B. Extreme Emotional Disturbance
The Model Penal Code departs from the common law defense of provocation in significant ways. As codification of homicide laws engendered a variety of approaches to the offense of murder , the drafters of the MPC rejected many of these developments. In promulgating the Model Penal Code, the drafters noted that “the law . . . was not well developed” and the “perception on which the Model Code was based was that this pattern of statutory treatment was substantially deficient for failing to confront the major policy questions posed by the offense.”
Consequently, Model Penal Code section 210.3 defined manslaughter as follows:
(1) Criminal homicide constitutes manslaughter when:it is committed recklessly; or a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree.
Accordingly, extreme emotional disturbance, the MPC version of provocation, has two principle elements: the defendant must have acted under the influence of extreme emotional disturbance and there must have been a reasonable explanation or excuse for such extreme emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. The first requirement is wholly subjective as it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or a sham. The second component was designed to replace the rigid rules that had developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be sufficiently provocative.
This expansion allows for a consideration of racial imagery, symbolism, or articulations as violence. The ultimate test remains, however, objective. There must be a reasonable explanation or excuse for the actor's disturbance. In order to determine whether defendant's emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse, the subjective internal situation in which the defendant found himself and the external circumstances as he perceived them should be viewed from the standpoint of the accused (no matter how inaccurate that perception may have been). An assessment must be made of whether the explanation or excuse for the emotional disturbance was reasonable so as to entitle the defendant to a reduction of the crime charged from murder to manslaughter.
Critical psychology has much to add to this analysis, not only with regard to the reasonableness of any emotional disturbance based upon racialized violence, but also as to the normative basis. It is imperative to recognize that the test is not whether it is reasonable to kill but whether the emotional disturbance was reasonable given the situation as the accused assessed it. According to Herbert Wechsler, one of the architects of the MPC, “The purpose [of this expanded version of common law provocation] was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions,with the jury asked to show whatever empathy it can.” Critical psychology speaks directly to such trauma and racialized stress and is capable of infusion into the criminal law to grant mitigation based upon the mental sequelae of racism.
Accordingly, the MPC made significant changes to the common law definition of manslaughter. Most importantly, the MPC drafters intended extreme mental or emotional disturbance to be both broader and more subjective than provocation was at common law. The MPC defense is a considerably expanded version of the common law defense of heat of passion on sudden provocation.
For instance, the MPC allowance for distress in the abstract is a significant departure, especially insofar as critical psychology is concerned. The MPC does not require that the actor's emotional distress arise from some injury, affront or other provocative act of the deceased. Emotional distress and some reasonable explanation for its existence is sufficient. The MPC states:
Under the Code, mitigation may be appropriate where the actor believes that the deceased is responsible for some injustice to another or even where he strikes out in a blinding rage and kills an innocent bystander. In such cases, the cause and intensity of the actor's emotion may be less indicative of moral depravity than would be a homicidal response to a blow to one's person.
Accordingly, by not following the common law's traditional adherence to rigid rules limiting provocation to certain circumstances, the MPC allows the trier of fact to decide, where there is evidence of extreme emotional or mental disturbance, whether the circumstances provide a reasonable excuse for the actor's mental condition. By abandoning preconceived notions of what is adequate provocation, the MPC allows a jury to consider critical psychology in its deliberations.
Most importantly, the MPC broadens the objective analysis of provocation. In assessing the reasonableness of the excuse, the relevant viewpoint is that of a person in the actor's “situation” under the circumstances as he believed them to be. The MPC drafter's intentionally used the ambiguous term “situation” to allow a rich examination of context, while still preventing idiosyncratic individualization of the legal standard. For example, situational context allows consideration of physical handicaps such as blindness, yet excludes idiosyncratic moral values such as an assassin's belief that it is right to kill a political leader. The MPC also explains a middle ground:
In between these extremes, however, there are matters neither as clearly distinct from individual blameworthiness as blindness or handicap nor as integral a part of moral depravity as a belief in the rightness of killing. Perhaps the classic illustration is the unusual sensitivity to the epithet “bastard” of a person born illegitimate. An exceptionally punctilious sense of personal honor or an abnormally fearful temperament may also serve to differentiate an individual actor from the hypothetical reasonable person, yet none of these factors is wholly irrelevant to the ultimate issue of culpability. The proper role of such factors cannot be resolved satisfactorily by abstract definition of what may constitute adequate provocation.
Extreme emotional disturbance, therefore, places far more emphasis on the subjective mental state of the actor than does the common law defense of provocation. The MPC does not dismiss situations where the provocative circumstance is something other than an injury inflicted by the deceased on the actor, but rather focuses on whether some event aroused extreme mental or emotional disturbance. The extreme emotional disturbance defense permits the defendant to show that his actions were caused by a mental infirmity, below the level of insanity, and that he was less culpable than an accused not so disturbed. At this juncture the critical psychology may become particularly relevant to a racialized offender. The literature may indeed provide sufficient support for an infusion into the criminal law of information detailing the distressing, humiliating and cumulative impact of racism, the allostatic load if you will.
The MPC bolsters the notion of cumulative or serial provocation by jettisoning the concept of a cooling off period, a bedrock component of the common law. The cooling off period rule temporarily limits access to the defense even where the defendant had not actually cooled and was still enraged at the time of the killing. The MPC, however, does not speak to this issue and the omission of this temporal restriction on passion leads to the conclusion that so long as the offender was laboring under the condition of extreme emotional disturbance, for which there is a reasonable explanation or excuse, the defense is appropriately considered.
The calculus of what is or is not reasonable allows for an assessment of the cumulative and ongoing impact of racism, as analyzed by critical psychology. Where appropriate, such infusion makes acceptance of relevant critical psychology pragmatic, equitable and necessary. Wechsler's explanation of the MPC heat of passion provision indicates that the extreme emotional disturbance defense is just what it says--a broad allowance for mental trauma, whatever the source, such that the jury might properly consider the full scope and impact of the relevant impairment.
