Provocation manslaughter as partial justification and partial excuse.

• Author: Berman, Mitchell N.

ABSTRACT

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 defended as a partial excuse on the grounds that the killer's inflamed emotional state so compromised his ability to conform his conduct to the demands of reason and law as to render him substantially less blameworthy for his conduct. In contrast, a small minority of scholars have maintained, without significant argumentative support, that provocation is best understood as a partial justification on the ground that the provoked killing is less wrongful than is an unprovoked killing, ceteris paribus. Recently, other commentators have argued that provocation mitigation is neither partial excuse nor partial justification.

Against all of these familiar positions, we argue that partial excuse and partial justification are necessary and sufficient conditions for provocation manslaughter. In our view, an intentional killing deserves to be punished and labeled as manslaughter rather than murder only when, because of provocation, this particular killing is significantly less wrongful than the standard intentional killing and when, because of the actor's partial lack of control, he is less blameworthy for committing an act that remains all-things-considered wrongful. In elaborating and defending our account, we rebut the oft-repeated but rarely challenged propositions that justification and excuse, even in partial forms, are mutually exclusive, and that the very notion of partial justification is incoherent. We also draw forth implications for how the sentencing ranges for murder and manslaughter should be related.

TABLE OF CONTENTS INTRODUCTION I. THE DOCTRINE OF PROVOCATION A. Historical Development B. The Current Doctrine of Provocation 1. The Common Law 2. The Model Penal Code II. THEORIES OF PROVOCATION A. Overview of Defenses B. Critical Overview of Existing Accounts of Provocation 1. Partial Excuse a. Excused Emotion b. Justified Emotion 2. A Heretical View: Partial Justification 3. Partial Justification and Partial Excuse 4. Rejecting the Justification/Excuse Framework a. Provocation as Akrasia b. The Evaluative Conception of Emotion III. OUR ACCOUNT: PARTIAL JUSTIFICATION AND PARTIAL EXCUSE A. Dual Grounds for Mitigation 1. Less Blameworthy Due to Emotion 2. Less Wrongful Due to Reasons for Acting B. The Conjunction Requirement 1. The Additive-Proxy Account 2. The Expressive-Deterrent Account IV. OBJECTIONS AND ELABORATION A. Partial Justifications and Partial Excuses Are Not Mutually Exclusive B. Partial Justification Is a Coherent Notion 1. Partial Justification as a Contradiction in Terms 2. Uniacke and the Incoherence of Partial Justification 3. Conceptions of Partial Justification C. Provocation Does Not Render an Intentional Killing Less Wrongful 1. Affirmative Account 2. Challenges D. Final Observations 1. The Touchstone of Adequate Provocation 2. Whether the Accused Must Have Reason "To Kill" 3. Whether the Provocation Must Cause the Passion 4. Why the Provocation Defense Is Restricted to Homicide CONCLUSION APPENDIX INTRODUCTION

The partial defense of provocation provides that a person who kills another in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. The doctrine has both deep roots and widespread limbs: the influence of provocation on the common law of homicide has been traced back to the twelfth century, and some version of the provocation defense is part of the law in almost every U.S. state and other common law jurisdictions. (1) But long history and wide application have not translated into agreement on the rationale for the doctrine.

The search for a rationale for the provocation defense has resulted in a scholarly debate lasting several decades but yet to bear satisfactory fruit. The provocation debate is a scion of a broader discussion concerning the character of defenses that has consumed a generation of criminal law theorists. Defenses are generally classified as either justifications or excuses. While the precise nature of the distinction is disputed, justification defenses are generally said to apply when the actor's conduct is not wrongful whereas excuse defenses are said to apply when the actor engages in wrongful conduct but is not liable, particularly because the actor is not blameworthy. (2) Self-defense is usually considered a paradigmatic justification defense, and insanity a paradigmatic excuse defense. Roughly speaking, a person who kills in self-defense has done something of which the law does not disapprove, whereas an insane killer is considered not responsible for her actions and therefore not properly blamed or punished for them.

Provocation differs from self-defense and insanity in several ways, and as a result has proven particularly obdurate to classification. First, a successful plea of provocation does not preclude conviction for the killing. Rather, the offense is reduced from murder to manslaughter, with the available punishment options reduced accordingly. While self-defense and insanity are complete defenses, provocation is a partial defense. The debate about provocation's rationale has therefore focused upon whether provocation is a partial justification or a partial excuse. By analogy, partial justifications would apply when an actor's conduct was less wrongful than if justifying conditions were not present, but the conduct was still, on balance, wrongful. Partial excuses would apply when the actor was less blameworthy than if excusing conditions were not present, but the actor was still blameworthy enough to be liable for some punishment.

Second, some elements of the doctrine such as the requirement of "adequate" provocation--suggest that provocation should be treated as a partial justification. Other elements--notably the need for "heat of passion"--point toward a rationale of partial excuse. Like European zoologists confronted with the warm-blooded but egg-laying platypus for the first time, criminal scholars have struggled to produce a coherent rationale that adequately captures those features of the provocation doctrine that seem to pull in opposite directions.

Scholars have responded in several ways. The dominant contemporary view is that provocation is best understood as some version of partial excuse. (3) A small minority of scholars has claimed to the contrary that provocation manslaughter is, or should be, some kind of partial justification. (4) Yet another group of commentators dissents from both of these positions, claiming that provocation is neither a partial justification nor a partial excuse. (5) These scholars argue that the justification/excuse framework is an inapposite mechanism for making sense of provocation. All these scholars share a common resistance to the obvious possibility that the rationale for provocation is grounded in both partial excuse and partial justification. The near-consensus opinion is that a partial defense cannot be coherently grounded in both partial justification and partial excuse. (6) Although the doctrine of provocation is acknowledged to exhibit the appearance of both justificatory and excusatory characteristics, (7) most scholars treat this as the puzzle to be resolved, not the key to understanding the doctrine's rationale. (8) The apparently dual nature of provocation is usually considered an unfortunate artifact of the common law's ad hoc development, a sign of confused thinking by judges and legislatures (9) and evidence of the need to abolish or amend the defense. (10)

Even the small handful of scholars who have demonstrated appreciation for provocation's justificatory dimension as well as its excusatory dimension nonetheless do not frame their positions as a combination of partial justification and partial excuse. (11) Instead, the orthodox view remains that the act of killing in provocation is partially excused but not partially justified. Two rationales are routinely provided in support of this position: the oft-repeated but rarely challenged proposition that justification and excuse are mutually exclusive, and that proposition's regular stablemate, the claim that partial justification is incoherent.

We think the orthodox view is wrong. A coherent and cohesive rationale for provocation can be crafted from the dual bases of partial excuse and partial justification. Put simply, partial excuse and partial justification are necessary and sufficient conditions for provocation manslaughter. Neither partial excuse alone, nor partial justification alone, provides sufficient mitigation for an intentional, wrongful killing to be treated as manslaughter rather than murder. An intentional killing deserves to be treated as manslaughter rather than murder--and deserves to be punished accordingly only when both justifying and excusing conditions apply.

We argue that such a rationale is preferable to existing theories of provocation along both descriptive and normative dimensions. The rationale we propose not only makes more sense of the contours of the doctrine, but also appropriately distinguishes those intentional killings that deserve to be treated as manslaughter from those that deserve to be treated as murder. Indeed, we argue that

many of the problems associated with the modern application of the provocation doctrine (12)--and especially those associated with its Model Penal Code reformulation--result from a failure...