Motive's role in criminal punishment

Southern California Law Review

Volumn 80, Issue 1, 2006, Pages 89-149

  Hessick, Carissa Byrne ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 33846574829     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (406)

1. See Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) (noting that a "defendant's motive for committing the offense is one important factor" that sentencing judges have traditionally considered "in determining what sentence to impose on a convicted defendant")
2. (citing 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 3.6(b), at 324 (1st ed. 1986)).
3. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 792-804 (2006) (noting that, as Supreme Court decisions have made criminal procedure issues more costly to legislate, substitution effects have made changes in substantive criminal law and "the substantive law of sentencing" cheaper).
4. See, e.g., Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 NW. U. L. REV. 1015 (1997);
5. 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 (1991);
6. Heidi M. Hurd & Michael S. Moore, Punishing Hatred and Prejudice, 56 STAN. L. REV. 1081 (2004).
7. See, e.g., Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423 (1995);
8. Dan M. Kahan, Two Liberal Fallacies in the Hate Crimes Debate, 20 L. & PHIL. 175 (2001).
9. See. e.g., Kahan, supra note 4, at 181 ("The reason we distinguish rape from assault and condemn it more severely isn't that rape invariably inflicts greater physical injury. What makes rape distinctive, and distinctively worse, is the greater contempt it evinces for its victim's agency.").
10. Regina v. Dudley & Stephens, (1884) 14 Q.B.D. 273,
11. reprinted in SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 135-39 (7th ed. 2001).
12. KADISH & SCHULHOFER, supra note 6, at 135.
13. Id.
14. Id. at 13 7.
15. Id. at 139 & n.2.
16. See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 HOFSTRA L. REV. 1, 13 (1988).
17. She may, however, be guilty of attempted theft.
18. HYMAN GROSS, A THEORY OF CRIMINAL JUSTICE 103 (1979) ("[I]n general, motives may play a role in deciding whether a particular person committed a crime but not in deciding whether a particular crime was committed.").
19. As one early commentator explained: As an evidential fact motive is always relevant, but never essential. When a motive of the accused for the commission of a crime is discovered, it is easier to believe that he committed it than when no motive is apparent. For this reason it is always relevant to prove the existence of a motive. But though the discovery of a motive helps to prove the guilt of the accused, there may be ample proof, independent of motive, of his guilt. It is not necessary therefore for the state to prove the motive as an evidential fact. Walter Harrison Hitchler, Motive as an Essential Element of Crime, 35 DICK. L. REV. 105, 112 (1931).
20. JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 153 (1947).
21. "It is difficult to conceive a criminal act that may not involve some desire beyond the act itself-avarice, revenge, pleasure, et cetera. The law prohibits acts, not bad motives; and good motives do not exonerate crime." State v. Logan, 126 S.W.2d 256, 261 (Mo. 1939).
22. See Guyora Binder, The Rhetoric of Motive and Intent, 6 BUFF. CRIM. L. REV. 1, 5 (2002) ("In an effort to sort goals into just two categories, some commentators suggested that intentions were only those goals that were offense elements, while motives were any more remote goals. This version of the motive/intent distinction certainly accorded with the motive is irrelevant maxim, but at the price of reducing it to an empty tautology, true by definition.").
23. "Motive is a desire prompting conduct." Hitchler, supra note 14, at 105. I realize that these definitions may not be uncontroversial, as a surprising amount of ink has been devoted to defining motive and intent.
24. See, e.g., Elaine M. Chiu, The Challenge of Motive in the Criminal Law, 8 BUFF. CRIM. L. REV. 653, 664-66 (2005) (collecting sources);
25. Douglas N. Husak, Motive and Criminal Liability, 8 CRIM. JUST. ETHICS 3, 5-8 (1989) (same);
26. Whitley R.P. Kaufman, Motive, Intention, and Morality in the Criminal Law, 28 CRIM. JUST. REV. 317, 321-23 (2003) (same).
27. Some commentators have even counseled that the distinctions between motive and intent may not be worth pursuing. See 1 LAF AVE & SCOTT, supra note 1, § 3.6(a), at 322 (suggesting that the difficult task of trying to distinguish between motive and intent be abandoned and that it should be acknowledged that "the substantive criminal law takes account of some desired ends but not others"). Even if readers do not agree with the specific definitions I provide, the examples provided in the remainder of this Part indisputably demonstrate that motive plays some role in criminal punishment.
28. See Carol S. Steiker, Punishing Hateful Motives: Old Wine in a New Bottle Revives Calls for Prohibition, 97 MICH. L. REV. 1857, 1863 (1999) ("[H]ate crime laws are essentially continuous with the basic structure of Anglo-American criminal law, and... a constitutional challenge to the one necessarily calls the other into question.... [N]umerous criminal law doctrines... treat a defendant's reasons for acting as partially or wholly exculpatory.").
29. See id. at 1863-70.
30. See also Chiu, supra note 18, at 666-69.
31. E.g., 18 PA. CONS. STAT. ANN. § 907(a) (West 1998 & Supp. 2006) ("A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.").
32. See generally Joshua S. Geller, Comment, A Dangerous Mix: Mandatory Sentence Enhancements and the Use of Motive, 32 FORDHAM URB. L.J. 623, 647-51 (2005) (discussing the importance of motive in these "unlawful purpose" statutes).
33. CAL. PENAL CODE § 466 (West 1999).
34. Similarly, in Massachusetts, it is unlawful to possess burglary tools with the intent to break into another's dwelling: Whoever makes or mends, or... knowingly has in his possession, an [instrument] adapted and designed for cutting through, forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose,... shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two and one half years. MASS. GEN. LAWS. ANN. ch. 266 § 49 (West 2000).
35. N.J. STAT. ANN. § 2C:39-4(a) to (d) (West 2005).
36. See also 18 PA. CONS. STAT. ANN. § 907(b) (West 1998 & Supp. 2006) ("A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.").
37. See Geller, supra note 21, at 647-51.
38. See 18 U.S.C. §§ 1501-20 (2000 & Supp. III 2003).
39. Drafting statutes to include motive as an explicit element gives legislators the freedom to enact broadly worded provisions. Because motive plays a wholly inculpatory role, legislators need not rely solely on prosecutorial discretion to ensure that only "bad" people are prosecuted.
40. 18 U.S.C. §§ 1503, 1505, 1512, 1517 (2000).
41. Id. § 1515(b).
42. See 18 U.S.C. § 201(c)(1)(A), which "prohibits giving 'anything of value" to a present, past, or future public official 'for or because of any official act performed or to be performed by such public official.'"
43. See also United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 400 (1999).
44. Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993).
45. U.S. CONST, art. III, § 3, cl. 1.
46. Haupt v. United States, 330 U.S. 631 (1947).
47. Id. at 644.
48. Id. at 632-33.
49. Id. at 634.
50. Id. at 634-35.
51. U.S. CONST, art. III, § 3, cl. 1.
52. Also called the "choice of evils" defense, this defense is not recognized in all American jurisdictions. 1 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES § 4(a), at 83 (1984).
53. The Model Penal Code defines the defense as follows: Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. MODEL PENAL CODE § 3.02(1) (Official Draft and Explanatory Notes 1962).
54. Justifications include other defensive force defenses, such as defense of others, defense of property, and defense of habitation or premises. 1 ROBINSON, supra note 38, § 24(a), at 84-85.
55. This defense-a version of which appears in every American jurisdiction-provides a defense for individuals who engage in prohibited conduct that is necessary to maintain order or safety, provided that the individuals are authorized to maintain order and safety. See 2 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES § 143(a), at 146-149 (1984).
56. 2 ROBINSON, supra note 40, § 122(b)(2).
57. Id. § 122(b), at 13-18.
58. Identifying the actor's "purpose," as relevant to a justification defense, may turn on the level of generality at which motive is defined. The practical issue of defining the various "levels" of a defendant's motives is addressed in Part IV.C.2(b), infra. Paul Robinson gives the example of the actor who sets fire to the field in order to save the town from the forest fire "because his agents are at that moment engaged in a million dollar heroin transaction in the town." Id. § 122(b)(2), at 13-18.
59. See generally BLACK'S LAW DICTIONARY 211 (8th ed. 2004) (defining burglary as "breaking and entering another's dwelling at night with the intent to commit a felony").
60. That type of hate crime legislation authorizes or requires "the enhancement of criminal penalties when already criminally prohibited actions are performed as a result of offenders' hatred or bias against their victims because of their victims' race, ethnicity, religion, gender, disability, or sexual preference." Hurd & Moore, supra note 3, at 1082. Therefore, it is best identified as an example of motive in sentencing law rather than as an element of an offense. See infra Part I.C.
61. JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW & IDENTITY POLITICS 33 (1998) ("Some hate crime statutes define new substantive offenses. They redefine conduct that is already criminal as a new crime or as an aggravated form of an existing crime.").
62. See also Virginia v. Black, 538 U.S. 343, 363 (2003) ("A ban on cross burning carried out with the intent to intimidate... is fully proscribable under the First Amendment.").
63. Cf. Paul H. Robinson, Hate Crimes: Crimes of Motive, Character, or Group Terror?, 1992/1993 ANN. SURV. AM. L. 605, 605 (1994) ("[M]otive ought to be and commonly is, notwithstanding the claims to the contrary, an element in determining liability or grade of offense.").
64. N.Y. PENAL LAW § 125.27(1)(a)(v) (McKinney 2004).
65. People v. Cahill, 809 N.E.2d 561, 583 (N.Y. 2003) (emphasis added) (quoting Mem. of Codes Comm., at 2, Bill Jacket, L. 1995, ch. 1).
66. See generally Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 305-08 (1996).
67. Some jurisdictions have replaced the common law provocation defense with the Model Penal Code's "extreme emotional disturbance" defense, which reduces murder liability to manslaughter when the offender commits a murder "under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." MODEL PENAL CODE § 210.3(1)(b) (Official Draft and Explanatory Notes 1962).
68. See also 1 ROBINSON, supra, note 38, § 102(a)(2), at 481-83.
69. The common law provocation defense has three requirements: "(1) [t]he provocation to which the actor respond[ed] must have been adequate; (2) [t]he killing must have occurred while the actor was in the 'heat of passion;'" and (3) the defendant's actions must have resulted from a reasonable loss of self-control. Stephen P. Garvey, Passion's Puzzle, 90 IOWA L. REV. 1677, 1687 (2005).
70. 1 ROBINSON, supra note 38, § 102(a)(1), at 480.
71. The circumstances constituting "adequate provocation" were usually limited to "adultery, mutual combat, false arrest, and a violent assault." Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 YALE L.J. 1331, 1341 (1997)
72. (citing SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 413 (6th ed. 1995)).
73. Whether the victim's wrong was sufficiently severe (and thus the defendant's desire to retaliate was sufficiently justified) is determined according to some identifiable set of norms-whether strictly enumerated or determined on more of an ad hoc basis. "The [early common law] distinctions between provocations that were adequate and those that were not were often quite fine. For example, a blow to the face was adequate, a boxing of the ears not; the infidelity of a man's wife was adequate, the infidelity of a man's fiancée or girlfriend not." Kahan & Nussbaum, supra note 49, at 308 (internal footnotes omitted). Modern authorities applying the common law formulation of the defense "have tended to abandon categorical definitions of adequate provocation," but "while many courts no longer purport to specify all the provocations that are adequate as a matter of law, they still occasionally identify particular ones that are not."
74. Id. at 309-10.
75. As Carol Steiker explains: Just as the existence or degree of criminal liability can often turn on a normative evaluation of the defendant's reasons for acting, so too the degree of punishment imposed after a finding of criminal liability often turns on such an evaluation. The clearest examples of this tendency are in the capital sentencing context, because constitutional constraints on the imposition of the death penalty have led legislatures to specify those circumstances that "aggravate" a murder so as to make the defendant eligible for this punishment. As the Supreme Court recognized in Mitchell, the death penalty is "surely the most severe 'enhancement' of all." Death penalty statutes routinely designate as aggravating circumstances motives for killing that are considered worse than the usual motives a defendant might have for committing a crime of violence. Steiker, supra note 19, at 1866 (internal footnotes omitted) (quoting Wisconsin v. Mitchell, 508 U.S. 476,486 (1993)).
76. Mitchell, 508 U.S. at 485.
77. 1 LAFAVE & SCOTT, supra note 1, § 3.6(b), at 324.
78. See also Kaufman, supra note 18, at 319 ("[M]otive has long been taken into account for purposes of sentencing, lessening the sentence where there is a good motive, lengthening where there is a bad one.").
79. See, e.g., Rex v. Bright, (1916) 12 Crim. App. 69, 71 (U.K.) ("Before passing sentence the judge considered the appellant's motives; the Court is of opinion that he had a perfect right to consider motives, whether they were good or bad.").
80. Binder, supra note 17, at 3 (collecting sources).
81. See also HALL, supra note 15, at 162-63 (proposing that "the determination and evaluation of the motives of criminal behavior are allocated to administration; in the first instance, to judicial discretion in the selection of a proper sentence" and noting that a sentencing judge's discretion "is very great");
82. 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, 747-49.
83. Gardner, supra note 58, at 747-49 (internal footnotes omitted) (advocating a sentencing scheme that provides for "slight deviations from a presumptive sentence if assessments of the offender's character suggest an aggravated or mitigated disposition").
84. In addition to the Federal Sentencing Guidelines, which contain detailed and explicit rules for every sentencing adjustment, the most detailed accounts of sentencing factors can be found in capital sentencing statutes. See Steiker, supra note 19, at 1866.
85. Those statutes specifically identify aggravating factors, including aggravating motives, because the Supreme Court has indicated that, while wholly discretionary capital sentencing schemes are unconstitutional, schemes that guide "sentencer discretion through the use of aggravating and mitigating circumstances" will be upheld. Id. at 1866 n.32
86. (citing Furman v. Georgia, 408 U.S. 238 (1972);
87. Gregg v. Georgia, 428 U.S. 153 (1976)).
88. See Elizabeth Rapaport, Some Questions About Gender and the Death Penalty, 20 GOLDEN GATE U. L. REV. 501, 526 (1990) (noting that "pecuniary gain" is one of "five aggravating factors which are among the most frequently included in modern death penalty statutes").
89. See, e.g., KAN. STAT. ANN. § 21-4625(3) (1995) (listing crimes committed "for the purpose of receiving money or any other thing of monetary value" as an aggravating circumstance for capital sentencing purposes);
90. MISS. CODE ANN. § 99-19-101(5)(f) (2000) (same).
91. See also MODEL PENAL CODE § 210.6(3)(g) (Official Draft and Explanatory Notes 1962).
92. U.S. SENTENCING GUIDELINES MANUAL § 2A2.2(b)(4) (2004) ("If the assault was motivated by a payment or offer of money or other thing of value, increase by 2 levels.").
93. Id. § 2G2.2(b)(3), 2G2.2(b)(3)(A) ("If the offense involved: [d]istribution for pecuniary gain, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels.").
94. Id. § 2B5.3(b)(3) ("If the offense was not committed for commercial advantage or private financial gain, decrease by 2 levels....").
95. MODEL PENAL CODE § 210.6(3)(h).
96. See also James R. Acker & C.S. Lanier, "Parsing this Lexicon of Death": Aggravating Factors in Capital Sentencing Statutes, 30 CRIM. L. BULL. 107, 125 (1994) [hereinafter Acker & Lanier, Aggravating Factors] ("Statutes in seventeen of the thirty-seven death penalty jurisdictions use some version of [this sentencing factor], and related provisions appear in twelve other capital sentencing statutes.");
97. Steiker, supra note 19, at 1867 (noting that this aggravating factor is "common" in "state death penalty schemes").
98. See Steiker, supra note 19, at 1867 (collecting cases for the proposition that the "aggravating factor of this general type is frankly evaluative of the defendant's reasons for committing the underlying killing and of the defendant's attitude toward his victim and his act");
99. Id. (noting that the depravity factor is one of the "best examples in capital punishment law of aggravating factors that designate certain motivations as worse than others").
100. When the Arkansas Supreme Court held that a broadly worded depravity factor-a murder committed in an "especially heinous, atrocious or cruel manner"-was unconstitutionally vague, Wilson v. State, 751 S.W.2d 734, 735 (Ark. 1988), modified, 752 S.W.2d 762 (Ark. 1988), the legislature responded by clarifying that "a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim's death, mental anguish, serious physical abuse, or torture is inflicted."
101. ARK. CODE ANN. § 5-4-604(8)(B)(i) (2006).
102. ARK. CODE ANN. § 5-4-604(8)(B)(i).
103. Samuel Pillsbury refers to this motive as a desire "to assert cruel power over another." SAMUEL H. PILLSBURY, JUDGING EVIL: RETHINKING THE LAW OF MURDER AND MANSLAUGHTER 116 (1998).
104. He explains that this motive should be treated as aggravating because crimes committed with this motive, though often labeled "senseless," illustrate a particular "aspect of evildoing"-the defendant commits the crime (which is often violent and cruel) in order to "express personal dominance." Id.
105. Pillsbury acknowledges that all intentional criminal homicides arguably involve the "assertion of ultimate power over another human being," but distinguishes those crimes where "the killer seeks total, brutal domination of his victim as a motivation for the killing" and seeks "satisfaction in pain." Id. at 116-17.
106. E.g., OHIO REV. CODE ANN. § 2929.04(A)(S) (LexisNexis 2006).
107. The Code identifies as an aggravating capital sentencing factor whether the victim was a witness to an offense who was purposely killed to prevent the victim's testimony in any criminal proceeding and the aggravated murder was not committed during the commission, attempted commission, or flight immediately after the commission or attempted commission of the offense to which the victim was a witness, or the victim of the aggravated murder was a witness to an offense and was purposely killed in retaliation for the victim's testimony in any criminal proceeding. Id.
108. MODEL PENAL CODE § 210.6(3)(f) (adopted in part by many jurisdictions).
109. See Acker & Lanier, Aggravating Factors, supra note 66, at 139 n. 175 (identifying jurisdictions that have identified some form of this aggravating circumstance in their capital sentencing statutes).
110. E.g., NEB. REV. STAT. § 29-2523(1)(b) (1995) (identifying as an aggravating capital sentencing factor whether "murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime").
111. See also Acker & Lanier, Aggravating Factors, supra note 66, at 140 n. 183 (collecting sources).
112. U.S. SENTENCING GUIDELINES MANUAL § 3A1.4 (2004).
113. See also GA. CODE ANN. § 16-4-10 (2003) (providing that any person who commits a crime "for the purpose of domestic terrorism shall... be sentenced to the maximum term of imprisonment" for noncapital crimes; providing that "the purpose of domestic terrorism" shall be admissible at the sentencing stage of capital trials as "a statutory aggravating factor");
114. 720 ILL. COMP. STAT. 5/9-1(b)(21) (West Supp. 2006).
115. The hate crime enhancements in force in different jurisdictions take many different forms: they differ with respect to the groups protected, the predicate offenses to which they apply, and the severity of the enhancement. See JACOBS & POTTER, supra note 45, at 29-31, 43.
116. For examples of criminal law literature discussing this legislation, see id. (opposing hate crime legislation);
117. Gellman, supra note 3 (same);
118. Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L.J. 507 (1999) (supporting hate crime legislation);
119. Frederick M. Lawrence, The Punishment of Hate: Toward a Normative Theory of Bias-motivated Crimes, 93 MICH. L. REV. 320 (1994) (same);
120. Note, Hate Is Not Speech: A Constitutional Defense of Penalty Enhancement for Hate Crimes, 106 HARV. L. REV. 1314 (1993) (same).
121. For examples of nonlegal commentary, see Steve Chapman, Hate-crime Laws, for No Good Reason, CHI. TRIB., June 20, 2004, at C9 (opposing hate-crime legislation, arguing that it "indulges a chronic impulse to turn more and more power over to federal law enforcement" for crimes already punishable under existing criminal law);
122. Fred Dickey, The Perversion of Hate: Laws Against Hate Crimes Are an Idea Gone Sour. Prosecutors Apply Them Unfairly and the List of 'Special Victims' Keeps Growing, L.A. TIMES, Oct. 22, 2000, (Magazine), at 10 (opposing hate crime legislation, arguing that these crimes are punishable under existing law, and that higher penalties for crimes against specific groups violates principles of equality);
123. Rudolph W. Giuliani, How Europe Can Stop the Hate, N.Y. TIMES, June 18, 2003, at A25 (applauding New York's hate crime legislation and arguing for implementation of similar laws in Europe);
124. Dana Parsons, Orange County; Don't Tolerate Intolerance, but It's OK to Hate the Hate Laws, L.A. TIMES (Orange County Ed.), Aug. 17, 2001, § 2, at 3 (opposing hate crime legislation, arguing that "'hate' is a state of mind" and "people [should not] be punished for their thoughts").
125. See infra note 213.
126. See JACOBS & POTTER, supra note 45, at 65-78 ("[T]he passage of hate crime laws enacted in the 1980s and 1990s is best explained by the growing influence of identity politics.").
127. See also Steiker, supra note 19, at 1873 ("[T]he debate about hate crime laws should take its place next to debates about affirmative action, single-sex education, and other debates about group consciousness as a strategy for achieving group equality in our society.").
128. Carol S. Steiker & Jordan M. Steiker, Let God Sort Them Out? Refining the Individualization Requirement in Capital Sentencing, 102 YALE L.J. 835, 848 (1992).
129. See also James R. Acker & Charles S. Lanier, In Fairness and Mercy: Statutory Mitigating Factors in Capital Punishment Laws, 30 CRIM. LAW BULL. 299, 339-41 (1994) [hereinafter Acker & Lanier, Mitigating Factors].
130. Stephen P. Garvey, "As the Gentle Rain from Heaven": Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 1024 n. 137 (1996)
131. (citing Steiker & Steiker, supra note 78, at 848-49).
132. See U.S. SENTENCING GUIDELINES MANUAL §§ 5K2.10-5K2.13 (2004).
133. See Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt Is Overwhelming; Aggravation Requires Death; and Mitigation Is No Excuse, 66 BROOK. L. REV. 1011, 1043-53 (2001).
134. The authors of this article argue that, in holding defendants to a standard of excuse, capital jurors are misunderstanding the meaning and the role of mitigating evidence. Id. at 1044-53.
135. As a legal matter, the concept of mitigating evidence extends beyond evidence that "would tend to support a legal excuse from criminal liability." Eddings v. Oklahoma, 455 U.S. 104, 113 (1982). Yet capital sentencing decisionmakers appear uncomfortable reducing criminal sentences for reasons that do not approximate a legal excuse.
136. See Steiker & Steiker, supra note 78, at 848-51 ("A vast majority of the enumerated mitigating circumstances are primarily, often exclusively, relevant to a defendant's culpability.... The only arguably nonculpability oriented circumstances that appear with any frequency concern the defendant's lack of a prior record and, much less often, whether the defendant constitutes a continuing threat to society.").
137. A possible explanation is that while legislatures want to treat certain motives as mitigating, they consciously avoid identifying mitigating motives ex ante out of fear that this will somehow encourage lawless behavior. See, e.g., Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 632-33 (1984). This argument is addressed in Part IV, infra.
138. See infra text accompanying notes 99-101.
139. See Acker & Lanier, Mitigating Factors, supra note 78, at 337-39.
140. Nancy J. King, How Different Is Death? Jury Sentencing in Capital and Non-capital Cases Compared, 2 OHIO ST. J. CRIM. L. 195, 197 (2004) ("[J]urors who select sentences in non-capital cases are simply asked to pick a sentence somewhere within the statutory sentencing range.").
141. Acker & Lanier, Aggravating Factors, supra note 66, at 112 (noting that the Model Penal Code's death penalty provisions "have greatly influenced modern capital punishment legislation").
142. MODEL PENAL CODE § 210.6(4)(d) (Official Draft and Explanatory Notes 1962) (listing death penalty factors). This motive has been characterized as the "least widely adopted of the MPC mitigating circumstances,"
143. Acker & Lanier, Mitigating Factors, supra note 78, at 321,
144. and then-Justice Rehnquist strongly criticized this motive as a mitigating factor, stating: I cannot believe that the States are constitutionally required to allow a defense, even at the sentencing stage, which depends on nothing more than the convict's moral belief that he was entitled to kill a peace officer in cold blood. John Wilkes Booth may well have thought he was morally justified in murdering Abraham Lincoln.... Roberts v. Louisiana, 431 U.S. 633. 649 (1977) (Rehnquist, J. dissenting).
145. Kentucky appears to be the only jurisdiction that has adopted this provision verbatim. See KY, REV. STAT. ANN. § 532.025(2)(b)(4) (LexisNexis 1999 & Supp. 2005).
146. A few additional states adopted the provision with the limitation that the defendant's belief be reasonable or that the defendant acted in good faith. See Acker & Lanier, Mitigating Factors, supra note 78, at 321-23 & nn.115-16.
147. See also Steiker & Steiker, supra note 78, at 850 n.72 (collecting sources).
148. See Harris v. State. 352 So. 2d 479, 494, 495 n.12 (Ala. 1977) (indicating that, at a capital trial, a defendant "may show any one or more of the following mitigating circumstances:... The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct" and indicating that this mitigating factor was "taken substantially from the Model Penal Code").
149. One jurisdiction that appears to include this factor as a jury instruction is Oklahoma. See Snow v. State, 876 P.2d 291. 299 (Okla. Crim. App. 1994).
150. The Florida Supreme Court has upheld a capital verdict where the "murders were not committed under circumstances which defendant believed to provide a moral justification or extenuation for his conduct." Alvord v. State, 322 So. 2d 533, 540 (Fla. 1975), abrogated on other grounds by Caso v. State, 524 So. 2d 422 (Fla. 1988).
151. The United States Supreme Court quoted all mitigating factors proposed by the Model Penal Code, including this one, in its decision in Gregg v. Georgia, 428 U.S. 153, 193 n.43 (1976).
152. Although worded broadly enough to encompass a large number of situations, the belief of a moral justification provision was drafted "'chiefly to call for mitigation of sentence where the actor kills from an arguably humane motive,' such as in cases of euthanasia." Acker & Lanier, Mitigating Factors, supra note 78, at 321
153. (quoting AM. L. INST., MODEL PENAL CODE AND COMMENTARIES 141 (Official Draft & Revised Comments 1980)).
154. However, a separate mitigating factor enumerated in the Model Penal Code, which is phrased in terms of whether the victim participated in or consented to the homicidal act (rather than in terms of the defendant's motives), also includes mercy killings and has been more widely adopted. MODEL PENAL CODE § 210.6(4)(c). At least twenty states appear to have adopted this provision.
155. See Acker & Lanier. Mitigating Factors, supra note 78, at 320-21.
156. U.S. SENTENCING GUIDELINES MANUAL § 2L1.1 (2004) (Smuggling, Transporting, or Harboring an Unlawful Allen);
157. Id. § 2L2.1 (Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a U.S. Passport; False Statement in Respect to the Citizenship or Immigration Status of Another: Fraudulent Marriage to Assist Alien to Evade Immigration Law).
158. Id. §§ 2L1.1-2L2.1. Although these provisions are not phrased in terms of a defendant's motive to help her family members, but rather in terms of whether the offending conduct was so limited, the wording suggests that the defendant's motives are paramount. The first portion of the sentencing reduction provision indicates that immigration offenses committed for motives other than financial gain are "better" than ordinary motives. Because the provision is written in the disjunctive, an attempt to aid the illegal residence of one's family members-even if also motivated by financial gain-can be read as considered "better" than an immigration offense committed with other motives.
159. United States v. Milne, 384 F. Supp. 2d 1309, 1313 n.4 (E.D. Wis. 2005).
160. That court also noted that "after Booker, courts are required to consider any § 3553(a) factor put forward by the defense that might make the guideline sentence inappropriate" and that "[i]n many cases, this requirement will necessitate consideration of the defendant's motive for committing the offense rather than merely the amount involved." Id. at 1312-13 n.4.
161. U.S. SENTENCING GUIDELINES MANUAL §§ 2L1-2L2.1.
162. Id. § 2B5.3.
163. The exception to this rule is Oregon, which exempts from criminal liability physicians who, in compliance with the specific safeguards in the Oregon Death With Dignity Act, OR. REV. STAT. §§ 127.800-.897 (2005), dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient.
164. See Gonzales v. Oregon, 126 S. Ct. 904 (2006).
165. Dr. Jack Kevorkian, who admitted to assisting numerous patients commit suicide, was famously acquitted in several trials for assisted suicide before he was ultimately convicted. See Raphael Cohen-Almagor, Euthanasia and Physician-assisted Suicide in the Democratic World: A Legal Overview, 16 N.Y. INT'L L. REV. 1, 19-20 & nn.143-44, 148 (2003) (collecting sources).
166. Non-physician mercy killers have similarly been acquitted. Cecil Angel, Jury: Aiding Wife's Suicide Wasn't Murder Cancer Victim Died in Family's Presence, MIAMI HERALD, May 11, 1991, at A1 (noting that a Detroit, Michigan jury acquitted a man accused of assisting the suicide of his wife).
167. See, e.g., Man Who Shot Wife as a Mercy Killing Is Granted Clemency, N.Y. TIMES, Aug. 2, 1990, at A11 (reporting that an eighty-one-year-old man, who had been sentenced to twenty-five years to life after being convicted of first-degree murder in the 1985 shooting death of his wife was granted clemency).
168. "There must also be a large number of cases where district or State's attorneys, regardless of what substantive law was involved, deliberately forego prosecution because the harms committed were actually minor ones and the motives were very laudable." HALL, supra note 15, at 163.
169. William Claiborne, Doctor-aided Suicide Is Backed in Poll, WASH. POST, July 30, 1998, at A3 (referencing a public opinion poll on physician assisted suicide that indicated 69% of respondents "backed the right of terminally ill patients to receive help from physicians to end life").
170. See also Sergio Herzog, The Effect of Motive on Public Perceptions of the Seriousness of Murder in Israel, 44 BRIT. J. CRIMINOLOGY 771, 776 (2004) (reporting that a study conducted in Israel indicated that "first-degree murder scenarios representing euthanasia... were perceived as the least serious scenarios, receiving significantly lower seriousness scores than justified (non-criminal) homicides committed by police officers during the course of their legal duties").
171. See Hurd & Moore, supra note 3, at 1131 ("[T]he mercy killer appears as nonculpable as the contract killer appears culpable.").
172. See Herzog, supra note 99, at 775 tbl.2, 776.
173. See MARVIN E. WOLFGANG ET AL., THE NATIONAL SURVEY OF CRIME SEVERITY 44 (U.S. Dep't of Justice Bureau of Justice Statistics 1985) (surveying the seriousness of various crimes).
174. In addition to these theoretical objections, commentators have also raised practical concerns about motive's role in punishment. Those practical concerns are addressed in Part IV.C.
175. See, e.g., Paul H. Robinson, Hybrid Principles for the Distribution of Criminal Sanctions, 82 NW. U. L. REV. 19 (1987).
176. See also Norval Morris, Desert as a Limiting Principle, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY 180 (Andrew von Hirsch & Andrew Ashworth eds., 2d ed. 1998).
177. Michael S. Moore, The Moral Worth of Retribution, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY, supra note 104, at 150.
178. Albert W. Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts About the Next, 70 U. CHI. L. REV. 1, 15 (2003).
179. Proportionality is a main concern of desert theory, which is a "modern form of retributive philosophy." ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 72-73 (3d ed. 2000).
180. See Andrew Ashworth, Desert, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY, supra note 104, at 141, 143.
181. See Alschuler, supra note 106, at 15.
182. See, e.g., Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 602 (1996)
183. ("[O]ne might say, for example, that an individual deserves punishment when 'he renounces a burden which others have voluntarily assumed and thus gains an advantage which others... do not possess,' or when human beings naturally intuit that the individual has engaged in 'a wrong action [that]... calls for the infliction of suffering or deprivation on the agent.'" (internal footnote omitted) (quoting Herbert Morris, Persons and Punishment, in PUNISHMENT AND REHABILITATION 40, 42 (Jeffrie G. Murphy ed., 1973);
184. J.L. Mackie, Retributivism: A Test Case for Ethical Objectivity, in PHILOSOPHY OF LAW 677, 682 (Joel Feinberg & Hyman Gross eds., 4th ed. 1991))).
185. Some commentators might dispute that expressivism is merely a form of retributivism. The resolution of that issue is not necessary to demonstrate how expressivism supports a role for motive in criminal punishment.
186. See Kahan, supra note 110, at 597-98.
187. ASHWORTH, supra note 107, at 61.
188. Kahan, supra note 110, at 598.
189. Id. ("[U]nduly lenient punishment reveals that the victim is worthless in the eyes of the law.").
190. There is substantial disagreement over the validity of this statement. Indeed public support seems to favor assisted suicide and mercy killings, yet the only American jurisdiction to have decriminalized the practice is Oregon. See supra note 95. In those jurisdictions where mercy killing remains illegal, the criminalization decision is explainable under the retributive theory as a determination that the value of human life outweighs the interest in ending the victim's suffering.
191. Cf. Kyron Huigens, Solving the Apprendi Puzzle, 90 GEO. L.J. 387, 433 n.256 (2002) ("[C]onsider the difference between a mercy killing and a contract killing. Both of these killings are murder, by virtue of the positive fault consideration of purpose or premeditation regarding death. But the two murders differ in fault because of the vastly different circumstances surrounding the two killings: acceding to the request of a loved one who is in intolerable pain versus making a profit from the coldhearted killing of a stranger.");
192. Joseph E. Kennedy, Making the Crime Fit the Punishment, 51 EMORY L.J. 753, 817 n.277 (2002) ("Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society's interest in punishing the conduct, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted.").
193. When imposing a criminal sentence one judge remarked that the defendant's actions "were not driven by any even perceived necessity," but rather that the defendant had been "[m]otivated purely by greed." United States v. Duff, 371 F. Supp. 2d 959, 964-65 (N.D. Ill. 2005).
194. Another court, in justifying its decision to impose a sentence of 120 months imprisonment, rather than the fifteen months recommended under the Federal Sentencing Guidelines, contrasted the short sentence recommended for the defendant and her "greed" with the lengthy Guidelines sentences imposed on drug couriers who "are motivated by a desire to feed and provide health care for their families." United States v. Andrews, 301 F. Supp. 2d 607, 610-12 (W.D. Tex. 2004), vacated by 390 F.3d 840, 849 (5th Cir. 2004). These courts, in contrasting the defendants who act for financial profit with defendants who act out of need, are making a retributivist judgment that pecuniary gain is a more blameworthy motive than need.
195. United States v. Pollard, 959 F.2d 1011, 1017 (D.C. Cir. 1992).
196. Id. at 1027.
197. Id. at 1026-27.
198. See ASHWORTH, supra note 107, at 64.
199. Id.
200. The conventional perspective frames "the deterrence inquiry as simply whether a penalty for crime X will reduce X." Tracey L. Meares, Neal Katyal & Dan M. Kahan, Updating the Study of Punishment, 56 STAN. L. REV. 1171, 1175 (2004).
201. Judge Posner provides a good illustration: "Suppose I lose my way in the woods and, as an alternative to starving, enter an unoccupied cabin and 'steal' some food. Should the punishment be death, on the theory that the crime saved my life, and therefore no lesser penalty would deter? Of course not." Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1205-06 (1985).
202. ASHWORTH, supra note 107, at 64.
203. Ashworth further explains: A necessary element in research is a proper definition of deterrence, to establish that fear of the legal penalty was the factor which led to avoidance of the proscribed conduct. Also essential to the understanding and identification of deterrent effects are information about the potential offender's knowledge of the penalty and of the risk of detection.... Few studies satisfy these criteria, and they provide no basis for broad [public] policies. Id. at 65.
204. See also Meares et al., supra note 124, at 1186 ("[M]odern deterrence research has failed to find consistent evidence of the deterrent effects of punishment. Empirical evidence on the deterrent effects of punishment remains speculative and inconclusive, and the ability of formal punishment alone to deter crime appears to be quite limited.").
205. A study by Richard Harding suggests that robbers tended to avoid arming themselves with firearms if there was a substantial extra penalty for carrying a firearm. Richard W. Harding, Rational-choice Gun Use in Armed Robbery: The Likely Deterrent Effect on Gun Use of Mandatory Additional Imprisonment, 1 CRIM. L.F. 427, 450 (1990),
206. cited in ASHWORTH, supra note 107, at 65 n.4.
207. See ASHWORTH, supra note 107, at 65.
208. The Federal Sentencing Guidelines include precisely such provisions. E.g., U.S. SENTENCING GUIDELINES MANUAL § 2A2.2(b)(1) (2004) (Aggravated Assault) ("If the assault involved more than minimal planning, increase by 2 levels.").
209. Even crimes motivated by profit, which are often viewed as calculated, can be entirely impulsive. For example, the defendant in United States v. Russell, 870 F.2d 18 (1st Cir. 1989), was the driver of a Wells Fargo armored truck, and a bank had mistakenly handed to his partner an extra money bag containing $80,000. Id. at 19.
210. After keeping the money for a week, Russell returned all of the money and cooperated fully in the investigation of the crime. Id.
211. Although his actions were motivated by financial gain, "Russell's actions were unplanned and spontaneous; he was apparently overcome by the sudden intoxication of unexpected and immediate wealth." United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990) (describing the Russell case as an "act of aberrant behavior").
212. See Meares et al., supra note 124, at 1193-97;
213. Paul H. Robinson, Why Does the Criminal Law Care What the Layperson Thinks Is Just?: Coercive Versus Normative Crime Control, 86 VA. L. REV. 1839, 1861-65 (2000) (collecting sources).
214. See also Kahan, supra note 110, at 604 ("Individuals are more disposed to obey particular laws.... when criminal punishment confirms, rather than disappoints, shared expectations about what behavior is worthy of moral condemnation.").
215. See Meares et al., supra note 124, at 1187-90.
216. The mere fact that deterrence theory does not adequately explain the existing categories of aggravating and mitigating motives does not suggest that a defendant's punishment should not be adjusted based on her motives. Even deterrence supporters have acknowledged that deterrence cannot be the only theory for punishment allocation; punishment must also account for an offender's culpability. For example, in a recent article advancing a life-life trade off rationale in support of the death penalty, Cass Sunstein and Adrian Vermeule balk at the notion of imposing the death sentence for drunk driving, even though drunk driving could also yield a life-life trade off. Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 STAN. L. REV. 703, 748 (2005) ("[N]othing we say here entails a view, one way or another, on the question (for example) whether drunk drivers who kill recklessly or negligently should be subject to capital punishment.").
217. As Carol Steiker notes in her response article: The only good reason that the culpability of the individual agent of harm ought to matter in a "life-life tradeoff" is a retributive one, as Sunstein and Vermeule seem to concede by recognizing that capital punishment for homicides caused by drunk driving "might stand on a different moral footing" from capital punishment for intentional murders because of "constraints of proportionality." But bringing in the "constraints of proportionality" to distinguish executions for drunk driving from executions for murder gives up the whole game; it eliminates the special moral force of the "life-life tradeoffs" argument that Sunstein and Vermeule wish to assert. Carol S. Steiker, No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, and the Death Penalty, 58 STAN. L. REV. 751, 781-82 (2005) (internal footnote omitted)
218. (quoting Sunstein & Vermeule, supra, at 748).
219. See ASHWORTH, supra note 107, at 68.
220. Id. at 70.
221. SEE KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 19-22(1998).
222. For an account of "the collapse of the rehabilitative ideal," see id. at 29-35.
223. Gellman, supra note 3, at 356.
224. See also Garvey, supra note 50, at 1711 ("[I]f one's beliefs are constituent elements of one's character over which one has no direct or immediate control, then the additional punishment imposed on the inadequately provoked actor... is punishment imposed for the content of his character...." (internal footnote omitted)).
225. Hurd & Moore, supra note 3, at 1128 (internal footnote omitted). "The emotions and beliefs with which hate/bias crimes are concerned are not occurrent states of mind; they are, rather, character traits possessed by defendants over time."
226. Id. at 1127.
227. Id. at 1129.
228. Although Hurd and Moore argue that punishment of the motive of hate or prejudice necessarily punishes based on character, they appear to concede that other motives do not necessarily reflect an offender's character: "one may form the intention, say, to kill without being disposed toward violence, and one may set one's sights on another's wealth without being a greedy person." Id. at 1128.
229. Elsewhere, Hurd and Moore indicate that "motivationally oriented legislation[,] in general, ultimately punishes persons for standing traits of character." Id. at 1135.
230. The leading case on hate crime enhancements, Wisconsin v. Mitchell, does not appear to involve an inveterate racist. There, the defendant, a young African American man, discussed the film Mississippi Burning with some friends prior to committing his crime. Wisconsin v. Mitchell, 508 U.S. 476, 479-80 (1993). The defendant was upset about a scene in the movie that showed a white man beating a young black boy who was praying; he, along with a group of other boys, then decided to "move on some white people" and, after seeing a white boy walking down the street, beat the boy severely and stole his tennis shoes.
231. Id. The fact pattern suggests that the assault was motivated by the defendant's reaction to the film; there is no reason to believe that he ordinarily holds racist views or wishes to harm whites.
232. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 181-82, 201 (1968).
233. See also Michael S. Moore, Choice, Character, and Excuse, 7 SOC. PHIL. & POL'Y 29 (1990).
234. Michael D. Bayles, Character, Purpose, and Criminal Responsibility, 1 L. & PHIL. 5, 13 (1982).
235. Hurd & Moore, supra note 3, at 1127-29;
236. Gardner, supra note 58, at 686 (characterizing "responsibility for one's motive[]" as a "character attribute[]" which may be "seen as the product of certain factors, such as environment and heredity, which are beyond the control of the actor").
237. See also Garvey, supra note 50, at 1716-17.
238. Cf. Kent Greenawalt, Reflections on Justifications for Defining Crimes by the Category of Victim, 1992/1993 ANN. SURV. AM. L. 617, 625 (1994) ("Actors who have the wrong kinds of feelings are not being asked to eliminate the feelings. They are asked not to commit criminal acts on the basis of their feelings.").
239. See Hurd & Moore, supra note 3, at 1127-28.
240. Id. at 1129.
241. See Dillof, supra note 3, at 1017;
242. Gardner, supra note 58, at 688 ("Many of these problems are avoided if inquiries into motives are abandoned and mens rea offense elements are defined in terms of specific states of mind, as in the Model Penal Code scheme.").
243. See also Dillof, supra note 3, at 1036 (stating that the traditional model of criminal offenses assumes that "intentions determine the scope of the wrongdoing for which the actor is culpable").
244. But see Hurd & Moore, supra note 3, at 1130-31 ("[W]e are sympathetic to the view that moral culpability is largely a function of the reasons for which persons act.... Contrary to the traditional assumptions of the criminal law, it seems to us that surprisingly little is learned about a defendant's moral culpability by discovering that the defendant intended a legally prohibited harm or knew that he would cause it.").
245. See Kenneth W. Simons, Rethinking Mental States, 72 B.U. L. REV. 463, 466 (1992) (noting that the "Model Penal Code differentiates criminal recklessness from negligence in only one respect: recklessness requires conscious awareness of a substantial and unjustifiable risk, while negligence requires that the actor should have been aware of such a risk").
246. HART, supra note 141, at 33 ("[M]en are capable of self-control when confronted with an open till but not when confronted with a wife in adultery.").
247. This may seem like an exaggeratedly deliberate account of choosing to act based on motives, but I imagine that it is no more exaggerated than the commonly held beliefs about offenders "choosing" to perform an illegal act with a culpable level of intent. Most offenders likely do not spend much time reflecting or deliberating before acting-indeed, a common critique of deterrence theory is that it is "unrealistic" to construct a system of punishment "on the assumption that most offenders will weigh up the possibilities in advance and base their conduct on rational calculation. Often they do not.'" ASHWORTH, supra note 107, at 65 (quoting Home Office White Paper, Crime, Justice, and Protecting the Public (Feb. 1990)).
248. See, e.g., F.H. Buckley, Perfectionism, 13 SUP. CT. ECON. REV. 133, 150 (2005). I use the terms "neutralist," "neutralism," and "neutrality" in this Article because the term "liberal" has acquired an accepted meaning that encompasses more than the principles of neutralism. This new, and more dominant meaning refers to specific political views, some of which-such as support for hate crime legislation-are inconsistent with neutralism.
249. This theory is often phrased in terms of preferring a system that values "the [R]ight over the [G]ood." MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 1 (2d ed. 1998). In classic liberalism terms, because the members of society will be unable to agree on a vision of the Good, it is important that society not try to impose one view at the expense of another.
250. See id.
251. Hurd and Moore couch their neutralist critique of motive-based punishment in the third person-saying that those who justify hate crime sentencing enhancements with character theory "cannot enjoy support from those who conceive of themselves as working within the philosophical tradition of political liberalism" and that character theorists "must admit, then, that they are not liberals." Hurd & Moore, supra note 3, at 1135, 1137.
252. They never explicitly adopt the neutral critique of motive-based sentencing enhancements except to say that "[n]ot only must those who are willing to criminalize hate and bias meet the challenges of contemporary liberalism generally, but they must be confident that in enacting such legislation they are not inhibiting a liberty to be bad that is necessary to the cultivation of good." Id. at 1138.
253. See also Gardner, supra note 58, at 686 ("Even when known, motives are difficult to evaluate. Consensus on moral issues is often impossible in modem, pluralistic societies.");
254. Garvey, supra note 50, at 1716 ("A liberal state can punish its citizens for the crimes they chose to commit, but it cannot punish them more for the lack of virtue they happen to betray in committing them, even when the virtues at stake are liberal ones. If it does so punish its citizens, it betrays its own true-and illiberal-character.")
255. (citing Hurd & Moore, supra note 3, at 1137).
256. R.A. Duff, Choice, Character, and Criminal Liability, 12 L. & PHIL. 345, 381 (1993).
257. Kyron Huigens alludes to this problem: Deontological political theory, whatever its merits in explaining distributive justice, is inadequate to explaining criminal justice. We need an alternative theory to cope with the fact that the criminal law condemns the decisions and actions of individuals in their pursuit of the good as they conceive it. The aspiration to neutrality with regard to individual conceptions of the good-which, however it is formulated, is the principal feature of deontological theories of distributive justice-renders deontology useless in explaining and understanding inculpation as it now occurs. Huigens, supra note 4, at 1457-58 (internal footnote omitted).
258. See John Stuart Mill, On Liberty, in 18 COLLECTED WORKS OF JOHN STUART MILL: ESSAYS ON POLITICS AND SOCIETY 213, 223-24 (J.M. Robson ed., 1977).
259. For example, Anthony Dillof argues that a defendant's motive of racial animus does not affect the "gravity" of her wrongdoing, reasoning that: Based on their intentions, the bias criminal will be culpable exactly for inflicting wrongdoing W on a Black, and the nonbias criminal will be culpable exactly for inflicting wrongdoing W on an indefinite person. Inflicting wrongdoing W on a Black and on an indefinite person, however, are types of wrongdoing of equal gravity: the gravity associated with wrongdoing W. Thus, although the perpetrator of a bias crime, by virtue of his intention, is highly culpable for an act such as "inflicting wrongdoing W on a Black" and the perpetrator of a nonbias crime does not have that level of culpability for such an act, these differing culpabilities do not justify different degrees of punishment. Dillof, supra note 3, at 1034 (internal footnote omitted).
260. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1661 (1992).
261. Motive's critics do not argue that attempt should not be punishable as a criminal offense. To the contrary, Michael Moore has argued that [c]ulpability is necessary to desert, but wrongdoing is not. Someone who shoots at another with the intent of killing him, but misses, or someone who passes on a blind curve but meets no on-coming traffic, deserves some punishment even though there is no wrongdoing. Culpability, in other words, is sufficient, meaning that wrongdoing is not necessary. Michael S. Moore, The Independent Moral Significance of Wrongdoing, 5 J. CONTEMP. LEGAL ISSUES 237, 238 (1994) (internal footnote omitted).
262. See generally GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES (1978).
263. The specific example Jean Hampton gives is the shipowner who ties his ship to a dock to avoid the virtual certainty of shipwreck by an approaching storm, despite the fact that the dockowner refuses permission for him to do so. If, during the storm, the ship causes damage to the dock and the dockowner sues, the shipowner will be liable for damages, but he will not be held criminally liable for having tied his ship to the dock given the circumstances. Hampton, supra note 157, at 1664-65 (describing Vincent v. Lake Erie Transp. Co., 124 N.W. 221 (Minn. 1910)).
264. See Kahan, supra note 4, at 181.
265. A public opinion survey revealed that a robbery with no weapon involving only $10 is viewed as deserving of more punishment than a theft of $100. WOLFGANG ET AL., supra note 102, at 44.
266. Cf. HART, supra note 141, at 162 ("[I]t is not clear what, as between the objective harm caused by a crime and the subjective evil intention inspiring it, is to be the measure of 'seriousness' [of a crime when attempting to correlate severity of punishment with seriousness of a crime]. Is negligently causing the destruction of a city worse than the intentional wounding of a single policeman?... [I]f the subjective wickedness of the criminal act is relevant, can human judges discover and make comparisons between the motives, temptations, opportunities and wickedness of different individuals?").
267. Michael Sandel's account of the theory's shortcomings may be the best known. See SANDEL, supra note 152.
268. Huigens, supra note 4, at 1430.
269. Kahan, supra note 4, at 177-78 (internal footnote omitted).
270. See also id. at 179 ("Inconveniently for the Millian critics of hate crime penalties, the criminal law comprises a comprehensive series of bad-value added taxes.").
271. See, e.g., Gardner, supra note 58, at 688.
272. "The neutralist might reject legal moralism but he cannot ban expressive effects. Whether he likes it or not, laws necessarily express approval or disapproval." Buckley, supra note 151, at 136.
273. See supra note 99. Hurd and Moore consider those who commit mercy killings "to be highly moral people." Hurd & Moore, supra note 3, at 1131.
274. They acknowledge that if "we can distinguish the mercy killer from the contract killer only by reference to their relative motivations," then "our theory of moral culpability clearly departs from our doctrines of legal culpability" because "the mercy killer appears as nonculpable as the contract killer appears culpable." Id.
275. They also say that they are "sympathetic to the view that moral culpability is largely a function of the reasons for which persons act and the emotions that attend their actions," and that it seems to them "that surprisingly little is learned about a defendant's moral culpability by discovering that the defendant intended a legally prohibited harm or knew that he would cause it." Id. at 1130-31.
276. This is likely a function of the fact that, aside from the Federal Sentencing Guidelines, the most comprehensive sentencing systems are capital sentencing regimes, which require only a binary determination.
277. For example, the statute for the District of Columbia that specifies aggravating sentencing factors includes whether the offender's conduct "involved a drive-by or random shooting," but makes no mention of whether the crime was motivated by terrorism. D.C. CODE § 24-403.01(b-2)(2)(E) (Supp. 2006). The D.C. statute specifying aggravating factors for first degree murder also does not mention terrorism. D.C. CODE § 22-2104.01 (2001 & Supp. 2006).
278. The Model Penal Code lists "avoiding or preventing a lawful arrest or effecting an escape from lawful custody," "pecuniary gain," and "exceptional depravity" as aggravating motives for the purpose of the imposition of the death penalty. MODEL PENAL CODE § 210.6(3)(f)-(h) (Official Draft and Explanatory Notes 1962) (listing several death penalty factors). But those motives are not listed in the noncapital section of the Code that identifies the factors permitting a court to sentence a defendant "to an extended term of imprisonment." Id. § 7.03 ("The Court may sentence a person who has been convicted of a felony to an extended term of imprisonment if it finds one or more of the grounds specified in this Section.").
279. This omission is especially odd in light of the Code's consistent treatment of its one mitigating motive: a defendant commits a murder "under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct." Id. § 210.6(4)(d).
280. The Model Penal Code denotes that the defendant's motive is a "[m]itigating [c]ircumstance[]" for capital sentencing purposes. Id. § 210.6(4).
281. Similarly, the Code provides that for noncapital offenses, if "there were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense," the court should "accord[] weight" to this factor in determining whether to impose a noncustodial sentence. Id. §§ 7.01(2)(d), 7.01(2).
282. Also, the Federal Sentencing Guidelines provide sentencing adjustments based on particular motives for some offenses but not for other offenses. For example, the motive of helping one's spouse or child is treated as a mitigating factor only for immigration offenses. See supra note 90.
283. See, e.g., Dan-Cohen, supra note 81, at 632 ("[B]ecause individuals are familiar with the decision rules, they may well consider those rules in shaping their own conduct.").
284. See id.
285. Id. at 633.
286. As Meir Dan-Cohen explains the argument, even when external pressures impel an individual toward crime, the law should by no means relax its demand that the individual make the socially correct choice. If anything, the opposite is the case: "[I]t is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary." Id.
287. (quoting 2 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 107 (1883)).
288. Id.
289. For example, it previously has been explored in the context of the defense of duress. See id.
290. See supra notes 122-24 and accompanying text.
291. See supra text accompanying notes 100-02.
292. See supra notes 131-33 and accompanying text.
293. See infra text accompanying notes 189-90 (explaining that sentencing allows for finer distinctions of culpability than determinations of liability).
294. Without a comprehensive and transparent system of motive, undesirable prejudices can slip in through the back door. For example, as Victoria Nourse explains in her article about the provocation defense, in those jurisdictions where the evaluation of a defendant's motives is largely hidden from view-that is, those jurisdictions that have adopted the modern "extreme emotional disturbance" version of the provocation defense-courts have allowed the defense for defendants who killed their lovers when the latter tried to leave the relationship. Nourse, supra note 52, at 1348, 1356.
295. In contrast, those jurisdictions that follow the common law approach, and thus are more explicit in their evaluation of the adequacy of defendants' reasons for provocation, do not allow the defense in those situations. Id. at 1356.
296. This suggests that unless the evaluation of a defendant's motives is transparent, the outcome of that evaluation may not conform to our shared moral judgments. As Kahan notes, if the "morally judgmental character of criminal law" is obscured, it "stack[s] the rhetorical deck of the law in favor of traditionally hierarchical social norms and against progressive egalitarian ones." Kahan, supra note 4, at 190.
297. See also Nourse, supra note 52, at 1379.
298. When reformers rid the law of the nineteenth-century categories, they believed they were ridding us of a long-outdated code of honor. When they declined to judge the adequacy of provocation, they rejected an approach that bestowed privileges on certain relationships. But getting rid of the categories, and forcing normative judgments on juries, did not prevent courts from deciding normative questions. It simply disguised these judgments by changing the ways we argued about them. It transformed them into questions that did not seem normative at all, into questions about situations or emotions or the defendant's characteristics. Id.
299. Apprendi v. New Jersey, 530 U.S. 466, 479 (2000)
300. (quoting John H. Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY 1700-1900, at 36-37 (A. Schioppa ed., 1987)).
301. See Susan R. Klein, The Return of Federal Judicial Discretion in Criminal Sentencing, 39 VAL. U. L. REV. 693, 696 (2005) ("The English practice in colonial times for felony offenses consisted of a set or determined sentence for every offense, primarily the death penalty or a fine which varied according to the value of the property stolen.");
302. Note, The Admissibility of Character Evidence in Determining Sentencing, 9 U. CHI. L. REV. 715, 715 n.1 (1942) ("In the seventeenth century practically all felonies called for the death sentence. In Blackstone's day Parliament had provided that the death sentence should be imposed in not less than 160 different crimes." (internal citation omitted)).
303. See also THOMAS ANDREW GREEN, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON THE ENGLISH CRIMINAL TRIAL JURY 1200-1800, at 274 (1985) ("[E]ighteenth-century legislation greatly increased the scope of offenses for which death was at least a potential sanction....").
304. To compensate for the harshness of required punishments, English juries often acquitted defendants, despite proof of guilt, or convicted defendants only of a lesser offense, for which the proscribed sentence was noncapital. See GREEN, supra note 181, at 277, 286 ("Many capital defendants [in the mid-eighteenth century] were saved by an undervaluation or a 'finding' of simple larceny instead of burglary... and thus were convicted of an offense for which transportation or whipping were the prescribed sanctions.... [M]ost defendants were either acquitted or awarded a partial verdict.").
305. The early history of discretionary sentencing-especially the date of its adoption in the United States-is a matter of some dispute. Compare STITH & CABRANES, supra note 136, at 9 ("From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion."),
306. and Williams v. New York, 337 U.S. 241, 246 (1949) ("[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law."),
307. with Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. CRIM. L. & CRIMINOLOGY 883, 892-93 (1990) ("[U]p through 1870, legislators retained most of the discretionary power over criminal sentencing... the period of incarceration was generally prescribed with specificity by the legislature."),
308. and Note, supra note 181, at 715-16 ("During the nineteenth and twentieth centuries American criminal legislation has shifted from the fixed sentence type of criminal statute to the discretionary sentence type of statute." (internal footnote omitted)). But everyone seems to agree that discretionary sentencing was the norm by the late nineteenth century.
309. While sentencing decisions are usually made by judges, several jurisdictions in early America allowed for sentencing by juries. See Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 316-23 (2003);
310. Adriaan Lanni, Note, Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come (Again)?, 108 YALE L.J. 1775, 1790-93 (1999).
311. With few exceptions, jury sentencing occurs now only in capital cases. See Iontcheva, supra, at 314 ("Only six states currently employ jury sentencing in non-capital cases, down from thirteen in 1960.").
312. See Dorszynski v. United States, 418 U.S. 424, 431-32 (1974) (citing several cases for "the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end").
313. For a historical account of this movement and the major players, see STITH & CABRANES, supra note 136, at 29-48.
314. These states, which include Minnesota, Washington, Florida, Pennsylvania, Oregon, Tennessee, Louisiana, and Kansas, promulgated "presumptive sentencing guidelines," which specify a narrow presumptive sentence for the "ordinary case" of a given offense, depending on an offender's prior record of convictions. Judges retain power to depart up or down from the presumptive sentence in an unusual case, but must give reasons for doing so, and such departures become subject to appellate review. Kevin R. Reitz, Sentencing Reform in the Stales: An Overview of the Colorado Law, 64 U. COLO. L. REV. 645, 647 & n.10 (1993).
315. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat, 1987 (1984).
316. See STITH & CABRANES, supra note 136, at 192-93 (app. D) (illustrating how sentencing decisions are made under the federal guidelines).
317. Of course, if a defendant has a partial defense, such as provocation, then she is guilty but her liability is limited to a lesser charge.
318. If the punishment takes the form of a fine, it can also be adjusted by a percentage of the overall fine or by different set amounts of money.
319. Cf. Nancy J. King & Susan R. Klein, Essential Elements, 54 VAND. L. REV. 1467, 1494-95 (2001) (distinguishing between a fact that "separates the guilty from the innocent" and "a fact that separates the more guilty from the less guilty"). For a more complete account of fully inculpatory and exculpatory motives, see Part II.A, supra.
320. Criminal sentencing does not afford the same procedural protections. See STITH & CABRANES, supra note 136, at 28 ("[T]he Court's seminal case of Williams v. New York," 337 U.S. 241 (1949), "explicitly embraced the traditional separation of adjudicatory procedures from sentencing procedures, and declined to place significant due process restraints on the latter"; the Williams Court indicated "that the 'salutary and time-tested protections' of due process are simply inapplicable to sentencing.").
321. See also Douglas A. Berman, Foreword: Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 J. CRIM. L. & CRIMINOLOGY 653, 663-69 (2005) (describing "a series of decisions" in which the Supreme Court "consistently... repudiated defendants' arguments for expanding the procedural rights available during sentencing").
322. For a fuller account of partially inculpatory and exculpatory motives, see Part II.B, supra.
323. Apprendi v. New Jersey, 530 U.S. 466 (2000).
324. Blakely v. Washington, 542 U.S. 296 (2004).
325. United States v. Booker, 543 U.S. 220 (2005).
326. Apprendi, 530 U.S. at 490.
327. For example, several jurisdictions have concluded that a defendant who commits a crime with a motive of bias or hate should be subject to significantly higher penalties. In Vermont, a hate crime is subject to double the maximum prison term. Under Florida's enhancement provision, the maximum possible sentence is tripled. The hate crime statute challenged before the Supreme Court in Wisconsin v. Mitchell provided for a two-year maximum prison term for aggravated battery, but if the perpetrator was motivated by bias, the maximum punishment jumped to seven years. JACOBS & POTTER, supra note 45, at 30 (internal footnote omitted).
328. Blakely, 542 U.S. at 313-14.
329. Booker, 543 U.S. at 245-46.
330. For an account of the "continuum of possibilities for the design of sentencing systems" see Kevin R. Reitz, The Enforceability of Sentencing Guidelines, 58 STAN. L. REV. 155, 156-60 (2005).
331. Indeed, several commentators have explored the relative merits of different sentencing systems. See. e.g., Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 905-08, 918-25, 939-49 (1991);
332. David Yellen, Saving Federal Sentencing Reform After Apprendi, Blakely and Booker, 50 VILL. L. REV. 163, 173-87 (2005).
333. See also Berman, supra note 193, at 683-85 (describing the present rift on the Supreme Court between the Justices who seek to "provide greater procedural protections to individual defendants in the application of modern statutory and guidelines sentencing systems" and those Justices who embrace "whatever sentencing procedures are needed to foster the modern sentencing reform goal of achieving greater sentencing uniformity").
334. In contrast, the liability phase is concerned with factual guilt-that is, did the defendant commit the offense and, if so, did she have a defense.
335. See supra Part II.C.
336. See supra note 177.
337. Blakely v. Washington, 542 U.S. 296 (2004).
338. United States v. Booker, 543 U.S. 220 (2005).
339. See, e.g., Federal Sentencing After United States v. Booker: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 109th Cong. (2006) (statement of United States Attorney William W. Mercer), available at http://judiciary.house.gov/media/pdfs/ mercer031606.pdf; Alberto Gonzales, Attorney General of the United States, Address at the National Center for Victims of Crime (June 21, 2005), reprinted in 17 FED. SENT'G REP. 324 (2005).
340. For example, in the wake of Booker, several district courts refused to impose the lengthy sentences for crack-cocaine, reviving the controversy regarding the 100 to 1 disparity between the treatment of crack-cocaine and powder cocaine required under the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1002(2), 100 Stat. 3207, 3207-2 to -3 (1986) (codified as amended at 21 U.S.C. § 841(b)(1) (2000)).
341. E.g., Pamela A. MacLean, Cracking the Code: After 'Booker,' Judges Reduce Crack Cocaine Sentences, NAT'L L.J., Oct. 3, 2005, at 1. To date, appellate courts have not responded favorably to the idea that district courts may depart from the now-advisory Guidelines solely on a policy-based objection to the sentencing differential for offenses involving crack-cocaine and offenses involving powdered cocaine.
342. See, e.g., United States v. Williams, 456 F.3d 1353 (11th Cir. 2006);
343. United States v. Eura, 440 F.3d 625 (4th Cir. 2006);
344. United States v. Pho, 433 F.3d 53 (1st Cir. 2006).
345. Because sentencing was not subject to appellate review prior to the enactment of the Sentencing Reform Act of 1984, no common law of sentencing ever developed. See STITH & CABRANES, supra note 136, at 9 ("For over two hundred years, there was virtually no appellate review of the federal trial judge's exercise of sentencing discretion.").
346. Cf. James G. Carr, Some Thoughts on Sentencing Post-Booker, 17 FED. SENT'G REP. 295, 296 (2005) (noting that, after the Supreme Court's ruling in Booker, rulings by appellate courts on sentencing matters "will serve the function they have always served: namely, to develop on a case-by-case basis a coherent body of law which, as to many issues, is likely to be uniform across the Circuits").
347. The appropriate burden will depend upon the sentencing system; as the Supreme Court clarified in Booker, the burden of proof for sentencing facts will depend upon whether the sentencing system's articulated sentences are mandatory or advisory. See United States v. Booker, 543 U.S. 220, 231-33 (2005).
348. Several of motive's critics-specifically those whose objections are aimed at hate crime enhancements-have argued that if sentences are to be adjusted based on an offender's motive, then sentencing law must account for more than simply bias or prejudice as a motive. See JACOBS & POTTER, supra note 45, at 80;
349. Hurd & Moore, supra note 3, at 1131. I agree and believe these categories will help achieve that goal.
350. See Breyer, supra note 11, at 13.
351. See also Antony Duff, Principle and Contradiction in the Criminal Law: Motives and Criminal Liability, in PHILOSOPHY AND THE CRIMINAL LAW: PRINCIPLE AND CRITIQUE 156, 176 (Antony Duff ed., 1998) (identifying "tension between two conceptions of 'doing justice' in sentencing": determining "the sentence appropriate to the individual offender and her particular offence [sic]" and treating like cases alike).
352. E.g., Alschuler, supra note 203, at 908-15 (noting that determinate sentencing systems focus mainly on the harm of a defendant's conduct and that "offenders who have produced comparable harms differ greatly in culpability").
353. See Breyer, supra note 11, at 13 ("The more the system recognizes the tendency to treat different cases differently, however, the less manageable the sentencing system becomes. The punishment system becomes much harder to apply as more and more factors are considered...." (internal footnote omitted)).
354. Then-Judge Stephen Breyer identified this problem when he discussed the "competing rationales behind a 'real offense' sentencing system and a 'charge offense' system." Breyer, supra note 11, at 8-9.
355. In a "charge offense" system, punishments correlate directly with the offense for which the defendant was convicted: "One would simply look to the criminal statute, for example, bank robbery, and read off the punishment provided in the sentencing guidelines." Id. at 9.
356. "The principal difficulty with a presumptive sentencing system is that it tends to overlook the fact that particular crimes may be committed in different ways, which in the past have made, and still should make, an important difference in terms of the punishment imposed." Id.
357. In a "real offense" system, the amount of punishment is determined by the specific circumstances of the case, and "each added harm that the offender brought about would lead to an increase in the sentence." Id. at 10.
358. Judge Breyer noted that the "real offense" system required the development of procedures for fact finding above and beyond a finding of guilt and "[m]aking such post-trial procedures administratively manageable is difficult": [T]he more facts the court must find in this informal way, the more unwieldy the process becomes, and the less fair that process appears to be. At the same time, however, the requirement of full blown trial-type post-trial procedures, which include jury determinations of fact, would threaten the manageability that the procedures of the criminal justice system were designed to safeguard. Id. at 10-11.
359. See also Ronald F. Wright, Complexity and Distrust in Sentencing Guidelines, 25 U.C. DAVIS L. REV. 617, 623-24 (1992).
360. Possible substantive objections are discussed in Parts III.B and III.C, supra.
361. Harel & Parchomovsky, supra note 75, at 513.
362. Id.
363. See supra text accompanying notes 100-02.
364. Harel and Parchomovsky made this statement in an article discussing the justifications for hate crime legislation. See Harel & Parchomovsky, supra note 75.
365. Their point may simply be the same as Hurd, Moore, Jacobs, and Potter-that if sentences are to be adjusted based on an offender's motive, then sentencing law must account for more than simply bias or prejudice as a motive. See supra note 213 and accompanying text.
366. See supra notes 118-19.
367. U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 (2004) (Larceny, Embezzlement, and Other Forms of Theft) (Application Note 19) (stating that if a "primary objective of the offense was an aggravating, non-monetary objective," such as "to inflict emotional harm" an upward departure may be warranted). Whether greed (that is, financial gain) is worse than spite may be more difficult to decide. While both motives seem relatively culpable, I have found no sentencing system that identifies spite as an aggravating motive. In contrast, many sentencing systems treat financial gain as an aggravating motive.
368. See supra notes 62-65 and accompanying text.
369. See supra Part III.C.
370. Cf. ASHWORTH, supra note 107, at 72 (stating that the touchstone of desert theory is "proportionality"; "[o]rdinal proportionality concerns the relative seriousness of offences [sic] among themselves").
371. See Kaufman, supra note 18, at 320 ("[T]he bewildering variety of motives-political, moral, religious, economic, and so forth-calls for decisions that require the sort of complex weighing and balancing that is more appropriate to the legislative than to the judicial process.").
372. See supra notes 155-68 and accompanying text.
373. Nor does it give a full account of the moral assessments underlying the examples given for the five categories of motives.
374. See supra Part III.C.
375. SANDEL, supra note 152, at x.
376. For example, as I have argued elsewhere, see Carissa Byrne Hessick, Prioritizing Policy Before Practice after Booker, 18 FED. SENT'G REP. 167, 167-68 (2006), the federal sentencing system is seriously flawed in its harsh treatment of crack-cocaine offenders.
377. The Guideline's treatment of crack-cocaine reflects neither the views of sentencing experts, that is, the Sentencing Commission, see U.S. Sentencing Comm'n, Special Report to the Congress: Cocaine and Federal Sentencing Policy, reprinted in 10 FED. SENT'G REP. 184 (1998),
378. nor the views of the public, PETER H. ROSSI & RICHARD A. BERK, NATIONAL SAMPLE SURVEY: PUBLIC OPINION ON SENTENCING FEDERAL CRIMES 80 (1995), available at http://www.ussc.gov/nss/jp_exsum.htm (noting that there is "little support in public opinion for especially severe sentences for drug trafficking and little support for singling out crack cocaine for special attention").
379. Cf. Buckley, supra note 151, at 136 ("[L]aws necessarily express approval or disapproval.").
380. See Gardner, supra note 58, at 686-89 ("Actual motives are often hidden.... Serious attention to motivational analysis would require trial courts to consider detailed case histories of each defendant.... Many of these problems are avoided if inquiries into motives are abandoned and mens rea offense elements are defined in terms of specific states of mind, as in the Model Penal Code scheme.").
381. See also Adam Candeub, Comment, Motive Crimes and Other Minds, 142 U. PA. L. REV. 2071, 2087 (1994) ("We are... inexorably led to the notion that whatever can be said about mental states must be inferred from behavior.").
382. See Gardner, supra note 58, at 686-89.
383. See, e.g., United States v. Falstaff Brewing Corp., 410 U.S. 526, 570 n.22 (1973) (Marshall, J., concurring in the result) ("Indeed, perhaps the oldest rule of evidence-that a man is presumed to intend the natural and probable consequences of his acts-is based on the common law's preference for objectively measurable data over subjective statements of opinion and intent.").
384. Some commentators have noted that "to know the motives of a defendant would, arguably, require a vastly greater inquiry into the specifics of his or her character and his or her goals than an inquiry into the intention involved in the specific act." Kaufman, supra note 18, at 320. The proposed system places the burden of such an inquiry on the party seeking a sentence adjustment based on motive.
385. While a criminal court may not instruct jurors that they must presume the criminal defendant intended the consequences of her actions, Sandstrom v. Montana, 442 U.S. 510, 524 (1979) (finding such an instruction violated due process because a juror might conclude that such an instruction was either "a burden-shifting presumption... or a conclusive presumption"), courts may instruct a jury "that it could infer" the necessary mens rea from the defendant's conduct, Rose v. Clark, 478 U.S. 570, 581 (1986).
386. "Indeed, in the many cases where there is no direct evidence of intent, that is exactly how intent is established." Id.
387. See Hitchler, supra note 14, at 118 ("In reference to proof of the formation of the requisite motive where the capacity to form it is not denied or successfully disputed, the ordinary rules of evidence prevail; and the existence or non-existence must be inferred from the circumstances.").
388. As Robinson explains: There are, in the forest fire hypothetical, any number of levels of "purpose": to set fire to the field, to save the town, to serve humanitarian ends, and to make oneself feel like a good person. In each case the motive of the actor at one level of inquiry becomes the purpose or real purpose or greater purpose at the next level of inquiry. ROBINSON, supra note 40, § 122(b)(3), at 18.
389. See id. § 122(b)(2), at 17.
390. As Hurd and Moore explain, "the determination of someone's motives for action requires one to determine the nature and the relative weight of an inevitably complex set of motivational desires, emotions, and dispositional beliefs and to assess the overall merit of their combination." Hurd & Moore, supra note 3, at 1132.
391. See also Hitchler, supra note 14, at 115-16 (discussing "complex motives"-that is, mixed motives).
392. Cf. 2 ROBINSON, supra note 40, § 122(b)(2), at 17 ("Must the justificatory purpose be the actor's only purpose? A primary purpose? A necessary purpose, in the sense that the actor would not have engaged in the conduct but for the justifying interests? Can the justificatory purpose be entirely secondary and tangential, although real?").
393. See generally Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-based Anomalies in the Gender-free World of the Federal Sentencing Guidelines, 20 PEPP. L. REV. 905, 977-80 (1993) ("[U]nless a female leaves her mate who is dealing drugs, it may be difficult for her to totally disassociate herself from the conspiracy. In other words, she is likely to be aware of his criminal endeavors and familial actions on her part often promote his criminal activities.").
394. See, e.g., ADRIAN NICOLE LE BLANC, RANDOM FAMILY: LOVE, DRUGS, TROUBLE, AND COMING OF AGE IN THE BRONX 48 (2003) (describing a female drug conspiracy participant's decision to help work in her boyfriend's drug business; the decision may have been prompted by her desperation for money, "but love was what she wanted").
395. See Gellman, supra note 3, at 357.
396. See JACOBS & POTTER, supra note 45, at 32 (stating that in hate crime prosecutions "the majority of courts hold that prejudice must be a substantial motivating factor").
397. People v. Cahill, 809 N.E.2d 561, 583 (2003).
398. Id.
399. Id.
400. In tort law, a court will hold an actor responsible for the consequences of her conduct only when her conduct is the "proximate cause" of an injury. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would "set society on edge and fill the courts with endless litigation." As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 41, at 264 (5th ed. 1984) (internal footnote omitted)
401. (quoting Mitchell, J., in North v. Johnson, 59 N.W. 1012 (Minn. 1894)).
402. In cases assessing potentially discriminatory peremptory challenges to jurors under Batson v. Kentucky, 476 U.S. 79 (1986), overruled in part by Powers v. Ohio, 499 U.S. 400 (1991), another situation where motive is determinative, "[s]ome courts have upheld peremptory challenges despite the striking attorney admitting on the record that race or gender was a factor in the decision, provided that the striking attorney can also demonstrate that she would have struck the venire person for a neutral reason anyway," while "[o]ther courts have found that any subjective discriminatory motivation, even when there are legitimate neutral motivations, is sufficient to uphold a Batson challenge,"
403. Antony Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. REV. 155, 173-74 (2005) (collecting sources).
404. 42 U.S.C. § 2000e-2(m) (2000).
405. Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (plurality opinion).
406. But, in that situation, the plaintiffs remedies are limited. 42 U.S.C. § 2000e-5(g)(2)(B).