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underlie duress, these compulsive desires are not in any way reasonable and do not justify the actor’s choice to act on them, even in a personal as opposed to social sense of justify. They may or may not be in harmony with the actor’s stable values; but even if they are not, it is not at all obvious that the actor is not morally responsible and culpable for acting on them.94

IV. Mitigating Culpability

Even when an actor’s decision-making capacities are not sufficiently degraded to excuse her conduct, her culpability may be diminished by her impaired rationality. Indeed, the Supreme Court’s opinion in Atkins v. Virginia,95 which categorically prohibited capital punishment of people with retardation on Eighth Amendment grounds, was based precisely on the insight that individuals may be only partially morally responsible for their choices. In this section, we argue that nonculpable diminishments of rationality should mitigate the actor’s punishment. We begin with a rare doctrinal-mitigating doctrine – provocation – and discuss the current attempt to synthesize provocation into either a justification or an excuse. From here, we argue that the factors at work in provocation should be expanded so that any individual who is nonculpably impaired should be entitled to mitigation. Finally, we explain how this mitigating feature can be assimilated within our culpability framework.

A. THE PERPLEXING PARTIAL EXCUSE OF PROVOCATION

The criminal law recognizes provocation as a partial defense to a charge of murder (and, in some jurisdictions, attempted murder). If successful, the defense operates to reduce the actor’s crime from murder to voluntary manslaughter. Although the effect of the defense is clear, the rationale for it is anything but.96 Some commentators argue that a provoked homicide

94Victor Tadros believes the actor is morally responsible only when the compulsive desire is in accord with his higher-order values. See Tadros, supra note 6, at 31–43, esp. 42.

95See Atkins v. Virginia, 536 U.S. 304 (2002).

96For an excellent survey of the conflicting theories of provocation, see Stephen P. Garvey, “Passion’s Puzzle,” 90 Iowa L. Rev. 1677 (2005).

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is (partially) justified. Others argue that it is (partially) excused, although those in this camp divide over whether provocation excuses because the actor does not display the ordinary character traits associated with murder or because the actor’s decision-making and control capacities are degraded by his understandable emotional response to the provocation.

1. Provocation as Justification

Let us begin with the view that provocation is a justification. Suppose V provokes D by taunting D, or fondling her, or, as her husband, committing adultery. D responds by pulling a gun and shooting V, killing him. One reaction to D’s killing V would be that V “had it coming.” V deserved his fate. In the consequentialist balance that determines justification, the proper weight assigned to V’s interest in living was reduced by his culpability.

Now because we doubt that death is the deserved punishment for taunting, fondling, or cuckolding, D’s killing V is not justified. On the other hand, one might argue that even if V’s culpability does not justify V’s being killed, it does make D’s killing V less culpable than had D killed someone completely innocent of wrongdoing. And that is why D should get a reduction from murder to manslaughter, or so it is argued.97

The problem with this rationale is that, although it might be true that a victim’s culpability reduces the culpability of those who impose risks on him, this cannot explain the contours of the provocation defense. For it would not explain why only D is (partially) justified in killing V. If provocation is a justification, then should it not be available to third parties? Yet, V’s provoking D cannot be used even as a partial defense by a TP who kills V.

Now a proponent of the justification rationale might reply that provocation is a justification not because V’s culpability discounts his interests in the consequentialist balance but because V assumed the risk of D’s murderous response when V provoked D. Even if D’s response were predictable, however, it is quite another thing to say it was justified. V

97See, e.g., Andrew Ashworth, “The Doctrine of Provocation,” 35 Cambridge L.J. 292, 307 (1976); Vera Bergelson, “Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law,” 8 Buff. Crim. L. Rev. 385 (2005).

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might have been quite imprudent in addition to being culpable, just as a woman wearing sexy clothing may be quite imprudent in walking alone through a rough neighborhood at night. But V’s imprudence does not function as D’s justification.

Finally, provocation as justification cannot explain why we require that the actor be acting out of “heat of passion.” After all, it should not matter whether D is angry, upset, or just mildly irritated, if what D does is justified because of what V did as opposed to its effect on D.

2. Provocation as Excuse (1): The Character Explanation

Another rationale for the provocation defense views it as an excuse and therefore not available to third parties. On this rationale, provocation (partially) excuses because D’s anger at V is quite appropriate and represents no character defect.98 Although D’s justified anger was not a sufficient reason for killing V, and although D should have exercised more self-control than she did, her failure to control what was justifiable anger was less culpable than had she killed V “in cold blood.” In killing V, D did not display the character of the ordinary killer and is therefore less culpable than the ordinary killer.

This rationale for provocation is something of a hybrid. Its focus on revealed character traits suggests that culpability is ultimately a matter of character rather than choice. On the other hand, to the extent this rationale does focus on D’s choice, the reference to revealed character traits seems to point to D’s reasons for her act. And D’s reasons – that V taunted, fondled, or betrayed her – sound in justification rather than excuse and arguably should extend to third parties.

3. Provocation as Excuse (2): The Decision-Making Explanation

Another excuse rationale for the provocation defense looks at the effect of D’s emotional response to the provocation on D’s ability to weigh reasons and exercise self-control.99 D’s rage might affect her ability to delib-

98For variations on this theme, see, e.g., Dan Kahan and Martha C. Nussbaum, “Two Conceptions of Emotion in Criminal Law,” 96 Colum. L. Rev. 269 (1996); Gardner, supra note 13, at 578.

99See, e.g., Joshua Dressler, “Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject,” 86 Minn. L. Rev. 959 (2002).

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erate about whether killing V is warranted. And, even if D concludes that it is not, her rage may overpower her self-control. She may in effect have a will too weakened by her rage to resist the impulse to kill.

This rationale faces two principal difficulties. First, if D could not deliberate rationally or control her conduct, why is she culpable at all? If she was not at the time of the killing a morally responsible actor because of the impairments of her evaluative and self-control mechanisms, why is she not fully excused?100

Second, on this rationale, why do only some provocations justify the defense?101 If the Godfather flies into a murderous rage whenever someone fails to bow in his presence, he will not get the defense, despite the fact that his anger is as crippling to his judgment and self-control as is the anger of those who do get the defense. And if a recent immigrant from an “honor” culture kills his daughter upon discovering her lack of chastity, his rage will probably fail to win a provocation verdict for the same reason as the Godfather’s, however understandable the origins of their emotions are. The defense is available only to those whose murderous rage was somehow justified by the provocation. Yet this evaluative component is difficult to square with a rationale that focuses on the impairment of D’s deliberation and will.

One response here might be to argue that those who are murderously provoked by acts that would not so provoke people of ordinary virtue are culpable for not taking preemptive steps to avoid being provoked to murder. For example, the Godfather should have gone to anger management class. However, this response assumes that one knows one’s weaknesses before encountering them in tragic form. Moreover, the culpability of the progenitor act – for example, not attending anger management class – is undoubtedly lower than the culpability of murder (just as the culpability for getting intoxicated or for failing to take one’s antiseizure or antipsychotic medication is lower than the culpability for intentionally causing the greatest harm that one was consciously risking by such failures).

100See, e.g., Garvey, supra note 96, at 1702–1705.

101Id. at 1704–1705.