provocation; loss of self-control; impaired judgment; dual-process


Contemporary understanding of the provocation defense views the “loss of self-control” theory as the cornerstone of this partial excuse. In considering whether to reduce murder charges to manslaughter, juries and judges rely on this theory to determine if the defendant lost self-control after experiencing intense emotional arousal and if a reasonable person would have also likely lost self-control in similar circumstances. This Article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over- and underinclusive. It is overinclusive because it provides a basis for mitigation in cases where leniency is normatively unwarranted given policy considerations. It is also underinclusive because it only accommodates the typical reactions of angry defendants who manifest sudden impulsivity. It fails to help defendants who visibly appear calm and composed because their emotional arousal was triggered by a host of other emotions beyond anger—mostly fear, desperation, and hopelessness. This Article turns to psychological research on dual-process models to craft an alternative theory underlying the provocation defense. Drawing on these models’ two modes of thinking, it contends that provoked killers’ reactions may be understood as the result of emotions that shape actors’ judgment and decision-making processes. The Article uses the term “impaired judgment” to refer to these situations. Acknowledging both the promises and the pitfalls of this alternate theory, the Article advances two arguments. First, it posits that the concept of impaired judgment is better suited than loss of self-control to support provocation’s doctrinal framework. Second, it points to intrinsic limitations embedded in reliance on the loss of self-control theory, which is unable to account for provocation’s normative dimension. The theory must therefore be supplemented with a value-based component that would assist juries in determining the circumstances that make provocation adequate from a normative and evaluative perspective.

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