Thread by @alafairburke

Spent much of the day horrified by the death of #DaunteWright and the police explanation for his death. Am sharing what I learned about Minnesota’s #manslaughter statute: 1/15

A person commits 2nd Degree #Manslaughter in Minn when they cause death by... “culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Some background: 2/15

At old common law (CL), involuntary manslaughter was a killing committed without malice (required for murder), but with enough culpability to be unlawful. What level of culpability? Call it recklessness or gross negligence. 3/15

But we don’t charge crimes in the US under old CL. We use statutes, which vary state to state. Many states have been influenced by the American Law Institute’s Model Penal Code (MPC). (Don’t fall asleep. I promise I’m getting to Minnesota).4/15

A major reform of the MPC was to define culpable mental states with more precision than CL. Instead of simply saying “no malice but still culpable,” the MPC distinguishes between “recklessness” and criminal “negligence” instead of treating them as equal. 5/15

AND it uses a defendant’s subjective awareness of the risk they’re taking as the distinguishing factor. A reckless actor “consciously disregards a substantial and unjustifiable risk,” while a negligent actor FAILS to perceive a risk of which they should be aware. 6/15

So…A and B pack up and leave their campsite, their camp fire still visibly burning. A realizes that the fire might spread, but decides to leave it burning anyway. B fails to connect the dots and never sees the risk of damage. 7/15

A's reckless, B's negligent. Even though their conduct is the same, the MPC treats A more culpably because of their subjective awareness of the risk. Got it? Okay, back to #manslaughter. 8/15

Many states, influenced by the MPC, distinguish between aware and unaware actors when it comes to unintentional homicides. In NY, for example, 2nd degree manslaughter requires that the suspect be "aware of and consciously disregard" a risk of death. 9/15

Separate from manslaughter, NY has a less serious homicide offense called “negligent homicide” for killings committed with negligence (without conscious appreciation of the risk, but still really careless).10/15

Now, finally(!), back to Minnesota. A person commits 2nd degree Manslaughter when they cause a death “by the person's culpable negligence whereby the person creates an unreasonable risk, AND consciously takes chances of causing death or great bodily harm to another. 11/15

So, despite that phrase “culpable negligence,” Minn also requires the MPC idea of “recklessness”-- “consciously” taking a chance of causing either death or great bodily harm. IMPORTANTLY, Minn has no applicable statute for criminally negligent (non-conscious) homicide. 12/15

In other words, Minn has made a policy decision to leave most negligent homicides free from criminal punishment unless coupled with consciousness of the risk of grave injury or death. It's a separate question whether this is the right policy approach, 13/15

or whether a cop grabbing and firing a gun instead of a taser (IF that version of facts is to be believed by the factfinders) shows the required consciousness of risk. But that's what I found out about #manslaughter in Minnesota today. 14/15

Rest in peace, Daunte Wright. Your life mattered. /end