360
Blackmun, J., dissenting
It may be more difficult to sympathize with Kevin Taylor than with the hypothetical Jane Doe, because Doe acted legally and Taylor concededly did not. Not all crimes are equal, however, and if Illinois announces that it will treat murder more seriously than voluntary manslaughter, then Taylor has a right to rely on that announcement when he makes a decision to engage in conduct punishable as a less serious crime. This Court in Mullaney v. Wilbur, 421 U. S. 684, 698 (1975), said:
"Indeed, when viewed in terms of the potential difference in restrictions of personal liberty attendant to each conviction, the distinction . . . between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes."
2
By equating voluntary manslaughter with murder and thereby, in effect, applying an ex post facto murder law to Taylor, the instructions in this case made it highly likely that the jury would return an inaccurate murder conviction.
As explained above, under Illinois law at the time of Taylor's offense, the presence of provocation reduced murder to voluntary manslaughter. This meant that state law defined the category of murder to exclude voluntary manslaughter and therefore considered a person who was guilty of voluntary manslaughter also to be innocent of murder. Any procedure that increased the likelihood of a murder conviction despite the presence of provocation, thus also decreasing the likelihood of a manslaughter conviction, was therefore a procedure that diminished the likelihood of an accurate conviction by the jury. Because the procedure in this case prevented the jury from even considering the voluntary manslaughter option, it severely diminished the likelihood of an accurate conviction. See Butler v. McKellar, 494 U. S. 407, 416 (1990). The instructions given in this case essen-
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