Intent and Law of Murder

ADVANCED TOPICS IN THE LAW OF HOMICIDE: INTENTION
"All that counts in life is intention" (Andrea Bocelli)

There are certain kinds of crimes that have harmful consequences, and there are others sorts of crimes that consist of harmful actions. With these second sorts of crimes, like rape, robbery, larceny, and fraud, it's fairly easy to tell that the harm happened in the here and now -- there's an immediate connection between action and harm; someone was violated or dispossessed of an object, and these things don't normally happen by natural causes or by accident. By contrast, crimes of harmful consequences, like homicide, arson, mayhem, and assault, usually present us with the possibility of a gap in time between action and harm -- death, destruction, and injury might occur by natural causes or by accident. In cases of homicide, then, we must always infer or attribute the cause of death -- that is, we must examine the elements of causation and intent. This lecture is about intent, with minor references to causation.

To understand the complexity of how intent and causation intertwine, consider the following scenarios:

SCENARIO A: Susan decides to kill Tom, so she drives over to Tom's house, and just as she is about to knock on the door, Tom drops dead of a heart attack inside. Did Susan kill Tom? [No she had the intent but not the causation]

SCENARIO B: Susan decides to kill Tom, so she drives over to Tom's house, and just as she is about to knock on the door, Tom sees her through the window and becomes so frightened he drops dead of a heart attack. Did Susan kill Tom? [It depends; a zealous prosecutor would say Yes. She had both intent and causation. Any good defense attorney would say No. Tom could been ready to drop dead at that moment]

In both cases, after the action ensues (Susan about to knock on the door), there's no guarantee that the harmful consequences are even attributable (much less liable) to the actor without the element of INTENT (Susan intended to kill Tom). There's a difference between "intending to kill somebody" and "killing someone intentionally". Susan may not be guilty of killing someone intentionally (for lack of causation), but she certainly had the intent to kill. The "but for" test is most commonly used to determine causation, but the rules for determining intent are much more complicated.

When we talk about INTENTIONAL CONDUCT, we're talking about situations in which people set out to accomplish something and they try to realize that accomplishment exactly as planned. They have a mental picture in their minds, so to speak, of precisely how they want things to turn out. There's no accidents, no complications, no side effects, just true intent. Intent is a legal concept that goes beyond Purpose.

Probably the best way to understand Intention is to understand it's opposite -- Negligence. The irony is that the concept of Intent comes into criminal law from tort law and notions of liability. But even long ago, Roman lawyers distinguished between the terms dolus (intention) and culpa (fault, negligence). These terms have become the basis for criminal and civil responsibility, respectively. It's widely assumed that committing a crime intentionally is much worse, more culpable, more blameworthy, than committing a crime negligently. But where do we draw the line between intention and negligence? The answer is that intention is closer to motive, the idea that there was a special inducement to commit the crime. Motive, considered along with Intent, help us easily distinguish harmful consequences from blameworthy and non-blameworthy accidents. Negligence is a blameworthy accident in which a person didn't exercise a reasonable degree of care. Negligence lacks a motive, however, and the only defenses to it are mistake and justification.

Justification is the more important concept. A person is blameworthy for negligence (criminal negligence) only if it can be shown that they sized up the risks, and balanced the costs and benefits of the risk taking (justified the risk taking). This balancing of costs and benefits is called the Learned Hand formula (named after Judge Learned Hand who defined negligence as taking an unreasonable risk). The MPC makes a clear distinction between recklessness (one who perceives but ignores a risk) and negligence (one who fails to be sufficiently attentive to the risks or costs). So we are back to Intent -- a one-sided focus on the benefits of a course of action.

The presumption of Intent is that if a person decides to do harm, knows the risks (and punishments), and decides to do it anyway, their action is more deserving of contempt because they didn't consider the interests of others, only themselves. Intent is always selfish, and it's never sloppy. The person knows what they're doing. They are cunning and trying to be clever. Think of it as the sin of arrogance, or excessive pride, so to speak. Or think of it in terms of community expectations. That's what the "reasonable man" standard is all about.

The problem with Intent and the Law of Homicide is how to individualize it. There are so many infinite degrees of temperament and intellect that no grading system, no matter how complex, is probably ever going to do justice for each and every individual. The problem with the "reasonable man" standard is not that it's sexist. It has just been stretched too thin to be useful anymore as a way of judging individual behavior. And, it's not much better to know each and every little thing about each defendant. If we comprehended them perfectly, we would probably excuse every criminal act, or at least mitigate the crime. Instead, what we need is a system of grading the lust for accomplishments, thrills, sensations, outcomes, ambitions, adventure. It's proper to hold people accountable for controlling their lust for adventure. That's the social control function of the Law of Homicide.

Intention is something harbored in the mind before the act is done. One can always reflect on their intentions, and change their intentions before harm is done. The difference between risk and intent is that risk exists in the real world while intent exists in the minds of actors. Intent, considered as a mental construct, can also include unrealized intentions. The law usually regards these as aggravating factors, but they also make up substantive law, as in offenses where we add the prefix "Intent to commit ..." in front of a crime. Trespass becomes burglary, for example, when there's intent to commit a felony therein.

Intoxication bears an interesting relationship to Intent. Even voluntary intoxication might be an excuse or justification. The general rule, however, is that intoxication negates a specific intent, but not the general intent. General intent is the intent required for the base crime, and specific intent is the factor that aggravates the offense. An intoxication defense might mitigate a homicide to a manslaughter, but it can't generate an excuse for the felony of murder.

Psychological theory comes to bear on the subject when we stop to consider that the law is trying to control cognitions, not necessary attitudes. The cognitive approach (which in legal practice is often reduced to a probabilistic approach) requires that we know what the actor really wanted. In many cases of homicide, it's not even clear if the persons themselves knew what they wanted. Therefore, the law assumes that motives matter and provide a basis for distinguishing between good and bad. Criminal Law recognizes different motives for homicide -- premeditation, deliberation, and killing-for-profit. Motives, when established in court as evidence, tend to aggravate intentional criminal acts and override defenses. They put the defendant in a bad light, at least.

In the end, all we can do is presume liability for homicide, and because we have to prove intent before the act occurs, that leaves open all sorts of possible justifications and excuses.

INTERNET RESOURCES
Legal Definition of Specific Intent

PRINTED RESOURCES
Chamelin, N. & K. Evans. (1991). Criminal Law for Police Officers. 5th ed. Englewood Cliffs, NJ: Prentice Hall.
Gardner, T. & T. Anderson. (1996). Criminal Law: Principles and Cases. 6th ed. Minneapolis: West Publishing
Hall, Jerome. (1949). Cases and Readings on Criminal Law and Procedure. Indianapolis: Bobbs-Merrill.
Hart, H. (1958). "The Aims of the Criminal Law" Law and Contemporary Problems 23: 403-405.
Samaha, J. (1999). Criminal Law. 6th ed. Belmont, CA: West/Wadsworth.

Last updated: July 08, 2006
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