CrimProf Blog

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

Wednesday, May 3, 2017

Witmer-Rich on Heat of Passion

Witmer-rich jonathanJonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted The Heat of Passion and Blameworthy Reasons to Be Angry (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

This article identifies a hidden normative component of the heat of passion doctrine: provocation is not adequate if the reason the defendant became extremely angry is due to some blameworthy belief or attribute of the defendant. A belief is blameworthy if it contradicts the fundamental values of the political community.

This blameworthiness principle resolves a long-standing conceptual puzzle in the heat of passion doctrine — an inability to determine which features of a particular defendant are properly relevant when assessing the adequacy of provocation. The blameworthiness principle distinguishes those aspects of the defendant that cannot form a basis to argue the defendant was reasonably provoked from those aspects that can properly form the basis of a provocation claim.

Relatedly, commentators have struggled to explain conceptually when the heat of passion defense should be denied to some defendants — such as possessive men who kill independent women, or defendants who claim “gay panic” or “trans panic” — while allowed for other defendants in arguably similar circumstances. The proper normative standard differentiating these cases is that judges and juries should reject provocation claims when the defendant’s reason for becoming angry is blameworthy.

A defendant who pleads provocation asks the community to mitigate a wrongful act of killing from murder to manslaughter, and to do so because another person provoked him into a rage that made it much more difficult to control his violent response. But if the defendant’s reason for becoming angry is blameworthy, he has no rightful claim to mitigation — he is culpably responsible for entering the state of extreme anger that might otherwise reduce his culpability.

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