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Voluntary manslaughter.  Last time we looked at voluntary manslaughter.  There are two formulations.  The common law version mitigates murder to manslaughter when an offender who intentionally kills does so in the heat of passion brought on by adequate provocation and without “cooling time.”  The Model Penal Code, in contrast, mitigates when a homicide that would be murder is committed as a result of an extreme emotional or mental disturbance for which there is a “reasonable excuse.”

On the first day of this course, I made the point that disputes about what the law means are frequently disputes about two things: (1) what it ought to mean; and (2) who ought to say what it means.  Our discussion of the common law voluntary manslaughter yesterday nicely illustrated this.

What, for example, does “adequate provocation” mean?  Is adultery adequate provocation?  Is a same-sex overture an adequate provocation?  The answer can’t be found in the plain meaning of the doctrine.  Rather, it must be constructed according to some theory about what the doctrine is all about.  And because it must be constructed someone must do the constructing.  So what ought the law mean and who ought to say?

We considered a number of specific theories about why the voluntary manslaughter doctrine exists.  I suggested that we call one the voluntarist view: impassioned killers are treated leniently, on this account, because passion compromises their volition, and thus reduces culpability for their acts.  The problem with this hypothesis, though, is that it can’t explain why there is a provocation requirement at all, much less why the provocation must be adequate.  As cases like Anderson illustrate, people don’t experience uncontrollable, homicidal impulses only when provoked.

Another theory emphasizes economic efficiency, which counsels that the severity of punishment match the gradation of homicide to offenders’ propensities for deadly violence.  A person who kills when unprovoked or when only slightly provoked seems more dangerous than one who kills only when seriously provoked. So all else equal, we should invest more of our limited punishment resources on punishing the former than the later. 

But it wasn’t clear that the doctrine faithfully tracks this consequentialist theory either.  The cuckold who kills his unfaithful wife or her paramour is the paradigm case of an adequately provoked killer at common law.  When we consider how unusual it is to terminate a marriage by execution rather than divorce, however, it seems odd not to see such a person as unusually dangerous.  To be sure, he’s unlikely to kill again, reducing the incapacitative value of punishment.  But if we mitigate his offense on that ground, aren’t we making it all the more likely that others who find themselves in this situation for the first time will respond by killing?  Doesn’t general deterrence suggest we should punish the cuckold who kills more severely, rather than less, precisely because adultery is so common and so likely to provoke strong antisocial emotions?  At best, deterrence logic, here as elsewhere, seems hopelessly indeterminate.

We considered one more possible theory, which can be called the evaluative view.  The evaluative view posits that it is possible to make moral evaluations of emotions, distinguishing good ones from bad ones.  It then asserts that the law ought to take the moral quality of emotions into account when grading homicides.  It should do this, first, because emotions, even if unwilled, do in fact affect assessments of culpability.  It might be right to severely condemn an impassioned killer like Anderson precisely because his impulse reveals that he values immoral things; one might be moved to condemn less severely a parent who kills a person who hurts her child precisely because her anger is appropriate.  The common law certainly viewed the cuckold’s rage as morally appropriate in this way.

To the extent it explains the common law approach, the evaluative theory highlights the second question: who decides what the doctrine means?  Whose values inform the evaluation of a defendant’s emotions?  The natural answer might seem like the community’s.  And if that is so, then perhaps the jury, as representative of the community, should be afforded wide latitude to consider the adequacy of provocation, cooling time, and the like.  This was the approach taken by Maher.

But what if the jury is too responsive to bad aspects of community morality?  If we accept the evaluative view, then a jury verdict of manslaughter rather than murder in a case like Carr would be tantamount to approval of his homophobic hatred.  The court in Carr preempted that by holding as a matter of law that one person’s homosexuality cannot be adequate provocation.  Giving courts more discretion to define adequate provocation is a way to check and criticize and maybe change certain bad community understandings of what good character consists in.

But should we expect judges to be better than juries in identifying what parts of community morality should be endorsed and which criticized?  As we’ve seen time and again, judges, too, can make very questionable moral judgments.  But maybe the answer to this observation is, so what?  The fact that some judges are bad doesn’t mean that good judges shouldn’t do the right think in a case like Carr.  But wouldn’t it possible to change the law here so we wouldn’t have to presuppose virtuous courts or virtuous juries or at least needn't have to presuppose them to such a large extent?

It’s in this connection that you might want to think of the Model Penal Code’s alternative “extreme emotional or mental disturbance” formulation.  The Code reflects what I called the voluntarist theory: actors are entitled to mitigation insofar as emotion, or passion, or impulse diminishes their volition.  That’s why, at least in theory, the MPC dispenses with adequate provocation, the innocent party limitation, and cooling time, all of which seemed designed to prevent mitigation when the defendant’s rage, however intense, reflects inappropriate valuations.  To be sure, the jury still has to find that the defendant’s emotional disturbance is excusable; but in practice, trials under the Code, which typically feature battling psychiatric experts, seem more concerned with the intensity than with the moral quality of defendants’ emotions.  Whereas the common law seems to tell us which killers are too virtuous to be branded murders (and which victims too vicious to merit the full protection of murder penalties), the MPC tells us who is “too sick” to be condemned for that offense.

One might compare the common law and MPC formulations along the theory and institutional dimensions.  But as our discussion of the common law formulation suggested, we might also consider a third dimension of analysis.  Doctrinal disputes, it turns out, are not always just about what the law should mean and who should say what it means; they are also about whether the law should own up in a transparent way to the moral judgments that are inevitably at its core.   Call this the “discourse dimension.”

It doesn’t matter, a legal realist might argue, what doctrinal formulations the law uses to mark the divisions between various forms of homicide: jurors and judges will inevitably conform their understanding of terms like “premeditation,” “adequate provocation,” and even “extreme emotional disturbance” to their appraisals of the values that different forms of wrongdoing express.  But even if that’s so, the choice between these formulations might well make a difference in how transparent these appraisals are.  When a court uses the common law “provocation” formula to mitigate a punishment for an offender like Thornton, for example, it’s pretty clear that it means to be endorsing the sense of honor that informed his homicidal rage toward the paramour.  But when a court uses the MPC’s “extreme emotional disturbance” test, that same judgment is obscured by what Cardozo might have characterized as another “mystifying cloud of words.” 

So along the discourse dimension, should we prefer brutal transparency or mystifying obscurity?  Cardozo objected to mystification, but I suggested a defense of it -- call it (for reasons that might or might not be obscure to you) a crypto-Benthamite defense.  Obscuring the moral core of the voluntary manslaughter doctrine, the crypto-Benthamite says, is a way to avoid the “bad norms” problem.  That problem occurs when a decisionmaker appeals to a bad norm – homophobia, patriarchy, racism, you fill in the blank – to appraise an offender’s emotional motivation, thereby investing law’s expressive capital in that norm.  We can’t solve that problem by trying to make the law reflect community morality, since that morality might sometimes be the source of bad norms.  Nor can we solve it by investing discretion in the most “enlightened” decisionmaker, since bad norms can infect juries, judges, and legislatures.

But maybe we can reliably solve it by making the moral content of the doctrine obscure.  When, under the Code, the doctrine purports only to tell us which offenders are “too sick” to be punished as murderers, we are at least spared an official endorsement of the characters of homophobes and cuckolds and an official denigration of the characters of their victims.

Well it turned out that Ms. [omitted]  had more or less already anticipated this analysis. Call her argument against it the pragmatic, progressive critique of legal mystification.  Obscuring contentious moral evaluations, the progressive might argue, doesn’t genuinely prevent decisionmakers’ from relying on them; it just makes the influence of those evaluations harder to detect and hence harder to reform.  The Texas judge who leniently punished the homophobic killer because he “put queers and prostitutes on the same level” was sanctioned and then disciplined at the polls; in the aftermath of that controversy, the Texas state legislature enacted a hate crimes law that authorized enhanced punishments for homophobic violence.  There was a similar response after a Maryland judge expressed his sympathy for the “betrayed” cuckold who inflicted “corporal punishment” -- in the form of a bullet in the head-- to his sleeping wife: the public reacted with outrage, prompting the Maryland state legislature to enact a statute that declares adultery to be an inadequate provocation as a matter of law.  It seems unlikely that the judges’ sentences in either of these cases would have provoked nearly so much controversy – or offered nearly so convenient a focus for political organizing – had the judges in the obscure, voluntarist idiom of the MPC.  So let’s have moral truth in advertising, to give the progressive critics of bad norms in law a fighting chance.

Who’s right – the crypto-Benthamite or the progressive pragmatist?  I, at least, honestly don’t know.

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