Of Ordinariness and Excuse: Heat-of-Passion and the Seven Deadly Sins

• Author: Kevin Bennardo
• Position: Law Clerk to the Honorable Milton I. Shadur, United States District Court for the Northern District of Illinois; J.D., 2007, The Ohio State University Moritz College of Law
• Pages: 675-692

OF ORDINARINESS AND EXCUSE:

HEAT-OF-PASSION AND THE SEVEN DEADLY SINS

KEVIN BENNARDO*

INTRODUCTION

This Article examines the underlying rationale of the heat-of-passion

partial defense and the circumstances in which it should operate. Part I

briefly addresses the justification-or-excuse debate and resolves the matter

in favor of heat-of-passion as a partial excuse. Part II explores the partial

defense as a “concession to human frailty” by utilizing the Seven Deadly

Sins as exemplars of common human frailties to determine that the heat-of-

passion partial defense should be available regardless of whether the

passion is justified or excused. Part III discards the “concession to human

frailty” as inappropriate in an aspirational criminal law system, narrowing

the application of the partial defense to partial losses of control for which

the actor is blameless (regardless of the ordinariness of the passion).

I. HEAT-OF-PASSION AS A PARTIAL EXCUSE

In addressing the heat-of-passion partial defense, it is first necessary to

attend to a preliminary issue: whether the partial defense is a partial excuse

or a partial justification. While arguments are voiced on both sides of the

issue,1 this Article will address heat-of-passion as a partial excuse.

While not the focus of this Article, it is valuable at the outset to briefly

relate my reasons for this viewpoint in order to provide a framework of my

understanding of the partial defense. Justification defenses, like self-

defense, focus on the act and conclude that the conduct is not wrongful.2

Excuse defenses, such as insanity, focus on the actor and conclude that

although the actor’s conduct is wrongful, the actor is not blameworthy.

Copyright © 2008, Kevin Bennardo.

* Law Clerk to the Honorable Milton I. Shadur, United States District Court for the

Northern District of Illinois; J.D., 2007, The Ohio State University Moritz College of Law.

1 See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 31.07(C)(1)–(2) (4th ed.

2006).

2 Some commentators opine that justified conduct must be “right” conduct, but I would

reason that it includes all “non-wrongful” conduct. For a critique of the view that justified

conduct is always right conduct, see Joshua Dressler, New Thoughts About the Concept of

Justification in the Criminal Law: A Critique of Fletcher’s Thinking and Rethinking, 32

UCLA L. REV. 61 (1984).

676 CAPITAL UNIVERSITY LAW REVIEW [36:675

For heat-of-passion to qualify as a partial justification, the slaying must

be deemed non-wrongful. Four theories are used to justify actions: (1)

moral forfeiture; (2) moral rights; (3) lesser harm/superior interest; and (4)

public benefit.3 For moral forfeiture to partially justify the slaying, the

deceased must have (partially) forfeited her right to life. It would be

troubling to say that provoking parties (partially) forfeit their rights to life

based on their (often legal) actions.4 Provoked persons have no moral right

to slay. The lesser harm theory is inapplicable, as the harm of slaying the

provoker is greater than permitting the provoker to live. Lastly, the public

benefit theory provides no justification, as the primary motive of the slayer

is not action for the public good.

Excuse theory, on the other hand, does encompass the heat-of-passion

partial defense. Professor Joshua Dressler has laid out two categories of

excuses: (1) incapacity-oriented excuses and (2) no fair opportunity

excuses.5 Actors with some sort of incapacity, such as infancy or insanity,

do not deserve punishment because of their internal deficiency. Actors

who are not given a fair opportunity to follow the law, such as those acting

under duress, are blameless because of the external constraints placed on

their ability to act lawfully.6

The common law partial defense of heat-of-passion7 contains four

elements:

(1) the actor must have acted in a heat of passion;

(2) the passion must have been the result of adequate

provocation;

3 See DRESSLER, supra note 1, § 17.02.

4 See Joshua Dressler, Provocation: Partial Justification or Partial Excuse?, 51 MOD.

L. REV. 467, 477–78 (1988) [hereinafter Provocation: Partial Justification or Partial

Excuse?].

5 See Joshua Dressler, Reflections on Excusing Wrongdoers: Moral Theory, New

Excuses and the Model Penal Code, 19 RUTGERS L.J. 671, 701–02 (1988).

6 See Provocation: Partial Justification or Partial Excuse?, supra note 4, at 471.

7 This Article concerns itself only with the common law, rather than specific

codifications of the heat-of-passion partial defense, such as the English Homicide Act of

1957 or the American Law Institute’s Model Penal Code. As this Article is concerned with

rationalizing the partial defense as a whole, inquiry into the common law is more useful

than into particular embodiments. A useful overview of codified heat-of-passion law in

Canada, Australia, New Zealand, and South Africa can be found in GEORGE MOUSOURAKIS,

CRIMINAL RESPONSIBILITY AND PARTIAL EXCUSES 74–75 n.51 (1998)