On Equality, Bias Crimes, and Just Deserts

By Simons, Kenneth W. | Journal of Criminal Law and Criminology, Fall 2000 | Go to article overview

On Equality, Bias Crimes, and Just Deserts


Simons, Kenneth W., Journal of Criminal Law and Criminology


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.

I. 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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

On Equality, Bias Crimes, and Just Deserts
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.