To take provocation at face value – that is, to plead and prove it as a manslaughter offense, as it is defined in most criminal codes – seems to be both unnecessary and impossible. The defendant has the best access to evidence of provocation and will benefit from the proof of this partial defense, so why should he not be required to prove it? The prosecution has no incentive to prove provocation manslaughter, because the definition of this offense includes a murder. Why would the prosecution, having proved a murder, then set out to prove a lesser crime than the crime for which it already has a conviction? However, this article will demonstrate that we are obligated to treat provocation manslaughter as an offense as a normative-theoretical matter, and that it is possible to do this as a practical matter.

The argument is a conceptual argument in the normative theory of punishment. The best theoretical description of provocation manslaughter is as an offense, and not as a partial justification defense or as a partial excuse premised a partial loss of responsible agency. Once we distinguish three things that are usually conflated – intentions, intentional actions, and intent elements – we can see that provocation manslaughter depends on proof of a particular intentional act of killing, and that this proof brings a particular set of the defendant’s intentions to the fore for purposes of determining his desert for punishment. This set of intentions is different from the set of intentions that proof of a killing with intent, murder, brings to the fore for purposes of determining desert. Regardless of any reference to an intent to kill in the definition of provocation manslaughter, this kind of manslaughter is logically and normatively different from, and exclusive of, murder – in just the same way that a reckless manslaughter is. If a reckless manslaughter is an offense, then provocation manslaughter is an offense as well – and should be proved as one – because there is no conceptual difference between the two kinds of manslaughter, relative to the other homicides.

In the normative theory of punishment, a correct description of criminal law is taken to be a reason to make the law so as a positive matter. This article invokes that principle. But we have other reasons to take provocation at face value. For historical reasons that are beyond the scope of this article, one of the homicide offenses came to be at odds with modern proof procedures under prevailing court rules and constitutional doctrine. We chose, in effect, to deal with this conflict by treating provocation manslaughter as a defense instead of as an offense. In doing so, however, we took the easy way out. We failed to live up to the rule of law values that require proof of offenses beyond a reasonable doubt. This article shows how we can treat provocation manslaughter as an offense as a practical matter. We should adopt a set of rules that provide discovery to the prosecution, that obligate it to make a prima facie case on pain of a mistrial and bar to reprosecution, and that reverse the ordinary order of jury deliberations so that provocation manslaughter is considered first and murder is considered second – or not at all, if the jury has convicted the defendant of provocation manslaughter. These rules provide an incentive for the prosecution to prove provocation manslaughter, and a disincentive to sandbagging that proof in an attempt to obtain a murder conviction instead. More importantly, the proposed rules enable us to live up to our rule of law ideals – including the principle of lenity as well as the requirement of proof beyond a reasonable doubt – in a way that treating provocation as a partial defense does not. If we take provocation at face value, then we can better preserve criminal law’s constitutional principles, theoretical consistency, and moral integrity.