Crimes of Passion
On the morning of April 2, 1993, Ellie Nesler lost control.
She had gone to court with her young son, who was due to testify at the
preliminary hearing of Daniel Driver. Driver stood accused of sexually mo-
lesting Nesler's son and three other young boys at a camp several years earlier.
Driver had convictions in two previous cases for child molestation. Nesler also
had a past involving child molestation—she had been a victim of it as a child.
The preliminary hearing was a traumatic event for Nesler's son. Driver had
reportedly threatened to kill the boy and his mother if the boy ever told any-
one about the molestation. The boy had vomited repeatedly in anticipation of
his courtroom appearance.
According to defense witnesses, as Driver was brought into the courtroom
that morning he smirked at Nesler and her son; Nesler lunged at Driver but
was held back by relatives. Then another mother told Nesler that the prosecu-
tion's evidence had been weak so far and that Driver “was going to walk.” On
hearing these words Nesler took a small .22-caliber pistol from her sister's
purse which was hanging in the court hallway, returned to the courtroom and
emptied the gun into the handcuffed Driver, killing him.
Nesler was tried for first-degree murder but was convicted of voluntary
manslaughter, the jury determining that she killed in the heat of passion.1
Anglo-American criminal law has always had a soft spot for the impassioned homicide. The doctrine of heat of passion, also called provocation, marks the difference between murder and manslaughter, traditionally the difference between a hanging offense and one punished by less severe sanctions. Today the doctrine no longer plays a central role in determining whether a killer will die, but it still makes a major difference in punishment.2
The question is why. What is the principle behind the provocation rule? Assuming the jury's decision was correct, did Nesler deserve less punishment because the pressures on her were so great that she lost self-control and so became less responsible? Or was the verdict correct because she had good reason for rage at Daniel Driver, making the killing a less fundamental challenge to human value than most intentional homicides? To put the question