Friday, September 14, 2018
It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all emotions. The mitigation would be limited, however, to those instances in which the jury finds that a mitigation is deserved upon taking account of the extent of the internal pressure to commit the offense (the physiological inquiry), the extent of the offender’s efforts to resist that pressure (the personal choice inquiry), and the effect of giving such a mitigation on community values (the normative inquiry). The codified general mitigation provision is proposed. It would be applied by juries but would not from preempt any mitigation that a judge could otherwise lawfully give.
Recognition of such a general mitigation would play a fundamental role in building the criminal law’s moral credibility with the community it governs. Whether it is given by a trial jury or instead influences plea negotiations that track predictions about what would happen at trial, it can give the community some greater confidence that the criminal justice system is seriously committed to setting deserved punishment in strict proportion to an offender’s blameworthiness. And, as I have argued elsewhere, such increased moral credibility can significantly increase the system’s crime-control effectiveness.