CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, February 22, 2005

New Article Spotlight: Provocation Defense

Faculty_garvey_1 CrimProf Stephen Garvey of Cornell has posted Passion's Puzzle, forthcoming in the Iowa Law Review, on SSRN.  Here's the abstract:

The puzzle of the provocation defense, otherwise known as the "heat of passion" defense, is to figure out how, if at all, each of the basic elements of the doctrine can be explained in a coherent and normatively attractive fashion. None of the prevailing theories of provocation succeeds in solving this puzzle. These theories either fail to explain one or more of the basic elements of the doctrine, or else end up committing the state to a decidedly illiberal course of action: punishing citizens not only for what they do (for their actions), but for who they are (for their characters).

I offer an alternative theory, called provocation as akrasia, which I suggest can solve the puzzle. According to this theory, the basic elements of the defense work in concert to achieve the normatively attractive goal of sorting actors who kill in defiance of the law (and who should therefore be convicted of murder) from those who kill in a moment of culpable ignorance of law or weakness of will (and who should therefore be convicted of the lesser crime of manslaughter). Insofar as this theory justifies and so defends the basic contours of existing provocation doctrine, it challenges those who view the doctrine, in some or all of its formulations, as a pernicious presence in the criminal law.

To obtain a copy of the paper, click here.  [Mark Godsey]

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