From Heat of Passion to Disturbance

From Heat of Passion to Disturbance

The disturbance clause in § 210.3(1)(b) replaced an older doctrine, and it is easiest to read as an answer to what that doctrine did poorly. In most jurisdictions, common-law voluntary manslaughter was an intentional homicide committed under extenuating circumstances that mitigate the killing without justifying or excusing it. The principal circumstance was a state of passion produced by an adequate provocation, meaning one that would cause a reasonable person to lose normal self-control.¹ The logic is that even a greatly provoked reasonable person does not kill, yet the homicidal reaction of someone who has lost self-control is at least understandable. The law therefore gives that killer an intermediate label, one that is neither murder nor no crime at all.² The doctrine also has a historical explanation. English courts could adjust punishment for most crimes in light of extenuating facts, but the penalty for murder stayed fixed at death, so the provocation rule served as a limited concession to human weakness inside that rigid scheme.³

The criticism of the common-law formula is collected in the dissenting opinion in Patterson v. New York, which traces New York's version of the Code's approach to dissatisfaction with the old framework.⁴ Critics said its archaic vocabulary obscured the factors that mattered to the jury, and the dissent identifies three features that critics wanted changed. Each is taken up again in a later section, so only the outline of each appears here.

The first limit was narrowness. Only a limited range of aggravations produced mitigation, usually direct provocation by the victim himself, and reformers thought that people whose emotions were stirred by other outrageous conduct, even conduct by someone other than the person killed, should likewise be punished as manslaughterers rather than murderers.⁵ Many states made the narrowness explicit by listing categories of legally sufficient provocation, such as adultery, battery, and mutual combat, and by holding that mere words, however insulting, could never mitigate.⁶ A list of categories tracks the trigger, while the reason for mitigation is that the actor's loss of self-control is understandable, and an understandable loss of control can have a cause the list omits. Courts applying the old rule quite consistently denied mitigation to an actor who, provoked by one person, struck out at a bystander known to be innocent, on the assumption that no reasonable person would be so provoked. The Code imposes no such limit, because the cause and intensity of the emotion in such a case may be less indicative of moral depravity than a homicidal response to a blow to one's own person.⁷

The second limit was strict objectivity. Only provocations that might cause the hypothetical reasonable person to lose control could be considered.⁸ Courts quite uniformly refused to consider the defendant's special mental qualities, such as unusual excitability after a head injury, and they judged an intoxicated defendant by the standard of the reasonable sober person.⁹ That measure has an internal difficulty. It asks how an abstract person would react while discarding facts such as blindness, shock from traumatic injury, or extreme grief, which shape how a real person lives through an event. The Code's drafters regarded an appraisal of mitigation that ignored those facts as morally obtuse.¹⁰

The third limit was the cooling-off rule. A provocation of the right kind still failed to reduce the crime if enough time had passed for the reasonable person's passion to cool, whether or not the actor's own passion had actually subsided.¹¹ The majority rule applied that test even to a defendant who was slower to cool than the ordinary person.¹² The rule thus identified when a hypothetical person would have recovered and treated that moment as binding on an actual person whose emotions might have followed a different course. It also fit poorly with provocations that build over a series of events across a considerable span, which some courts recognized as capable of producing a reasonable passion.¹³

The American Law Institute answered these complaints by proposing to replace "heat of passion" with the moderately broader concept of "extreme mental or emotional disturbance." The proposal first appeared in a tentative draft published in 1959, and it was included as § 210.3 of the 1962 Proposed Official Draft.¹⁴ New York's Revised Penal Law of 1967 adopted the formula virtually word for word. It also dropped the archaic vocabulary, including any mention of malice aforethought, in favor of lean descriptions of the factors that matter.¹⁵ Read against the three limits, the text of the clause answers each. It speaks of disturbance rather than provocation, so it names no required trigger. It says nothing about suddenness or elapsed time. It measures reasonableness from the viewpoint of a person in the actor's situation under the circumstances as the actor believes them to be.¹⁶ The viewpoint clause is the subject of its own section, as are the timing and the source of the disturbance.

The Code broadened the doctrine without discarding its core. The dissent in Patterson calls extreme emotional disturbance the modern equivalent of heat of passion and says the drafters were refining the concept, not rejecting the idea that some people who kill in an emotional outburst deserve lesser punishment.¹⁷ The majority opinion in the same case, though it divided from the dissent on other questions, likewise described New York's defense as a substantially expanded version of the older heat-of-passion concept.¹⁸ The drafters kept an objective element, the requirement of a reasonable explanation or excuse, because they wanted to broaden the doctrine while retaining some objectivity in its application.¹⁹ A frequent exam error is to treat the disturbance standard as an unrelated doctrine, so that nothing known about heat of passion carries over, when the Code's formulation rests on the same underlying idea and the older limits explain what it was built to fix.

The formulation spread widely but not uniformly. Of 34 states that revised their penal codes after the Code appeared, five adopted its provocation proposals almost verbatim: Arizona, Arkansas, Connecticut, Kentucky, and New York. At least a dozen others took some of its features, usually the extreme emotional disturbance formulation, but altered it, for example by requiring a provocative act or by replacing the actor's-situation language with a more general reasonableness standard. Roughly twenty states now use some version of the test.²⁰ Some versions read as less subjective than the Code's, and a few require that the defendant not have been at fault in bringing about the provoking events.²¹ Hawaii's statute derives from § 210.3, and the Hawaii court read the Code's concept as defining the provocation element of manslaughter in broader terms than earlier law.²² Where the broader standard applies, extreme emotional disturbance can reach the jury on facts that common-law provocation probably would not have.²³ Because a given state's statute may match the Code or depart from it, the wording of the governing provision decides which of the refinements described here are in force.