Concept

Limits on Mitigation

MPC extreme emotional disturbance

Limits on Mitigation

The preceding sections showed the extreme-disturbance defense widening in several directions: the Code sets no cooling-off clock and names no required source for the disturbance. A standard that open needs edges, because otherwise any intentional killing that followed anger or distress would be a candidate for reduction to manslaughter. Those edges are found in the wording of § 210.3(1)(b) itself. The provision applies only to "a homicide which would otherwise be murder," it requires that the killing occur "under the influence of" extreme mental or emotional disturbance, and it conditions mitigation on a "reasonable explanation or excuse" judged from the viewpoint of a person in the actor's situation.¹ The limits collected here operate through that last phrase, which is why they can be applied without any added statutory language.

A defense built on understanding needs these edges for a reason that can be read off its structure. The reduction from murder to manslaughter rests on the premise that the actor's disturbance is something a factfinder can understand and partly share, so that the killing deserves less blame than a cold-blooded one. Where the disturbance is of the actor's own making, or where the only thing that explains it is the actor's own makeup, that premise gives out. A rule that mitigated anyway would reduce blame with no understandable disturbance behind the reduction. The three sections below take up the limits that follow from this: the disturbance the actor brought on himself, the mental infirmity that falls short of insanity and does not by itself supply a reasonable explanation, and the factfinder's power to withhold mitigation even after finding a disturbance.

Limits can also come from the legislature. The Code's own text lists no excluded explanations, so a jurisdiction that adopts its formula may remove a category of explanation from the second component by statute.² New York, which uses the Code's "extreme emotional disturbance" formulation in defining voluntary manslaughter, has done this for intentional murder.³ Its statute provides that an explanation is not a reasonable explanation or excuse when the defendant's conduct resulted from the discovery, knowledge, or disclosure of the victim's sexual orientation, sex, gender, gender identity, gender expression, or sex assigned at birth.⁴ The exclusion works on the reasonableness component and leaves the first component alone, so a defendant may be genuinely and intensely disturbed and still have no reasonable explanation as a matter of law.

Hypothetical Illustration

In a New York prosecution for intentional murder, a defendant learns that an acquaintance is gay and kills the acquaintance, offering evidence of overwhelming shock. Even if the factfinder believes the shock was real and extreme, the discovery of the victim's sexual orientation cannot supply a reasonable explanation or excuse under the statute, so the second component fails before the factfinder weighs anything else.

Change only what the defendant discovers. The defendant learns that the acquaintance has secretly drained the defendant's savings and kills in the same state of shock. The statutory exclusion says nothing about that discovery, so the factfinder runs the ordinary two components: whether the defendant was in fact acting under extreme disturbance, and whether, from the defendant's situation and the circumstances as the defendant believed them to be, there was a reasonable explanation or excuse for it.

The two scenes differ only in the content of the trigger, and that difference decides the outcome, because the exclusion looks at what kind of explanation is offered and ignores how intense the disturbance was. A categorical exclusion of this kind also differs from the three limits that follow, which the factfinder applies case by case to the facts of a particular killing. The common mistake is treating a genuine disturbance as enough, when the Code and any statute built on it still require that the explanation for the disturbance be one the law counts as reasonable.

Self-Induced Disturbance

The first limit concerns where the disturbance came from. Section 210.3(1)(b) asks whether the killing was committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, and its text says nothing about a disturbance the actor created for himself.⁶ The boundary comes from the Code's official commentary, which the Hawaii court in State v. Dumlao recorded in a footnote. The commentary treats it as implicit that extreme emotional disturbance will not reduce murder to manslaughter if the actor intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as by involving himself in a crime.⁷ Two features of that statement matter. The limit is implicit, which means it is derived from the Code's formulation and comments, and no clause of the statute spells it out. It also reaches every culpable way of causing the disturbance, from a purposeful one down to a negligent one, so an actor need not have planned to generate a disturbance for the limit to apply.

Because the limit has no clause of its own, it has to work through a component the text does supply, and the natural home is the requirement of a reasonable explanation or excuse. The reduction from murder to manslaughter rests on the idea that a factfinder can understand the disturbance and see the killing as less blameworthy for it. An actor who enters a crime and then panics when it goes wrong has created, by his own choice, the very state he now offers as the explanation. If that state could mitigate, the law would turn the wrongdoing into the excuse: committing the crime would first produce the disturbance and then the defense, and the actor with the most reason to expect trouble would be best placed to claim it. Treating a self-created disturbance as lacking a reasonable explanation closes that loop at its source.

Some legislatures put the same idea into statutory text. A few modern codes built on the Code's formula require that the defendant not have been at fault in bringing about the provoking events.⁸ In those jurisdictions the limit is a stated requirement that the prosecution can point to directly. Under the Code itself the argument has to be made through the second component, by showing that a disturbance of the actor's own making gives no reasonable explanation or excuse for the killing. The limit is also tied to the actor's own culpable role in producing the disturbance. A disturbance that arises from events the actor did not bring about stays within the ordinary two-component analysis.

Hypothetical Illustration

Pruitt breaks into a pharmacy at night expecting it to be empty. The pharmacist walks in, and Pruitt, panicking at the prospect of arrest, intentionally shoots and kills the pharmacist. He offers evidence that he was overwhelmed by terror. Even if the factfinder accepts the terror as genuine and extreme, Pruitt brought about the confrontation by entering to commit a crime. A disturbance created that way supplies no reasonable explanation or excuse, and the intentional killing remains murder.

Change the source of the disturbance and keep the setting. Okafor, a pharmacist working late, is struck on the head by an intruder and badly hurt, and in a daze of fear and pain she shoots the intruder dead. Okafor did nothing to bring about the blow, so the self-induced limit does not apply. The factfinder runs the ordinary components: whether Okafor in fact acted under extreme disturbance, and whether the injury, viewed from her situation and the circumstances as she believed them to be, gives a reasonable explanation or excuse.

The two scenes differ in who created the disturbance, and that difference decides the result. The intensity of the feeling is the same in both, so intensity cannot be what moved the answer. Students lose this issue when they treat genuine terror as enough, reasoning that a real and extreme disturbance satisfies the first component and therefore ends the inquiry. The self-induced limit leaves the first component alone and defeats the second, because an actor can be truly disturbed and still have no reasonable explanation for the state he made for himself. The next section turns to a different edge of the defense, the mental infirmity that falls short of insanity.

Mental Infirmity Is Not Enough

The extreme-disturbance defense lets a defendant explain a killing by pointing to the state of his own mind. In People v. Casassa the New York Court of Appeals recalled that the defense exists to permit the defendant to show that his actions were caused by "a mental infirmity not arising to the level of insanity," and that he is therefore less culpable.¹⁰ The court described the defense as a lesser form of mental infirmity than insanity, so a defendant who invokes it need not show a disorder severe enough to excuse him entirely.¹¹ The Code's wording points the same way. Mitigation is possible for a person who kills while experiencing anger, jealousy, fear, or another extreme emotional reaction, or an extreme mental disturbance that does not rise to insanity.¹² That opening is real, but it has an edge, and the edge is the subject of this section.

The same court cautioned that it had never held every mental infirmity short of insanity to be an extreme emotional disturbance.¹³ The reason can be read off the structure of § 210.3(1)(b), which pairs an actual disturbance with a reasonable explanation or excuse for it.¹⁴ An infirmity can help produce the disturbance, and evidence of it can help prove the first component. The explanation must still come from something the factfinder can understand, and that second component is what keeps a diagnosis from settling the question. If any diagnosable condition short of insanity were enough, the reasonableness requirement would disappear, and the defendants most prone to explode over trifles would have the strongest claims. Such a rule would reduce a defendant's blame for the very reason he is dangerous. Requiring a reasonable explanation reserves mitigation for reactions an ordinary citizen can understand and partly share.

Casassa shows the requirement at work. The trial court accepted as a factual matter that the defendant killed while under the influence of extreme emotional disturbance, which the court of appeals treated as a threshold question that must be answered in the affirmative before reasonableness is reached.¹⁵ The trial court then weighed each mitigating factor the defendant offered, including his claimed mental disability, and found the excuse so peculiar to him that it was unworthy of mitigation, concluding that the killing came from malevolence rather than an understandable human response.¹⁶ The court of appeals could not say as a matter of law that this was error. Casassa is also cited for the proposition that some extreme and unwarranted jealousies will not suffice.¹⁷ A disturbance can therefore be fully accepted as genuine, and an infirmity fully considered, while the second component still fails.

The Code's phrase "the actor's situation" explains why the infirmity gets weighed at all and why the weighing still can end against the defendant. The common-law reasonable man test uniformly disregarded special mental qualities, such as unusual excitability after a head injury or sunstroke, and treated an intoxicated defendant as a sober one.¹⁸ The Code's "situation" takes in personal handicaps and some external circumstances, such as blindness, shock from traumatic injury, and extreme grief, but it leaves out idiosyncratic moral values.¹⁹ The Hawaii court in State v. Dumlao read the phrase as flexible enough to let the law account for mental abnormalities.²⁰ Even so, the Oregon Supreme Court in State v. Ott refused to treat a defendant's personality traits, such as a bad temper, as part of the situation. Otherwise a bad-tempered person could be spared a murder conviction while an even-tempered person in exactly the same circumstances was convicted.²¹

Dumlao and Casassa answer different questions, and the difference matters. In Dumlao an expert diagnosed paranoid personality disorder with pathological jealousy that had run through a ten-year marriage, and family members confirmed the defendant's extreme and irrational suspicion. The court held that this evidence required a manslaughter instruction, because the issue is whether any evidence supports a disturbance with a reasonable explanation when the circumstances are judged from the defendant's personal viewpoint.²² Dumlao therefore asks whether the question reaches the factfinder at all. Casassa asks what happens after a factfinder has weighed the infirmity: the statute does not require a finding of mitigation on any particular set of facts, and the factfinder may conclude that the excuse is too peculiar to the defendant to justify mercy.²³ An infirmity can be strong enough to put the defense before the factfinder and still fail to persuade.

Where an infirmity contributes to a disturbance and the factfinder concludes that there is a reasonable explanation or excuse from the actor's situation, the reduction to manslaughter is open.²⁴ Where the infirmity is the only thing that links the trigger to the killing, the explanation is peculiar to the defendant and the reduction is likely to be refused.

Hypothetical Illustration

Hale has a diagnosed anxiety disorder that falls well short of insanity. A drunk driver, having just killed Hale's sibling in a collision Hale witnessed, climbs out of the wreck and shrugs off what happened, and Hale kills the driver on the spot. The disorder deepened Hale's reaction, but the trigger is one an ordinary citizen can understand, so there is a reasonable explanation for the extreme disturbance from Hale's situation, and the factfinder may reduce the charge to manslaughter.

Change only the trigger. A store clerk hands Hale the wrong change, and Hale kills the clerk. The disturbance may be entirely genuine, but even viewing the circumstances as Hale perceived them, a miscounted handful of coins makes the killing understandable only through the disorder itself. The explanation is peculiar to Hale, and the factfinder may refuse the reduction.

The two scenes share the same diagnosis and the same intensity of feeling, so the diagnosis cannot be what moved the answer. What differs is whether anything beyond the infirmity makes the reaction intelligible. The trap is treating the diagnosis as the explanation, on the theory that proof of a mental infirmity short of insanity ends the inquiry. The defense calls for both components, and the factfinder's remaining power to withhold mitigation after a finding of disturbance is the final limit, taken up next.

The Factfinder's Discretion

The limits collected so far are rules the factfinder applies to the facts of a killing. The last one concerns what the factfinder does after those rules have been satisfied, and it comes from the structure of the formula itself. Section 210.3(1)(b) makes a killing manslaughter when it would otherwise be murder and was committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.²⁶ In People v. Casassa the New York Court of Appeals construed New York's version of that formula, which was drawn from the Code and its comments.²⁷ The court read the statute as one that does not require the factfinder to find mitigation on any particular set of facts. It gives the factfinder an opportunity to mitigate, and that opportunity is conditional only on a finding of extreme emotional disturbance in the first instance.²⁸ A defendant whose disturbance is found has therefore earned the chance to argue for mercy, and the factfinder decides whether leniency is justified after considering a broad range of mitigating circumstances.²⁹

The discretion has a definite place in the order of the analysis. The first question is factual and subjective: did this defendant in fact act under extreme emotional disturbance? Casassa treated that as a threshold question that must be answered in the affirmative before any test of reasonableness is required.³⁰ Only after the threshold is crossed does the factfinder turn to the second component, and that inquiry is a real one. The trial court in Casassa carried it out by weighing each mitigating factor the defendant offered, found the excuse so peculiar to him that it was unworthy of mitigation, and concluded that the killing came from malevolence rather than an understandable human response deserving of mercy.³¹ The previous section met that holding as a limit on mental infirmity. Seen from the factfinder's side, it shows the general shape of the power: a conviction for murder survived a finding of disturbance, and the Court of Appeals could not say as a matter of law that the trial court had erred.³²

Each half of this arrangement has its own reason. The open reasonableness standard exists because the second component was designed to sweep away the rigid rules about which kinds of provocation suffice, such as the rule that words alone can never be enough.³³ Once those categories are gone, the same logic rules out a mirror-image list. A set of facts that compelled mitigation would recreate the rigidity the Code removed, only pointed in the defendant's favor. The court acknowledged that the formulation gives no precise guidelines and leaves room for judgmental evaluation by the jury, and it treated that as the drafters' intent, quoting their description of a plea in mitigation "with the jury asked to show whatever empathy it can."³⁴ The threshold finding supplies the other half. Empathy needs something to attach to, and requiring a finding that the defendant really was under extreme disturbance ties the factfinder's mercy to a factual basis in the defendant's own mental state.

The court also connected this design to a familiar view of what mitigation statutes do. Quoting Justice Cardozo, it described them as a privilege offered to the jury to find the lesser degree when the passion seems to call irresistibly for mercy, a dispensing power that should be given directly and not in a "mystifying cloud of words."³⁵ The court concluded that the legislature meant to let the factfinder mitigate when a situation appears to have produced an understandable human weakness, without spelling out in detail the circumstances in which the statute applies.³⁶ Because the final judgment is evaluative, appellate review is narrow. The reviewing court does not ask whether it would have been moved to mercy on the same record. It asks whether the trial court erred as a matter of law, and a conclusion reached after a sincere effort to understand the defendant's situation and the circumstances as he believed them to be was not legal error in Casassa.³⁷

This arrangement did not begin with the Code. In most common-law jurisdictions, legally sufficient provocation was needed to reach the jury but did not guarantee a verdict for the defense, because the jury could still return murder, and the modern trend leaves the adequacy of provocation to the jury.³⁸ The Code widened the range of circumstances a factfinder may consider while keeping some element of objectivity in the process, and the weighing at the end stayed with the factfinder.³⁹

Hypothetical Illustration

Delgado comes home to find that a contractor has deliberately burned down the house he spent twenty years building, and he kills the contractor within the hour. The factfinder accepts that Delgado acted under extreme emotional disturbance. Weighing his situation and the circumstances as he believed them to be, the factfinder concludes that the loss is an understandable human response, and the homicide is reduced to manslaughter.

Hold the evidence constant and change only the final judgment. A different factfinder, also accepting that Delgado was extremely disturbed, concludes that the explanation does not call for mercy and returns a murder verdict. On a record like this one, either verdict is open to the factfinder. A reviewing court asks only whether the factfinder erred as a matter of law, and does not ask whether it would have shared the first factfinder's sympathy.

The pair marks the line between a finding and a result. Students lose this issue when they treat a finding of disturbance as a guarantee of manslaughter, because the finding only opens the opportunity to mitigate. The finding is also indispensable. Without it, the factfinder's sympathy for a defendant, however strong, gives no ground for reducing the homicide.⁴⁰ Who must establish the disturbance, and who bears the risk if the evidence is evenly balanced, is a separate question, and the next section takes it up through the burden of proof.