Enker. 1. See Elizabeth Harris, Recent Developments, 56 MD. L. REV. 744, 760 (1997); see also Douglas N. Husak, Transferred Intent, 10 NOTRE DAME J.L. ETHICS & PUB. POL'y 65, 92 (1996). 2. See generally Arnold H. Loewy, Culpability, Dangerousness and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated, 66 N.C. L. REV. 283 (1988). 3. This article uses these terms interchangeably. Implied malice will be used as a contrast to express malice (intent to kill), but for the most part, the noun disregard will

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