The wrongfulness of wrongly interpreting wrongfulness: Provocation, interpretational bias, and heat of passion homicide

New Criminal Law Review

Volumn 12, Issue 1, 2009, Pages 69-92

  Fontaine, Reid Griffith ^a  

^a The University of Arizona   (United States)

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[No Author keywords available]

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EID: 66249147574     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2009.12.1.69     Document Type: Article

References (108)

1. Joshua Dressler, Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject, 86 Minn. L. Rev. 959, 959 n.5 (2002).
2. Solely for the purposes of flow and consistency, I use only the masculine pronouns he, him, himself, and his when referring to hypothetical characters (such as provocateurs and killers) throughout this paper. No gender or sex bias is intended whatsoever.
3. The terms uncontrolled and uncontrollable are used interchangeably herein to describe states that are either uncontrolled or uncontrollable. In any case, a trier of fact may determine that a state of being (such as an emotional state) or an act (such as violence) was uncontrolled; of course, a determination that the state or act was uncontrollable is necessarily far more difficult to conclude.
4. 3 James Stephen, A History of the Criminal Law in England (1883).
5. Brad J. Bushman & Craig A. Anderson, Is It Time to Pull the Plug on the Hostile Versus Instrumental Aggression Dichotomy?, 108 Psychol. Rev. 273 (2001).
6. See, e.g., Marcia Baron, Killing in the Heat of Passion, in Setting the Moral Compass: Essays by Women Philosophers 353 (Cheshire Calhoun ed., 2004)
7. Deborah E. Milgate, The Flame Flickers, but Burns On: Modern Judicial Application of the Ancient Heat of Passion Defense, 51 Rutgers L. Rev. 193 (1998)
8. Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331 (1997)
9. Laurie J. Taylor, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. Rev. 1679 (1986).
10. See, e.g., Baron, supra note 6.
11. For a rare exception, see Richard Holton & Stephen Shute, Self-Control in the Modern Provocation Defence, 27 Oxford J. Legal Stud. 49 (2007).
12. By the term cognitive dysfunction, I am referring to serious cognitive disturbances, biases, distortions, and the like. I am not referring to intellectual deficits or deficiencies such as mental retardation.
13. See Stephen J. Morse, Diminished Rationality, Diminished Responsibility, 1 Ohio St. J. Crim. L. 289 (2003).
14. Model Penal Code §210.3(1)(b) (Proposed Official Draft 1962)
15. see Markus D. Dubber, Criminal Law: Model Penal Code §§ 265-271 (2002) (characterizing provocation as a partial excuse in his commentary on the Model Penal Code)
16. see also Kyron Huigens, Liberalism, Normative Expectations, and the Mechanics of Fault, 69 Mod. L. Rev. 462, 472 (2006). In his commentary on the Model Penal Code's framing of provocation, he stated, "American criminal law theorists use the word 'excuse' to refer to denials of responsibility such as insanity and minority. This means that they read [provocation] as resting at least in part on a denial of responsibility."
17. See id. at 472.
18. The Law Commission, No. 304, Murder, Manslaughter and Infanticide 76-110 (2006)
19. see generally Alan Norrie, Punishment, Responsibility and Justice: A Relational Critique (2000).
20. Model Penal Code §210.3(1)(b) (Proposed Official Draft 1962).
21. Cf. J.R. Averill, Anger and Aggression: An Essay on Emotion (1982)
22. Baron, supra note 6
23. Wayne R. LaFave & Austin W. Scott, Criminal Law (2d ed., 1986).
24. Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. & Criminology 421, 421-470 (1982).
25. Model Penal Code §210.3(1)(b) (Proposed Official Draft 1962).
26. Id. It is unclear as to whether the word "mental" is intended to capture disturbances of the mind that are of a nonemotional nature or, alternatively, to clarify the meaning of the word "emotional.:This question is not adequately addressed in the MPC Commentaries. Model Penal Code (Official Draft and Revised Comments 1985).
27. Certainly, it may be said that one whose functioning is out of control is, by definition, unreasonable.
28. A small minority of courts (or jurisdictions) use an "ordinary" as opposed to "reasonable" person standard. Whereas a reasonable person standard may be thought of as a normative concept, an ordinary person standard may be considered to be more of an empirical concept. However, if the two terms are truly equal and interchangeable, though I suppose that they are not, the term "ordinary person" may be a less problematic one to use with respect to heat of passion killings because this defense partially excuses homicides that are, by their nature, at least partly unreasonable.
29. Still, because it is empirically uncertain how often substantially provoked individuals react by committing homicide, it may be difficult to persuasively argue that heat of passion killing is ordinary, just the same.
30. This question is related to the debate as to whether the heat of passion defense is one of partial excuse or partial justification. In the case of a heat of passion killing, a finding that the criminal culpability of the actor is mitigated because he lacked the necessary mens rea for murder is consistent with treating the defense as a partial excuse.
31. See Dubber, supra note 11. However, if the principal rationale is that the actor's retaliation was enacted in response to a real, harsh, and wrongful provocation, the doctrine may be viewed as one of partial justification. Because proper analysis of this issue is provided elsewhere, and because it would require substantial discussion that is outside the scope of this paper, readers are directed to the following scholarly works: Dressler, supra note 1
32. Joshua Dressler, Provocation: Partial Justification or Partial Excuse?, 51 Mod. L. Rev. 467 (1988)
33. Dressler, supra note 15
34. John Gardner, The Gist of Excuses, 1 Buff. Crim. L. Rev. 575, 575 (1998)
35. John Gardner, Justifications and Reasons, in Harm and Culpability 103 (1996)
36. John Gardner & Timothy Macklem, No Provocation Without Responsibility: A Reply to Mackay and Mitchell, [2004] Crim. L. Rev. 213 (U.K.)
37. Peter Westen, An Attitudinal Theory of Excuse, 25 Law & Phil. 289 (2006)
38. Alan Norrie, Punishment, Responsibility and Justice (2000). Furthermore, I have argued elsewhere that heat of passion is an affirmative partial excuse (or mitigating) defense and in no way should heat of passion killings be viewed as even partially justifiable.
39. See Reid Griffith Fontaine, Disentangling the Psychology and Law of Instrumental and Reactive Subtypes of Aggression, 13 Psychol. Pub. Pol'y & Law 143 (2007). This understanding of heat of passion is consistent with that of the MPC.
40. See Model Penal Code §210.3(1)(b) (Proposed Official Draft 1962)
41. Dubber, supra note 11.
42. For the purposes of this paper, cognition is referred to, according to traditional human information-processing perspectives, as nonemotional mental functions and operations such as perception, attribution and interpretation, comprehension, inference, decision making, planning, and learning.
43. That is, even when one's perception of provocation is the result of cognitive dysfunction, the reasonable person requirement limits what qualifies as sufficient provocation.
44. Theoretically, the event in question may even be characterized by nonprovocative intent, as in the case of an elaborate practical joke, just so long as it appears sufficiently provocative to satisfy the reasonable person requirement.
45. Model Penal Code §2.04 cmt. (Official Draft and Revised Comments 1985).
46. It should be noted that there is nothing that inherently precludes a court from allowing or applying both mistake of fact and heat of passion doctrines together. However, the provocation in question would still need to satisfy the reasonable person requirement.
47. Fontaine, supra note 20
48. see also Bushman & Anderson, supra note 5
49. Kenneth A. Dodge, Emotion and Social Information Processing, in The Development of Emotion Regulation and Dysregulation 159 (Judy Garber & Kenneth A. Dodge eds., 1991).
50. Nicki R. Crick & Kenneth A. Dodge, Review and Reformulation of Social Information-Processing Mechanisms in Children's Social Adjustment, 115 Psychol. Bull. 74 (1994)
51. Kenneth A. Dodge, A Social Information Processing Model of Social Competence in Children, in 18 Minnesota Symposia on Child Psychology: Cognitive Perspectives on Children's Social and Behavioral Development 77 (M. Perlmutter ed., 1986)
52. Reid Griffith Fontaine, Applying Systems Principles to Models of Social Information Processing and Aggressive Behavior in Youth, 11 Aggression and Violent Behav. 64 (2006)
53. L. Rowell Huesmann, An Information Processing Model for the Development of Aggression, 14 Aggressive Behav. 13 (1988)
54. L. Rowell Huesmann, The Role of Social Information Processing and Cognitive Schema in the Acquisition and Maintenance of Habitual Aggressive Behavior, in Human Aggression: Theories, Research, and Implications for Social Policy 73 (Russell G. Geen & Edward Donnerstein eds., 1998).
55. Crick & Dodge, supra note 27.
56. Id.;
57. Reid Griffith Fontaine & Kenneth A. Dodge, Real-time Decision Making and Aggressive Behavior in Youth: A Heuristic Model of Response Evaluation and Decision (RED), 32 Aggressive Behav. 604 (2006).
58. Kenneth A. Dodge & A.M. Tomlin, Utilization of Self-Schemas as a Mechanism of Interpretational Bias in Aggressive Children, 5 Soc. Cognition 280 (1987).
59. Id.
60. Karen R. Gouze, Attention and Social Problem Solving as Correlates of Aggression in Preschool Males, 15 J. Abnormal Child Psychol. 181 (1987).
61. Kenneth A. Dodge & Joseph P. Newman, Biased Decision-Making Processes in Aggressive Boys, 90 J. Abnormal Psychol. 375 (1981).
62. Crick & Dodge, supra note 27.
63. Dodge & Newman, supra note 33.
64. William Nasby, Brian Hayden & Bella M. DePaulo, Attributional Bias Among Aggressive Boys to Interpret Unambiguous Social Stimuli as Displays of Hostility, 89 J. Abnormal Psychol. 459 (1980).
65. Kenneth A. Dodge & John D. Coie, Social-Information-Processing Factors in Reactive and Proactive Aggression in Children's Peer Groups, 53 J. Personality & Soc. Psychol. 1146 (1987)
66. Nicki R. Crick & Kenneth A. Dodge, Social Information-Processing Mechanisms in Reactive and Proactive Aggression, 67 Child Dev. 993 (1996).
67. Note that it is more accurate to characterize provocation interpretational bias as exactly that - a bias. As opposed to a cognitive deficit (by which there may be the actual absence of a mechanism or ability), PIB should be understood to be a cognitive distortion, or mental disturbance, that is triggered by aspects of a social stimulus. Cf. Joseph P. Newman, Psychopathic Behavior: An Information Processing Perspective, in Psychopathy: Theory, Research and Implications for Society 81-104 (D.J. Cooke, R.D. Hare, & A. Forth eds., 1998) (discussing the cognitive deficits in the information processing of psychopaths).
68. Leonard Berkowitz, Situational and Personal Conditions Governing Reactions to Aggressive Cues, in Personality at the Crossroads: Current Issues in Interactional Psychology 165 (David Magnussen & Norman S. Endler eds., 1977)
69. Dodge & Coie, supra note 37.
70. Dodge & Coie, supra note 37.
71. Crick & Dodge, supra note 27.
72. Kenneth A. Dodge, Joseph M. Price, Jo-Anne Bachorowski & Joseph P. Newman, Hostile Attributional Biases in Severely Aggressive Adolescents, 99 J. Abnormal Psychol. 385 (1990).
73. Catherine P. Bradshaw & James Garbarino, Social Cognition as a Mediator of the Influence of Family and Community Violence on Adolescent Development: Implications for Intervention, 1036 Annals N.Y. Acad. Sci. 85 (2004).
74. Janis B. Kupersmidt, Ariana Shahinfar & Mary Ellen Voegler-Lee, Children's Exposure to Community Violence, in Helping Children Cope with Disasters and Terrorism 381 (Annette M. La Greca, Wendy K. Silverman, Eric M. Vernberg & Michael C. Roberts eds., 2002).
75. Gregory S. Pettit, Kenneth A. Dodge & M.M. Brown, Early Family Experience, Social Problem Solving Patterns, and Children's Social Competence, 59 Child Dev. 107 (1988).
76. Kenneth A. Dodge, Gregory S. Pettit, John E. Bates & Ernest Valente, Social Information-Processing Patterns Partially Mediate the Effect of Early Physical Abuse on Later Conduct Problems, 104 J. Abnormal Psychol. 632 (1995).
77. Bahr Weiss, Kenneth A. Dodge, John E. Bates & Gregory S. Pettit, Some Consequences of Early Harsh Discipline: Child Aggression and a Maladaptive Social Information Processing Style, 63 Child Dev. 1321 (1992).
78. John D. Coie & Kenneth A. Dodge, Multiple Sources of Data on Social Behavior and Social Status in the School: A Cross-Age Comparison, 59 Child Dev. 815 (1988)
79. John D. Coie, Kenneth A. Dodge & Janis B. Kupersmidt, Peer Group Behavior and Social Status, in Peer Rejection in Childhood 17 (John D. Asher & John D. Coie eds., 1988)
80. Nicki R. Crick & Gary W. Ladd, Children's Perceptions of Their Peer Experiences: Attributions, Loneliness, Social Anxiety, and Social Avoidance, 29 Developmental Psychol. 244 (1993)
81. Zvi Strassberg & Kenneth A. Dodge, Focus of Social Attention Among Children Varying in Peer Status, Paper presented at the annual meeting of the Association for the Advancement of Behavior Therapy (Nov. 1987).
82. Dennis R. Combs, David L. Penn, Jeffrey Cassisi, Chris Michael, Terry Wood, Jill Wanner, Scott Adams, Perceived Racism as a Predictor of Paranoia Among African Americans, 32 J. Black Psychol. 87 (2006).
83. James Epps & Phillip C. Kendall, Hostile Attributional Bias in Adults, 19 Cognitive Therapy & Res. 159 (1995).
84. B. Alex Matthews & Fran H. Norris, When Is Believing "Seeing"? Hostile Attribution Bias As a Function of Self-Reported Aggression, 32 J. Applied Social Psychol. 1 (2002).
85. Robert J. Homant & Daniel B. Kennedy, Hostile Attribution in Perceived Justification of Workplace Aggression, 92 Psychol. Rep. 185 (2003).
86. Kenneth A. Dodge, The Structure and Function of Reactive and Proactive Aggression, in The Development and Treatment of Childhood Aggression 201 (D. Pepler & K. Rubin eds., 1991)
87. Elizabeth A. Lemerise & Kenneth A. Dodge, The Development of Anger and Hostile Interactions, in Handbook of Emotions 537 (Michael Lewis & Jeannette M. Haviland-Jones eds., 1993)
88. see also Richard S. Lazarus & Susan Folkman, Stress, Appraisal, and Coping (1984)
89. Richard S. Lazarus & Craig A. Smith, Knowledge and Appraisal in the Cognition-Emotion Relationship, 2 Cognition & Emotion 281 (1988).
90. For a discussion, see Dressler, supra note 1.
91. See, e.g., Milgate, supra note 6
92. Emily L. Miller, (Wo)manslaughter: Voluntary Manslaughter, Gender, and the Model Penal Code, 50 Emory L.J. 665 (2001).
93. Model Penal Code §210.3 (Proposed Official Draft 1962).
94. People v. Gjidoda, 364 N.W.2d 698 (Mich. Ct. App. 1985).
95. Maher v. People, 10 Mich. 212 (1862).
96. See, e.g., M.K. Pope, Timothy W. Smith & Frederick Rhodewalt, Cognitive, Behavioral, and Affective Correlates of the Cook and Medley Hostility Scale, 54 J. Personality Assessment 501 (1990)
97. Thomas Schill, Nerella V. Ramanaiah & S.R. Conn, Development of Covert and Overt Hostility Scales from the Buss-Durkee Inventory, 67 Psychol. Rep. 671 (1990)
98. Tim W. Smith, Jill D. Sanders & James F. Alexander, What Does the Cook and Medley Hostility Scale Measure? Affect, Behavior, and Attributions in the Marital Context, 58 J. Personality & Social Psychol. 699 (1990)
99. M.V. Ujjwalarani & Y.V. Ramavani, Measurement of Human Aggressiveness: Restandardization of Buss-Durkee Inventory, 33 Psychol. Stud. 137 (1988)
100. Wayne F. Velicer, Joseph Michael Govia, Nancy P. Cherico & Donald P. Corriveau, Item Format and the Structure of the Buss-Durkee Hostility Inventory, 11 Aggressive Behav. 65 (1985).
101. See Morse, supra note 10.
102. Id. at 289. Note that Morse's proposed mitigating excuse applies to all crimes, not just intentional homicide. Morse cannot understand why mitigation of criminal culpability via "extreme mental or emotional disturbance," to use the MPC's heat of passion language as an example, should only apply to intentional homicide. Admittedly, I share in Morse's confusion with respect to this issue; it seems that, in terms of retributive justice, one should be punished no more than he is guilty, regardless of whether the crime is intentional homicide, assault, theft, or any other crime. Historically, though, United States law has persistently treated crimes of intentional homicide differently with respect to mitigation of criminal culpability.
103. Id.
104. Id. at 304-07 (providing Morse's responses to anticipated objections to the GPR proposal).
105. The argument for mitigating criminal culpability according to a continuum of diminished capacity is not new. As a recent example, in their argument against the juvenile death penalty, Steinberg and Scott (2003) distinguished between mitigation and excuse in their proposal to account for developmental differences in psychosocial maturity between adolescents and adults. See Lawrence Steinberg & E.S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009 (2003).
106. See Morse, supra note 10.
107. David B. Wilson, Leana A. Bouffard & Doris L. Mackenzie, A Quantitative Review of Structured, Group-Oriented, Cognitive-Behavioral Programs for Offenders, 32 Crim. Just. & Behav. 172 (2005) (providing a recent quantitative review).
108. Dodge, supra note 53.