Only if defined adequately. I mean, a dude shot up a gym yesterday because he felt 'provoked' by not being able to get a date.
Motive (which is really what we are talking about in that case) is often considered in sentencing, and not always does it favor the convicted. I'm comfortable with this.
Maybe a better question would be whether mandatory prison sentencing should exist for violent crimes, then? Because there's a well-established case history of either keeping DV victims who kill their abusers out of jail by aquittal or pardoning them down the track and releasing them from prison. I don't think aquittal is necessarily the correct response, but prison definitely isn't in those cases.
Maybe a better question would be whether mandatory prison sentencing should exist for violent crimes, then? Because there's a well-established case history of either keeping DV victims who kill their abusers out of jail by aquittal or pardoning them down the track and releasing them from prison. I don't think aquittal is necessarily the correct response, but prison definitely isn't in those cases.
I agree that it's a better question, but I'm not so convinced that at least a minimal prison sentence with parole definitely isn't a reasonable response, even in that sort of case.
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FencingsaxIt is difficult to get a man to understand, when his salary depends upon his not understandingGNU Terry PratchettRegistered Userregular
edited August 2009
I don't think mandatory sentences really work as well as a judge having discretion, because it creates room to set better precedents for extenuating circumstances.
I think there's a bit of confusion as to what the provocation defense is: it is a partial defense that reduces a charge from murder to manslaughter. It is not a complete defense such as self-defense or insanity.
Anyway, provocation law in the U.K. and Australia has been rather notorious. Camplin has already been mentioned and set up the "reasonable man" standard regardless of individual characteristics. But in 2001 the House of Lords in Regina v. Smith held that a jury instruction should have included consideration of evidence of clinical depression for disinhibited violence as part of the provocation defense. In two Austrailian provocation cases, Green v. Regina and Regina v. Gibson, the jury was allowed to take into account evidence of sexual senstivity because defendant's father had sexually abuse his sisters and evidence of sensitivity to blasphemy or sacrilege to an aboriginal religion.
While we may scoff at considerations of mental and cultural perspectives and seek to ban such abuse of the provocation defense, the defense of Battered Woman's Syndrome is the provocation defense, as The Cat has pointed out. We all have a "reasonable standard" in the level of self control we expect from other people.
States that have adopted the Model Penal Code have replaced the ambiguous provocation defense with the "extreme emotional disturbance" defense which requires (1) the defendant act under the influence of extreme emotional disturbance and (2) a "reasonable explanation or excuse" for the extreme emotional disturbance assessed from the viewpoint of a person in the actor's situation. This is actually a broader standard than the traditional "heat of passion" defense despite the "objective" assessment of a reasonableness. As such, courts have granted jury instructions for extreme emotional disturbance in some strange cases. People v. Moye (allowing consideration of ridiculing inability to have sex in decapitation and mutliation of victim). In some cases the defense has been rejected. Commonwealth v. Carr (rejecting psychiatric testimony of family history in murder of two lesbians due to disgust); State v. Raguseo (rejecting instruction when victim killed for parking in defendant's meticulously cared-for parking space); U.S. v. Roston (rejecting instruction when victim refused to stop eating sweets).
While it's nice to think that the provocation defense is useful due to the allowance of a Battered Spouse defense, there are some interesting law articles pointed out in my Crim Law book that argue that the MPC's broader standard is used more often to justify killing of women for infidelity or attempting to escape such abuse.
I don't think mandatory sentences really work as well as a judge having discretion, because it creates room to set better precedents for extenuating circumstances.
In the federal system judges sentence according to the Sentencing Guidelines, which is a complex system that establishes offense levels for certain crimes and individual offense characteristics. The Guidelines became necessary because of large sentencing disparities for the exact same crime, which is the problem with wide judicial discretion. While the Guidelines are merely advisory and judges may depart in either direction they may only do so when giving an articulable reason, and may take into account a large number of factors. This allows sentencing uniformity while at the same time allowing for reasonable mitigation or aggravation. See generally 18 U.S.C. Sec. 3553. I quite like the system, despite it's complexity, in that it is "fair" by providing consistent and reasonable results.
Of course the guidelines are merely a recommendation and are separate from statutory minimums. However a judge may still sentence lower than the statutory minimum under certain limited special circumstances in 18 U.S.C. Sec. 3553(e) and (f). These circumstances include "substantial assistance" to the government (usually turning evidence) and first time drug offenses committed without violence.
However if I come home and find a stranger in my house trying to tie up my half naked daughter and I shoot him 6 times in the back, how is justice served by locking me up?
AFAIK, by most state laws if someone has broken into your house you have a fairly wide license to shoot them and claim self defense. Especially if they are actively in a position to threaten harm to another person.
Yes. This is called killing someone to "prevent serious offenses against others". The person doesn't need to feel threatened. They only need to prove that a reasonable person would believe based on the situation that killing the person was the only way to prevent a serious offense against another (serious offense includes things like murder and rape, but not likely robbery).
While it's nice to think that the provocation defense is useful due to the allowance of a Battered Spouse defense, there are some interesting law articles pointed out in my Crim Law book that argue that the MPC's broader standard is used more often to justify killing of women for infidelity or attempting to escape such abuse.
Yeah, this is where it gets hard to balance things out. There've also been a number of provocation defenses attempted recently in the US where someone has had sex willingly and knowingly with a transvestite or transsexual, later been mocked by peers, and only then decided to kill said partner in order to purge the shame. Unfortunately, the sexual phobias of straights being what they are, the 'defence' is getting a lot more traction than it should.
While it's nice to think that the provocation defense is useful due to the allowance of a Battered Spouse defense, there are some interesting law articles pointed out in my Crim Law book that argue that the MPC's broader standard is used more often to justify killing of women for infidelity or attempting to escape such abuse.
Yeah, this is where it gets hard to balance things out. There've also been a number of provocation defenses attempted recently in the US where someone has had sex willingly and knowingly with a transvestite or transsexual, later been mocked by peers, and only then decided to kill said partner in order to purge the shame. Unfortunately, the sexual phobias of straights being what they are, the 'defence' is getting a lot more traction than it should.
This seems like a bit of a black and white view, taking a real example into consideration here (R v Camplin, if you care) a fifteen year old boy was raped and then subsequently taunted and laughed at by his rapist. He then beat the rapist to death with a nearby saucepan.
Bearing in mind that, at least in the UK where the crime was committed, murder is a mandatory life sentence (Though admittedly you can be paroled earlier than this), do you really think that this boy deserved to be hit with a life sentence for what he did?
Now I admit that you could deal with this by removing the mandatory life sentence on murder and taking the provocation into account during sentencing. However, it should also be recognised that there is a particular stigma associated with being called a murderer. Is it really fair to put the title of "murderer" on someone in a case such as this, do they really belong in the same category as a person who commits a premeditated murder in cold blood?
The provocation defence allows a person to recieve an adequate punishment for their crime (Hell, they've killed someone - they have to be punished in some way after all) but without simply throwing them into the same category as people who have committed far worse crimes while in a more stable mental condition.
This seems entirely dissimilar to the case I was responding to though, because a crime had previously been committed against this person. The example given was simply of words being exchanged, and then, as stated someone decided someone else "needs killin'".
Ah fair enough, I thought what were applying what you said to all cases where there was some provocation and I was just using a bit of a strong example to try and show that there are cases where a defence of provocation allows for a result that's (arguably) fairer than a murder conviction.
Well I suppose that cuts to the heart of the thread - there's viable reasons to infer the defense has use, it's just it seems like at the other end of the spectrum it's far too malleable from my albeit limited, IANAL perspective.
I mean, if you're being taunted by someone who's raped you, surely it can be argued there's a perceived threat to your person?
While it's nice to think that the provocation defense is useful due to the allowance of a Battered Spouse defense, there are some interesting law articles pointed out in my Crim Law book that argue that the MPC's broader standard is used more often to justify killing of women for infidelity or attempting to escape such abuse.
Yeah, this is where it gets hard to balance things out. There've also been a number of provocation defenses attempted recently in the US where someone has had sex willingly and knowingly with a transvestite or transsexual, later been mocked by peers, and only then decided to kill said partner in order to purge the shame. Unfortunately, the sexual phobias of straights being what they are, the 'defence' is getting a lot more traction than it should.
Haha wow. I mean that in a horrified fashion.
Yeah. That said, the two things bad kitty mentioned only involve offensive (to some) transgressions of cultural norms, and as such fail the guideline I suggested upthread.
It seems like 'witnessing or being subject to severe criminal violence' should just about cover it. Doesn't allow for sentence mitigation in the case of, say, someone who punched someone else back in a bar, but it does allow for it in cases of extended domestic violence followed by a defensive brainsnap.
The problem I see here is that provocation is a mental defense and what you're describing is hardly different from complete self-defense. The two really are quite different, at least in the eyes of the law. As I'm sure you're very aware, the law has problems with the battered spouse defense because of the "cool-off period." This results in a temporary mental disturbance that is not easily connected temporally to immanent danger of domestic violence. Exactly how long after being "subject to severe criminal violence" can a defendant claim provocation? Any concrete time frame is arbitrary and a "reasonable time" seems too short a timeframe and is very nebulous. To get around this the defenses of provocation, heat-of-passion, and extreme emotional disturbance attempt to track the mental state of the defendant: whether defendant actually experienced altered mental state and whether that states is "reasonable" under the defendant's circumstances.
It's really the distinction between two very basic concepts of criminal law: mens rea and actus reus i.e.; a guilty mind and a guilty act. Your test seems to rely on a lack of actus reus and is a complete defense: no crime was committed because we see self-defense as completely justified. However provocation is a partial lack of mens rea: the killing was morally wrong but the offender lacked the an egregious moral culpability due to a disturbed mental state, therefore the charge is reduced to manslaughter.
Additionally since your standard only encompasses criminal violence that removes the defense when the defendant is subject to "fighting words" and racial epithets, social ostricisization, "non-violent" crime, and any number of provocations that are not necessarily criminal.
Theres been debate bubbling about provocation for 20 years. Its problematic for a number of reasons:
-It turns trials from a study of the culpability of the accused into a trial on the culpability of the victim: 'did they deserve it?'
-In the context of homicides in domestic settings, its historically been a defense far more open to men than to women. Women who kill their partners after suffering domestic abuse are rarely provoked at the moment of killing, and therefore have great difficulty in proving provocation. Twenty years ago, they wouldn't even have the option. In contrast, men routinely argue provocation out of jealousy when their partners confessed to adultery.
-Its also discriminatory on other grounds. In the 80's especially, it was non uncommon for men to successfully plead manslaughter by provocation when they had been the subject of a homosexual advance. Then theres ethnicity. In one famous Australian case, the trial judge ruled that the actions of a man who had murdered his daughter's boyfriend fell within the range of 'an ordinary hotblooded Italian male'. Is that a road we want to go down?
-Given that in most juristidictions, murder no longer has a mandatory life sentence and judges get lots of flexibility in sentencing, whats the point of the provocation defense? Why not treat cases involving provocation as straight up murder, and let the judge think over provocation issues in sentencing?
-On the other hand, some argue that in cases of clear provocation where everyone would sympathize entirely with the accused (say, a rape victim who grabs a gun and kills her attacker as he walked away), that such people should not have to live the rest of their lives with the label of "murderer". Calling the crime manslaughter also makes it more likely that the community will understand and accept a reduced sentence. If the woman in my example got 12 months, but another murderer got 10 years for what is technically the same crime, the community might easily cry hypocrisy unless they take the time to look into the details.
-It turns trials from a study of the culpability of the accused into a trial on the culpability of the victim: 'did they deserve it?'
But it doesn't have to. Instead of, "Did they deserve it?" you could ask, "Was the defendant emotionally compromised by the victim, to the degree that an otherwise mentally stable person committed murder?" Take the example of the dad who pushed the kid to stab him with the knife, to the point that he continued to put the knife back into the kid's hand after he dropped it. Eventually, the dad pushed him far enough and the kid stabbed him. Is that murder, or provoked manslaughter (or some other, more accurate term)?
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AtomikaLive fast and get fucked or whateverRegistered Userregular
edited August 2009
Is it okay to kill someone if they were asking for it?
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Motive (which is really what we are talking about in that case) is often considered in sentencing, and not always does it favor the convicted. I'm comfortable with this.
I agree that it's a better question, but I'm not so convinced that at least a minimal prison sentence with parole definitely isn't a reasonable response, even in that sort of case.
Anyway, provocation law in the U.K. and Australia has been rather notorious. Camplin has already been mentioned and set up the "reasonable man" standard regardless of individual characteristics. But in 2001 the House of Lords in Regina v. Smith held that a jury instruction should have included consideration of evidence of clinical depression for disinhibited violence as part of the provocation defense. In two Austrailian provocation cases, Green v. Regina and Regina v. Gibson, the jury was allowed to take into account evidence of sexual senstivity because defendant's father had sexually abuse his sisters and evidence of sensitivity to blasphemy or sacrilege to an aboriginal religion.
While we may scoff at considerations of mental and cultural perspectives and seek to ban such abuse of the provocation defense, the defense of Battered Woman's Syndrome is the provocation defense, as The Cat has pointed out. We all have a "reasonable standard" in the level of self control we expect from other people.
States that have adopted the Model Penal Code have replaced the ambiguous provocation defense with the "extreme emotional disturbance" defense which requires (1) the defendant act under the influence of extreme emotional disturbance and (2) a "reasonable explanation or excuse" for the extreme emotional disturbance assessed from the viewpoint of a person in the actor's situation. This is actually a broader standard than the traditional "heat of passion" defense despite the "objective" assessment of a reasonableness. As such, courts have granted jury instructions for extreme emotional disturbance in some strange cases. People v. Moye (allowing consideration of ridiculing inability to have sex in decapitation and mutliation of victim). In some cases the defense has been rejected. Commonwealth v. Carr (rejecting psychiatric testimony of family history in murder of two lesbians due to disgust); State v. Raguseo (rejecting instruction when victim killed for parking in defendant's meticulously cared-for parking space); U.S. v. Roston (rejecting instruction when victim refused to stop eating sweets).
While it's nice to think that the provocation defense is useful due to the allowance of a Battered Spouse defense, there are some interesting law articles pointed out in my Crim Law book that argue that the MPC's broader standard is used more often to justify killing of women for infidelity or attempting to escape such abuse.
In the federal system judges sentence according to the Sentencing Guidelines, which is a complex system that establishes offense levels for certain crimes and individual offense characteristics. The Guidelines became necessary because of large sentencing disparities for the exact same crime, which is the problem with wide judicial discretion. While the Guidelines are merely advisory and judges may depart in either direction they may only do so when giving an articulable reason, and may take into account a large number of factors. This allows sentencing uniformity while at the same time allowing for reasonable mitigation or aggravation. See generally 18 U.S.C. Sec. 3553. I quite like the system, despite it's complexity, in that it is "fair" by providing consistent and reasonable results.
Of course the guidelines are merely a recommendation and are separate from statutory minimums. However a judge may still sentence lower than the statutory minimum under certain limited special circumstances in 18 U.S.C. Sec. 3553(e) and (f). These circumstances include "substantial assistance" to the government (usually turning evidence) and first time drug offenses committed without violence.
Yes. This is called killing someone to "prevent serious offenses against others". The person doesn't need to feel threatened. They only need to prove that a reasonable person would believe based on the situation that killing the person was the only way to prevent a serious offense against another (serious offense includes things like murder and rape, but not likely robbery).
Ah fair enough, I thought what were applying what you said to all cases where there was some provocation and I was just using a bit of a strong example to try and show that there are cases where a defence of provocation allows for a result that's (arguably) fairer than a murder conviction.
I mean, if you're being taunted by someone who's raped you, surely it can be argued there's a perceived threat to your person?
The problem I see here is that provocation is a mental defense and what you're describing is hardly different from complete self-defense. The two really are quite different, at least in the eyes of the law. As I'm sure you're very aware, the law has problems with the battered spouse defense because of the "cool-off period." This results in a temporary mental disturbance that is not easily connected temporally to immanent danger of domestic violence. Exactly how long after being "subject to severe criminal violence" can a defendant claim provocation? Any concrete time frame is arbitrary and a "reasonable time" seems too short a timeframe and is very nebulous. To get around this the defenses of provocation, heat-of-passion, and extreme emotional disturbance attempt to track the mental state of the defendant: whether defendant actually experienced altered mental state and whether that states is "reasonable" under the defendant's circumstances.
It's really the distinction between two very basic concepts of criminal law: mens rea and actus reus i.e.; a guilty mind and a guilty act. Your test seems to rely on a lack of actus reus and is a complete defense: no crime was committed because we see self-defense as completely justified. However provocation is a partial lack of mens rea: the killing was morally wrong but the offender lacked the an egregious moral culpability due to a disturbed mental state, therefore the charge is reduced to manslaughter.
Additionally since your standard only encompasses criminal violence that removes the defense when the defendant is subject to "fighting words" and racial epithets, social ostricisization, "non-violent" crime, and any number of provocations that are not necessarily criminal.
-It turns trials from a study of the culpability of the accused into a trial on the culpability of the victim: 'did they deserve it?'
-In the context of homicides in domestic settings, its historically been a defense far more open to men than to women. Women who kill their partners after suffering domestic abuse are rarely provoked at the moment of killing, and therefore have great difficulty in proving provocation. Twenty years ago, they wouldn't even have the option. In contrast, men routinely argue provocation out of jealousy when their partners confessed to adultery.
-Its also discriminatory on other grounds. In the 80's especially, it was non uncommon for men to successfully plead manslaughter by provocation when they had been the subject of a homosexual advance. Then theres ethnicity. In one famous Australian case, the trial judge ruled that the actions of a man who had murdered his daughter's boyfriend fell within the range of 'an ordinary hotblooded Italian male'. Is that a road we want to go down?
-Given that in most juristidictions, murder no longer has a mandatory life sentence and judges get lots of flexibility in sentencing, whats the point of the provocation defense? Why not treat cases involving provocation as straight up murder, and let the judge think over provocation issues in sentencing?
-On the other hand, some argue that in cases of clear provocation where everyone would sympathize entirely with the accused (say, a rape victim who grabs a gun and kills her attacker as he walked away), that such people should not have to live the rest of their lives with the label of "murderer". Calling the crime manslaughter also makes it more likely that the community will understand and accept a reduced sentence. If the woman in my example got 12 months, but another murderer got 10 years for what is technically the same crime, the community might easily cry hypocrisy unless they take the time to look into the details.
But it doesn't have to. Instead of, "Did they deserve it?" you could ask, "Was the defendant emotionally compromised by the victim, to the degree that an otherwise mentally stable person committed murder?" Take the example of the dad who pushed the kid to stab him with the knife, to the point that he continued to put the knife back into the kid's hand after he dropped it. Eventually, the dad pushed him far enough and the kid stabbed him. Is that murder, or provoked manslaughter (or some other, more accurate term)?
Texas says: Yes.
Just as long as your victims turns out to be illegal aliens/drug runners/serial burglars with outstanding warrants.