Document Type

Article

Publication Date

10-19-2018

Abstract

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 mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent to which one can understand why the offender failed to restrain him or herself from committing the offense (the personal choice inquiry), and (c) the extent to which giving the offender a mitigation would specially undermine community norms (the normative inquiry). A codified general mitigation provision is proposed.

Some people will worry that such a universal mitigation provision may give too much mitigation. But there seems little doubt that the community’s shared intuitions of justice support a wide range of mitigations, especially those that can satisfy the three factors made relevant by the proposed codification. The question is not whether such mitigations should be taken into account but rather whether they should be taken into account systematically and consistently by juries reflecting community views, instead of taken into account, as they are today, haphazardly and inconsistently by individual sentencing judges and nullification actors.

Recognition of such a universal mitigation for disturbance-driven offenses 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 of 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 such increased moral credibility can significantly increase the system’s justness as well as its crime-control effectiveness.

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