On hate and equality

Yale Law Journal

Volumn 109, Issue 3, 1999, Pages 507-538

  Harel, Alon ^a   Parchomovsky, Gideon ^a  

^a NONE

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[No Author keywords available]

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EID: 0039845281     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797410     Document Type: Review

References (90)

1. "Discrimination or violence because of race or religion, ancestry or gender, disability or sexual orientation, is wrong, and it ought to be illegal. Therefore, I ask Congress to make the 'Employment Non-Discrimination Act' and the 'Hate Crimes Prevention Act' the law of the land." Address Before a Joint Session of the Congress on the State of the Union, 35 WEEKLY COMP. PRES. DOC. 78, 87 (Jan. 19, 1999).
2. Compare Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333, 358-79 (1991) (arguing that penalty-enhancement statutes violate the First Amendment), with Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1, 35 ("[T]He motive underlying - as opposed to the message expressed by - either public or private conduct quite often is a legitimate factor to consider in deciding how our polity should treat that conduct.").
3. Compare Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333, 358-79 (1991) (arguing that penalty-enhancement statutes violate the First Amendment), with Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1, 35 ("[T]He motive underlying - as opposed to the message expressed by - either public or private conduct quite often is a legitimate factor to consider in deciding how our polity should treat that conduct.").
4. See, e.g., FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 161-75 (1999) (arguing that bias crimes ought to be punished more severely than parallel crimes because of the greater harm caused and the greater culpability of the criminal); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 NW. U. L. REV. 1015, 1019 (1997) ("[T]he penalties imposed by a criminal justice system, at a minimum, must be deserved by those they are inflicted on and . . . desert, in turn, is a function of (1) the gravity of the wrongdoing involved and (2) the wrongdoer's degree of culpability for that wrongdoing.").
5. See, e.g., FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 161-75 (1999) (arguing that bias crimes ought to be punished more severely than parallel crimes because of the greater harm caused and the greater culpability of the criminal); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 NW. U. L. REV. 1015, 1019 (1997) ("[T]he penalties imposed by a criminal justice system, at a minimum, must be deserved by those they are inflicted on and . . . desert, in turn, is a function of (1) the gravity of the wrongdoing involved and (2) the wrongdoer's degree of culpability for that wrongdoing.").
6. See LAWRENCE, supra note 3, at 61 (arguing that bias crimes are more wrongful than otherwise motivated crimes because of their impact on the individual victim, her community, and society at large).
7. See id. at 58-61 (discussing the centrality of the concept of culpability to criminal law and arguing that perpetrators of bias crimes have greater culpability than those of parallel crimes).
8. See Dillof, supra note 3, at 1036-80 (rebutting the claims that hate crimes are more wrongful and that the perpetrators of hate crimes are more culpable).
9. See, e.g., R.A. DUFF, INTENTION, AGENCY AND CRIMINAL LIABILITY 103 (1990); GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW §§ 6.6 to 6.6.1, at 454-59 (1978); ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 363-97 (1981); Michael S. Moore, The Independent Moral Significance of Wrongdoing, 5 J. CONTEMP. LEGAL ISSUES 237, 237-38 (1994).
10. See, e.g., R.A. DUFF, INTENTION, AGENCY AND CRIMINAL LIABILITY 103 (1990); GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW §§ 6.6 to 6.6.1, at 454-59 (1978); ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 363-97 (1981); Michael S. Moore, The Independent Moral Significance of Wrongdoing, 5 J. CONTEMP. LEGAL ISSUES 237, 237-38 (1994).
11. See, e.g., R.A. DUFF, INTENTION, AGENCY AND CRIMINAL LIABILITY 103 (1990); GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW §§ 6.6 to 6.6.1, at 454-59 (1978); ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 363-97 (1981); Michael S. Moore, The Independent Moral Significance of Wrongdoing, 5 J. CONTEMP. LEGAL ISSUES 237, 237-38 (1994).
12. See Alon Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative Fault, 82 CAL. L. REV. 1181, 1200-08 (1994).
13. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 3.6, at 227 (2d ed. 1986) ("[M]otive, if narrowly defined to exclude recognized defenses and the 'specific intent' requirements of some crimes, is not relevant on the substantive side of the criminal law."); Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 UTAH L. REV. 635 (contending that motives do not and should not play a role at the level of offense definition in criminal law and that they are only relevant for asserting defenses).
14. See JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES 147 (1998). But see D.C. CODE ANN. § 22-4003 (1981 & Supp. 1999) (authorizing the court to sentence a bias crime offender to no more than one and one-half times the maximum imprisonment and fine allowed by the underlying offense).
15. See Dillof, supra note 3, at 1019.
16. American criminal law is based on the principle of blameworthiness or culpability. Section 2.02 of the Model Penal Code provides general rules of criminal liability by creating four mental states that represent four degrees of culpability: purpose, knowledge, recklessness, and negligence. See MODEL PENAL CODE § 2.02(2)(a)-(d) (Proposed Official Draft 1962). Its drafter explained that "only four concepts are needed to prescribe the minimal requirements and lay the basis for distinctions that may usefully be drawn." Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. REV. 1425, 1436 (1968). This articulation of the mens rea requirement is its most important achievement. See Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 HASTINGS L.J. 815, 815-21 (1980) (describing the distinctions among the Code's culpability terms and their importance). Moreover, section 2.02 may be considered representative of the modern American culpability scheme, as it exerted a major influence on criminal law reform in 36 of the 38 jurisdictions where reform has occurred since its formulation. See Paul H. Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681, 691-92 (1983).
17. American criminal law is based on the principle of blameworthiness or culpability. Section 2.02 of the Model Penal Code provides general rules of criminal liability by creating four mental states that represent four degrees of culpability: purpose, knowledge, recklessness, and negligence. See MODEL PENAL CODE § 2.02(2)(a)-(d) (Proposed Official Draft 1962). Its drafter explained that "only four concepts are needed to prescribe the minimal requirements and lay the basis for distinctions that may usefully be drawn." Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. REV. 1425, 1436 (1968). This articulation of the mens rea requirement is its most important achievement. See Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 HASTINGS L.J. 815, 815-21 (1980) (describing the distinctions among the Code's culpability terms and their importance). Moreover, section 2.02 may be considered representative of the modern American culpability scheme, as it exerted a major influence on criminal law reform in 36 of the 38 jurisdictions where reform has occurred since its formulation. See Paul H. Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681, 691-92 (1983).
18. American criminal law is based on the principle of blameworthiness or culpability. Section 2.02 of the Model Penal Code provides general rules of criminal liability by creating four mental states that represent four degrees of culpability: purpose, knowledge, recklessness, and negligence. See MODEL PENAL CODE § 2.02(2)(a)-(d) (Proposed Official Draft 1962). Its drafter explained that "only four concepts are needed to prescribe the minimal requirements and lay the basis for distinctions that may usefully be drawn." Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. REV. 1425, 1436 (1968). This articulation of the mens rea requirement is its most important achievement. See Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 HASTINGS L.J. 815, 815-21 (1980) (describing the distinctions among the Code's culpability terms and their importance). Moreover, section 2.02 may be considered representative of the modern American culpability scheme, as it exerted a major influence on criminal law reform in 36 of the 38 jurisdictions where reform has occurred since its formulation. See Paul H. Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681, 691-92 (1983).
19. See, e.g., Lawrence Crocker, Hate Crime Statutes: Just? Constitutional? Wise?, 1992-1993 ANN. SURV. AM. L. 485, 491-94.
20. See, e.g., JACOBS & POTTER, supra note 10, at 80.
21. Jeffrie G. Murphy, Bias Crimes: What Do Haters Deserve?, 11 CRIM. JUST. ETHICS 23 (1992).
22. For more general arguments against culpability theory, see Dillof, supra note 3, at 1063-80.
23. See, e.g., LAWRENCE, supra note 3, at 39 ("[Bias] crimes are far more likely to be violent than are other crimes.").
24. For a study supporting this view, see JACK LEVIN & JACK MCDEVITT, HATE CRIMES: THE RISING TIDE OF BIGOTRY AND BLOODSHED 11 (1993). This conviction is disputed in a recent book on hate crimes. See JACOBS & POTTER, supra note 10, at 81-82 (citing LEVIN & MCDEVITT, supra, at 11); see also Joan C. Weiss, Ethnoviolence: Impact Upon and Response of Victims and the Community, in BIAS CRIME: AMERICAN LAW ENFORCEMENT AND LEGAL RESPONSES 176 (Robert J. Kelly ed., 1993) (discussing the impact of bias crimes).
25. For a study supporting this view, see JACK LEVIN & JACK MCDEVITT, HATE CRIMES: THE RISING TIDE OF BIGOTRY AND BLOODSHED 11 (1993). This conviction is disputed in a recent book on hate crimes. See JACOBS & POTTER, supra note 10, at 81-82 (citing LEVIN & MCDEVITT, supra, at 11); see also Joan C. Weiss, Ethnoviolence: Impact Upon and Response of Victims and the Community, in BIAS CRIME: AMERICAN LAW ENFORCEMENT AND LEGAL RESPONSES 176 (Robert J. Kelly ed., 1993) (discussing the impact of bias crimes).
26. See LEVIN & MCDEVITT, supra note 18, at 11. This finding is based on a study of the records of the Boston police from the years 1983 to 1987.
27. 508 U.S. 476 (1993).
28. Id. at 488.
29. Steven Bennett Weisburd & Brian Levin, "On the Basis of Sex": Recognizing Gender-Based Bias Crimes, 5 STAN. L. & POL'Y REV. 21, 25 (1994).
30. See Arnold Barnes & Paul H. Ephross, The Impact of Hate Violence on Victims: Emotional and Behavioral Responses to Attacks, 39 SOC. WORK 247, 250 (1994). Jacobs and Potter note, however, that certain "low-level" expressive offenses, such as the drawing of offensive graffiti and vandalism, may be carried out only against certain religious, ethnic, and otherwise marginalized groups, and thus in this context "greater harm arguments" may have some merit. JACOBS & POTTER, supra note 10, at 84-85.
31. For a good discussion and rebuttal of this type of argument, see Dillof, supra note 3, at 1036-49.
32. See id. at 1039-40.
33. See id. at 1043-45.
34. Kent Greenawalt, Reflections on Justifications for Defining Crimes by the Category of Victim, 1992-1993 ANN. SURV. AM. L. 617, 627.
35. James Weinstein, First Amendment Challenges to Hate Crime Legislation: Where's the Speech?, 11 CRIM. JUST. ETHICS 6, 10 (1992).
36. JACOBS & POTTER, supra note 10, at 87.
37. See id.
38. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1994, at 140 tbl.2.1 (Kathleen Maguire & Ann L. Pastore eds., 1995).
39. See, e.g., Paul Slovic et al., Facts Versus Fears: Understanding Perceived Risk, in JUDGMENT UNDER CERTAINTY: HEURISTICS AND BIASES 463 (Daniel Kahneman et al. eds., 1982).
40. See JACOBS & POTTER, supra note 10, at 87.
41. See id.
42. Id. at 88.
43. For a powerful attack on bias crime legislation, see id. at 145-53.
44. See Dillof, supra note 3, at 1019 ("[A]ll justifications for the increased penalties imposed by bias crime statutes can be analyzed as taking bias to be relevant to either gravity of wrongdoing or degree of culpability.").
45. See ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 90 (1976).
46. For an analysis of these concepts, see FLETCHER, supra note 7, § 6.6, at 454-91.
47. Moore, supra note 7, at 237.
48. Wrongfulness and culpability may be used in two different ways: in a foundational manner and in a derivative manner. A utilitarian can also use terms such as wrongfulness or culpability to mediate between utility and legal responsibility. A person who endorses this utilitarian view could even argue that wrongfulness and culpability are the only considerations that should determine the criminal sanction. But by making this claim, the utilitarian does not join the wrongfulness-culpability camp, because the meanings of the concepts "wrongfulness" and "culpability" are derivative. For the purpose of this Essay, the wrongfulness-culpability framework expresses a theory about the foundational values underlying sentencing.
49. In the classification developed by Joseph Raz, the negative claim is an exclusionary reason - a reason that requires that the decisionmaker not act on the basis of considerations that do not bear on the wrongfulness of the act or the culpability of the perpetrator. For a discussion of exclusionary reasons, see JOSEPH RAZ, PRACTICAL REASON AND NORMS 35-39 (1975).
50. There are, however, disputes as to the positive claim. Everybody seems to agree that culpability is necessary to justify the imposition of a criminal sanction. Most scholars also argue that wrongfulness is also a necessary condition for inflicting a criminal sanction. See, e.g., FLETCHER, supra note 7, § 6.6.3, at 466-69; George P. Fletcher, What Is Punishment Imposed for?, 5 J. CONTEMP. LEGAL ISSUES 101 (1994). Others believe that wrongfulness is not a necessary condition, although it can influence how much punishment is deserved. See, e.g., Moore, supra note 7, at 238. The most extreme view is held by Douglas Husak, who believes that criminal liability does not require wrongdoing. See Douglas Husak, Does Criminal Liability Require an Act?, in PHILOSOPHY AND THE CRIMINAL LAW 60 (Anthony Duff ed., 1998).
51. There are, however, disputes as to the positive claim. Everybody seems to agree that culpability is necessary to justify the imposition of a criminal sanction. Most scholars also argue that wrongfulness is also a necessary condition for inflicting a criminal sanction. See, e.g., FLETCHER, supra note 7, § 6.6.3, at 466-69; George P. Fletcher, What Is Punishment Imposed for?, 5 J. CONTEMP. LEGAL ISSUES 101 (1994). Others believe that wrongfulness is not a necessary condition, although it can influence how much punishment is deserved. See, e.g., Moore, supra note 7, at 238. The most extreme view is held by Douglas Husak, who believes that criminal liability does not require wrongdoing. See Douglas Husak, Does Criminal Liability Require an Act?, in PHILOSOPHY AND THE CRIMINAL LAW 60 (Anthony Duff ed., 1998).
52. For an articulation of such a theory, see FLETCHER, supra note 7, §§ 6.6 to 6.7, at 454-504.
53. Examining the diversity of theories that fall into this framework illustrates the flexibility of the wrongfulness-culpability paradigm. Subjectivist theories interpret wrongdoing by focusing on the actor's attitude toward the wrongdoing. The view that wrongfulness is grounded in the act itself rather than in its external results fits this paradigm. See id. § 6.6.5, at 475. Objectivist theories, in contrast, evaluate the wrongdoing in objective terms. The view that wrongfulness is grounded in results fits this position. See id. The debate, therefore, between objectivists and subjectivists is a debate within the wrongfulness-culpability paradigm - a debate about the nature of wrongfulness, not about the validity of the wrongfulness-culpability paradigm itself.
54. See id. § 6.6, at 455 ("[N]o one may be properly punished for a wrongful act (an act of wrongdoing) unless the act is attributable to him.").
55. The wrongfulness of an act has been interpreted differently by different theorists. Some regard wrongfulness in wholly objective terms, while others believe that the wrongfulness of an act must be assessed by examining the beliefs of the perpetrator of the act. For a classification of the different theories of wrongfulness, see id. § 6.6.5, at 474-76. The great advantage of the objective theories of wrongfulness is their ability to accommodate the concern for the victims of crime. Arthur Ripstein has recently developed this argument. See ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY AND THE LAW 141 (1999) ("Punishment is scaled to the seriousness of the wrong rather than the expected advantage of the crime because it treats the denial of the victim's rights as the measure of the wrongdoer's gain.").
56. Thus, Benn and Peters, in developing a utilitarian theory of punishment, argue: The retributivist's difficulty is that he wants the crime itself to indicate the amount of punishment, which it cannot do unless we first assume a scale of crimes and penalties. But on what principles is the scale to be constructed, and how are new offences to be fitted into it? These difficulties admit of no solution unless we agree to examine the consequences to be expected from penalties of different degrees of severity; i.e. unless we adopt a utilitarian approach. S.I. BENN & R.S. PETERS, THE PRINCIPLES OF POLITICAL THOUGHT 219 (1965).
57. Naturally, being a high-risk victim may be correlated with greater fear on the part of the victim and excessive precautions that disrupt her life. An actual crime committed against a high-risk victim may cause her greater harm due to her acute awareness of her special vulnerability. Committing a crime against a high-risk victim of this type is indeed particularly wrongful. This conclusion, however, is due not to the fact that the victim is at high risk, but to other factors that may be causally related to her vulnerability, such as her fear and the disruption of her life.
58. See RONALD DWORKIN, What Rights Do We Have?, in TAKING RIGHTS SERIOUSLY 266 (1977); Ronald Dworkin, In Defense of Equality, 1 SOC. PHIL. & POL. 24 (1983).
59. See RONALD DWORKIN, What Rights Do We Have?, in TAKING RIGHTS SERIOUSLY 266 (1977); Ronald Dworkin, In Defense of Equality, 1 SOC. PHIL. & POL. 24 (1983).
60. See JOHN RAWLS, A THEORY OF JUSTICE 504-12 (1972).
61. See JOSEPH RAZ, THE MORALITY OF FREEDOM 217-44 (1986); see also Harry Frankfurt, Equality as a Moral Ideal, 98 ETHICS 21 (1987), reprinted in HARRY FRANKFURT, THE IMPORTANCE OF WHAT WE CARE ABOUT 134, 149 (1988) ("The fundamental error of egalitarianism lies in supposing that it is morally important whether one person has less than another regardless of how much one of them has.").
62. See JOSEPH RAZ, THE MORALITY OF FREEDOM 217-44 (1986); see also Harry Frankfurt, Equality as a Moral Ideal, 98 ETHICS 21 (1987), reprinted in HARRY FRANKFURT, THE IMPORTANCE OF WHAT WE CARE ABOUT 134, 149 (1988) ("The fundamental error of egalitarianism lies in supposing that it is morally important whether one person has less than another regardless of how much one of them has.").
63. See JOSEPH RAZ, THE MORALITY OF FREEDOM 217-44 (1986); see also Harry Frankfurt, Equality as a Moral Ideal, 98 ETHICS 21 (1987), reprinted in HARRY FRANKFURT, THE IMPORTANCE OF WHAT WE CARE ABOUT 134, 149 (1988) ("The fundamental error of egalitarianism lies in supposing that it is morally important whether one person has less than another regardless of how much one of them has.").
64. This follows from the "parity requirement," namely, the requirement that individuals who commit similar crimes should not be subjected to different punishments. See VON HIRSCH, supra note 38, at 72-73.
65. For an attempt to explore the view that the expected costs of crime should be equalized among different victims, see Harel, supra note 8, at 1204-07.
66. Under one possible view, the state has an obligation to annul those disparities not attributable to the victim's own choices. Yet the conclusion that the state has no obligation to annul any disparities attributable to a person's choices is false. If the greater vulnerability to crime is attributable to socially valuable activities, one may justifiably insist that those who perform these activities be guaranteed a high degree of protection despite their voluntary decision to expose themselves to crime. Thus, we insist on granting full protection to individuals who use their First Amendment rights in a way that provokes a hostile reaction, even if by doing so they voluntarily expose themselves to severe risks. The so-called "Heckler's Veto" doctrine requires that police use available resources to protect a speaker who inflames a hostile audience because of the special importance of freedom of expression, despite the voluntary nature of the speech that generates the risks. See, e.g., Terminiello v. City of Chicago, 337 U.S. 1 (1949); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-10, at 853-55 (2d ed. 1988). Another example can be used to illustrate this point. Some owners of factories or stores decide, for ideological or commercial reasons, to place their businesses in a depressed, high-crime area. Such commercial activity is socially valuable because it provides economic opportunity to the disadvantaged. Hence, it seems justified to devote more public resources to the protection of those businesses, despite the voluntary exposure of those businesses to the risks of crime. Thus, the fact that disparity in the vulnerability of different victims is attributable to their own choices does not entail that the state has no obligation to annul it. For a full discussion, see Harel, supra note 8, at 1204-05. Similarly, the fact that disparity in the vulnerability of different victims cannot be attributed to their own choices does not entail that the state has an obligation to annul it. Naïvete may increase one's vulnerability to crime, yet it does not necessarily justify greater efforts on the part of the state to annul the disparity in the vulnerability of naïve and sophisticated victims.
67. It should not be inferred from our discussion that we are committed to the view that the disparity between drinkers and smokers should be redressed by the state. This example illustrates, however, the potentially general applicability of the fair protection paradigm to issues less controversial than bias crime.
68. U.S. SENTENCING GUIDELINES MANUAL § 3A1.1(b) (1998).
69. Id. § 3A1.1 commentary, discussed in Jay Dyckman, Note, Brightening the Line: Properly Identifying a Vulnerable Victim for Purposes of Section 3A1.1 of the Federal Sentencing Guidelines, 98 COLUM. L. REV. 1960, 1969-70 (1998).
70. See Dyckman, supra note 58, at 1974-75 (citing case law in seven circuits).
71. See, e.g., United States v. Shumway, 112 F.3d 1413, 1423 (10th Cir. 1997) ("[T]he 'vulnerable victim' is someone who is unable to protect himself or herself from criminal conduct, and is therefore in need of greater societal protection than the average citizen.").
72. See supra notes 59-60.
73. Consider the following example. A group of youngsters attacks a mentally disabled individual. The aggression is meant primarily to humiliate the person rather than to cause pain. The mentally challenged individual is a high-risk victim because of his deficiency. Yet, because of his limited mental ability, the person is not capable of comprehending the humiliation he goes through, and consequently does not suffer the same emotional trauma that another person would suffer under these circumstances. Courts often apply the vulnerable victim enhancement of section 3A1.1 to victims who are high-risk but not highly sensitive. Such a reading is advanced by several circuits. The Fifth Circuit found that women desperate for romance were unusually vulnerable to a fraudulent scam that targeted victims through personal advertisements. See United States v. Scurlock, 52 F.3d 531, 541-42 (5th Cir. 1995). Similarly, the Third Circuit upheld an enhancement of a stockbroker who used his relationship with his girlfriend to pressure her parents into investing in his fraudulent scheme. See United States v. Astorri, 923 F.2d 1052, 1055 (3d Cir. 1991).
74. See, e.g., United States v. O'Neil, 118 F.3d 65, 75 (2d Cir. 1997), cert. denied sub nom. Saia v. United States, 118 S. Ct. 728 (1998) ("In determining vulnerability, we focus not on the likelihood or extent of harm to the individual if the crime is successful, but on the extent of the individual's ability to protect himself from the crime."); United States v. Gill, 99 F.3d 484, 486 (1st Cir. 1996) ("[T]he vulnerable victim guideline is primarily concerned with the impaired capacity of the victim to detect or prevent the crime."); United States v. Blake, 81 F.3d 498, 504 (4th Cir. 1996) (holding that the defendant's robbery attempts aimed at the elderly, "who, by virtue of their age, were less physically able to defend themselves," satisfied section 3A1.1's criteria); United States v. Lallemand, 989 F.2d 936, 940 (7th Cir. 1993) (holding that "[a] vulnerable or susceptible victim is (1) less likely to defend himself, (2) less likely perhaps to be aware that he is a victim of crime, (3) less likely to complain"); United States v. White, 903 F.2d 457, 463 (7th Cir. 1990) (upholding an enhancement for a defendant who kidnapped a 60-year-old gas station attendant who had respiratory problems, and agreeing with the government's position that "[the defendant] would have had a far more difficult time and may have in fact been unable to successfully kidnap a younger or healthier individual who might have been able to run and successfully flee from the knife-wielding [defendant]"); see also RICHARD G. SINGER, JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT 86 (1979) ("[C]riminals who knowingly select victims who are incapable of defending themselves are more morally blameworthy than others.").
75. This view is misguided, for it focuses exclusively on the perpetrator of the crime while neglecting the victim's perspective. A victim-oriented perspective would reject, therefore, the attempt to explain the Sentencing Guidelines in terms of the wrongfulness or the culpability of the perpetrator of the crime.
76. See supra notes 59-60.
77. For a thorough discussion, see Dyckman, supra note 58.
78. See, e.g., Richard J. Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUD. 77 (1989); G.A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906, 922 (1989).
79. See, e.g., Richard J. Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUD. 77 (1989); G.A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906, 922 (1989).
80. See, e.g., Ronald Dworkin, What is Equality? Part 2: Equality of Resources, 10 PHIL. & PUB. AFF. 283, 291-304 (1981).
81. See Dillof, supra note 3, at 1023.
82. LAWRENCE, supra note 3, at 29-39. Yet Lawrence himself admits that [t]he landscape of state bias crime law thus consists of a few statutes falling clearly within the discriminatory selection model or the racial animus model and a substantial number of bias crime laws that are ambiguous as to what they punish. Several states including Wisconsin have adopted an explicit discriminatory selection statute governing bias crimes against a person, although virtually all state institutional vandalism laws are of this model. Several states have explicitly adopted the racial animus model. But the majority of states with bias crime laws are not clear as to which models they employ. Id. at 38. For our purposes, it is important to note that the constitutionality of the discriminatory selection model was affirmed by Wisconsin v. Mitchell, 508 U.S. 476 (1993).
83. Dillof, supra note 3, at 1076.
84. The "Violent Show-Off" example originated in a hypothetical proposed by the Attorney General of Wisconsin during the oral argument to the Supreme Court in Wisconsin v. Mitchell. See Transcript of Oral Argument at 9-10, Wisconsin v. Mitchell, 508 U.S. 476 (No. 92-515), discussed in LAWRENCE, supra note 3, at 74.
85. LAWRENCE, supra note 3, at 75.
86. Id. at 78.
87. On the complexity of the concept of causality, see JACOBS & POTTER, supra note 10, ch. 2.
88. In fact, some might suggest that crimes motivated by hatred toward the majority should be excluded from the definition of hate crimes. Yet such a view could possibly violate the Fourteenth Amendment's Equal Protection Clause. See id. at 17.
89. See supra Section II.B.
90. This argument suggests that perhaps the provisions protecting victims who are particularly susceptible to criminal conduct should be part of the criminal law rather than the Sentencing Guidelines.