A dangerous mix: mandatory sentence enhancements and the use of motive.

• Author: Geller, Joshua S.

INTRODUCTION

"It all happened so fast. One minute Peter Malamoutsis was laughing with friends in front of a restaurant early Saturday morning. The next he was on the pavement gasping for breath as three men kicked him repeatedly in the head." (1)

According to news reports, this attack was preceded by an exchange in which John Himonetos made a disparaging remark about homosexuals, and Malamoutsis, himself a homosexual, took offense. (2) Himonetos and two others allegedly proceeded to beat Malamoutsis, and police believe that the attack was motivated by the victim's sexual preference. (3) Himonetos has been charged with a hate crime and faces the possibility of an extended sentence of up to thirty years, double the maximum allowed for aggravated battery. (4)

Himonetos's case is not unique. Over forty states have adopted hate-crime laws that increase the punishment for offenses in which the defendant was motivated by hatred of the victim's race, gender, or sexual preference. (5) What would have been considered an ordinary bar fight just a few years ago is now recognized as gay bashing and is subject to harsh penalties that are meant to deter bigoted behavior. (6)

The significance of this story lies not in the existence of the crime but in the severity of the punishment. This Comment will address the following issue: Given that the punishment increase is based solely on the accused's motive, should we be more concerned about the accuracy of the verdict in cases like John Himonetos's than we are in non-motive-based crimes? Himonetos may be a horrible bigot whose hatred of homosexuals constitutes an immediate threat to a significant percentage of the population. He may instead, however, just be a man who is prone to violence and who decided to take out his aggression on the nearest target; in this case, a gay man. The jury's determination of this very fact is the crucial element that will determine how much of his life Himonetos spends in jail.

It is beyond question that one who is convicted of assault should be punished. It is only when a statute increases that punishment because the crime was triggered by the victim's membership in a minority group that we must wonder whether our possible understanding of the criminal mind truly validates the imposition of a harsher sentence. Can the assailant's psyche be determined beyond a reasonable doubt, and is the law correct in mandating that a jury do so in the course of a trial that potentially affects the next thirty years of this man's life?

The following discussion focuses on whether the American criminal justice system has gone too far in its use of motive as a basis for mandating stricter sentences. (7) The radical changes to the federal and state sentencing guidelines brought about by Blakely v. Washington (8) and United States v. Booker (9) will force legislatures to take a closer look at our system of punishment. In no area is such introspection more important than with regard to those crimes that use motive as their essential element.

This Comment will address the problems presented by criminal statutes that mandate sentence enhancements specifically for the motive element of a crime. Conspiracy law, hate-crime statutes, and unlawful purpose statutes will be presented individually as examples of motive-based crimes and collectively as an illustration of a progression in criminal law of the increasingly greater use of motive. Part I provides an introduction to the use of motive in criminal law and contains a brief overview of the motive-intent dichotomy. In addition, Part I includes a discussion of conspiracy law as the forebear of motive-based crimes.

Part II focuses on hate crime law as the primary example of a crime that uses motive to suggest a sentence enhancement. This Part includes a detailed discussion of the arguments in favor of and in opposition to hate crime laws, specifically as those critiques pertain to the difficulty of determining if a defendant acted out of bias.

Part III is a discussion of a law that further pushes the frontier in the use of motive in sentencing, the proscription of possession of a weapon for an unlawful purpose. Finally, this Comment concludes by suggesting two options to address the problem of the increasing use of motive: legislatures should either reform the law to limit the use of sentence enhancements in motive-based offenses, or the application of sentence enhancements should be left to the discretion of the judge.

1. MOTIVE AND INTENT: A COMPARISON

   The first step in discussing motive-based crimes is to examine how motive differs from intent, both from a definitional standpoint and through practical application. This section will analyze a selection of areas within criminal law in which motive plays an integral role in the definition of an offense, followed by a detailed discussion of the difficulties in properly parsing motive from an overall finding of intent.

   1. The Motive-Intent Dichotomy

      A fundamental precept of criminal law is that to obtain a conviction there has to be a finding of criminal intent. (10) The prosecution must not only prove that the defendant committed the act charged, but also that the defendant acted with some culpable mental state, either "purposely," "knowingly," or "recklessly." (11) Intent is a fun

      damental part of the adjudicatory process, and its inclusion reflects the notion that guilt is not based on action alone; for a person to receive a punishment it must be proven that there was a certain mens rea, a mental state that establishes culpability. (12)

      Just as intent is essential, the motivation of the defendant is generally not an element in the determination of guilt. (13) Juries are instructed to determine whether the defendant intended to commit the crime and that the crime was actually committed; the defendant's reasons for committing it should not be a consideration in the finding of fact. (14) The basic reason for the irrelevance of motive is that the American criminal justice system is based on a utilitarian model that seeks to create exact specifications of crimes. To achieve "effective and optimal deterrence require[s] that proscribed conduct be defined precisely, prospectively, and publicly." (15) Within this framework, the requirement to determine why the criminal acted is diminished, as it is sufficient that the defendant was aware of his actions and of their consequences. (16)

      1. Differentiating Between Motive and Intent

         To properly understand how motive is being used in various criminal statutes, it is important at the least to attempt to comprehend the distinction between motive and intent. At a very basic level, motive can be defined as "something, especially willful desire, that leads one to act." (17) Intent refers to "the state of mind accompanying an act, especially a forbidden act." (18) These definitions imply that motive is the inducement to act while intent is the willingness to act. (19)

         Numerous difficulties afflict the motive-intent relationship and cast doubt on whether motive really is excluded from criminal law. (20) Given the above definitions, it can be argued that a finding of intent will essentially incorporate a decision on motive. (21) By defining motive as the desire for the end result, a finding that the defendant intended the illegal conduct leads to the presumption that the result was desired and even expected; in other words, motive might be found concurrently with intent, which can be problematic in a system in which the two are purposefully kept apart. (22)

         A means of addressing the conceptual problem of the distinction between motive and intent may be to acknowledge that the "distinction simply mirrors the way in which we choose to describe them." (23) Motive complicates the utilitarian nature of criminal law (24) when it is defined as anything and everything that is extrinsic to the defendant's intent. (25) By embracing the expansion of intent and specifically including motivation within the broader finding of intent, we no longer have a problem with inadvertently criminalizing motive. (26) Under this approach, finding intent in the hate-crime context requires a decision on both the intent to assault and the animus-driven intent that drove the selection of the victim. (27)

         It has also been argued that the irrelevance of motive doctrine is wrong. (28) Rather than not playing a role in criminal law, motive should instead be used for specific functions. (29) For example, motive can be a means of justification or the explication of an otherwise criminal action. (30) While not an element that would have to be established by the prosecution, it can instead be a tool available to the defense to present the facts in a way that would justify the defendant's behavior. (31) Professor Wayne LaFave states that there is no use for motive other than establishing the elements of the defense. (32) "When an individual finds himself in a position where the law grants him the right to kill another in his own defense, it makes no difference whether his dominant motive is other than self-preservation." (33) This is not to say that motive has never had a place in the prosecutorial side of criminal law. As demonstrated in the following section, however, the prior usage offers little value as precedent for motive's current applications.

      2. Precedent for the Use of Motive in Criminal Law

         In general, a prosecutor has no legal obligation to establish why the defendant committed, or wanted to commit, the crime charged. (34) Similarly, judges may use motive as a factor in sentencing, at least within the range permitted to them by the legal sentencing regime, but doing so is not mandated by law and the weight given to motive will be tempered by the judge's experience and knowledge. (35)

         There are some long-standing criminal laws that incorporate motive. One example is 18 U.S.C. [section] 242, which states:

         Whoever, under color of any law, statute, ordinance...