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B. ASSIMILATING PROVOCATION

We believe that provocation, properly understood, is but one instance of cases in which the actor’s capacity for rational reflection is impaired, and he therefore is entitled to mitigation.102 The criteria for the mitigating excuse would be, first, that the actor’s capacity for rationality was substantially diminished at the time of the crime and, second, that the actor’s diminished rationality substantially affected his or her criminal conduct.

Both criteria are critical. First, there must be a substantial diminution in rationality because less serious impairments are insufficient to warrant lesser blame and punishment. Imperfect creatures that we are, we never act with perfect, godlike rationality, and we are always subject to the distorting influences of temporal urgency and emotion. But, as long as the actor retains substantial capacity for rationality, it is not unfair to require the actor to exercise this capacity. In brief, there must be serious difficulty in thinking “straight” about one’s behavior.

One key question is whether the diminution in rationality must be nonculpably caused. In other words, should we distinguish between the justifiably provoked and the Godfather? Let us begin by noting that in instances where the actor’s rationality is impaired because he has, for example, consumed alcohol, there are two levels of culpability at work. The first question is the actor’s culpability in choosing to drink. Although we are opposed to any sort of forfeiture rule, it is certainly true that many folks are on notice that when they drink they get into fights, become more hot-tempered, and so on. When they know of these risks, actors may be culpable for their choice to take them, irrespective of whether any harm occurs. Assume, then, that such an individual does drink and does get into a fight because of some minor insult that would not have angered him but for his intoxication. Here, we see no problem in deeming the actor’s culpability for this act reduced because of his drinking. After all, at this later point in time, the actor’s lack of rationality does render the choice harder for him than it would were he not intoxicated. Notice, however, that the sum of the two culpable choices (the choice to drink knowing one is hot-tempered and the choice to then

102 T his section draws from Stephen J. Morse, “Diminished Rationality, Diminished Responsibility,” 1 Oh. St. J. Crim. L. 289 (2003).

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injure another) is likely to add up to the same level of culpability as if we had focused only on the actor’s later choice without allowing his voluntary intoxication to mitigate. We believe, however, that our approach properly captures the actor’s culpability by focusing on these two different instances of decision making. We would use the same analysis for other circumstances in which the actor’s anger may or may not be justified or reasonable. We believe that this reasonableness requirement operates as a forfeiture rule punishing actors for failing to control or to alter potentially dangerous character traits. As we noted in Chapter 3, we believe that actors may sometimes be accountable for these omissions. On the other hand, there may be times when an actor is not on notice that his failure to control a character trait will result in his losing control; and in such situations, he will be less culpable the first time he does so. But he should have only one bite at this apple. In any event, we would look to this element (of notice and failure to correct or otherwise control dangerous traits) directly, rather than through the operation of a reasonability requirement.

The second criterion requires that the actor’s impaired rationality substantially and specifically affected his practical reason with respect to the culpable choice at issue. The relation required should not be confused with reductive, “mechanical” causation or causation simpliciter. We are not trying to smuggle back into the law the infamous “product” test for legal insanity that was adopted and then abandoned by the United States Court of Appeals for the District of Columbia. Diminished rationality does not simply function as a “but for” cause of the criminal conduct. It must also have substantially impaired the actor’s ability to access and to consider reflectively the good reasons not to make the culpable choice on this occasion. This criterion is required to address the actor whose substantial rationality impairment plays only a limited role in affecting his or her specific criminal behavior, or who may be suffering from nonculpable diminished rationality that plays no role in the criminal conduct, but that simply co-occurs. For example, an actor with paranoid beliefs about certain types of people would not be entitled to mitigation if he were charged with bank robbery or fraud. If the actor attacked a victim from the group he thought was planning to “get him,” however, he might be entitled to the mitigation. Perhaps, however, the human mind cannot be compartmentalized as we imply because it is impossible to say that irrationality in

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one behavioral domain does not subtly affect rationality in another. One cannot conclusively refute this suggestion, but it is a clinical commonplace that some symptoms of mental disorder appear to operate in limited behavioral domains and do not affect functioning more generally.

C. HOW MITIGATION WORKS

In Chapter 8, we turn to our idealized criminal code. We believe that among the questions that the jury must answer is the question of whether the actor’s decision making was sufficiently impaired to render him less culpable for his choice to impose risks of harm on others.

This question is a matter of degree, but so too, are all the questions about culpability that we confront. Whether such a vague standard should be rulified, or instead whether a bright line should be drawn (and where), is the practical question that we address in that chapter.

In taking into account the degree of impairment, the jury will have to focus on how impaired the actor was, given his decision to risk harm to a legally protected interest. The mitigation, it seems to us, is inversely related to the seriousness of the offense. If we assume, in general, equal degrees of impairment across actors, criminals engaged in serious crimes have more reasons weighing against offending and are therefore more culpable for failing to heed those reasons. An actor has a greater duty to overcome his impairment when greater harm is at stake. Remember, none of these cases involve instances where the actor’s rationality is so impaired that he is unaware of what he is doing or that it is wrong. Those are cases of full excuse.

Because culpability turns on the actor’s choice to risk others’ legally protected interests for insufficient reasons, the criminal law must evaluate when reasons are sufficient and when the actor had the requisite capacity and fair opportunity to make that choice. Questions about justification and excuse are therefore subsumed within our culpability model. Although this chapter has not offered a theory of every (or even paradigmatic) justification and excuse, our aim has been to sketch out the pertinent questions and to show how they fit within our scheme.

P A R T T H R E E

The Culpable Act

C H A P T E R

V

Only Culpability, Not Resulting

Harm, Affects Desert

Individuals exhibit insufficient concern through their actions. When an actor knowingly risks harm to others, she manifests her respect (or lack thereof) for others and their interests. In our view, this theory of culpability sets forth not only the necessary conditions for blameworthiness and punishment but also the sufficient conditions. We thus believe that current law is incorrect to the extent that it provides that resulting harm makes an actor more blameworthy and deserving of more punishment.

In this chapter, we argue that resulting harm is immaterial to what the actor deserves.1 We begin by articulating our position that results do not matter to the actor’s blameworthiness. Recognizing that we are fi ghting an uphill battle against common intuitions, we try to undermine

1Th is chapter draws from Larry Alexander, “Crime and Culpability,” 5 J. Contemp. L. Iss. 1 (1994); Kimberly D. Kessler, Comment, “The Role of Luck in the Criminal Law,” 142 U. Pa. L. Rev. 2183 (1994); and Stephen J. Morse, “Reason, Results and Criminal Responsibility,” 2004 Ill. L. Rev. 363 (2004).

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