Thursday, November 19, 2009
Samuel H. Pillsbury (Loyola Law School Los Angeles) has posted a very helpful piece, Misunderstanding Provocation (University of Michigan Journal of Law Reform, Vol. 43, 2009), on SSRN. Here is the abstract:
This symposium article questions the significance of the partial justification v. excuse distinction often discussed with respect to provocation, noting that the doctrine inevitably has elements of both. It argues that provocation should best be understood as providing mitigation of punishment based on defendant’s good reasons for anger and/or fear rather than according to diminished capacity for rational choice due to the experience of any strong emotion. Finally, if mitigation is provided for diminished rationality due to mental illness, that should occur under a doctrine distinct from provocation.