On equality, bias crimes, and just deserts.

• Author: Simons, Kenneth W.

Much of the appeal of retributive theories of criminal law flows from what they are not. Most importantly, they are not utilitarian, consequentialist, deterrence-oriented theories. They do not allow punishment of the innocent in order to serve a large social good. They do not permit selecting an offender for extremely harsh punishment by lottery, even if this would expend fewer overall social resources than imposing lower and proportionate punishment on all similar offenders. More generally, they would not permit exemplary punishment of an offender that is disproportionate to his just deserts, even if this would serve a significant deterrent function or would appease public anger. In short, retributivists would place significant limits on the state's ability to promote social welfare at the expense of fairness to the individual defendant.

Retributivists measure just deserts by the culpability of the offender and the wrongdoing he commits. But is this focus too narrow? Professors Alon Harel and Gideon Parchomovsky believe that it is.(1) They argue for widening the retributivist focus beyond culpability and wrongdoing to encompass egalitarian concerns. The authors offer this suggestion for two reasons--to give a convincing justification of bias crime legislation, and, more broadly, to remedy what they characterize as the retributive approach's inadequate attention to the interests of crime victims. In their view, the retributivist approach gives an inadequate justification of bias crimes and cannot explain the state's egalitarian duty to protect the most vulnerable victims.

The proposition is tempting because the egalitarian goals are worthy. Bias crime legislation is indeed justifiable on retributivist grounds, and the interests of crime victims indeed deserve great attention, by retributivists as well as utilitarians. I will argue, however, that widening the retributivist focus is largely unnecessary and potentially dangerous. It is largely unnecessary because the retributive paradigm is already able to encompass egalitarian concerns, including the protection of especially vulnerable victims. It is also potentially dangerous. Insofar as a particular form of egalitarianism does permit, or even requires, that the defendant's blameworthiness be ignored, that egalitarian demand is in conflict with retributive values. To be sure, the state has a duty to promote egalitarian goals, and has many legitimate means for doing so. But sometimes we must decline to pursue these goals through the instrument of criminal law, if we care about giving offenders their just deserts.

1. SUMMARY OF THE HAREL & PARCHOMOVKSY ARGUMENT

   The authors correctly observe that contemporary criminal law discourse embodies a "wrongfulness-culpability hypothesis" (hereinafter WC).(2) Under WC, criminal are deserved if a defendant has culpably brought about a wrong; and increased sanctions are warranted, ceteris paribus, only if the defendant has acted more culpably, or has brought about a greater wrong. These features of WC, they note, are consistent with retributivist and other non-utilitarian approaches to punishment.(3)

   But WC is deficient, the authors assert, and must be supplemented by a "fair protection paradigm" (FPP).(4) WC is deficient because it gives no independent weight to the interests of a victim. In particular, WC ignores the special vulnerability of certain victims. Consider (this is my example) the elderly. Suppose we conclude that they are especially likely to be crime victims (they are "high-risk" in the authors' terms), or that they are likely to suffer especially severe harm if they are the victims of a crime like assault (they are "extra-sensitive").(5) WC cannot justify imposing a more serious penalty on a person who attacks an elderly victim. For "no particular offender is responsible for the fact that the victim was particularly susceptible to crime due to the disposition of other criminals to prey on her."(6)

   However, if WC is supplemented by FPP, then (the authors argue) a greater sanction for such an attacker can indeed be justified--by the victim's greater need for protection. FPP expresses the egalitarian notion that protection from crime is a good produced by the criminal law, and the state has a duty to distribute this good fairly. Specifically, the state should make special efforts to reduce crime against those who are especially vulnerable due to immutable personal characteristics.(7) Greater enforcement of the criminal law against those who victimize the most vulnerable citizens is one way for the state to discharge this duty. But when this is not feasible the state should impose harsher sanctions.

   In the course of this argument, the authors offer some provocative criticisms of WC, and also provide an interesting taxonomy of the types of vulnerability that they believe the state should address and the types it should not.(8) But I believe that the argument as a whole is unpersuasive. Before I provide a general criticism, it will be helpful to consider whether the argument achieves the narrower goal of providing an attractive justification of legislation for bias crimes. Even in this narrower context, I believe, the argument fails.

2. INTERNAL CRITIQUE: DOES FPP JUSTIFY IBAS CRIME LEGISLATION?

   The authors claim that the usual rationales within WC theory cannot justify bias crimes, and I respond to that claim later in this essay. But this is not the most original part of their argument.(9) Rather, the authors' most interesting assertion is that FPP is an especially promising rationale for bias crime legislation. In their view, such legislation responds to the fact that racial and other groups protected by such legislation are unusually vulnerable to crime. To compensate for that extra vulnerability, we need to impose a stronger sanction against those who select persons to be victims based on racial criteria and similar immutable characteristics.

   The argument that FPP justifies higher sanctions for bias crimes has some initial plausibility. The authors are correct to point out that bias crimes often do contribute to the special vulnerability of the group members subject to bias. Obviously, other things being equal, if crimes committed on the basis of race suddenly ceased to occur, members of such victimized racial groups would be less vulnerable to crime.

   But bias crime enhancement is not principally designed to compensate for this extra vulnerability. If it were, one would expect to see relatively widespread enactment of similar penalty enhancement laws for other vulnerable groups--the elderly, children, prison inmates, the hospitalized, the mentally ill, and so forth. No such widespread pattern exists.(10) Moreover, many of these other groups are much more vulnerable to crime (in either the "high-risk" or "extrasensitive" sense, or both) than are the racial and other groups usually covered by bias crime legislation.

   Furthermore, the additional vulnerability to crime due to bias crimes surely pales in comparison with additional vulnerability to crime due to geography, wealth, class, and similar factors. Moving away from a violent inner city neighborhood will reduce vulnerability to crime far more than changing the color of one's skin.(11) Indeed, if unequal vulnerability to crime is the overriding social problem that the authors suggest, the best and most direct governmental response would involve the following process: carefully collect statistical data about the incidence of crime on various groups; determine which factors (age, physical and mental health, poverty, urban versus nonurban location, large versus small city, gender, race, and so forth) have what degree of independent statistical significance; and then prioritize efforts (via higher sanctions or greater enforcement) to diminish vulnerability according to the relative significance of these factors. Whatever the merits of this approach, it is not the approach we see in contemporary substantive criminal law and criminal enforcement policies.

   Even if unusual vulnerability really was the problem that bias crime legislation addresses, wouldn't it make more sense to police, investigate, and prosecute crimes committed against bias crime victims more aggressively than to increase the sanctions for such crimes? Harel & Parchomovsky agree that either increased sanctions or increased enforcement might be an effective response to the unequal vulnerability of different victims, but they suggest that increased enforcement is not likely to be an effective strategy for bias crime victims because "it is only after the perpetrator of the crime is detected that one can discern her motives clearly."(12) By contrast, they point out, special vulnerability due to poverty can more effectively be addressed through ex ante efforts (such as policing of poor neighborhoods) than through ex post higher sanctions.(13)

   But the greater ability to detect bias motivation ex post does not conclusively support employing increased sanctions rather than more aggressive prosecution. Post-crime investigation and prosecution of bias crimes could still be pursued more aggressively. And ex ante state efforts to prevent bias crimes by more aggressive policing are sometimes effective.(14) In short, it is an open, empirical question whether, for bias crimes, higher sanctions are more effective than ex post enforcement efforts.(15)

   A simple fact remains: most Americans at the turn of the century consider bias crimes to be especially outrageous and reprehensible, but for reasons other than the extra vulnerability of the victim. When a black is assaulted because of his race, a Catholic is targeted because of her religion, or a gay person is attacked because of his sexual orientation, additional moral condemnation is warranted; but the quantum of additional condemnation that is deserved is not a direct function of the protected group's unusual vulnerability to crime. Race, gender...