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Psychological research has long found that anger may lead to aggression, sometimes even fatal one. The provocation doctrine corresponds to this finding by providing that murder charges may be mitigated to voluntary manslaughter if evidence establishes that the defendant acted under the influence of a “sudden heat of passion”, resulting from “adequate provocation”. The modern rationale underlying provocation doctrine rests on the idea that defendant’s intense emotion of anger had resulted in loss of self-control, therefore he or she ought to be partially excused. Case law demonstrates that defendants sometimes kill out of fear of serious physical violence threatened by the deceased. For example, victims of long-term physical abuse by the deceased may kill their abusers out of fear of future violence, even if at the moment of the killing the deceased was not posing an imminent threat to life. In circumstances where defendants are unable to satisfy the requirements of self-defense, provocation might be the only viable defense that would mitigate a murder conviction to voluntary manslaughter. Yet, existing provocation doctrine is unfit to capture the distinct features characterizing the reaction of fearful defendants. Commonly perceived as an anger-centric defense, the defense’s elements mostly accommodate typical the responses of defendants who acted quickly, immediately following a single and sudden triggering incident, before any lapse of time allowed them to regain control. The article offers three major contributions to challenge existing view of provocation: first, it considers psychological research that had found that fear, similarly to anger, may also significantly interfere with individuals’ decision-making processes by disturbing rational judgement, therefore sometimes leading to lethal aggression. Second, drawing on this research, the article’s key argument is that provocation doctrine should be reconstructed to also include a fear-based prong. Third, recognizing fear-based provocation calls for rejecting the “anger-loss of control” paradigm that currently dominates judges and jurors’ perception of the defense. In its place, the article advocates an alternative framework that would focus on the fearful defendant’s fear of violence threatened by the victim that caused a significant impairment in the defendant’s thought processes, resulting in obscured judgment and reasoning. The reconstructed defense would also include an objective component, under which, the defendant would have to prove that a person of ordinary disposition would also experience such emotion and respond rashly without exercising reason and judgment.

George Tiller was a Kansas abortionist who specialized in late-term abortions, which are legal under Kansas law only under special circumstances. Scott Roeder killed him, and on trial for murder, wished to plead that he was defending third persons against imminent and unlawful death at the hands of Tiller. He was prepared to present evidence to that effect to the jury, but the trial judge blocked both the plea and the evidence. If the evidence were persuasive, the jury could either have acquitted Roeder altogether, if they decided that his belief that he was defending third persons was reasonable, or convicted him just of voluntary manslaughter, if they decided he had a sincere but unreasonable belief. Since the blocked plea and evidence were Roeder’s only defenses, he was convicted of murder. He appealed to the Kansas Supreme Court, which had it oral argument on January 29, 2014. This paper discusses the oral argument.

When a heterosexual man is charged with murdering a transgender woman with whom he has been sexually intimate, an increasingly common defense strategy is to assert what has been called the trans panic defense. The defendant claiming trans panic will say that his discovery that the victim was biologically male (when he thought the victim was biologically female) provoked him into a heat of passion and caused him to lose his self-control. If the jury finds that the defendant was actually and reasonably provoked, it can acquit him of murder and find him guilty of the lesser offense of voluntary manslaughter. Claims of trans panic are troubling because they appeal to stereotypes about transgender individuals as sexually deviant, abnormal people. In August of 2013, the American Bar Association passed a resolution to limit the use of gay panic and trans panic arguments. In the attached article, which is approximately 23,000 words, including footnotes, Cynthia Lee and Peter Kwan examine the cultural structures of masculinity that may lead a man to kill a transgender woman with whom he has been sexually intimate. Building on Professor Angela Harris’ important work on male-on-male violence, we argue that violence by men against transgender women is a type of gender violence that has not received the attention it deserves. We use masculinities theories to unpack the possible motivations behind the claim of trans panic. We also discuss how structures of heteronormativity and masculinity as well as the doctrine of provocation itself can encourage the jury to find that the defendant who claims trans panic was reasonably provoked. We argue that in addition to educating jurors about the discrimination and violence faced by transgender individuals because of their chosen gender identity, prosecutors should educate jurors about the structures of masculinity that make trans panic arguments appealing. We also argue that the current understanding of reasonableness in provocation doctrine — reasonableness as that which is typical — is misguided. We suggest reasonableness is better understood as a normative limitation on the provocation defense. Accordingly, the jury should assess not just whether the average man in the defendant’s shoes would have been provoked but also whether it was normatively appropriate for the defendant to be so provoked.

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines that people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (i) repeat offenders and first-time offenders, (ii) murder and voluntary manslaughter, and (iii) remorseful and non-remorseful offenders. In this Article, I propose a new and richer economic theory of crime that captures the rationales behind these practices, and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only for the deterrent effect of criminal punishment, but also for its incapacitative effect. Moreover, and perhaps more importantly, it acknowledges the fact that people have fluctuating, rather than constant, criminal tendencies. That is, it recognizes that some people who ordinarily would rarely if ever consider committing a wrongful act can, in rare circumstances, lapse into committing a crime. Surprisingly, these two simple but critical concepts have never been jointly considered in an economic analysis of crime even though their inclusion appears to be an obvious extension of the standard crime and deterrence model formalized almost half a century ago by Gary Becker.The threat of imprisonment deters crime, but even when deterrence fails and a crime is committed, imprisonment benefits society by preventing the criminal from committing further wrongs outside prison for the duration of the sentence. Because these incapacitative benefits exist only if the offender would commit more crimes if left at large, the more strongly we believe that a criminal is dangerous, the stronger the rationale for imprisonment. But since people have fluctuating criminal tendencies, the mere fact that a person committed a crime reveals imperfect information regarding his likelihood of recidivating. As such, the offender’s criminal history and the circumstances surrounding the crime reveal important pieces of information that can be used to update our beliefs concerning the offender’s expected dangerousness – that is, to distinguish those who have made an uncharacteristic mistake from the dangerous and reckless criminals. Capturing the interaction between the incapacitation function of imprisonment and potential offenders’ fluctuating criminal tendencies allows the model to supply specific, consequentialist justifications for repeat offender laws, voluntary manslaughter laws, and the treatment of remorse in criminal law. Going forward, this more nuanced approach will provide a clearer lens through which to view other pervasive elements of criminal law, such as the mens rea requirement, and to revisit the normative prescriptions of the previous generation of economic analyses.

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser crimes; and defendants are sentenced to death, not lesser punishments. The Missouri statute gives prosecutors very broad discretion. We estimate that at least 76 percent of the cases in the database are death-eligible under the statute. However, prosecutors pursued capital trials in only about five percent of the cases. Thus, death-eligible cases in which prosecutors chose not to pursue capital trials comprise at least 71 percent of the cases in the database. Prosecutors in different counties exercise their discretion differently, leading to substantial variation in charging and sentencing practices in different counties across the state. The analysis of cases by race of victim and race of defendant shows that there are racial disparities in charging and sentencing decisions, but the racial disparities are not as significant as the geographic disparities. The article presents measures of racial and geographic disparities without controlling for individual culpability; a follow-on study will introduce culpability measures as control variables.

Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it. I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk-creation. Instead, I propose that an actor who creates a risk of causing death but who was unaware of that risk can fairly be subject to retributive punishment if he was either non-willfully ignorant or self-deceived, and if such ignorance or self-deception was due to the causal influence of a desire he should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypothetical choice to do wrong, but in the culpable failure to exercise doxastic self-control: control over one's beliefs.

I apply the body of social science data and feminist theory regarding domestic violence to reexamine heat-of-passion/adultery law. The article is organized around two central points. First, law implies a dubious distinction between men who premeditate the murder of wives and lovers, and “innocent” men who catch their wives in bed with someone. This distinction does not accurately describe husband-to-wife homicides. Second, there is a remarkable similarity between the social understandings that underlie important elements of voluntary manslaughter's heat-of-passion doctrine and the excuses and justifications that abusive men give to explain their violence. This congruence between how abusive men perceive their violence and the legal doctrine of voluntary manslaughter perpetuates two major misconceptions about the nature of wife-killing. The first misconception follows from the belief that violence in response to a wife's provocation -- in this context, the wife's adulterous conduct--is an uncontrollable response, which in turn reinforces the belief that intervention can have little deterrence or prevention impact. The second misconception follows from the congruence between the justifications given by abusive men and the quasi-justificatory elements of voluntary manslaughter doctrine: the wife-killer who kills in response to his wife's “provocative” conduct is seen as an unlikely recidivist and therefore less dangerous. I include a close examination of a California case that appears in many criminal law textbooks, People v. Berry. The California Supreme Court in Berry overturned a first degree murder conviction by finding that the trial court's failure to give a voluntary manslaughter instruction was reversible error. The Court’s reasoning demonstrates the deleterious effect of the resonance between the excuses and justifications given by abusive men and the cultural (mis)understandings that underlie modern heat-of-passion/adultery doctrine.