Sunday, February 27, 2011
A few last thoughts on the crime of depraved heart murder in New York -- the end of my depraved trilogy. In previous posts, I accepted the received wisdom that depraved indifference murder is some sort of amalgam of extreme risk-taking regarding homicidal risk and a distinctive mens rea. The New York Court of Appeals adopted this view in People v. Suarez and People v. Feingold, overruling the older, Herbert Wechsler/Model Penal Code-inspired "objective circumstances" gloss. In this post, I want to sketch an argument that depraved indifference (or "heart," or "mind") murder actually has very little -- almost nothing -- to do with the extremeness of the risk-taking involved, and almost everything to do with the distinctive -- albeit elusive -- cast of mind connoted by the baroque term itself.
The etymology of depravity is Latin: "pravus" means crooked, warped, distorted and twisted. I speculate that adding the "de" further emphasizes and augments the sense of crookedness -- we're now talking about an additional quantum of deviance from an existing crookedness and distortion, a second-level quality of warped-ness.
Nevertheless, it's difficult to put one's finger on exactly what this quality looks like in the real world. Users of Joshua Dressler's criminal law textbook like me know that he points to some language from an Alabama court describing a "don't give a damn attitude." That's helpful, but for me it speaks to the "indifference" component of depraved indifference, and not so much to the quality of depravity. So what are we talking about?
The New York Court of Appeals's doctrinal struggle sheds some light on the question, but a little excavation is necessary to get at it, since the Court nowhere really puts two and two together. And the answer suggests not only that risk taking doesn't have much to do with it but also that it's a quality that finds elucidation not in a clean abstraction, but only in the welter of real facts.
The Court of Appeals historically has recognized two categories of depraved indifference murder, which it mistakenly treats as somehow distinct or separate.
The first category deals with defendants who do not intend to kill when they "shoot into a crowd or otherwise endanger innocent bystanders." People v. Payne. Cases that fall into this category include: where a defendant shoots into a house and ends up killing people with whom he has had a fight (People v. Jernatowski); where a defendant shoots at a retreating crowd (People v. Fenner); where a defendant drives onto a sidewalk with people on it and mows down two kids without stopping (People v. Gomez); but not, apparently, where he drives like a madman and plows into a car, killing the victim inside (see my previous post on People v. Prindle).
The Court has come up with a strange little rule that generally speaking, one-on-one killings (particularly when done with a weapon) cannot qualify as depraved indifference homicides. That's because those are -- again, in the main -- likely to be intentional killings.
But there is an exception -- one which forms the basis of the second category of depraved indifference murder, and which, I believe, illuminates matters somewhat: where a defendant has no intent to kill but directs his acts against one specific victim in an uncommonly brutal or heinous manner. In this category are the following cases: without intending to kill, the defendant systematically beat a three year old child over an extended period of time (People v. Poplis); without intending to kill, the defendant fractured the skull of a seven week old baby, the forensic evidence indicating severe shaking and a fall consistent with the impact one might receive from dropping from the second story of a building (People v. Bryce); without intending to kill, the defendant inflicted repeated and sustained beatings on a nine year old boy, which over time created open wounds that became infected, resulting in vomiting, the inability to vomit, and death by asphyxiation and blood poisoning (People v. Best).
Finally, there is People v. Mills, where a group of 16 and 17 year-old boys went to a pier to go swimming. In order to access the pier they had to climb over a fence, which separated the beach area from the pier. As they were leaving the pier, each of the boys climbed over the fence to go back to the beach, and the defendant was the last one on the pier side. Just then, the victim, a 12 year old boy not part of the group climbed over the fence and headed toward the pier to go swimming. Defendant told the group that he was going to “push the bastard in” and he ran some distance back up the pier and pushed the 12 year old kid hard in the back. The kid fell down hard, hit his head against the concrete, and slid into the water. The defendant's companions on the other side of the fence yelled to the defendant to help the boy, but the defendant indicated to them through a swimming motion that the boy was just fine, so everyone took off. But the boy was not fine; he was motionless in the water, and he drowned. Later on, when his friends asked him whether the boy made it to shore, the defendant told them that he had drowned and threatened to hurt them if they revealed what had happened.
Why all the detail? It's because I believe that (a) the cases in the second category are really the ones that suggest something tangible and distinct about depravity as a category of murder; (b) that quality actually exists also in the first category, so the Court is mistaken to have a special rule for killings done one-on-one with a weapon; and (c) that quality is really what ought to be driving the depraved indifference engine, not the idea of extreme (or "transcendent" or "grave" (P. v. Sanchez)) risk-taking.
But that quality can only be captured with words like viciousness, atrocity, cruelty, barbarity. It's a quality that is present no less in the person who shoots cravenly into a retreating crowd, relishing the terror without specifically intending anyone's death, than it is in the incomparable nastiness of a young man who shoves a young kid hard just for the raw pleasure of it, watches him crash headlong into a block of cement and slip into the water, deceives people that the kid is just fine and waves off help, and then threatens to hurt them if they confess.
That's the core of depraved indifference, and it matters little whether we can measure exactly how risky it was to shoot into a terrorized and retreating crowd, or to beat one's child so severely and with such consistent atrocity that its poor little body became infected and poisoned. It is the quality of inhuman atrocity that one can feel in these cases which forms the core of depraved indifference -- and not any colder, even if harder-edged, calculations about risk-taking.
Admittedly, I haven't been able to articulate a standard, a precise theory that we can use to distinguish neatly when a defendant acts with depravity and when he does not. But my own inadequacy with words doesn't mean that there isn't anything real or true about the quality these cases evince. The facts speak for themselves, and they shape the doctrine accordingly. And it is the doctrine, and not our cleaner intellectual abstractions from it, which reflects the truth with greatest acuity.