Crimes of Indifference
“I'm not a racist. I don't hate anybody.”
“He's not a bad person. He didn't mean to hurt anyone.”
“The worst you can say of her is that she was a little careless. She did not realize what would happen.”
Each of these speakers makes a common assumption about evildoing. Each assumes that to do evil a person must act with hostile intent or at least with the awareness that harm to another is likely to result. Each assumes that without intent or awareness, the actor is blameless. I disagree. The failure to look out for and prevent doing harm to others may be culpable, even without actual awareness of risk. It represents one of the most common forms of evil, which deserves more attention in both law and everyday morals.
In this chapter we move from intentional to unintentional criminal homicide. Specifically, we take up the mens rea rules for depraved heart murder and involuntary manslaughter.1 I argue that the modern trend to require that the defendant have actual awareness of fatal risks for serious criminal punishment is a mistake, based on a misconception of responsible choice. When a person acts in a way that involves obvious and unjustified risks to human life and causes death, punishment may be deserved even if the actor never realized the risks of her behavior, as long as the person's conduct demonstrates an attitude of indifference to the welfare of others.
We begin the consideration of the two rival approaches to culpability— what I call the awareness and the indifference approaches—with a review of the basic law of murder and manslaughter as applied to unintentional homicides. We then move to an overview of the basic arguments in favor of awareness of risk as the key to culpability. We find that at the center of the dispute between indifference and awareness approaches is a disagreement about responsible choice—about what kinds of mental activities count as choices. Awareness advocates see choice as what occurs following perception of certain morally critical facts; indifference advocates urge that the perceptive process be considered part of choice, so that the failure to