Six unconstitutional homicide statutes: rational basis review and the problem of harsher punishment for less culpable offenders.

AuthorRodriguez, Justin V.

INTRODUCTION I. THE "HARSHER PUNISHMENT FOR LESS CULPABLE OFFENDERS" PROBLEM: AN EXAMPLE II. EQUAL PROTECTION AND THE CALIBRATION OF PUNISHMENT TO CULPABILITY A. Contemporary Rational Basis Review Doctrine and the "One Step at a Time" Rationale B. One Step at a Time and the Punishment/ Culpability Problem 1. Fraternal Order of Police L 2. Fraternal Order of Police H III. JUSTIFYING HEIGHTENED JUDICIAL SCRUTINY OF THE PUNISHMENT/CULPABILITY PROBLEM A. Legislative Resistance to the Punishment/ Culpability Problem 1. Practical Consequences of Piecemeal Legislation 2. Public-Choice Theory 3. Political-Process Theory B. Legislative Contemplation of Judges as Primarily Responsible for Just Sentencing IV. THE BIG CULPRIT: THE DENIAL OF THE PASSION/PROVOCATION DEFENSE TO CHARGES OF EXTREME-RECKLESSNESS HOMICIDE A. Common Law Understandings of the Availability of the Passion/Provocation Defense to a Charge of Extreme-Recklessness Homicide B. The Disparity's Irrational Relation to Legitimate State Interests C. The New York and New Jersey Cases CONCLUSION INTRODUCTION

The correlation of punishment to culpability stands firmly as the bedrock principle upon which legislatures construct criminal codes. (1) Ordinarily, codes punish more culpable offenders more severely than less culpable offenders who are guilty of the same crime. (2) Occasionally, legislatures deviate from a perfect correlation. For example, legislatures might punish offenders whose extremely reckless conduct is the cause of a crime as severely as those offenders who commit the same crime purposely or knowingly. (3) When, however, a code punishes offenders who commit a crime with a less culpable mens rea more severely than offenders who commit the same crime with a more culpable mens rea, the disparity may signal not only "unenlightened penology" (4)but also constitutional impropriety.

Although the operation and precise statutory language (5) of each code varies slightly, the homicide statutes of six states--Alaska, (6) Kansas, (7) Maine, (8) Minnesota, (9) New Jersey, (10) and New York (11)--provide the most glaring examples of the "harsher punishment for less culpable offenders" problem. With respect to homicide committed in the heat of passion and upon reasonable provocation (passion/provocation homicide), each code fails so dramatically to correlate punishment to culpability as to call into question its compatibility with the constitutional guarantee of equal protection. (12) In these states, offenders who purposely or knowingly cause the death of another person, while in the heat of passion and upon reasonable provocation, are punished less harshly than offenders who cause the death of another person due to their extremely reckless conduct (extreme-recklessness homicide) while in the heat of passion and upon reasonable provocation. Consequently, the more culpable criminal class is subjected to less severe punishment for commission of the same crime--homicide committed in the heat of passion and upon reasonable provocation.

The "harsher punishment for less culpable offenders" problem cannot withstand equal protection scrutiny. Legislation that does not implicate a suspect class or impinge upon a fundamental right conforms to the Equal Protection Clause if the law bears a rational relation to some conceivable legitimate state interest. (13) Courts often afford legislatures great discretion to develop solutions to targeted problems "one step at a time, addressing [themselves] to the phase of the problem which seems most acute to the legislative mind." (14) Thus, not only does "harsher punishment for less culpable offenders" legislation bear no rational relation to any legitimate state interest traditionally associated with criminal lawmaking--deterrence, retribution, incapacitation, or rehabilitation--but it in fact undermines these goals. While victims of the punishment/culpability problem do not constitute a recognized suspect class, (15) the problem presents compelling justifications for closer judicial scrutiny within the rational basis framework. (16)

The problem demands a theory and application of rational basis review that accounts for the unique political and institutional concerns surrounding the calibration of punishment to culpability. Such concerns are absent from consideration of most social or economic legislation and contradict the fundamental premise of the "one step at a time" paradigm. Civil legislation is often the product of compromise and competing factions. Criminal law, however, does not benefit from dynamic evolution, which disrupts the punishment/culpability equilibrium. Although legislatures establish general requirements of culpability that purport to govern the entirety of their criminal codes they lack the incentive to harmonize punishment and culpability over time. Most criminal codes are the product of myopic piecemeal legislation--influenced by political pressures, such as strong-on-crime initiatives--that blind legislators to how a specific enactment fits into a comprehensive statutory scheme. (17)

Judges are better suited than legislatures to holistically evaluate how well criminal codes calibrate punishment to culpability. Con fronted with the problem ex post by a party prejudiced by an unjust correlation, most states' sentencing guidelines (18) make judges primarily responsible for meting out just punishment. The political toxicity of any legislative attempt at harmonizing punishment and culpability means that judges must ensure that the legislature does not "step[] most harshly on those persons the state[] ha[s] systematically deemed less culpable," even when taking one step at a time. (19)

This Comment proposes justifications for critical judicial review of the "harsher punishment for less culpable offenders" problem. It argues that the problem's most glaring and prevalent incarnation--the denial of the passion/provocation defense to a charge of extreme-recklessness homicide--violates the Fourteenth Amendment's equal protection guarantee.

Part I provides a paradigmatic fact pattern illustrating the punishment/culpability problem and pinpointing the precise elements of comparative unfairness that implicate equal protection concerns. Part II evaluates the playing field of rational basis review and high-lights the incompatibility of the doctrine's basic assumptions with the correlation of punishment to culpability. It argues that the "one step at a time" paradigm inadequately monitors legislatures' success in defining and applying culpability principles consistently to the entire body of criminal law--an a priori definitional commitment missing from the civil lawmaking enterprise. Part III, without suggesting that victims of the problem constitute a "suspect class," suggests the need for more searching judicial inquiry into the punishment/culpability problem. It draws on models of legislative default proposed by political-process theory and public-choice theory to underscore acute political and institutional concerns that the problem presents. These concerns highlight the ease with which the problem may crop up in criminal codes and the importance of equipping judges with an adequate framework both for remedying current infestations and preventing future ones. (20) Part IV applies the proposed approach to the most prevalent instance of the punishment/culpability problem--the denial of the passion/provocation defense to offenders convicted of extreme-recklessness homicide. Entertaining and rebutting counterarguments that the denial of the defense may justifiably survive rational basis review, Part IV argues that the denial of the defense does not rationally further any legitimate state interest but rather undermines the state's interests in deterrence and incapacitation. Part IV concludes by evaluating the analytically unsatisfactory attempts by courts in New York and New Jersey to grapple with the passion/provocation punishment/culpability problem. The Comment finally offers a brief conclusion.

  1. THE "HARSHER PUNISHMENT FOR LESS CULPABLE OFFENDERS" PROBLEM: AN EXAMPLE

    To illustrate the "harsher punishment for less culpable offenders" problem, consider the following hypothetical. Lenny Lessculpable arrives at his second-floor apartment only to find his unfaithful spouse in the midst of a sexual rendezvous--a provocation that a jury might easily deem "sufficient to arouse the passions of an ordinary person beyond the power of his or her control," thereby triggering the passion/provocation defense. (21) In response, Lenny throws him out of his second-floor window and kills him. He defenestrates this adulterer not to purposely or knowingly kill him, or even to cause him severe bodily injury, but rather to disrupt the physical act of infidelity and remove the adulterer from his wife and home. Although it is not certain that the fall will kill the man, it is probable, and Lenny chooses to ignore this risk. If a jury finds that Lenny purposely or knowingly caused the man's death, it will next consider whether Lenny acted in the heat of passion and upon reasonable provocation. (22) Undoubtedly, however, a jury may alternatively find that Lenny acted without intent to kill but rather recklessly or, even worse, recklessly under circumstances manifesting an extreme indifference to human life. (23) If the jury finds the latter, Lenny cannot invoke the passion/provocation defense in six states. (24)

    Now imagine a similar scenario unfolding in a twentieth-floor penthouse. When confronted with the same problem as Lenny, Maury Moreculpable screams, "I'm going to kill you!" and throws him through the penthouse window. Maury may invoke the passion/provocation defense because he purposely or knowingly caused the man's death, given that death would be practically certain to result in such a situation and those six states would allow the defense. (25) It is difficult to imagine why, when confronted with the same reasonable...

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