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. …