From Premodern Christianity to the Postmodern Jury

Reviewing: James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale University Press 2016); Dennis Hale, The Jury in America: Triumph and Decline (University Press of Kansas 2016)

Provocation Manslaughter as Partial Justification and Partial Excuse

The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. The defense traces back to the twelfth century and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal lawtheorists. The dominant scholarly view holds that provocation is best explained and defended as a partial excuse on the grounds that the killer’s inflamed emotional state so compromised his ability to conform his conduct to the demands of reason and law as to render him substantially less blameworthy for his conduct. In contrast, a small minority of scholars have maintained, without significant argumentative support, that provocation is best understood as a partial justification on the ground that the provoked killing is lesswrongful than is an unprovoked killing, ceteris paribus. Recently, other commentators have argued that provocation mitigation is neither partial excuse nor partial justification. Against all of these familiar positions, we argue that partial excuse and partial justification are necessary and sufficient conditions for provocation manslaughter. In our view, an intentional killing deserves to be punished and labeled as manslaughter rather than murder only when, because of provocation, this particular killing is significantly less wrongful than the standard intentional killing and when, because of the actor’s partial lack of control, he is less blameworthy for committing an act that remains all-things-considered wrongful. In elaborating and defending our account, we rebut the oft-repeated but rarely challenged propositions that justification and excuse, even in partial forms, are mutually exclusive, and that the very notion of partial justification is incoherent. We also draw forth implications for how the sentencing ranges for murder and manslaughter should be related

Taking Voluntariness Seriously

Courts and commentators commonly claim that criminal law contains a voluntary act requirement. Despite the ubiquity of this assertion, there is remarkably little agreement on what the voluntary act requirement entails. This lack of uniformity is particularly problematic because, for some crimes, whether a defendant is guilty or innocent will turn on which conception of voluntariness is applied. In this Article, we critique the various conceptions of the voluntary act requirement, and propose an alternative set of principles for applying the notion that person is only criminally culpable for crimes committed voluntarily. First, culpability requires that the actus reus as a whole (rather than merely one element of the actus reus) be voluntary. Second, the voluntariness requirement is an affirmative element of every offense, with the prosecution bearing the burden of proving voluntariness. Third, the Constitution requires that voluntariness is a necessary condition of criminal liability. These principles resolve the inconsistent understandings of the voluntariness requirement and ensure that criminal liability is limited to those defendants who are responsible for prohibited activity

Sea-level constraints on the amplitude and source distribution of Meltwater Pulse 1A.

During the last deglaciation, sea levels rose as ice sheets retreated. This climate transition was punctuated by periods of more intense melting; the largest and most rapid of these—Meltwater Pulse 1A—occurred about 14,500 years ago, with rates of sea-level rise reaching approximately 4 m per century1, 2, 3. Such rates of rise suggest ice-sheet instability, but the meltwater sources are poorly constrained, thus limiting our understanding of the causes and impacts of the event4, 5, 6, 7. In particular, geophysical modelling studies constrained by tropical sea-level records1, 8, 9 suggest an Antarctic contribution of more than seven metres, whereas most reconstructions10 from Antarctica indicate no substantial change in ice-sheet volume around the time of Meltwater Pulse 1A. Here we use a glacial isostatic adjustment model to reinterpret tropical sea-level reconstructions from Barbados2, the Sunda Shelf3 and Tahiti1. According to our results, global mean sea-level rise during Meltwater Pulse 1A was between 8.6 and 14.6 m (95% probability). As for the melt partitioning, we find an allowable contribution from Antarctica of either 4.1 to 10.0 m or 0 to 6.9 m (95% probability), using two recent estimates11, 12 of the contribution from the North American ice sheets. We conclude that with current geologic constraints, the method applied here is unable to support or refute the possibility of a significant Antarctic contribution to Meltwater Pulse 1A