Document Type


Publication Date

Spring 2018

Publication Title

American Criminal Law Review


heat of passion, provocation, anger, blameworthy, defendant, culpability


This article seeks to resolve a longstanding conceptual puzzle plaguing the "heat of passion" doctrine--how courts should determine which features, beliefs, or characteristics of a defendant are properly relevant to assessing whether the defendant was sufficiently provoked, and which of those features should be disregarded. This article argues that provocation is not adequate if the reason the defendant became extremely angry is due to some blameworthy belief or attribute of the defendant. A belief is blameworthy if it contradicts the fundamental values of the political community. The blameworthiness principle distinguishes those aspects of the defendant that cannot form a basis to argue the defendant was reasonably provoked from those aspects that can properly form the basis of a provocation claim.

Part I introduces the "heat of passion" doctrine and briefly explains both the conceptual problem and this article's solution. Part II more carefully examines the nature of the "heat of passion" doctrine, focusing in particular on the second component--whether the provocation was "reasonable" or "sufficient." Part III frames the problem--which characteristics of a defendant should be considered when assessing the reasonableness of provocation--by describing four example cases that elicit differing intuitions among many commentators. Part IV considers standards articulated by other commentators seeking to resolve this problem. Using the examples given in Part III, Part IV also explains why each of these standards fails to properly differentiate the cases. Part V then explains the correct standard--that the sufficiency of the provocation must be based on whether the defendant's reason for becoming extremely angry is itself blameworthy. Part V also explains how this standard correctly distinguishes among the examples given, and is grounded on the fundamental principle of culpability underlying criminal punishment. Part VI turns to several recurring types of provocation claims: claims by men who kill their intimate partners, and so-called "gay panic" and "trans panic" cases. Part VI also explains how these types of cases likewise involve the same conceptual issue at play in cases involving minority cultural or religious beliefs and how the "blameworthiness" principle provides the correct standard for differentiating the few valid provocation claims in these cases from the many invalid claims.