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Adequate provocation, individual responsibility, and the deconstruction of free will.

I. Introduction

During the second semester of my first year of law school, my criminal law professor briefly discussed a Supreme Court case in which the Court had determined that it was unconstitutional for a state (death penalty) statute to contain a presumption that a person intends the consequences of his voluntary actions. This legal conclusion, my professor explained, was an example of how the Court was diminishing the notion of free will. Nothing further was said regarding what I believed to be a great philosophical debate. Faced with the task of memorizing the common law definition of "malice aforethought" and other legal rules, it was not until two years later that I found the time to explore further the interrelated concepts of intention, free will, and responsibility.

I asked one of my mentors why our country had heat of passion crimes and why people should not be held fully responsible for their intended actions. The lawyer responded that people are human and sometimes act irrationally and that our laws recognize such human weakness. I found this to be an inadequate answer, giving rise to the topic of this Article. I pose the question: Why does the law tolerate "an unlawful act impelled by a justifiably passionate heart?"(1) The answer lies in history, philosophy, psychology, and the law.

I have since discovered that there exists more material discussing whether or not we truly are "free" beings than I could attempt to read and fully integrate into one article. Further, this philosophical question could be applied to any area of the law. I have chosen heat of passion crimes as the catalyst for this discussion because they involve a moment of human action, the responsibility for which is, or should be, rooted in the question of how free the human mind really is to exercise its volition to choose and commit intentional actions.

The law does not adequately address the free will debate,(2) and, like all disciplines, it has built upon itself through modern history, impervious to serious deconstruction of its founding principles. I have therefore chosen examples from several disciplines, including law, philosophy, psychology, medicine, and religion,(3) to help give a more thorough answer to the free will question.

The goal of this Article is to coalesce different viewpoints to help answer the question implicit in the definition of "heat of passion": can an individual ever truly be "adequately provoked" by an external factor to commit an irrational but less blameworthy action (e.g., intentional killing)? This Article will demonstrate that while individuals are often subject to highly emotional circumstances, and their characters may have been formed by unfavorable environmental conditions, the human ability to reason and act rationally(4) can never be totally overborne by external influences.

II. A Discussion of Free Will and Determinism

The answer to the question "Are we free?" has been debated throughout history, and the theories which remain are as divided now as when the question was first posed. This Article does not attempt to answer that question (although a particular position will be assumed for purposes of further legal discussion), but rather sets forth the various philosophical, medical/scientific, and religious perspectives and their corresponding theories.(5)

A. Philosophical Categories

Philosophy is divided into three basic categories on the question of free will: (1) free will (indeterminism); (2) determinism, which is subdivided into compatibilism (soft determinism), and incompatibilism (hard determinism); and (3) Libertarianism.(6) Representing the opposite ends of the spectrum are a belief in total free will on one end, and belief in determinism (external causation), on the other.(7)

1. Free Will (Indeterminism)

The theory of free will embraces the idea that individuals are self-determining agents, capable of being held morally responsible for their chosen actions.(8) Indeterminists believe that there is no way to predict how a particular person will act in any given situation, due to the indeterminate character of nature itself.(9) Indeterminism does not focus so much on whether an act was freely chosen, but whether the individual had the freedom to make the choice.(10) Indeterminism holds that to be "truly responsible for one's actions,"(11) one must be a free agent. The agent must be both undetermined by external causal factors and self-determined.(12) The self-determined quality of a free agent is premised on the concept that "the process of deliberation (however perfunctory or inexplicit) that leads us to make whatever choice we do finally make is truly our deliberation."(13) The ability to recognize and consider available choices is thus a prime element of the free will theory.

Moral responsibility is usually equated with free will,(14) but it can exist and be appropriately assigned to individuals in a deterministic world. Indeterminism assigns responsibility to individuals because the theory holds that regardless of the environment or personal history, the individual had the opportunity and could have freely chosen otherwise.(15)

Support for the free will theory has diminished as social and behavioral scientists,(16) as well as medical and psychology experts, have increased their understanding of the complexities of human nature.(17) Free will may also be somewhat unpopular because it requires the individual to question his own existence. With free will comes individual responsibility. Acceptance of individual autonomy and freedom means that one cannot externalize moral blame; instead, one has the ability to consider and choose among various alternatives and must face, with full dignity, the consequences stemming from the chosen action. Free will, however, can also be liberating(18) in that it validates and gives purpose to human existence. This latter view is common throughout various world religions and has been adopted by such thinkers as John Stuart Mill.(19)

2. Determinism

Determinism, adhered to mostly in the fields of science and medicine, is the theory that all events are caused by something else and, therefore, are predictable.(20) Others define the theory as the ability to calculate the outcome of all events with similar, known conditions (hereditary and environmental influences) and boundaries.(21) Determinism, however, is not an empirical theory in that it is impossible to observe or know all causal events; it is merely a unifying principle for further inquiry.(22)

There are three basic types of determinism: logical, theological, and causal.(23) Logical determinism views the world with the notion that things cannot be other than they are, "without somehow violating the universal rule that each thing must preserve its own identity."(24) Theological determinism considers God to be the causal agent of all events.(25) Finally, causal determinism, which is the modern and most widely held view of determinism, concludes that "things must be as they are because their causes make them so."(26)

At first glance, determinism seems to refute the notion of freedom and moral responsibility. On the contrary, determinism acknowledges that an individual cannot be held responsible for actions that were not caused by him.(27) Because determinism embraces causality, it also assumes that an individual does cause all of her voluntary actions.

3. Soft Determinism (Compatibilism)

Soft determinists posit that determinism and freedom are not incompatible. Compatibilists believe that freedom exists even if determinism is true.(28) Thus, even if the individual is caused by some external or past event, the individuals actions need not necessarily be caused by the same events. The actions are still "free" to the extent that they are not compelled, but are still committed according to the individual's desires and wishes.(29) Social or environmental factors may influence a persons character, but that does not prevent an individual from being free, i.e., responsible for his actions(30) that may nonetheless have some causal link to the character formed by factors beyond the individuals control.(31) The only way the external factors would be responsible for an individual's actions is if the actions were compelled by the causes, contrary to the individual's wishes or desires. If the action was caused by the individual's wish or desire, then the action would be completely free,(32) even if the wish/desire itself was somehow formed by the external cause.

Soft determinists reason that the compatibility of freedom and determinism lies in a corrective view of the definitions of determinism and freedom. Determinism, they explain, means causality, not fatalism or compulsion.(33) Similarly, freedom does not refute the idea of causality. A free act, for example, may be caused by our desires, decisions, and choices, but the act is still free if it was not compelled by someone or something external to the person.(34) The freedom arises from the individual's ability to act or not act according to some possibly determined desire or wish.(35)

In the spirit of nineteenth century romanticism, compatibilists view individuals as possessing an internal core-identity, or "self," separate and distinct from any character that may be formed or determined by external factors.(36) Under this model of human existence, responsibility can be appropriately assigned to the separate self, regardless of the externally determined character.

Soft determinists take a deterrent and reformative approach to punishment.(37) This hedonistic, pleasure-pain principle theory(38) presumes that people will alter their behavior to avoid the unpleasant consequences of punishment. Even if an individual's character may be determined, the individual should nonetheless be able to weigh the potentiality of punishment when deciding whether to act according to the character's desires and wishes or the self's desires or wishes. Compatibilism will be the underlying premise of this Article's discussion of criminal law.

4. Hard Determinism (Incompatibilism)

The hard determinists believe that freedom and determinism cannot co-exist.(39) This theory is in the forefront of the "nature vs. nurture" debate. Incompatibilists view the environment, rather than genetics, as the cause of all behavior.(40) The incompatibilists bolster their theory by stating that determinism must be true because certainly people do not choose to be homeless, poor, unemployed, or born to addict and abusive parents.(41) Any actions arising from these conditions, the hard determinist would argue, cannot place moral responsibility on the individual.(42) Hard determinists believe that we are not and can never truly be free, and therefore, we can never be responsible for our actions.(43) Incompatibilists further contend that, contrary to the soft determinist idea that our actions may nonetheless be free in a determined world, "ultimately our desires and choices are caused by factors outside of our control."(44) Thus, any action, even if chosen or caused by our desires or wishes, is not free.

5. Libertarianism

Libertarianism is another form of incompatibilism. Libertarians believe that we are always free and reject the notion of determinism.(45) To locate the indeterministic influence that allows the individual to be free, libertarians must argue that "indeterminism ... affect[s] the agent's reasons or reason-states, and play[s] a part in their being as they are."(46) Under this theory, the notion of a caused action, or character that chose and committed a particular action, refutes the idea of moral responsibility for the self. Charles A. Campbell, a renowned libertarian, holds that the self and the character are separate and distinct.(47) He explains that moral responsibility can only be assigned to actions caused by the self(48) and not by an individual's character, which may have been formed by environmental and genetic factors.(49) Campbell does recognize that character may influence an individual's desires and actions, but the character cannot take responsibility for decisions when an individual has the option of following his natural tendencies or acting according to an empirical sense of duty.(50)

A free act, therefore, is an act caused by the self and not the individuals character, and is thus subject to moral responsibility.(51) Through introspection and internal conscious examination, an individual is able to distinguish acts stemming from the self from acts caused by the person's character.(52)

B. Self-Consciousness as a Means to Exercise Will

Human consciousness is ... a reflexive and self-transparent

idea ... capable of access to its own content in practical and

speculative ways.(53)

Closely associated with the philosophical notion of whether we are free or determined is the question of how individuals can exercise their freedom, or at least their choices,(54) even if within a deterministic frame. As the German romantic philosopher, Hegel, noted, consciousness (or self-consciousness)(55) leads to knowledge and absolute truth.(56) Further, all conscious individuals within a society should act with a moral duty, guided by the universality of their own individual self-consciousnesses.(57) Thus, the moral fabric of society, and the goal of eliminating criminal behavior, will not be dependent on proscriptive law; indeed, the moral duty of individuals manifested through actions should be in spite of any external pressures (e.g., environmental), which represent the objective otherness to the individual.(58) It is through education and mental self-reflection that individuals in society can develop and use their self-consciousness to recognize morality(59) and act accordingly.(60)

When an individual is faced with a situation in which she must choose, or make a decision,(61) the individual may act according to what she wants to do (e.g., smoke another cigarette, inflict harm on her unfaithful spouse), or according to what she wants to be her true will (e.g., not want to smoke, recognize her spouse's infidelity and leave the relationship).(62) It is the very interval of indecision that reinforces the notion of free will and voluntary action.(63)

Self-consciousness under the objectivist theory(64) is an individual's acknowledgment of thought (or consciousness) without the individual necessarily being aware that the thought is the individual's own.(65) To be fully self-conscious the individual "must have some idea or experience of itself as something that is single qua mental."(66) All humans have the capacity for self-reflection, but are limited by their innate abilities to achieve self-consciousness, their education, or lack of good therapy. Society, especially through laws, tends to view people as externally manifested beings. Rather than explore the individual's ability (not capacity) to think, or to teach and encourage people that they are worthwhile individuals, society and law focus too much on the environment.

C. Responsibility for Actions vs. Responsibility for Character

Law punishes actions and not character. Further, an individual is only responsible for the voluntary actions that fully express the individual's self.(67) What, then, is a voluntary act? Descartes defined voluntary action as "an effect caused by a movement in the pineal gland which is itself caused by an event in the soul."(68) Other philosophers debate whether voluntary acts are compelled or non-compelled, or are even conditional responses.(69) A psychoanalyst describes "[d]eliberate action [as] an intentional action in which the person's behavior follows from his appraisal of the available options."(70)

Yet even if determinists, or certain moral psychologists, would argue that an individual is not responsible for certain actions caused by external stimuli, or by an externally influenced character, the individual may nonetheless be (morally) responsible for his character if "he has taken responsibility for his characteristics," regardless of whether the characteristics are due to the individual's free choice and making, or to some other causal agency.(71) Individuals should be held responsible for their manifested emotions, such as when the emotion of anger from an "adequate provocation" becomes the action of killing the unfaithful spouse, if the person could have recognized and controlled the emotion in the first place.(72) If we can control the emotion, we can control the actions arising therefrom.

The compatibilists claim that to be truly responsible for one's actions the actions must be "self-determined if and only if one has somehow or other determined how one is in such a way that one is truly responsible for how one is."(73) One can be self-determined in "actions, even if one is not truly responsible for how one is (in respect of character, etc."(74) but one cannot be truly responsible for how one acts without being "truly responsible for how one is."(75) Even if an individual's character was not self-determined and is a product of upbringing or external factors, the individual may still have the ability to change his character.(76) Determinists would claim, however, that the ability and decision to change one's character is in itself part of the individual's character.(77)

D. Psychology and Medicine

Medicine and psychology add interesting insights to the definition and nature of free will. Their perspectives can help to form a more thorough legal representation of a philosophical and moral issue.(78)

1. Free Will

"Free will" is thought to relate "to the interval between the idea and the act, not the prehistory of the idea."(79) Thus, even if an individual's personal history is full of extreme anti-moral and violent influences, whether the person acted freely will be determined by what and how the individual contemplated the act after the idea was formed. It is irrelevant, under this scientific theory, whether or not the idea itself was causally generated by something other than the individual's self.

Under the growing theory of gene-culture evolution, "[f]ree will is represented by the procedure of choice itself, conditioned by the mental state of individuals at each decision point, their assessment of the available alternatives at that time, and the choices already made by other members of society."(80) Another scientist argues that the question of free will should be reframed to ask:

(1) how much ... reactions and ... choices in responding to

competing stimuli differ from those of ... [a] neighbor,

(2) how much of a change in the strength of these stimuli is

needed to eliminate such a difference in responses, and

(3) how much each difference in our patterns of response is

due to differences in genes and how much to past exposure to

different environments.(81)

Many scientists and doctors also view humans as character-based, separate from some kind of inner, intangible self. The self "is the `I' that acts, the `I' that seems to give rise to the impulse that is felt as the action is carried out.... [It] is that part of the Self that is lost when we try to describe what the Self actually consists of."(82) This self, however, is considered "a way station in the progression toward a goal," and the ideas the consciousness embodies are only "advance[d] notice[s] of inchoate acts."(83) The separation and understanding of self from non-self, whether through (self-)consciousness or some other means, is essential to a successfully functioning individual.(84) An individual who is unable to, or has not, reflected upon the self can either be free from responsibility due to innate in ability (essentially an unsuccessfully functioning individual), or held responsible for failing to exercise self-reflection.

2. Voluntary Action

To determine whether an action is voluntary(85) one must study how the action developed from perception of the object, unfolding into perception of the action (the act we experience), "unconscious representation" of movement, and, finally, actual, physical movement that affects an object external to the actor.(86)

Consciousness, one neurologist argues, "cannot cause or instigate (i.e., does not stand in an effective relation to) a movement ... [because] the action is initiated and its outcome determined prior to the appearance of the act in consciousness."(87) The perception of the action occurs at the same time or after the motor discharge and the movement. Thus, if the self is consciousness, and consciousness can never be the causal agent for a (voluntary) action, then individuals can never be held truly responsible for their actions.(88)

3. Neurological Responses to "Adequate Provocations"

As law develops, it should take into account psychology, social theory, and other growing disciplines. Neuroscience, for example, has increased our understanding of brain activity and human emotion and behavior.(89) Voluntary actions are no longer considered purely neurophysiochemical activities, but involve an element of subjective awareness.(90) Volitional choice encompasses such elements of the individual as memory, personal history, and prediction for future consequences.(91) Thus, as scientific understanding of what causes or influences choice increases, so should law incorporate and reflect a more comprehensive view of freedom of control and choice.

E. Comparative Law and Religion

The theories so far discussed in this Article have rested on Western ideas of social construct, human cognition, and psychology, for example, individual response to certain events or cognitive understanding and reaction to certain emotions (i.e., feelings such as anger), may be highly dependent upon social and cultural norms.(92) Western cultures are based on individualism,(93) and thus give rise to different accepted norms of behavior than those which exist in more communally-based cultures found in India and Asia. The goal of this Article is an understanding of universalizable principles that apply to all humans, regardless of their language, social culture or environment. There are certain genetic rules that bind all humans, regardless of their cultures,(94) supporting the theory that all humans possess some immutable characteristics. These rules are manifested throughout world cultures in such phenomena as color vocabularies for primary colors, common phobias (height, water, snakes), predictable preferences for certain designs and sugars during child development, and many others.(95) Although not tested scientifically, humans also have the ability to think, and, as this Article demonstrates, to exercise free will. An anthropological study might show what this Article only touches upon -- all cultures, religions, and philosophic disciplines tend to view humans as free, conscious beings, capable of exercising self-control.

Indian culture embodies a strong sense of determinism, represented by the law of karma.(96) Such a culture diminishes the idea of individual responsibility, resting blame of misfortune or bad acts on such phenomena as "God's curse."(97)

Jordan, like the United States, also has a crime of passion statute, applicable to sexually intimate couples.(98) The husband, as a matter of law, is given a reduction in penalty if the killing was committed "in flagrante delicto," that is, immediately upon a surprise witnessing of the adulterous act.(99)

The Judeo-Christian theory of religion holds that God created individuals with the ability -- i.e., the freedom -- to choose right from wrong. Yet in times of evil or despair, the pious often look to God, or at least God's failure to act, as the cause. For example, the Jews, who consider themselves the chosen ones, would ask how God could have let Hitler kill so many people during the Holocaust, and Christians might face the untimely death of a young person with the phrase "[t]he Lord giveth, and the Lord taketh away."(100)

Jewish thought further holds that the day Adam and Eve were created, "humanity was granted the privilege of choice or free will, and thus endowed with the blessing of responsibility."(101) Yet God, and not his human agent, Moses, is considered to have committed and caused such events as leading the Jews out of Egyptian slavery.

Most Christians believe that God endowed humans with the capacity to choose good, to be conscious, and to experience guilt and shame, marked by the moment Adam and Eve ate the forbidden fruit. Some Catholics, however, take a stronger position in their ability to choose for themselves and to be judged for their actions.(102) In a heterogeneous and racially, ethnically, and religiously mixed culture like the United States, there is no dominant theory. It would be too arduous a task to choose a religiously-based definition of free will and responsibility, as would it be to make inquiries into each individual defendant's belief (and the truth of their belief) of religion and free will. An objective test or standard would be more appropriate and efficient for our laws, but religion should not be discounted as a factor in the determination of freedom of choice.

III. Natural Law and Morality

Humans share several important, common attributes. Among these binding qualities are: (1) the capacity to experience emotions; (2) the capacity to reason; and (3) the capacity to recognize and formulate standards of morality. Although these uniquely human traits are often either not acknowledged, or they become buried under layers of environmental factors and competing political-philosophical theories, they are the foundation of a well-ordered, moral society. Unfortunately, such societies rarely exist, and so humans turn to law to provide much-needed structure.(103) The morally binding effect of laws, regardless of their legal effectiveness, depends upon an integration of these three basic commonalities.

The natural law tradition, begun by the thirteenth century theologian, St. Thomas Aquinas, holds as its basic premise that good is to be pursued and evil avoided.(104) This simple idea is often lost and forgotten, but it can, and should, guide lawmakers, theorists, and individuals in all of their actions. Individuals need only resort to the basic premise of reason to rediscover the natural law principles.

One sociobiologist posited that ethics and values are inseparable from genetically determined epigenetic rules.(105) Edward Wilson explains that it would theoretically be possible to change certain "moral" issues, such as the aversion to incest, simply by altering the societal culture.(106) Moral reasoning, Wilson continues, is thus partly deontological(107) ("based on [such] independently existing imperatives ... [as] innate epigenetic rules") and partly consequentialist in that "epigenetic rules cannot be followed blindly."(108)

Moral responsibility(109) is often kept separate from legal responsibility,(110) but morals should be the guiding force in teaching humans how to control and restrain emotions, to prevent them from turning into bad, or legally culpable, actions.(111) Moral guilt, like criminal guilt, must also relate to the individual's capacities and limitations.(112) While the law may view criminal acts objectively, not all individuals have the same backgrounds or choices behind the commitment of those acts, and therefore, should not be punished as severely as those who had more opportunity for choice.(113) As a society we often hold people legally responsible for their actions, but not morally responsible due to some external influence, such as adequate provocation or childhood background. The disparate distance between the moral guilt and the legal culpability only continues to erode the legitimacy of the law. Moral and legal responsibility should be more closely intertwined.

Morality is basically constant and can withstand different individual predispositions.(114) Further, moral behavior is customary behavior.(115) An individual who deviates from the moral, customary behavior is subject to disapproval and condemnation.(116) The approval or condemnation, however, depends upon which particular custom has prescribing authority. For example, while our penal laws punish intentional killing, and mitigate certain kinds of killings (e.g., in the cases of witnessing adultery), the prescribed conduct, since that is in essence what a law is, only reflects and represents a particular custom and moral society. Other societies -- foreign cultures or even American sub-cultures -- may have entirely different moral views(117) on adultery killings, finding them to be entirely justifiable.(118) The different social moral customs do try to force their way into American laws, as evidenced by the "cultural defense" theory,(119) or even juror standards of what constitutes "reasonable" in a given (legal fiction) situation. Certainly in a society as heterogeneous as our own, it may be next to impossible to reflect adequately all the different cultural, moral, customary behavioral norms, but when the penal laws seem to reflect only a white male power structure, their effectiveness becomes questionable.(120)

Penal laws attempt to set forth what is morally and socially acceptable behavior. Laws, however, are more than socially binding rules, backed by the authoritarian power of enforcement; they are, in the words of Francisco Suarez, "a certain measure of moral acts."(121) When the enforcement of those laws differs so drastically, wholly dependent at times by a random group of twelve people who are supposed to represent society, it becomes difficult to discern what is moral and what society views as morally acceptable behavior. How can an individual follow a moral precept, whether because it is a rule or because it is a duty, worthwhile in and of itself, if the system for creating and reflecting morality -- the system of norms -- is wholly inconsistent and potentially non-reflective of human social nature?(122)

IV. Legal Definitions

`Criminal law could not exist were it not for this posit that

each normal person intends to do the act which he does do

and that such intention is based upon the exercise of free

Will.'(123)

Along with philosophy, religion, and medicine, the law, too, has formulated its own particular view towards, and definition of, free will.

A. Case Law

Free will does not often appear as a legal term, but courts must on occasion consider this concept when deciding other legal issues. For example, a Texas criminal court of appeals, when considering the issue of duress, decided that the definition of a "voluntary act"(124) within the Texas penal code did not contain the concept of free will.(125) Noting that the statute did not define the term "voluntary," the court looked to the Model Penal Code and Webster's dictionary for a proper definition(126) The court ultimately rejected any broad, philosophical definition, settling instead for a narrow meaning, "the absence of an accidental act, omission or possession."(127) The court concluded that the prosecution need not prove that each defendant's criminal act was voluntary, but, if the evidence raised the issue, the State would have to disprove the theory of accident.(128)

Most jurists would laud the Texas court for finding a workable legal standard, and perhaps it is not the role of the courts to ascertain philosophical issues. The law will continue to be incomplete, however, as long as the courts reject these metaphysical concepts.

Criminal law generally presumes the notion of free will,(129) but recognizes a theory of compatibilism.(130) Juvenile penal law, however, leans more towards determinism, attributing aberrant behavior almost entirely to environmental causes.(131) If the causes, however, cannot be isolated to help treat the juvenile, then courts "must, for want of any other reasonable alternative, accept the free will model."(132)

B. The Legal Standard for Insanity

The legal recognition of insanity is a concession to the human condition. The test for insanity is essentially an inquiry into the individual's ability to exercise free will, and the defendant's mental responsibility at the time of the alleged criminal act.(133) This test thus presumes that humans are free and potentially responsible unless proven (against a rather stringent standard) otherwise.

Law does attempt to integrate other disciplines' understanding of human nature. For example, sanity is a normative concept, "the ability cognitively and normatively to understand and appreciate the world for what it is."(134) Psychiatric evidence is often introduced at trials to aid the jury in determining whether or not the defendant was sane or able to form the requisite intent.(135) The psychiatric determination of the defendant's capacity to appreciate the wrongfulness of his acts, under the M'Naghten standard,(136) however, may "rest[] in great part on the social standard of self-control."(137)

Law and psychiatry often disagree as to the proper presumption of human nature: lawyers assert indeterminism, while psychiatrists adhere to the theory of determinism.(138) This conflict has influenced the problematic question of formulating a proper legal standard for insanity. While the majority of statutes use the M'Naghten Rule,(139) some states have added the "irresistible impulse" test. Legal insanity is meant to involve some kind of mental disease, and not just the individual's ability to recognize right from wrong.(140)

C. Heat of Passion Law

Our law currently recognizes that people act irrationally. This legal recognition, however, diminishes the idea of free will. Indeed, the entire idea of voluntary manslaughter (heat of passion crimes), that a circumstance could adequately provoke an otherwise reasonable person to commit an intentional(141) unlawful killing, "is a concession to human weakness."(142) The comments to the Model Penal Code mention only briefly that "a reasonable person does not kill even when provoked,"(143) but nonetheless recognize that sometimes an intentional killing may be attributable to the circumstances and not necessarily only the "moral depravity of the actor."(144)

Heat of passion law recognizes that an individual may have temporarily lost control due to a sudden provocation that caused him to commit an action which neither he nor the ordinary reasonable person would have done (although the ordinary reasonable prudent person does in fact refrain from committing the act) if he had been in full control of his volitional decision-making ability.(145) The impassioned defendant, however, may not have been totally out of control, "rather ... the accused's ability to make choices was significantly impaired -- though not rendered impossible."(146)

The question is thus raised of how to treat the momentary lack of restraint -- as a truly uncontrollable action (towards insanity) or as something connected to the individual's character or self. Moments of passion do not and should not ignore the character, nonetheless personality, and self of the individual; the self is always the self, and should be held responsible for any actions in which it is fully realized.(147) If volition, intention,(148) and free will occur during the interval between the idea (emotional reaction) and the action, the individual still may choose not to commit the criminal act, and should therefore be held fully liable and responsible for that choice.(149)

The entire heat-of-passion doctrine relies on the assumptions that (1) ordinary, reasonable people can be adequately provoked to violent behavior by external factors,(150) and (2) the violent act is an uncontrolled response.(151) These assumptions are well suited for the result of having a heat of passion mitigation, but an examination of the history and development of heat of passion law reveals that these assumptions were never carefully or adequately considered. As other scientific and philosophical disciplines expand our understanding of free will, so should the law incorporate, or at least consider, a more integrated and true representation of whether humans are free.

1. Definition and History

Manslaughter developed as a response to the harsh death penalty in English murder law.(152) In common law, manslaughter was not a separately defined crime.(153) Eventually, however, statutes differentiated between the two kinds of unlawful killings based on the presence or absence of malice.(154) The "heat of passion" crimes were deemed to be committed without malice due to the circumstances that provoked the defendant, and would have provoked an ordinary person in the same position, to lose normal self-control.(155) Thus, although the defendant had the requisite intent to be guilty of murder, he was charged with the lesser included offense of manslaughter due to the circumstances under which the unlawful killing was committed.(156)

a. "Adequate Provocation"

In early English law, "malice aforethought," the mental state required for murder, encompassed an element of premeditation.(157) A defendant "who killed in a sudden rage or in the `heat of passion'(158) [thus] lacked the state of mind required for murder."(159) As the law developed, murder came to include any intent to kill, leaving "provocation" as a mitigation to the degree of intentional killing, or as a consideration during sentencing,(160) not as a negation to the intent.(161)

The common law provocation test included: (1) an objective standard (the adequacy of the provocation without a cooling-off period as would be found by a reasonable person); and (2) a subjective standard (the defendant was in fact provoked and "acted in response to the provocation").(162)

Courts originally generalized and defined the permissible adequate provocations. The categories included: (1) physical attack (and sometimes threat of physical attack); (2) unlawful arrest; (3) mutual combat; (4) witnessing adultery of an unfaithful spouse; (5) "Violence or sexual [offense] against a close relative;"(163) and, sometimes, (6) words describing an event that itself would have adequately provoked the defendant had he seen the event himself.(164) Most statutes no longer attempt to legislate what constitutes adequate provocation.

What is considered adequate or reasonable provocation changes as society evolves. For example, at least as early as 1671(161) and as late as 1977,(166) the discovery of a spouse in adultery was considered sufficient provocation as a matter of law to reduce the crime from murder to manslaughter.(167) While no longer sufficient provocation as a matter of law, most jurisdictions recognize witnessing adultery as adequate provocation if the trier of fact finds that the defendant acted as a reasonable person would have under the same conditions.(168) In some cases, however, juries have considered the killing a crime of honor, and have acquitted the defendant of all charges.(169)

Adultery departs from the traditional categories of adequate provocation in that it is the only provocation that does not involve a direct attack on the defendant.(170) Adultery-based adequate provocation may include a "reasonable though erroneous belief"(171) that one's spouse(172) is committing adultery, or suddenly discovering the infidelity through someone else's words.

Mitigating murder of an adulterous wife(173) is socially and legally acceptable, although not entirely excusable, because society expects that "a man will be enraged at a wife or lover's sexual infidelity," and the legal doctrine of adequate provocation, as applied by the trier of fact, reinforces this acceptance.(174) Social and cultural norms determine the acceptance of violence in certain situations.(175) Indeed, much of the heat of passion law is founded in the "unexamined belief that men are not morally responsible for their heterosexual conduct."(176) The man's claim of loss of control or provocation (or belief therein) only perpetuates the socially acceptable violent behavior,(177) especially when a jury is allowed to determine the defendant's subjective belief in light of the reasonable person standard.

b. Diminished Responsibility

Diminished responsibility seems to be a more appropriate substitute for heat of passion adequate provocation. The doctrine of diminished responsibility is "functionally equivalent to the rule of provocation"(178) because it reduces the degree of murder (or murder to manslaughter),(179) but involves proof of the defendant's mental abnormality or defect.(180) This doctrine is more subjective than the adequate provocation test because it determines whether or not the defendant should be held to the reasonable person standard in the first place.(181)

The notion of premeditation, which concerns the amount and extent of time the defendant had to reflect upon the criminal act, is a distinguishing feature between the various degrees of murder.(182) Diminished responsibility brings to this moment of mental self-reflection the requirement that the individual's mind was mature and capable of understanding the seriousness of the action the individual was about to choose.(183)

2. Statutes

The Model Penal Code broadens the scope of manslaughter crimes by encompassing a wider range of potential situational killings that would otherwise be deemed murder; the Code changed the common law "heat of passion" into an acceptable "extreme mental or emotional disturbance."(184) The Model Penal Code defines manslaughter as follows:

(1) Criminal homicide constitutes manslaughter when:

...

(b) 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 shal [sic] be determined from the

viewpoint of a person in the actor's situation under the

circumstances as he believes them to be.(185)

The provocation need no longer be from the deceased, nor need it fall within one of the common law judicially created provocation categories. The test of reasonableness, left to the trier of fact, also considers the "actor's [subjective] situation."(186) While certain of the individual's characteristics (shock, extreme grief, or an "abnormally fearful temperament") may be considered part of the actor's "situation," "idiosyncratic moral values" may not be.(187) "In the end, the question is whether the actor's loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen."(188)

The standard under the Model Penal Code is more subjective than the common law provocation, taking into consideration the particular "actor's situation and the circumstances as he believed them to be."(189) The comments to the Code note that the defendant's "scheme of moral values"(190) are not to be taken into consideration although his subjective mental state is essential.(191) The "reasonable' explanation or excuse" language, however, connotes a more objective standard by which the defendant's actions should be judged.(192) Whether the defendant is somehow justified in turning anger into violence is largely dependent upon how society and cultural norms characterize a reasonable person.

D. Other Legally Recognized Provocations (Mitigations)

Traditional heat of passion is not the only mitigation to intentional murder. Social, external factors have started to make their way into the legal world through expanding ideas of criminal defenses. Such defenses include: the cultural evidence defense,"(193) battered spouse,(194) mob defense,"(195) Black rage,(196) urban psychosis,(197) steroid-induced psychosis,(198) anti-abortion psychosis,(199) and financial, emotional, and work-related pressure syndrome.(200)

The cultural defense, for example, is a product of cases brought in the mid-1980's when immigrant, criminal defendants argued that their behavior, although criminal in the United States, was culturally acceptable in their homelands.(201) One author argues that evidence of a defendant's personal history, including cultural background, should play a role in the criminal trial, because individuals are subject to so many varying environmental, family, and societal influences that they cannot be held wholly responsible for their criminal actions.(202) Cultural and personal background probably should be considered at some point during a criminal trial, but should not be used to remove the defendant from the law's application.

V. Putting Law, Psychology, and Philosophy Together: Who Should Determine What King of Killing or Other Harmful Acts are Worthy of Diminished/Mitigated Guilt of Worthy of Punishment?

If we left everything to juries, what kind of social standards would we have? Most of our laws and standards of behavior were (and perhaps still are) mandated by white, upperclass men, but modern juries are made of people with very different cultural backgrounds, social norms, and philosophical ideas.(203) The standard of reasonableness, therefore, is infinitely variable. For example, men might justify or mitigate guilt to protect autonomy or property; women might justify criminal behavior if the action was done to protect care or intimacy.(204) Cultural and gender biases may enter the trial not only when the jury considers testimonial truthfulness or the weight of evidence, but may exist in one's general view of the crime's legitimacy. A heat of passion killing of an adulterous wife, for example, may be manslaughter in the United States, but is considered a wholly excusable crime of honor in the Arab world, available to the murderous husband, father, son, or brother.(205)

The implications and trends in criminal defense law lean towards less free will, less individual responsibility,(206) and no improvement in the standards of conduct of society's individuals.(207) The current state of the law lacks a theoretical basis, and is rooted in outdated principles mandated by a white, male social structure, reflective of a homogeneous society. The law should, therefore, consider eliminating heat of passion as a mitigation to first degree murder. Juries are not policy makers, they are fact-finders. Circumstances of a crime (seeing spouse in bed and other provocations) and environmental/societal influences on the defendants character and ability to exercise free will and make moral judgments should all be taken into consideration in the sentencing phase.(208) One jury should determine a defendant's guilt, and then another jury(209) should decide the sentence and determine whether other factors, such as personal history or predisposition to violence, should be taken into account when determining punishment or rehabilitation.(210)

Heat of passion law originally categorized human reactional behavior in provocation situations, and there is no reason why, in a modern society comprising varying moral standards, the law cannot step in and articulate socially acceptable conduct.(211) Subjective notions of diminished capacity or consideration of the actor's situation at the time of the criminal act, only increase the number of inconsistent moral standards, making it more difficult to achieve a legally and morally harmonious social order.(212) The more socially acceptable standards change with jury determinations, the less likely citizens will know or understand what kind of behavior is socially permissible or potentially punishable.(213) The old adage that a man cannot be held responsible for a crime not written on the books should equally apply to legislative attempts to prescribe what is morally wrong and what is realistically acceptable as a mitigation. That is, a legislator shall not write and an individual shall not be held to a crime, or receive mitigation (even if written on the books) if an offense is not truly morally blameworthy.

A. Education as Self-Empowerment

[T]his capacity for self-control is itself one of the chief powers

that education should develop.(211)

Education(215) and learning, rather than harsh punishment or variation of the "reasonable person" standard, are better answers to dealing with aberrant behavior.(216) It is too impertinent to presume that by focusing on certain parts or factors of an individual's character or self, we, or the individual, can alter the deviant behavior. Only a change in societal values and norms, taught to all individuals, will come closer to achieving a morally consistent society comprising free individuals.(217)

There is behavioral scientific evidence which indicates that an individual's belief that she is free affects how she perceives or attempts to change herself, her environment, or the choices she may have within that environment.(218) The more an individual understands her environment, the more choices she can make, the more self-controlling, and thus, free, she becomes. One of the goals of psychotherapy is to help the patient understand free will, so that she can learn how to recognize and control her thoughts or actions. The psychoanalysis phases of developing the will(219) may be useful to illustrate the process of education. The phases are: (1) "[t]he willingness to be aware of possibility" which focuses "on the bodily sensations of the self in its existence in the world"; (2) "[t]he willingness to seek possibility" and the strive not to avoid "new and complex situations in order to maximize certainty of outcome"; (3) "[t]he willingness to engage possibility," requiring the self to engage in dialogue with other selves without the fear of condemnation; and (4) "[t]he willingness to decide and act on possibility" requiring the self "to convert its questions about its own possibilities into action."(220)

Humans can be taught how to be self-reflective and to train their passions.(221) By presuming and encouraging human weakness and environmentally-caused determinism, laws only perpetuate the commonly held idea that individuals are powerless to change themselves or the world around them.

VI. Conclusion

We currently live in a society of rights and a time of externalizing blame and responsibility.(222) The few philanthropists, dedicated teachers, and politicians among us are unable to shoulder all the blame or to construct adequate solutions for the myriad external factors that may indeed have formed some people's characters and affect their behavior. Laws, therefore, should aim toward the common inner strength of all individuals, while recognizing these external factors.

Law is best when it reflects the true human condition. The human condition throws individuals, with the capacity to exercise free will, into a world of increasingly oppressive environments. The laws inconsistently blame the individual and the external environments. Presently, some of the law, particularly with regard to manslaughter crimes and the growing body of mitigations and defenses, fails to take into account the premise of this Article: that individuals are both partly determined by their environment, and are also individual, rational, free thinkers with strong inner selves and the capacity to exercise free will. Humans have the ability to make free, rational, and moral decisions. Further, there is no proof that emotions or sudden external provocations can truly overcome our ability to make moral choices (e.g., not to kill someone).(223) Moreover, there is no empirical evidence that criminals who commit heat of passion crimes could not have chosen otherwise, regardless of the environment that may have formed their character. It is similarly debatable as to what extent environmental stimuli (current, immediate, and those throughout an individual's history) affect the formation of an individual's character, such that the individual's ability to think rationally or to form moral opinions and make moral decisions is overborne by the externally shaped character. Laws should consistently reflect the words of former Justice Benjamin Cardozo: the law is "guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of [legal] problems."(224) While law at its core is supposed to, and may, assume free will, reality demonstrates that free will in the law is an unexamined and forgotten concept.

Law changes as mankind becomes more sophisticated in its incorporation and understanding of the human condition. Slavery has been outlawed;(225) adultery is no longer considered adequate provocation as a matter of law;(226) drugs can be administered to combat child hyperactivity;(227) the mentally ill, homosexuals and alcoholics are no longer cast into dungeons;(228) divorces can be granted upon no-fault provisions;(229) rape victims are no longer blamed for their past promiscuity;(230) and the phrases "[t]hree generations of imbeciles are enough,"(231) and separate but equal"(232) are no longer accepted legal standards. Certainly it is difficult to create change, and law, even as it evolves, does so slowly. But scientific understanding is growing rapidly, and political and social voices are louder now than ever. We need to re-evaluate and periodically challenge existing laws, including heat of passion. Without such single events as the Federal Sentencing Guidelines,(233) which placed a wrench in historical judicial discretion, or Brown v. Board of Education(234) and the Thirteenth Amendment,(235) which ended (or at least began the process to end) dramatic racial inequalities, our laws would not reflect and encapsulate what is empirically correct. Society and its laws, like individuals, have the ability to self-reflect, question, and change.

(1) Commonwealth v. Flax, 200 A. 632, 637 (Pa. 1938).

(2) See Marion Smiley, Moral Responsibility and the Boundaries of Community: Power and Accountability from a Pragmatic Point of View 4, 17 (1992) (asserting that the philosophical discussion of free will and determinism does not adequately address the question of moral responsibility); Edwin R. Wallace, IV, Determinism, Possibility, and Ethics, 34 J. Am. Psychoanalytic Ass'n 933, 965 (1986) (suggesting that the law be re-evaluated to "reconsider whether society and the individual are in fact best served by concepts of moral and judicial evaluation that carry the indeterminist connotations of praise and blame"). Cf. Abbe Smith, Criminal Responsibility, Social Responsibility, and Angry Young Men: Reflections of a Feminist Criminal Defense Lawyer, 21 N.Y.U. Rev. L. & Soc. Change 433, 458 & n.121 (1994-95) (arguing that free will should be determined according to a law and society based spectrum).

(3) For the purposes of this Article, I have left out the political debate on this issue, although the question of free will is implicitly imbedded in any discussion of poverty, crime, and other polarized topics in society. See, e.g., William A. Henry III, In Defense of Elitism 140 (1994) (noting that "liberals believe in the perfectibility of man [and] `treat moral lapses as the collective fault of society' while conservatives believe in the endurance of original sin").

(4) But see Richard S. Lazarus, Thoughts on the Relations Between Emotion and Cognition, in Approaches to Emotion 252 (Klaus R. Scherer & Paul Ekman eds., 1984) (criticizing the classical belief held by the ancient Greeks, the Catholic Church in the Middle Ages, and modern psychologists, that emotions and feelings are weak, primitive phenomena, cognition is rational, and "reason is seen to reflect human phylogenetic superiority and is vulnerable to being overwhelmed by the primitivizing effects of passion").

(5) For a discussion of how human nature is pondered along a philosophical-psychological spectrum, see John L. Hill, Mill, Freud, and Skinner: The Concept of The Self and The Moral Psychology of Liberty, 26 Seton Hall L. Rev. 92, 98-104 (1995).

(6) See generally Galen Strawson, Freedom and Belief (1986) (defining and discussing these categories).

(7) But see Wallace, supra note 2, at 942 ("[E]xcept in cases of overwhelming external duress, the human being is invariably self-determining, and the free will-determinism dichotomy is a false one. Insofar as our behavior is not externally compelled or constrained, it is free; as a function of our history and personality structure, it is determined.").

(8) "[M]an [is] a responsible being who, although not outside the natural order, may make certain choices and bring about events as a prime cause actively intervening in the world." F.W. Furlong, Determinism and free Will: Review of the literature, 138 Am. J. Psychiatry 435, 435 (1981). See generally Jean-Paul Sartre, Being and Nothingness: An Essay on Phenomenological Ontology (Hazel E. Barnes trans., 1966) (discussing his philosophy of human consciousness and being).

(9) See Edward D'Angelo, The Problem of Freedom and Determinism 3 (1968). The growth and acceptance of this theory has generally corresponded with the development of quantum and theoretical physics, which adhere to the chaos or randomness theories of the universe. See id. For a review of the history of free will in modern thought, see Carl Goldberg, The Reality of the Human Will: A Concept Worth Reviving, 7 Psychiatric Annals 566 (1977).

(10) See Brand Blanshard, The Case for Determinism, in Determinism and Freedom in the Age of Modern Science 3, 4 (Sidney Hook ed., 1958) [hereinafter Determinism and freedom) (discussing the Indeterminist's view of causation).

(11) Strawson, supra note 6, at 1.

(12) See id. at 44 (discussing the Indeterminists' view that in order to be truly free, a person must not only "be undetermined ... but that [he or she] be self-determined in some respect"). "Free will might be defined as a non-causal, voluntary action." Pittu Laungani, Cultural Differences in Stress and Its Management, 9 Stress Med. 37, 40 (1993).

(13) Strawson, supra note 6, at 47. "To deliberate one must first recognize options, and to choose one must conclude the process of deliberation.... [C]onscious mentation is important -- particularly in regard to recognition of options ... but the decisive factors in whether this recognition occurs operate outside of consciousness." Wallace, supra note 2, at 952.

(14) P.F. Strawson, Freedom and Resentment, Philosophical Lecture, (May 9, 1962) in Proceedings of the British Academy 187, 188 (1974).

(15) See Wallace, supra note 2, at 955-56 (contrasting the indeterminist view with the determinist view that responsibility is a product of personality).

(16) For a discussion on renowned behaviorist B.F. Skinner's influence on the field of moral psychology, see Hill, supra note 5, at 154-66.

(17) See Goldberg, supra note 9, at 566 (discussing the once indispensable discussion of "will" as a thing of the past). Indeed, Freud's psychological study of human thought, based on aspects of determinism, deflated the idea that humans are always self-causing, free thinking beings. See Furlong, supra note 8, at 435-36 (discussing the evolution of Freud's work relative to determinism and autonomy).

(18) Effective psychoanalysis, which is really a form of aided self-teaching, encourages the individual to achieve the liberating state of insight. The individual's sudden awareness of his ability to self-reflect and to control his thoughts and actions, similarly liberates the individual from feelings of despair, lack of control, and hopelessness. See Wynn Schwartz, The two Concepts of action and Responsibility in Psychoanalysis, 32 J. Am. Psychoanalytic Ass'n 557, 566 (1984) (positing that the self control one gains from recognizing unconscious desires is liberating).

(19) See Hill, supra note 5, at 96 n.12.

(20) See Blanshard, in Determinism and Freedom, supra note 10, at 19-20 (defining determinism as a culmination of events); D'Angelo, supra note 9, at 2 (discussing soft and hard determinism); Strawson, supra note 6, at 4 (defining determinism in its strongest sense). The predictability of behavior under determinism is not only forward-looking, but may be retrospective as well. See Wallace, supra note 2, at 939 (discussing how personality and circumstances allow predictability in retrospect).

Some psychologists subscribe to a similar predictability theory of human relations and reactions: the power-status theory. See Theodore D. Kemper, Power, Status, and Emotions: Contribution to a Psychophysiological Domain, in Approaches to Emotions, supra note 4, at 371. This theory posits that all social relations can be reduced, understood, and predicted according to the power and status of the individuals. See id. at 371-72.

(21) See D'Angelo, supra note 9, at 2-3 (citing Moritz Schlick, Causality in Everyday Life in Recent Science, in Readings in Philosophical Analysis 525 (Herbert Feigl & Wilfred Sellars eds., 1949)); see also Hill, supra note 6, at 127 n.128 (noting that determinism, which holds that a person could not have done otherwise, must reject moral responsibility, which assumes that the culpable person could have done otherwise).

(22) See D'Angelo, supra note 9, at 6 (describing determinism as "a means of seeking uniformities in the world").

(23) See Lenn E. Goodman, Determinism and Freedom in Spinoza, Maimonides, and Aristotle: A Retrospective Study, in Responsibility, Character, and the Emotions: New Essays in Moral Psychology 107 (Ferdinand Schoeman ed., 1987) [hereinafter Responsibility, Character, and the Emotions].

(24) Id.

(25) See id. Theistic concepts dominated the theory of determinism until 1687 when Newton published his Principia. See Laungani, supra note 12, at 40.

(26) Goodman, supra note 23, at 107.

(27) See D'Angelo, supra note 9, at 6 (noting that "the notion of moral responsibility assumes the validity of determinism"). Determinism "bases human responsibility not on a hypothetically free and indeterminate will, but on the concept of intersectional and mediate causation ... one's personality structure is the proximate cause of his behavior." Wallace, supra note 2, at 956.

(28) See Strawson, supra note 6, at 5 (providing a formulaic list of what a compatibilist could believe in). See also William James, The Dilemma of Determinism, in The Writings of William James 590 (John J. McDermott ed., 1967) (discussing the difference between soft and hard determinism).

(29) See Paul. Edwards, Hard and Soft Determinism, in Determinism and Freedom, supra note 10, at 117, 118-19.

(30) In criticizing the soft determinists, Paul Edwards focuses on the issue of whether individuals "can be considered free and morally responsible if our desires are caused by factors that are outside our control." D'Angelo, supra note 9, at 49 (citing Paul Edwards, in Determinism and Freedom, supra note 10, at 108-09). Disagreeing with a libertarian theory that unreflective and uneducated people use different concepts of moral responsibility than those who are reflective, Edwards contends "that everyone employs the unreflective conception of moral responsibility when their judgments are based on emotive factors" and that they "employ the reflective concept of moral responsibility `when they are judging a situation calmly and reflectively and when the fact that the agent did not ultimately shape his own character has been vividly brought to their attention.'" Id. at 51 (quoting Edwards, in Determinism and Freedom, supra note 10, at 111).

(31) See Patricia Greenspan, Unfreedom and Responsibility, in Responsibility, Character, and the Emotions, supra note 23, at 78-79 (positing that a person may he responsible for his or her actions, "even though he [or she] did not shape his [or her] character"); see also Hill, supra note 5, at 101 (criticizing B.F. Skinner's definition of human nature, which discounted environmental factors, as "too restrictive ... because environmental influences might serve to make manifest inherent propensities or dispositions which would otherwise lie dormant").

(32) Some soft determinists hold that an act is free only if it is voluntary, uncompelled, and the actor could have acted otherwise. If all three conditions are met, then the individual can be held morally responsible for his actions. See D'Angelo, supra note 9, at 75; id. at 81 (discussing Campbell's theory of moral responsibility). See also Strawson, supra note 6, at 52 ("[T]he phenomenological self-evidence of our power to do otherwise ... makes us free in the strongest sense ...."). "Acting otherwise" also entails the question of whether the individual could have chosen to act otherwise. The belief that one actually has a choice among alternatives may, however, be an illusion, but it is an "illusion that is causally necessary for the adaptive, socialized, and moral behavior of many or most individuals." Wallace, supra note 2, at 944.

The "freedom illusion" is also considered under the objectivist theory, which embraces the principle of independent existence, and holds that free will is only a perception based on the experience of freedom. "[A]n agent's belief that it is a free agent is true only if it has certain properties, not including the property of believing it is a free agent, that are sufficient for free agenthood and, hence, sufficient for the truth of its belief that it is free." Strawson, supra note 6, at 16. Under the objectivist theory, a "potential free agent (a potential free chooser)...[must be]...(1) capable of entertaining desires, (2) capable of forming beliefs about its circumstances, (3) practical-rational, that is, capable of practical reasoning, (4) capable of self-movement (or self-change), (5) capable of self-conscious thought." Id. at 129. For a discussion on the ability to choose as a precondition to the ability to choose freely, see id. at 134-45. For an extended discussion on the subjectivist theory, which holds that "believing one is a free agent is a necessary condition of being a free agent," see id. at 173-317.

(33) See D'Angelo, supra note 9, at 18-21.

(34) See id. at 23, 25.

(35) See Hill, supra note 5, at 127 n. 130 (discussing Thomas Hobbes and David Hume); id. at 128 ("The soft determinist admits that all behavior is determined but maintains that acts which result from desires, inclinations, or other internal elements of the self are `free.'"); id. at 174-77 (discussing the romantic concept of the authentic self).

(36) Some religious cultures view the recognition (or existence) of a strong self as a hindrance to freedom because it renders the notion of individual responsibility in a deterministic world almost impossible. Under the Buddhist doctrine of satkayadrsti, or "the false view of individuality," for example, the delusion of the persistent individual self must be overcome in order to break free from the sufferings of desires, cravings, and aversions in order to achieve nirvana, or a state of desirelessness. See Strawson, supra note 6, at 117-18. While Buddha engaged in meditation to dissolve the self as a means to confront his fears of old age, decrepitude, and death, the same mental exercise can be used "to achieve a more correct attitude to the world." Id. at 118-19. This objective view of self, Strawson explains, can help individuals abandon what he would call a false belief in self-determination and the total commitment to freedom. See id. at 117; see also Jason W. Brown, The Nature of Voluntary Action, 1 Brain and Cognition 105, 117 (1989) ("Free Will is an illusion produced in the outward flow of acts and objects."); Hill, supra note 5, at 142 (positing that Freud's psychological theory negates personal freedom, holding the concept of free choice as an illusion). But see Goldberg, supra note 9, at 43 ("[F]reedom of will is a state of being that is made possible by the belief in psychologic freedom.").

(37) See D'Angelo, supra note 9, at 36, 43-45(discussing the deterrent theory of punishment). Under soft determinism, "[a]n individual is held morally responsible if his behavior can be altered in the future by means of reward or punishment." Id. at 37. Under the deterrence theory, the question to be asked for voluntary manslaughter might be: "can the threat of punishment held make some people control themselves? If so, perhaps ... the test should remain an objective one." Wayne R. LaFave & Austin W. Scott, Jr., 2 Substantive Criminal Law [section] 7.10 (1986). The deterrence theory, however, assumes that people who are aware of the particular proscriptive law will be able to alter their behavior (or choose not to behave in a certain way) to avoid the punishment. Heat of passion law is faulty according to a deterrent theory because it presumes that the individual was not able to alter his behavior at the time of the criminal act. If the individual cannot alter his behavior, then he cannot be held morally responsible, and hence, cannot be held criminally responsible; consequently the law fails for its moral indefensibility. See H.L.A. Hart, Legal Responsibility and Excuses, in Determinism and Freedom, supra note 10, at 95, 104.

(38) See D'Angelo, supra note 9, at 43 (discussing the basic premise of a pleasure-pain model of behavior).

(39) See id. at 48 (explaining the opposing views of soft and hard determinists).

(40) 411 See id. at 48-49.

(41) See id. at 64 (discussing one hard determinist's view that persons are not morally responsible because their acts are formed by outside influences over which they have no control).

(42) See id. (positing that because individuals are shaped by early experiences they are not truly responsible for their behavior).

(43) See id. at 49-50.

(44) Id. at 48. See also John Locke, An Essay Concerning Human Understanding 80-83, 103 (1690) (theorizing that human knowledge is formed by external influences); B.F. Skinner, Beyond Freedom and Dignity 1-25 (1971) (advancing behaviorism and social learning theory through the argument that all of human nature is formed by environmental causes); Hill, supra note 5, at 108-09 (discussing the rise of behaviorist thought and its effect on views of human nature). Sigmund Freud viewed all behavior as externally caused, the reasons for which are embedded deep within the almost unknowable unconscious. See id. at 137-38 (discussing Sigmund Freud, The Ego and the Id (James Strachey ed., James Strachey et al. trans., 1961)).

(45) See Strawson, supra note 6, at 31-33, 41-43.

(46) Id. at 43.

(47) This idea coincides with the philosophical mind-body theory. See Anthony Kenny, Action, Emotion and Well 14 (1963) (discussing the difference between perceptions that "are caused by the soul, and those which are caused by the body," as espoused by Rend Descartes in The Passions of the Soul).

(48) See D'Angelo, supra note 9, at 14-16 (discussing Campbell's position that the self is self-caused). For a discussion of Freud's concept of the self, see Hill, supra note 5, at 136-40.

(49) See D'Angelo, supra note 9, at 7 (citing Charles A. Campbell, In Defense of Free Will, in A Modern Introduction to Ethics (Milton K Munitz ed., 1958)). 10 See id. at 8 (citing Charles A. Campbell, On Selfhood and Godhood 169 (1957)). One psychiatrist views the manifestation of will as the self s attempt to express and function as the person it seeks to be in terms of its intentions and actions in the world. (`Intentions and actions in the world' refers to behaviors enacted by the self with the prospect that other selves may become aware of them.). Goldberg, supra note 9, at 43.

(51) See D'Angelo, supra note 9, at 7-8 (discussing Campbell's theory of "contra-causal freedom").

(52) See id. at 97 (citing P.H. Nowell-Smith, Determinists and Libertarians, 63 Mind 322 (July, 1954). But see id. at 10 (citing theorists who hold that we can never study, observe, or know whether certain actions are caused by our character or our self). Determinists, on the other hand, "use the method of logical analysis to evaluate the reliability of introspection and to determine in what sense we are free." Id. at 9.

(53) Goodman, supra note 23, at 140.

(54) Choice may not really play an active role in decision-making because choices themselves are limited by external, situational constraints. See Brown, supra note 36, at 118. Edward Wilson explains that "choice is the end result of an elaborately choreographed chain of neurobiological events" that depends upon how the individual's brain treats cultural alternatives. Edward O. Wilson, Sociobiology, Individuality, and Ethics: A Response, 26 Persp. in Biology and Med. 19, 21 (1982). Culture, he concludes, "is created and shaped by biological processes, while the biological processes are simultaneously altered in response to cultural change." Id. at 25. Wilson also believes that choice, behavior, and free will can be quantifiably described. See id. at 23.

(55) Consciousness is self-consciousness, meaning that individuals have rational capacities beyond mere reflexivity to external stimuli. See Harry Frankfurt, Identification and Wholeheartedness, in Responsibility, Character and the Emotions, supra note 23, at 31.

(56) See G.W.F. Hegel, Phenomenology of Spirit 104 (A.V. Miller trans., 1977) ("[W]hen consciousness itself grasps this its own essence, it will signify the nature of absolute knowledge itself.").

(57) See id. at 366-67. "[T]he most essential element of character is this capacity for restraint or -- as they say -- of inhibition, which allows us to contain our passions, our desires, our habits, and subject them to law." Emile Durkhem, Moral Education: A Study in the Theory & Application of the Sociology of Education 46 (1925) (Everett K. Wilson ed., 1973, Everett K. Wilson & Herman Schnurer trans., 1961).

(58) But see id. at 23-24 "[M]orality is the domain of duty is prescribed behavior....[M])orality consists of a systems of rules of action that determine conduct. They state how one must act in given situations; and to behave properly is to obey conscientiously.").

(59) But see id. at 23 (explaining that moral behavior is nothing more than actions conformed to pre-establisbed norms and rules).

(60) See Schwartz, supra note 18 at 561 "([W]e expect the achievement of accurate self-conscious reflection to be a regular feature of a person's everyday life and an achievement that corresponds to his depth and breadth of reality testing.")

(61) The etymology of the verb "to decide" means "to cut off", connoting something more self-reflective, in that a decision is something one does to oneself. See Frankfurt, in Responsibility, Character, and the Emotions, supra note 23, at 38, 41.

(62) See generally id. (discussing freedom of action freedom of the will).

(63) See Brown, supra note 36, at 117 (stating that "consciousness arises between initiation and motility as a filter through which the action is selected" and resolves competing internal ideas). Brown explains that consciousness does not have "a shaping role in the resolution process" -- it is merely a part of the microgenetic sequence from percept (which is limited by external factors) to external movement. See id. at 117-18.

(64) See supra note 32 and accompanying text.

(65) See Strawson, supra note 6, at 146 ("[The being is conscious of something that is in fact itself, but is not conscious that that things is itself. It is itself the object of its consciousness, but that it is the object of its consciousness is no part of the content of its consciousness.").

(66) Id at 160; see also id. at 154-61. Strawson also argues, however, that self-consciousness has no further purpose than to make possible certain linguistic expressions of thought, such as "I am F," "I think that p," etcetera. Id. at 163.

(67) Although some theorists argue that the self may be a product of environment, personal history, and experience, the "individual could be held responsible for his actions if the actions were to express that individual fully, i.e., if the action completely realizes the Self." Brown, supra note 36, at 118. This neurological explanation comports with philosophical compatibilism.

(68) Kenny, supra note 47, at 9 (generally discussing perceptions, feelings, emotions, and physical manifestations thereof).

(69) See D'Angelo supra note 9, at 29-30, 32-33.

(70) Schwartz, supra note 18, at 560.

(71) See Frankfurt, in Responsibility, Character, and the Emotions, supra note 23, at 39-40 (discussing Aristotle's view of voluntary action); Schwartz, supra note 18, at 564-65 (noting that Freud, too, was "adamant that in some fashion a person is and can be held responsible for his personal characteristics even if they are generated by or a function of the repressed"). But see Susan Wolf, Sanity and the Metaphysics of Responsibility, in Responsibility, Character and the Emotions, supra note 23, at 55-57 (arguing that under the determinism or free will theories, individuals cannot be responsible for their actions because actions are dictated by the "deepest self," which is formed by external pressures and conditions). Wolf also posits that individuals, such as victims of violent childhoods or oppressive environments, "may not be responsible for their actions ... [because their actions] are governed by mistaken conceptions of value that [they] cannot help but have." Id. at 57. These individuals may have a false sense that their actions are morally permissible (violence is condoned within their neighborhood as a means to resolve conflict), and thus they have a value system in conflict with greater society's morals and laws. Essentially, Wolf argues, individuals with mistaken values "lack the ability to know right from wrong," and are thus not fully sane (under the M'Naghten test, see infra notes 136-40 and accompanying text) at the deepest level of self. See id. at 58.

A 1954 English murder (with manslaughter charge) case demonstrates how the law sometimes pays little heed to the cause of an individual's character, focusing instead on the objective reasonableness of the individual's actions in light of the individual's knowledge of his or her particular character. In Bedder v. Director of Public Prosecutions, 1 W.L.R. 1119 (1954), the court found that an eighteen-year-old sexually impotent boy, who killed a prostitute after having been taunted by her upon his attempt to have sexual intercourse with her, was properly deemed by the jury not to have acted as a reasonable or ordinary person. See Glanville Williams, Provocation and the Reasonable Man, 1954 CRM. L. Rev. 740, 747. The law was not to take into account the defendant's character or subjective view of reasonableness. "If the provocation was insufficient for a normal man, it could not help the accused that he was conscious of his impotence and therefore liable to be more excited if `twitted' or attacked on the subject of that particular infirmity." Id. Thus, while the defendant may not have been responsible for his impotence in the first place (although medical psychology may now conclude otherwise), he was nonetheless liable for the actions causally arising from his impotent condition. See Brown, supra note 36, at 118 ("Whatever the individual does is that individual, it cannot be otherwise; personality and Self actualize in every cognition and every behavior.").

(72) Three elements have been suggested before a person may be held responsible for their emotions:

(1) [they] know, or should know, that their failures to control their passions will result in their becoming the sort of person who will be unable to control that emotion;

(2) [they] have, and know they have, techniques to accomplish this ... ; and

(3) [they] were not (blamelessly) in an uncontrollable emotional state when they failed to do that which would have led to more properly formed emotions .... John Sabini & Maury Silver, Emotions, Responsibility, and Character, in Responsibility, Character, and the Emotions, supra note 23, at 171.

(73) Strawson, supra note 6, at 26 (citation omitted).

(74) Id. at 27.

(75) Id. at 28. See also Brown, supra note 36, at 118 ("The Self must assume the burden of being the Self that it is."). It would seem unfair to hold a person responsible for who he is, if who he is was externally caused, and for any actions stemming therefrom, if the person lacks the self-reflective awareness to discover exactly what he is. The individual, however, need not necessarily he fully aware of all the factors "that determine his choices ... [to] make these choices any less his own." Wallace, supra note 2, at 950.

(76) See D'Angelo, supra note 9, at 15 ("The self comprehends man's character and has the creative power to change man's character."); Gordon D. Marino, I Think You Should Be Responsible; Me, I'm Not So Sure, Commonweal, Feb. 12, 1993, at 13, 14-15 (asserting the belief that "no matter how horrid our situation ... we are still left with choices ... and it is in responding to these choices that we decide what kind of people we are going to be," but recognizing that "it is a mistake to pretend that the nurturing environment which we all struggle to provide for our children is actually of no moral or characterological consequence").

(77) See D'Angelo, supra note 9, at 16; John Hospers, What Means This Freedom?, in Determinism and Freedom, supra note 10, at 113, 138.

(78) See generally Bernard D. Davis, The Importance of Human Individuality for Sociobiology, 26 Persp. In Biology & Med. 117 (1982) (positing that a scientific understanding of human nature will lead to a more thoroughly developed system of moral values, but that neurobiology and genetics alone are insufficient to explain such things as an individual's value judgments).

(79) Brown, supra note 36, at 115.

(80) Wilson, supra note 54, at 25. "[T]he quality and intensity of an emotional reaction are determined by cognitive appraisal processes, that is, the person's continually reevaluated judgments about the significance of demands and constraints in ongoing transactions with the environment and about the options for meeting them." Richard S. Lazarus et al., Cognition, Emotion and Motivation: The Doctoring of Humpty-Dumpty, in Approaches to Emotions, supra note 4, at 222.

(81) Davis, supra note 78, at 12.

(82) Brown, supra note 36, at 109-10.

(83) Id. at 117.

(84) See Seth Pincus, A Sense of Self, 26 Persp in Biology & Med. 1, 30 (1982). See also id. at 31-32 (comparing the question of whether an idea, once it leaves an individual through communication, is still a part of the individual's self, with a discussion of genetic transmission through viruses).

(85) "Volition" may be defined as "the Self in a willed behavior ... so tightly wedded to consciousness that a description of the Self includes volition as a defining feature." Brown, supra note 36, at 105.

(86) See id. at 107-09. "Voluntary actions have a purpose and a goal. The action is directed to something and this something is the goal of the action." Id. at 112. See also Causation in Perception, in P.F. Strawson, Freedom and Resentment, supra note 14, at 66-84 (discussing logical and causal dependence in the perception-belief-experience array of a material object).

(87) Brown, supra note 36, at 109. Scientific brain study reveals that the two separate hemispheres of the brain are also separate consciousness systems. See R.W. Sperry, Changing Concepts of Consciousness and Free Will, 20 Persp. in Biology & Med. 9, 18 (1976).

(88) Individuals who do not have a fully developed consciousness and self-commit movements that are caused by neural discharges from "other nodes in the action structure," may see and reach for imagined (hallucinated) objects. See Brown, supra note 36, at 111-12. They, too, cannot be held responsible for their actions.

(89) See Paul Cotton, Neurophysiology, Philosophy on Collision Course?, 269 JAMA 1485, 1485 (1993) (discussing how "advances in neuroscience may shed new light on the old question of whether humans have free will").

(90) See Sperry, supra note 87, at 13-15.

(91) See id. at 15.

(92) For a discussion of emotional feelings, language and responses in the Tahitian and Newar, Nepal cultures, see Robert I. Levy, The Emotions in Comparative Perspective, in Approaches to Emotion, supra note 4, at 397-411.

(93) The concept of individualism includes: "an ability to exercise a degree of control over one's life, the ability to cope with one's problems, an ability to change for the better, reliance upon oneself, being responsible for one's actions, self-fulfillment and self-realization of one's internal resources." Laungani, supra note 12, at 37.

(94) See Wilson, supra note 54, at 22-23.

(95) See id.

(96) See Laungani, supra note 12, at 41.

(97) Id.

(98) See Lama Abu-Odeh, Feminism, Nationalism, and the Law: The Case of Arab Women 182 (1993) (unpublished S.J.D. thesis) (on file with the Harvard Law Library).

(99) See id.

(100) Job 1:21 (King James).

(101) Moshe Kohn, Repent and Be Free, Jerusalem Post, Sept. 15, 1993, at 2.

(102) See All Things Considered: Many American Catholics Challenging Vatican (National Public Radio broadcast, Aug. 11, 1993) (discussing the organization Catholics for a Free Choice).

(103) Some people look to biological differences as a means to explain social or moral inequalities. See Henrey, supra note 3, at 140-47 (positing that intelligence is genetically based); Richard J. Herrnstein & Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life 295-315 (1994) (discussing possible genetic origins for I.Q. differences between ethnic groups); R.C. Lewontin et al., Biology, Ideology, and Human Nature: Not in Our Genes 68-82 (1984) (discussing the history of theories of "biological determinism").

(104) See St. Thomas Aquinas, 28 Summa Theologica 81 (Thomas Gilby, O.P. trans., 1964). Aquinas posited that

since being good has the meaning of being an end, while being an evil has the contrary meaning, it follows that reason of its nature apprehends the things toward which man has a natural tendency as good objectives, and therefore to be actively pursued, whereas it apprehends their contraries as bad, and therefore to be shunned.

Id.

(105) See Wilson, supra note 54, at 27-28.

(106) See id. at 27-28.

(107) See id. "Deontological ethics declares that justice dominates goodness, that the just act, one's duty, is to be done even if it decreases the Good." Bailey Kuklin & Jeffrey W. Stempel, Foundations of The Law: An Interdisciplinary and Jurisprudential Primer 6 (1994).

(108) Wilson, supra note 54, at 26.

(109) Individuals may also be held "ethically responsible for their deliberations and also responsible as the agent, deliberate or not, of the manifestations of their personal characteristics." Schwartz, supra note 18, at 571 (emphasis added).

(110) See Brown, supra note 36, at 118 (noting that responsibility "is a legal [i.e., mens rea], not a psychological, definition").

(111) See H.L.A. Hart, Legal Responsibility and Excuses, in Determinism and Freedom, supra note 10, at 95, 102-03 (citing moral culpability as a basis of criminal responsibility); Andrew Von Hirsch & Nils Jareborg, Provocation and Culpability, in Responsibility, Character, and the Emotions, supra note 23, at 250 (discussing how, when legitimately wronged, a person's moral sense is in conflict: "help[ing to] generate the anger as well as being supposed to hold it back").

(112) See Model Penal Code (1980) [sections] 210.3 cmt. 5(b) (1962).

(113) See Smith, supra note 2, at 460 (quoting H.L.A. Hart, Punishment and Responsibility 24 (1968)). Hart suggests analyzing legal and moral responsibility according to whether: (1) the legal system (or the particular law) is morally defensible, which, he posits, is a question for the legislature; and (2) is it just to punish the particular individual under the existing law, a question for the judge. See H.L.A. Hart, in Determinism and Freedom, supra note 10, at 95, 104-05.

(114) See Durkheim, supra note 57, at 27. "Morality is a perspective on the beneficence or maleficence of one's intent toward, and (especially) impact upon, others. As such, moral evaluation can proceed quite independently of any assumption of free will ...." Wallace, supra note 2, at 967.

(115) See Durkheim, supra note 57, at 27-28.

(116) A basic requirement of the deterrence theory of punishment, adhered to by the compatibilists, is that the deviant cares about condemnation.

(117) See Laungani, supra note 12, at 37. "Values are the currently held normative expectations of social and moral conduct.... [and] behaviors are culture-specific." Id.

(118) See Abu-Odeh, supra note 98, at 182-88 (comparing the interpretation of "adequate provocation" by American courts in situations involving marital infidelity with the treatment of "honor crimes" in Arab societies).

(119) See infra notes 193-202 and accompanying text (discussing the theory that the cultural background of an accused should be considered in determining culpability).

(120) See Durkheim, supra note 57, at 45 (arguing that any individual or political party that has too much power, and that believes itself to exist without bounds or accountability, will eventually self-destruct).

(121) Francisco Suarez, On Law and God the Lawgiver, in 1 Moral Philosophy from Montaigne to Kant 69 (Jerome B. Schneewind ed., Cambridge Univ. Press 1990) (1612).

(122) See Durkheim, supra note 57, at 34 ("[I]n order to fulfill one's obligations and to act morally one must have some appreciation [and identifiable knowledge] of the authority sui generis that informs morality.").

(123) People v. Gorshen, 336 P.2d 492, 497 n.4 (Cal. 1959) (quoting psychiatric expert-witness testimony).

(124) See Alford v. State, 866 S.W.2d 619, 623 (Tex. Crim. App. 1993). The Texas Penal Code defines "voluntary act" as "a bodily movement performed consciously as a result of effort or determination," but does not define the word "voluntary." Id. at 623 n.6 (citing Tex. Penal Code [sections] 6.01 (A Proposed Revision, Final Draft 1970)).

(125) See id. at 621-22. The Model Penal Code comments similarly state that the concepts of freedom and determinism are not embodied within the definition of "voluntary." Model Penal Code [sections] 2.01 cmt. 1 (1962).

(126) Alford, 866 S.W.2d at 623-24 nn.6-7 (citing Model Penal Code [sections] 2. 10); Webster's New World Dictionary 1592-93 (2d ed. 1986)). The court noted that most of the definitions provided in Webster's "incorporate[d] the concept of free will," and, in fact, the first definition uses that term. See Alford, 866 S.W.2d at 623-27 & n.7 (citing Webster's New World Dictionary 1592-93 (2d ed. 1986)).

(127) Alford, 866 S.W.2d at 624.

(128) See id. at 624 n.8.

(129) See McNorton v. State, 284 S.E.2d 107, 109 (Ga. Ct. App. 1981) (Deen, P.J., concurring). Judge Deen noted that:

At the very heart of our juvenile and criminal justice systems and administration of justice is the presumption .... [that the defendant] knew right from wrong at the time of the act, that he possessed a free will, that he could make a choice and that he is responsible for his choice made. This indubitably is a legal position of non-determinism.

Id.

(130) "Pragmatically our legal tradition has answered the question [of determinism or free will] by rules which recognize that men are guided entirely neither by external forces nor by free will; every person is influenced by both but is never totally controlled by either." State v. Dostert, 269 S.E.2d 401, 411 (W. Va. 1980).

(131) See id. at 410 n.10 (noting that "the juvenile justice system rests on more deterministic assumptions" (quoting McKeiver v. Pennsylvania, 403 U.S. 528, 551-52 (1970) (White, J., concurring))).

(132) Dostert, 269 S.E.2d at 411. The goals of the "free will model" within the juvenile justice system are deterrence and responsibility. Id.

(133) See Shirley v. State, 253 S.E.2d 787, 791 (Ga. Ct. App. 1979) (Quillian, P.J., dissenting). Legal insanity, once proven, is a complete defense to the crime charged, because the defendant was not able to form the requisite criminal intent. See United States v. Cameron, 907 F.2d 1051, 1064 (11th Cir. 1990).

(134) Wolf, supra note 71, at 61-62.

(135) Some psychiatrists question whether the testimony really goes to the mental wellness of the defendant, or whether the legal categorization of medically determined illnesses is simply a reflection of "society's concept of free will." Ben Bursten, The Psychiatrist-Witness and Legal Guilt, 139 Am. J. Psychiatry 784, 785 (1982).

(136) See infra note 139 (discussing the M'Naghten rule).

(137) Bursten, supra note 135, at 786.

(138) See Shirley, 253 S.E.2d at 792 (Quillian, P.J., dissenting) (positing that, unlike psychiatrists, lawyers believe that the option to obey or disobey the law exists).

(139) See M'Naghten's Case, 8 Eng. Rep. 718 (1843). The M'Naghten standard questions whether the defendant's mental state was so defective that he: (1) did not know or understand the nature of his act, or (2) if he did know what he was doing, he did not know or understand that the act was wrong. See Harvey v. State, 207 So. 2d 108, 111-12 (Miss. 1968) (discussing M'Naghten's case). The M'Naghten Rule has been criticized for being outdated and unreflective of psychological progress in mental understanding. See Shirley, 253 S.E.2d at 793-94 (Quillian, P.J., dissenting). But see Harvey, 207 So.2d at 115 (adhering to the principle that even though the M'Naghten standard for insanity is not perfect, "[t]he time-tested way is the safe way, and the safe way is the best way") (citations omitted).

The legal insanity standard at one point considered whether the defendant's criminal act "was the product of mental disease or mental defect." Durham v. United States, 214 F.2d 862, 862 (D.C. Cir. 1954) (citation omitted). The Durham standard was heavily criticized, and eventually rejected in 1962 by the American Law Institute's Model Penal Code, which asserts that "the defendant is not responsible if at the time of his conduct as a result of mental disease or defect he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." LaFave & Scott, supra note 37, [sections] 4.1(a); see also United States v. Brawner, 471 F.2d 969, 983 (D.C. Cir. 1972) (overruling Durham and adopting the Model Penal Code's formulation).

(140) See People v. Schmidt, 110 N.E. 945, 949-50 (N.Y. 1915). In Schmidt, Judge Cardozo "rejected the theory that a distinction should be made between `legal' and `moral wrong.'" Harvey, 207 So. 2d at 112 (citation omitted).

(141) The heat of passion mitigation does not nullify the intentionality of the act. Model Penal Code [sections] 210.3 cmt. 5. The intentional state of mind is "linked to a conceptual phase in the action prior to the generation of movement ... [it is an] anticipatory phase[] in act or percept formation." Brown, supra note 36, at 113. Unresolved items, such as anxiety, "lack direction and are preintentional," but the anxiety will become concrete fear when the object of the anxiety clarifies. Id. at 113. Thus, an individual may have intended to kill, but the intention itself was aroused by the adequate provocation.

(142) Model Penal Code [sections] 210.3 cmt. 5(a) (1962). See also Williams, supra note 71, at 742 (noting that "the true view of provocation is that it is a concession to `the frailty of human nature' in those exceptional cases where the legal prohibition fails of effect"); Maher v. People, 10 Mich. 212, 219 (1862) (noting that heat of passion law "out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder"). But see Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. Cal. Rev. L. & Women's Stud. 71, 76 (1992) (arguing that the law perpetuates the misconception that a violent response upon witnessing a spouse's infidelity is uncontrollable).

(143) Model Penal Code [sections] 210.3 cmt. 5(a) (citing Williams, supra note 71, at 742). See also Durkheim, supra note 57, at 38 ("[A]n inability to restrict one's self within determinate limits is a sign of disease ...."); Schwartz, supra note 18, at 563 ("`We usually consider it pathognomonic if people find it difficult to make decisions, are not masters of their actions ....'") (quoting Heinz Hartmann, Ego Psychology and the Problem of Adaptation 93 (1958)).

(144) Model Penal Code [sections] 210.3 cmt. 5(a).

(145) Coker posits that it may not be fair to punish the individual at all who essentially had no volition at the time of the criminal act. See Coker, supra note 142, at 99.

(146) Id. at 100 (citing Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. & Criminology 421 (1982)).

(147) See Brown, supra note 36, at 119. As Brown explains:

The cognitive regression [in a moment of heat of passion] is induced not by disease [or by] the context within which the behavior occurs. The capacity for regression under such conditions, for example, a crime of passion, still reflects the structure of the actor[']s personality. Certain individuals are more likely to regress than others. Apart from physiological effects or the influence of brain damage or disease, the Self must accept the responsibility for regressive episodes. This is simply because the occurrence of such episodes indicates the type of Self one is dealing with.

Id.

(148) Manslaughter is still an intentional killing that would otherwise be murder. But see LaFave & Scott, supra note 37, [sections] 7.10 (positing that heat of passion intent to kill also includes intent to do serious bodily injury).

(149) See Goodman, Determinism and Freedom, in Responsibility, Character, and the Emotions, supra note 23, at 160.

(150) See Coker, supra note 142, at 100. Recognition of non-physical provocation as a means to mitigate criminal guilt is not that dissimilar from the doctrine of "hate speech." The legal conclusion that violence-inducing words are not protected by the First Amendment impliedly presumes that individuals can actually be harmed or incited to riot by words and thus must be given legal protection and recourse against the speaker. If an individual is free to withstand an adequate provocation and not commit murder (mitigated to manslaughter), then the individual should also be free to turn away from "hate speech," no matter how obnoxious or violent-sounding, and not require or demand protection through speech ban statutes. But see Wallace, supra note 2, at 965 n.6 (asserting that some irresistible impulses, or as here, adequate provocations, "are not resisted because the agent does not want to resist them, while others are not resisted because of the sheer strength of the impulse or because the capacity for self-restraint is lacking").

Other non-physical provocations are beyond the scope of this Article. However, it is instructive to consider how many areas of law make unsubstantiated assumptions about human nature. Further, heat of passion crimes should not be viewed in isolation. Once the idea of free will is appropriately addressed, understood, and incorporated into one area of law, the same should be done for all areas of law, even if this added layer of understanding requires restructuring 200 year-old law.

(151) See Coker, supra note 142, at 100-03 (discussing Joshua Dressler's analysis of voluntary manslaughter).

(152) See LaFave & Scott, supra note 37, [sections] 7.10. While this "concession to human weakness" is appropriate for historical purposes, there is little modern rationale for the heat of passion crime's existence. Report of the Royal Commission on Capital Punishment 52-53, 270 n. 110 (citing Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. & Criminology 421, 421 (1982)); Andrew Von Hirsch & Nils Jareborg, Provocation and Culpability, in Responsibility, Character, and the Emotions, supra note 23, at 255 ("The law of provocation has suffered from the lack of a coherent theoretical basis.").

(153) See Model Penal Code [sections] 210.3 cmt. 1 (1962); United States v. Browner, 889 F.2d 549, 552 (5th Cir. 1989) (citing LaFave & Scott, supra note 37, [sections] 7.12).

(154) See Model Penal Code [sections] 210.3 cmt. 1; Browner, 889 F.2d at 552 (citing LaFave & Scott, supra note 37, [sections] 7.12).

(155) See Browner, 889 F.2d at 552 (citing LaFave & Scott, supra note 37, [sections] 7.10; 40 Am. Jur. 2d Homicide [sections] 56 (1968) (other citations omitted)); Model Penal Code [sections] 210.3 cmt. 5(a) (citing 3 James F. Stephen, History of the Criminal Law of England 91 (1883) (other citations omitted)); id. at [sections] 210.3 cmt. 5(a) (citing State v. Watkins, 126 N.W. 691 (Iowa 1910) (other citation omitted)).

(156) See Browner, 889 F.2d at 552 (finding that the sufficient provocation necessary for a heat of passion crime negates the existence of malice).

(157) See Model Penal Code [sections] 210.3 cmt. 5(a).

(158) Passion, or emotional disturbance is usually the emotion of anger or rage. See LaFave & Scott, supra note 37, [sections] 7.10.

(159) Model Penal Code [sections] 210.3 cmt. 5(a) (citation omitted).

(160) See Von Hirsch & Jareborg, in Responsibility, Character, and the Emotions, supra note 23, at 243.

(161) See Model Penal Code [sections] 210.3 cmt. 5(a). "[P]rovocation affects the quality of the actor's state of mind as an indicator of moral blameworthiness." Id.

(162) See id. Interestingly, under the subjective standard, "a person of exceptional restraint or maturity of judgment is held to a higher standard than is his more susceptible counterpart." Id.

(163) Id.

(164) See id. The courts eventually added the requirement, determined under the objective, reasonable-person standard, that the defendant did not have time to cool off after being subjected to one of these provocations, and did not in fact cool off. See id.

(165) See Manning's Case, 83 Eng. Rep. 112 (1671) finding husband guilty of the lesser included offense of manslaughter for killing a man "committing adultery with his wife in the very act").

(166) See Gonzales v. State, 546 S.W.2d 617, 617 (Tex. Crim. App. 1977) (finding a husband guilty of manslaughter for killing his wife's lover after discovering the pair in bed).

(167) See Williams, supra note 71, at 742; Coker, supra note 142, at 80 (noting that adultery, based on an invasion of property interest, was recognized as the highest form of provocation) (citing Regina v. Mawgridge, 84 Eng. Rep. 1107, 1115 (1707)). Property, however, is not only a legal construct, but an intangible entity created by the needs of society. In the ongoing debate on the roles of cognition and emotion in social relationships,

property (access to and exclusions from particular physical places and

things) is based upon a sense of what kinds of persons do and do not belong

where. This is based, in turn, upon a sense of what groups are powerful

enough to punish violators of their claims. Authority is similarly organized:

It rests upon a sense of which people are connected to which groups, to

coalitions of what extensiveness and what capacity to enforce the demands of

their members upon others. Randall Collins, The Role of Emotion in Social Structure, in Approaches to Emotion, Supra note 4, at 386.

(168) See Coker, supra note 142, at 73 & n.5 (citing LaFave & Scott supra note 37, at 656;) Rollin M. Perkins & Ronald N. Boyce, Criminal Law 86-87 (3d ed. 1982)).

(169) See LaFave & Scott supra note 37, [sections] 7.10.

(170) But see Coker, supra note 142, at 111 (arguing that the law equates adultery with an assault, and noting that many jurisdictions consider confessions of adultery as an exception to the rule against "words alone" constituting adequate provocation).

(171) LaFave & Scott supra note 37, [sections] 7.10.

(172) Although the definition of the infidel spouse could be extended to include lovers, heterosexual or homosexual, commentators have posited that this mitigation does not apply to relationships other than husband and wife. See LaFave & Scott, supra note 37, [sections] 7.10.

(173) The standards are somewhat different for a wife who kills her husband. See Laurie J. Taylor, Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. Rev. 1679, 1681-82 (1986); John Kaplan & Robert Weisberg, Criminal Law: Cases and Materials 261-68 (1st ed, 1986). See generally Coker, supra note 142 (examining evidence demonstrating that heat of passion wife/lover killers have similar characteristics to historically documented batterers, thus refuting the very legal existence of an "impassioned" wife-killer).

(174) Coker, supra note 142, at 82-83. Coker also notes that "one of our most powerful cultural stereotypes" is that a man who violently punishes his adulterous wife is less blameworthy. See id. at 86; see also Smith, supra note 2, at 476 & n.214 (characterizing heat-of-passion law as a "freebie for jealous, homicidal rage"). In her doctoral comparison of crimes of honor and crimes of passion, Lama Abu-Odeh asserts that crimes of honor are justifications to homicide, and focus on the rightness or wrongness of the act, not the actor's action. The justification for the crime is based on the social, moral judgment of the victim's act, See Abu-Odeh, supra note 98, at 170-71. Unlike the broad spectrum of men who have at their defense the crime of honor codes in Arab countries, only the person (usually a man) sexually betrayed, similar to the United States, may assert the mitigating defense of crime of passion. See id. Arguably, however, when a jury determines that a defendant acted as a reasonable person would have acted in his situation (i.e., he was adequately provoked to commit an intentional act), they inject their opinions on whether certain situational killings amount to a type of honor.

(175) See Coker, supra note 142, at 100-01 & n.128 (discussing how culture shapes an individual's response). For a personal account on the theory that violence is a learned responsesee Geoffrey Canada, Fist Stick Knife Gun: A Personal History of Violence in America (1995).

(176) Coker, supra note 142, at 109 (quoting Lynne Henderson, Rape and Responsibility 11 (1,2), in Law & Philosophy 127 (1992)).

(177) See id. at 96-97 (arguing that blaming the victim reinforces the Violence).

(178) Model Penal Code (sections) 210.3 cmt. 5(b) (1962) (discussing the definition of diminished responsibility and how it is distinct from the rule of provocation).

(179) Most states do not allow diminished responsibility to reduce murder to manslaughter. See Model Penal Code [sections] 210.3 cmt. 5(b).

(180) See id. (describing diminished responsibility as a rule of evidence allowing for the admissibility of proof of mental defect).

(181) See id. (positing that the diminished responsibility doctrine actually undermines the reasonable person test used to determine provocation). The subjective reasonableness test of the explanation or excuse "may allow an inquiry into areas which have been treated as part of the law of diminished responsibility or the insanity defense." Id.

(182) See id. [sections] 210.3 cmt. 1 (discussing the historical reasons for the distinctions between murder and manslaughter).

(183) See id. [sections] 210.3 cmt. 5(b).

(184) This standard has also been adopted by a number of state statutes, as well as the English Homicide Act. See Model Penal Code [sections] 210.3 cmt. 5(b) (explaining that English law leaves the question of "adequate provocation" to the jury). The notion of "heat of passion" was not a familiar term to early state statutory law when the Model Penal Code was first drafted. See id. [sections] 210.3 cmt. 3 (discussing how the code uses phrases unfamiliar to the common law).

(185) Id. [sections] 210.3. The United States Code defines manslaughter as: "the unlawful killing of a human being without malice." 18 U.S.C. [sections] 1112(a) (1994). It is of two kinds: voluntary and involuntary. Voluntary manslaughter is that which is "[u]pon a sudden quarrel or heat of passion." Id. Manslaughter is a second degree felony, carrying a potential term of imprisonment from one to ten years. See Model Penal Code [sections] 210.3. Manslaughter is considered an intermediate crime which lies half-way between the more serious crime of murder, at the one extreme, and, at the other extreme, justifiable or excusable homicide, which is not criminal at all." LaFave & Scott, supra note 37, [sections] 7.9.

(186) Model Penal Code [sections] 210.3 cmt. 5(a) (indicating that mistakenly killing the wrong person may qualify for mitigation).

(187) See id. (noting that the word "situation" is ambiguous by design).

(188) Id. (indicating that the ultimate decision is left to the jury).

(189) Id. [sections] 210.3 cmt. 3.

(190) Id. (indicating, however, that the test is an objective one).

(191) See id.

(192) See id. (noting that the objective standard is still viewed in light of the situation as the defendant perceived it).

(193) See Smith, supra note 2, at 445, 447 & n.63 (arguing that these defenses have allowed individuals to be less accountable).

(194) For a discussion of "battered woman's syndrome" see Coker, supra note 142, at 74 n.12 (citing Holly Maguigan, Battered Women and Self Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379 (1991)); Smith, supra note 2, at 465-70 nn. 152-69 (discussing the experiences of battered women in the justice system).

(195) See Note, Feasibility and Admissibility of Mob Mentality Defenses, 108 Harv. L. Rev. 1111, 1112-13 (1995) (discussing the argument that defendants are less blameworthy due to participation in group criminal activity).

(196) See John McQuiston, Jury Finds Ferguson Guilty of Slaying on the L.I.R.R., N.Y. Times Feb. 17, 1995, at 1 (discussing the Ferguson trial and the "Black rage" defense).

(197) "Urban psychosis" stems from the increasing role of social science in criminal trials, usually as a mitigating factor to violent actions. See Junda Woo, Urban Trauma Mitigates Guilt, Defenders Say, Wall St. J., Apr. 27, 1993, at B1, B7 (discussing a new defense called "urban psychosis" advanced to mitigate the crimes of inner-city youth); see generally Rogers Worthington, "Urban Psychosis' Rejected as Slaying Defense, Chi. Trib., Nov. 5, 1992 (reporting that jurors rejected the urban psychosis defense in a murder trial). Urban psychosis is similar to post-traumatic stress syndrome often found in inner-city children who live in violent surroundings. See James Garbarino et al., Children in Danger: Coping with the Consequences of Community Violence 1-21, 67-99 (1992) (discussing the danger in exposing children to community violence and how it relates to post-traumatic stress disorder).

(198) See Smith, supra note 2, at 445 n.61.

(199) See id. at 445 n.62.

(200) See id. at 446 nn.65-67.

(201) See id. at 445-49, 477-80 (discussing the theory and use of cultural defenses).

(202) See id at 460-65 nn. 130-51 (discussing the plight of inner-city urban youth and arguing that the jury should decide whether a defendant's personal and social background should mitigate guilt). See also David L. Bazelon, The Morality of the Criminal Law, 49 S. Cal. L. Rev. 385, 394-95 (1976) (discussing the overwhelming influence of an underprivileged person's environment on the individual's ability to make free choices).

(203) But if the basic human commonalities, see supra notes 103-22 and accompanying text, are true, then all cases should be decided upon the same empirically moral principles. That the evidence tends to disprove this theory does not negate the existence of those commonalities; rather, these individuals (judges and jurors) might simply have been unaware of the basic truths.

(204) See generally Carol Gilligan, In a Different Voice (1993) (positing that women act according to a distinct feminine "voice" that must be considered in formulating developmental behavior standards); Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988) (discussing the theory of "feminist jurisprudence," taking into account womens' differing views on human nature). For a discussion on the interrelationship between gender and violence and men and women's differing views of aggression see Smith, supra note 2, at 470-86.

(205) See Abu-Odeh, supra note 98. The Jordanian Penal Code (no. 16, 1960), article 340(1), states that "[h]e who catches his wife, or one of his (female) unlawfuls committing adultery with another, and he kills, wounds, or injures one or both of them, is exempt from any penalty." Id. at 53. Killing the wife (or sister) not only for committing adultery, but for failing to bleed on her wedding night was seen under the traditional Arab text as being sufficient to constitute an honor crime. See id. at 64. The men are justified because the woman's actions are viewed as assaults on the man's s public reputation. Similar crime of honor provisions exist in many Arab penal codes, and, at one time, in the codes of Spain, Portugal, Italy, and France. See id. at 54.

The premise of the Arab crime of honor codes rests on the culturally ingrained and perpetuated practice and understanding that both men and women in Arab societies are supposed to keep and protect the woman's virginity until marriage, and then her chastity thereafter. See id. at 64-65. It is the fear of social ostracization, and, indirectly, legal sanction through male-protective laws, that regulate adultery and allow the crimes of honor. See id. at 74-75.

In the United States, the fear of legal punishment (and the very existence of the heat of passion proscription) is presumed to prevent heat of passion crimes. Unless the laws reflect the social values, however, the law as deterrence is useless. Since our society does look to law to set forth society's values, and the jury is meant to represent and act upon those values, the law should accurately reflect and assert what those values are. The tension nonetheless exists between the desire to legislate adequate provocations, and the need to recognize, or at least consider, the varying cultural and social values that exist among defendants and jurors.

(206) See Smith, supra note 2, at 447 (questioning "whether anyone is ever responsible anymore and whether anyone ever makes choices, takes the heat for those choices, learns something from the process, and makes different choices next time").

(207) See John Taylor, Don't Blame Me! The New Culture of Victimization, N.Y. Mag., June 3, 1991, at 26, 28-29. For a discussion on individual versus social responsibility for crime see Smith, supra note 2.

(208) The current sentencing guidelines often fail to take into account the defendant's personal history, opting instead for a mathematical formula based on factors in the underlying crime and the defendant's criminal history. See U.S. Sentencing Guidelines Manual (1995); Smith, supra note 2, at 454-55.

(209) This process would be similar to the bifurcated capital punishment trial process. Exploration of a defendant's personal history in an attempt to customize punishment "exploits the tension between belief in determinism and belief in free will." Stewart v. Gramley, 74 F.3d 132, 136 (7th Cir. 1996). In Stewart, Chief Judge Posner discussed compatibilism in a capital punishment opinion, explaining that lack of exploration into the causes of a defendant's criminal actions is not the reason we hold people responsible for their voluntary actions. See id. Citing capital punishment law as "obviously" not incorporating the theory "that murderers are compelled to murder by their past and therefore should not be punished," Chief Judge Posner espoused that the defendant's personal history, uncovered and explored during the sentencing phase, is only to show whether or not the defendant is as "`bad' a person as one might have thought from the evidence in the guilt phase of the proceeding." Id. Posner's reputation and strong arguments stand as a strong defense to the proposition that environmental causes (determinism) should be considered during the guilt phase.

(210) See LaFave & Scott, supra note 37, [sections] 7.10 (arguing that "the leeway [in the sentencing process] would have to be greater if there were no separate crime of voluntary manslaughter"); Wallace, supra note 2, at 965 (warning that "the more persons understand about the agent's history, constitution, and the immediately antecedent facts of his situation, the more likely they are to excuse or to mitigate the intensity of their blame").

(211) One proposal suggests two standards for provocation: (1) Impaired volition (whether the defendant was so overcome by emotional distress that he temporarily suffered "partial loss of the capacity for choice"); (2) Resentment (whether the defendant was "sufficiently wronged" by another's actions, and then acted appropriately in response to the wrong). See Von Hirsch & Jareborg, in Responsibility, Character, and the Emotions, supra note 23, at 253-54. The Royal Commission on Capital Punishment did not entirely agree with the reasonable person standard articulated in the Model Penal Code, arguing that criminal law "`should be based on a generally accepted standard of conduct applicable to all citizens alike' ...." Model Penal Code [sections] 210.3 cmt. 5(a) (1962).

Case law generally limits adequate provocation to four situations: (1) adultery; (2) mutual quarrel or combat; (3) substantial physical injury or assault; and (4) illegal arrest. See, e.g., People v. Santiago, 582 N.E.2d 1304 (Ill. App. Ct. 1991).

Society forms an individual's character and behavior to a greater extent than the law currently recognizes. When a jury determines that a defendant did not act as a reasonable person would have under the same circumstances, and so finds the defendant guilty of murder, the law assumes that the individual (or others in similar circumstances) adapts his or her behavior to conform with society's moral standards and criteria. See Brown, supra note 36, at 119. Dr. Brown argues, however, that the "individual can no more adjust his actions to fit the requirements of the society than an animal can alter its behavior to meet the needs of the environment." Id.; see also Durkheim, supra note 57, at 26-29 (positing that moral behavior cannot necessarily be reduced to some basic principle of morality; rather, the conduct is a result of socially-prescribed law).

(212) But see Davis, supra note 78, at 10-11 (arguing that social equality can only be achieved by understanding and recognizing biological differences between individuals, not by founding a system on moral and political ideals).

(213) See Model Penal Code [sections] 210.3 cmt. 5(b) (noting that the subjective view of "evaluating the abnormal individual on his own terms ... decreases the incentives for [the defendant] to behave as if he were normal .... blur[ring] the law's message that there are certain minimal standards of conduct to which every member of society must conform.").

What is deemed morally and socially acceptable, and whether a particular defendant was adequately provoked as a "reasonable person" would have been, may also be rooted in whether the defendant's guilt was determined by a jury, who might be more receptive to a defense that focuses on the character and history of the defendant, or by a trial judge, who is more inclined to focus on the objective facts of the crime. See Smith, supra note 2, at 443-45 nn.50-58 (discussing how judges and prosecutors prefer to focus on the objective facts of a crime rather than the subjective effects of the defendant's past).

(214) Durkheim, supra note 57, at 45.

(215) Peer influence and the way different societies teach children about alternative choices may play a role in the basic understanding and definition of choice. See Wilson, supra note 54, at 22-24.

(216) See Durkheim, supra note 57, at 43. Discipline is in itself a factor, sui generis, of education.... Through it and by means of it alone are we able to teach the child to rein in his desires, to set limits to his appetites of all kinds, to limit and, through limitation, to define the goals of his activity.

Id.

(217) See Brown, supra note 36, at 119 (explaining that changes in societal norms result in individuals modifying their behavior to fit those norms). See also Durkheim, supra note 57, at 230 (positing that public schools should play a lead role in the secular moral education of children).

One author, knowledgeable about youth and learned violence, suggests that the only way to combat violence and other environmentally misconstrued values is to play "hard-ball"; send caring, well-trained adults into the worst parts of the society to help change the violence-inducing environment from within. See Canada, supra note 175, at 109.

(218) See Furlong, supra note 8, at 438 (discussing the link between belief in free will and the choices made by the individual); see also Goldberg, supra note 9, at 47 (noting that "people act on their belief or disbelief in freedom of choice as if their particular belief were unquestionably valid"); id. at 56 (explaining the idea that "if the self is not given social validation for seeking possibility, it experiences a feeling that it does not deserve freedom of choice). Belief in free will or determinism also affects one's attitude toward punishment. See Steven J. Stroessner & Charles W. Green, Effects of Belief in Free Will or Determinism on Attitudes Toward Punishment and Locus of Control, 130 J. Soc. Psychol. 789 (1990) (discussing how belief in free will influences a person's behavior and reactions to hypothetical situations).

(219) Some doctors believe that the purpose of psychoanalysis is not to develop the will or to "mov[e] the individual from a sphere of determinism to one of free will," but to alter the individual's "mode of self-determination." Wallace, supra note 2, at 943.

(220) Goldberg, supra note 9, at 47-57.

(221) See generally Aristotle, The Nichomachean Ethics (David Ross et al. trans., 1983).

(222) Politicians blame their adversaries. See, e.g., Arianna Huffington, Don't Blame Me! Excuses, Popular Culture and Politics, Fam. Circle, Jan. 11, 1994, at 156 (stating that the major candidates in the 1992 presidential election blamed the nation's ills on the opposing political party). Victims of violence blame television producers. See, e.g., Lawrence J. Siskind, The Folly and Futility of Censoring Violence, Conn. L. Trib., Nov. 29, 1993, at 21 (citing civil suits brought against the entertainment industry following crimes allegedly spurred by television or movie violence). Smokers blame the tobacco industry. See, e.g., John C. Luik, Tobacco Advertising Bans and the Dark Face of Government Paternalism, 12 Int'l J. Adv. 303 (Sept. 22, 1993) (positing that advertising bans on tobacco products are an encroachment on individual free will) See also Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 76 (1991) (noting the disproportionate emphasis on individual rights and the "habitual silences concerning responsibilities").

(223) Unfortunately, individuals who often do make moral choices and exercise their freedom not to engage in criminal activity may nonetheless be roped into the criminal system. One can only hope that the integrity of the legal system and the criminal law's requirement of proof of mens rea and voluntary action provides adequate safeguards. See Smith, supra note 2, at nn.140-42 and accompanying text; Abbe Smith, A Youth's Loss of Faith in the Justice System, Boston Globe, Apr. 21, 1993, at 19 (discussing how a responsible, moral, Black youth was charged with engaging in misdemeanor criminal conduct even though he had made a free choice not to become involved in the activity for which he was accused).

(224) Steward Mach. Co. V. Davis, 301 U.S. 548, 590 (1937).

(225) See U.S. Const. amend. XIII.

(226) "Adultery" does not appear in any state or federal criminal code for manslaughter, but is a judicially crafted provocation. See, e.g., Kontakis v. Beyer, 19 F.3d 110, 119 (3d Cir. 1994) (upholding state murder conviction of husband where court below found that wife's adultery did constitute adequate provocation sufficient to justify a lesser-included offense charge to the jury); State v. Shane, 590 N.E.2d 272 (Ohio 1992) (noting that the rule allowing mitigation of murder by a husband of his wife's lover "has no place in modern society"); see also supra n.211.

(227) See Gina Kolata, Boom in Ritalin Sales Raises Ethical Issues, N.Y. Times, May 15, 1996, at 8 (reporting on increased use of the prescription drug, Ritalin, to control child hyperactivity).

(228) See Melissa Fletcher Stoeltie, Social Ills: Physical or Psychological?, Hous. Chron., Nov. 14, 1993, at 1 (referring to treatment of the mentally ill that occurred in the nineteenth century).

(229) See, e.g., Nev. Rev. Stat. Ann. [sections] 125.010(l) (Michie 1995).

(230) See Fed. R. Evid. 412 (generally barring admission of evidence regarding a rape victim's past sexual behavior or predisposition).

(231) Buck v. Bell, 274 U.S. 200, 207 (1927).

(232) Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting), overruled by Brown v. Board of Educ., 347 U.S. 483 (1954).

(233) U.S. Sentencing Guidelines Manual (1995).

(234) 347 U.S. 483 (1954).

(235) U.S. Const. amend. XIII.
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Date:Jun 22, 1997
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