Kenneth W. Simons, Does Punishment for 'Culpable Indifference' Simply Punish for 'Bad Character'? Examining the Requisite Connection between Mens Rea and Actus Reus, 6 Buff. Crim. L. Rev. 219 (2002).
The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of "culpable indifference"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a circumstance element of an offense, roughly equivalent in seriousness to knowledge).
But some critics raise an important objection: punishing those who display culpable indifference punishes for "character" rather than for "acts," and is no more justifiable than punishing a person for a free-floating mental state (for example, punishing a pure bystander who takes perverse delight in another's commission of a crime). By contrast, punishment for acts accompanied by the more conventional mental states of purpose, knowledge, and recklessness supposedly is not subject to this objection.
This paper explores when culpable indifference is indeed especially problematic in punishing merely for an attitude disconnected from conduct, and when it is not. The connection problem, we will see, is much more manageable on some formulations of culpable indifference. At the same time, this problem is hardly unique to culpable indifference; connection problems arise to a surprising extent with the conventional mental states of purpose, knowledge, and recklessness, as well.
Two types of culpable indifference standards are distinguished. The first is a cognitive counterfactual criterion, and it asks whether the actor would have chosen to create a risk even if he had a higher degree of confidence (than he actually had) that it would result in harm. This approach must be carefully circumscribed in order to avoid the "punishment merely for character" objection. The second type of culpable indifference standard is an idealized counterfactual criterion, and it asks whether (and to what extent) the actor's conduct falls short of what an idealized, non-indifferent person would do. This approach does not pose the "punishment for character" objection; however, it raises serious problems of vagueness. To some extent, these problems can be overcome by articulating more specific, multiple criteria of culpable indifference (for example, the actor's intent to create a risk, or his participation in an immoral or illegal activity, or, as a mitigating factor, his efforts to avoid harm).