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85 Colum. L. Rev. 786 (1985)
Defining Unintended Murder

handle is hein.journals/clr85 and id is 804 raw text is: NOTES DEFINING UNINTENDED MURDER INTRODUCTION Most state criminal statutes, and the Model Penal Code, distin- guish murder from manslaughter on the basis of whether the actor in- tended to kill his victim.1 Since the days of the common law, however, certain actions, while not undertaken with intent to kill, have been deemed equivalent to murder when they caused a death. For example, a terrorist, A, who plants a bomb in a car on a busy street, may be found guilty of murder when someone is killed in the explosion although A neither knew nor cared that the bomb would kill anyone. In the lan- guage of the Model Penal Code, A is guilty of extreme indifference murder.'2 Despite widespread agreement that certain unintended kill- ings should be treated as murder, states continue to struggle in search of a satisfactory means of distinguishing such killings from manslaugh- ter. States have taken numerous approaches in attempting to define unintended murder according to varying aspects of the defendant's act, or by some facet of his state of mind. None of the approaches has worked. This Note argues that unintended murder should be defined by the defendant's state of mind. Part I traces the history of unintended mur- 1. In this Note, intent means purpose or knowledge. These mental states are defined as follows: Kinds of Culpability Defined. (a) Purposely. A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (b) Knowingly. A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant cir- cumstances, he is aware that his conduct is of that nature or that such circum- stances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. Model Penal Code § 2.02(2) (Proposed Official Draft 1962). A growing majority of states, as well as the Model Penal Code, use purpose and knowledge to grade homicides. See id. §§ 210.2-210.4; Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815, 816 (1980). 2. Model Penal Code § 210.2(1)(b) (Proposed Official Draft 1962). 786

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