The correlation of punishment to culpability stands firmly as the bedrock principle upon which legislatures construct criminal codes. Ordinarily, codes punish more culpable offenders more severely than less culpable offenders who are guilty of the same crime. Occasionally, legislatures deviate from a perfect correlation. For example, legislatures might punish offenders whose extremely reckless conduct is the cause of a crime as severely as those offenders who commit the same crime purposely or knowingly. When, however, a code punishes offenders who commit a crime with a less culpable mens rea more severely than offenders who commit the same crime with a more culpable mens rea, the disparity may signal not only “unenlightened penology” but also constitutional impropriety.

Although the operation and precise statutory language of each code varies slightly, the homicide statutes of six states—Alaska, Kansas, and New York—provide the most glaring examples of the “harsher punishment for less culpable offenders” problem. With respect to homicide committed in the heat of passion and upon reasonable provocation (passion/provocation homicide), each code fails so dramatically to correlate punishment to culpability as to call into question its compatibility with the constitutional guarantee of equal protection. In these states, offenders who purposely or knowingly cause the death of another person, while in the heat of passion and upon reasonable provocation, are punished less harshly than offenders who cause the death of another person due to their extremely reckless conduct (extreme-recklessness homicide) while in the heat of passion and upon reasonable provocation. Consequently, the more culpable criminal class is subjected to less severe punishment for commission of the same crime—homicide committed in the heat of passion and upon reasonable provocation.