Law Commons^™

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Carey Law

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection …

Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson

Faculty Scholarship at Penn Carey Law

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the …

How To Get Away With Murder: The “Gay Panic” Defense, Omar T. Russo

Touro Law Review

No abstract provided.

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson

Faculty Scholarship at Penn Carey Law

It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent to which one …

The Heat Of Passion And Blameworthy Reasons To Be Angry, Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article seeks to resolve a longstanding conceptual puzzle plaguing the "heat of passion" doctrine--how courts should determine which features, beliefs, or characteristics of a defendant are properly relevant to assessing whether the defendant was sufficiently provoked, and which of those features should be disregarded. This article argues that provocation is not adequate if the reason the defendant became extremely angry is due to some blameworthy belief or attribute of the defendant. A belief is blameworthy if it contradicts the fundamental values of the political community. The blameworthiness principle distinguishes those aspects of the defendant that cannot form a basis …

Equality And The Defence Of Provocation: Irreconcilable Differences, Isabel Grant, Debra Parkes

Dalhousie Law Journal

Recent amendments to the defence of provocation have limited access to the defence to those who are provoked by conduct that, if prosecuted, would have been an indictable offence punishable by at least five years imprisonment. The paper argues that these amendments are both over- and under-inclusive and fail to confront the central problem surrounding provocation which is that it privileges loss-of-control rage often in the context of male violence against women or in response to same-sex advances. The paper supports the abolition of the defence of provocation but only if mandatory minimum sentences for murder are abolished providing trial …

A Provocative Defense, Aya Gruber

Publications

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation's problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This Article offers a (likely provocative) defense of the provocation doctrine. While …

"Cain Rose Up Against His Brother Abel And Killed Him": Murder Or Manslaughter?, Irene Merker Rosenberg, Yale L. Rosenberg

Georgia Journal of International & Comparative Law

No abstract provided.

A Provocative Defense, Aya Gruber

Aya Gruber

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation's problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This article offers a (likely provocative) defense of the provocation doctrine. While …

The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson

Faculty Scholarship at Penn Carey Law

This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of mental illness …

Murder, Minority Victims, And Mercy, Aya Gruber

Publications

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest …

Provocateurs, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Carey Law

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so?

Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors …

Beyond The George Zimmerman Trial: The Duty To Retreat And Those Who Contribute To Their Own Need To Use Deadly Self-Defense, Alon Lagstein

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Many critics have accused Florida's "Stand Your Ground" law of helping George Zimmerman get away with the murder of Trayvon Martin by allowing him to cause the very confrontation in which he ended Martin's life. This paper explores how American law treats defendants who have contributed to their own need to use deadly self-defense. This paper concludes that the duty to retreat, or lack thereof, is not the deciding factor in whether such defendants are allowed to claim self-defense.

Provocation Manslaughter As Partial Justification And Partial Excuse, Mitchell N. Berman, Ian P. Farrell

William & Mary Law Review

The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. The defense traces back to the twelfth century and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law
theorists.

The dominant scholarly view holds that provocation is best explained and …

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Publications

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay …

Abnormal Mental State Mitigations Of Murder – The U.S. Perspective, Paul H. Robinson

Faculty Scholarship at Penn Carey Law

This paper examines the U.S. doctrines that allow an offender's abnormal mental state to reduce murder to manslaughter. First, the modern doctrine of "extreme emotional disturbance," as in Model Penal Code Section 210.3(1)(b), mitigates to manslaughter what otherwise would be murder when the killing "is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." While most American jurisdictions are based upon the Mode Code, this is an area in which many states chose to retain their more narrow common law "provocation" mitigation. Second, the modern doctrine of "mental illness negating an …

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

Publications

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for …

A Critical Introduction To The Symposium, Kyron Huigens

University of Michigan Journal of Law Reform

Introduction for a symposium issue in reply to Reid Fontaine's article "Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification."

The Values Of Interdisciplinarity In Homicide Law Reform, Robert Weisberg

University of Michigan Journal of Law Reform

Professor Reid Fontaine's article, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, makes a convincing case for treating heat of passion wholly as an excuse not a justification, as the only sensible way to comprehend its various forms. In doing so, Professor Fontaine stimulates further thinking about heat of passion doctrine, along two dimensions.

The Provocation Defense And The Nature Of Justification, Marcia Baron

University of Michigan Journal of Law Reform

In this Essay, I evaluate the evidence of "adequate nonprovocation” that Fontaine puts forward to show that the heat of passion defense is decidedly an excuse (more precisely, a partial excuse). I will be focusing my remarks on the traditional heat of passion defense.

How Not To Argue That Reasonable Provocation Is Not An Excuse, Peter K. Westen

University of Michigan Journal of Law Reform

Reid Fontaine draws two conclusions regarding the partial defense to murder of reasonable provocation-one regarding its substantive content, the other regarding its formal classification…. I agree with both of Fontaine's two conclusions, and, indeed, I have previously written to that effect. Unfortunately, while I agree with Fontaine's conclusions, I do not think he adequately supports them.

Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine

University of Michigan Journal of Law Reform

For a number of reasons, including the complicated psychological makeup of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been the justificatory versus excusatory nature of the defense. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate how common law heat of passion may apply in instances in which there is no actual provocation or …

On Passion's Potential To Undermine Rationality: A Reply, Reid Griffith Fontaine

University of Michigan Journal of Law Reform

This Reply is organized into several sections. Following the Introduction, I respond to my six distinguished commentators. In Section II, I consider Professor Chin's concern that the distinction between justification and excuse bears no practical relevance for the criminal law. In Section III, I respond to Professor Baron's argument that reasonable mistake of fact is consistent with justification-a view, she observes, that is generally reflected in the criminal law. Building on the discussion of whether mistake and justification are compatible, Section IV addresses Professor Pillsbury's treatment of heat of passion as a hybrid defense that uniquely incorporates components of both …

The Irreducibly Normative Nature Of Provocation/Passion, Stephen J. Morse

University of Michigan Journal of Law Reform

I agree with Professor Fontaine that provocation/passion is best interpreted as a partial excuse, but the ground for my conclusion is normative and not analytic. Indeed, I fear that he has not made the analytic case in large part because he begs a question about failed justifications that has only a normative and not an analytic answer. This Essay first briefly provides my own understanding of provocation/ passion. In the course of doing so, I address Professor Fontaine's argument that provocation/passion should also be applied to people with provocation interpretational bias. I then turn to why Fontaine's case for …

Unjustified: The Practical Irrelevance Of The Justification/Excuse Distinction, Gabriel J. Chin

University of Michigan Journal of Law Reform

In recent decades, the distinction between justification and excuse defenses has been a favorite topic of theorists of philosophy and criminal law. Notwithstanding the impressive intellectual efforts devoted to the task, no single scholar or viewpoint appears to be on the verge of generating practical consensus about the concepts of justification and excuse, categorization of the defenses, or categorization of difficult individual cases. This Essay suggests that none of these goals can be usefully advanced through the justification/excuse distinction.

Misunderstanding Provocation, Samuel H. Pillsbury

University of Michigan Journal of Law Reform

Provocation is and always has been a compromise rule whose success depends on its ability to appeal to all ideological constituencies, and therefore will always-as long as it lasts-resist the final categorization that this question seeks. As long as provocation involves an inquiry into reasonableness, it will include considerations of justification. As long as it provides for mitigation of punishment based on the difficulty of resisting temptations to violence inspired by strong emotion, it will speak to considerations of excuse.

Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine, Jd, Phd

Reid G. Fontaine

For a number of reasons, including the complicated psychological nature of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been whether the defense is a partial justification or excuse. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate that even in circumstances in which there is no actual provocation, or the provocation is not sourced …

After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular …

Gender Equality, Social Values And Provocation Law In The United States, Canada And Australia, Caroline A. Forell

ExpressO

In this article I examine and compare the partial defense of provocation as it applies to domestic homicide in Australia, Canada, and the United States on both the gendered-male basis of jealous rage and gendered-female basis of fear. I explain why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada and the United States and why Australia is the leader in incorporating substantive equality into its provocation doctrine. I conclude that the main reason why some Australian jurisdictions have abolished provocation and others have female-friendly versions of the doctrine is that, unlike Canada …

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

Publications

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …