NCJ Number
191715
Journal
Journal of Criminal Law and Criminology Volume: 91 Issue: 1 Dated: Fall 2000 Pages: 237-267
Date Published
2000
Length
31 pages
Annotation
This analysis of legislation regarding hate crimes argues that widening the retributivist focus is largely unnecessary and potentially harmful.
Abstract
Retributivists measure just deserts by the culpability of the offender and the wrongdoing the offender commits. However, Harel and Parchomovsky argue for widening the retributivist focus beyond culpability and wrongdoing to encompass egalitarian concerns. They believe that the retributivist approach gives an inadequate justification of bias crimes and cannot explain the government’s egalitarian duty to protect the most vulnerable victims. They assert that the wrongfulness-culpability hypothesis is deficient and needs supplementation by a fair protection paradigm However, widening the retributivist focus is largely unnecessary because the retributive paradigm already can encompass egalitarian concerns, including the protection of especially vulnerable victims. In addition, an egalitarian demand conflicts with retributive values insofar as it permits or requires that the defendant’s blameworthiness be ignored. The analysis concludes that retributivist theory can justify higher sanctions for bias crimes and can do so more easily than can the problematic principle of fair protection. Therefore, the suggestion that retributive principles be significantly compromised to achieve otherwise valuable egalitarian goals is usually unnecessary and in any case indefensible. Footnotes