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January 8, 2013

"Hate as an Aggravating Factor in Sentencing"

The title of this post is the title of this article which I found via SSRN. The piece authored by Susan Dimock and Mohamad Al-Hakim, and here is the abstract:

Our principal concern in this paper is with the accusation that hate crime legislation violates the principle of proportionality and related principles of just sentencing, such as parity, fair notice, and representative labelling. We argue that most attempts to reconcile enhanced punishment for hate crimes with the principle of proportionality fail. More specifically, it seems that any argument that tries to justify hate crime legislation on the grounds that such crimes are more serious because their consequential harms are worse or their perpetrators are more culpable than their nonhateful counterparts will fail, and thus enhanced punishment will violate the principle of proportionality.

Given the seeming irreconcilable tension between proportionality and hate crime legislation, we turn to consideration of hybrid theories of punishment that permit deviations from strict proportionality when needed to serve other important and legitimate purposes of sentencing. We argue that even if such hybrid theories can justify the enhanced punishments for hate crimes, existing theories cannot provide any principled limit on the extent from which proportionality can be deviated. We suggest such a limit and provide a principled justification for it.

I wonder, with my tongue only partially in my cheek, if we might sometime see a follow-up article titled "Love as a Mitigating Factor in Sentencing." 

January 8, 2013 at 11:27 AM | Permalink

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Comments

Appropriate, consistent, proportional justice has been oft-secured without a hate crimes
designation, and may be more likely without one. Case in point: the killers of James Byrd, Jr.

The famous, apparently effective advertisement in 2000 run against candidate George W. Bush
in favour of Al Gore, employed the daughter of James Byrd to condemn Bush for opposing
hate crimes legislation as governor in Texas.

Poignantly, Bush and other anti-hate crimes proponents, unassumingly used existing laws to gain capital
punishment for two of the killers, a penalty harsher than anything advocated by the hate crimes lobby.

Governor Bush, in contrast to liberal hate-crimes supporters such as
Governors Kitzhaber and O'Malley, rightly signed the death warrants
of 152 murderous persons.

How many have they signed?

Posted by: Adamakis | Jan 9, 2013 1:10:21 PM

// James Byrd's killer: 'I'd do it all over again' | khou.com Houston Sep 20, 2011 ...//

"Let love be without dissimulation. Abhor that which is evil; cleave to that which is good."

Why not hate murder enough to execute the murderer?
Why not love innocent life enough to hate the murderer's life?

"These six things doth the LORD hate: yea, seven are an abomination unto him: A proud look, a lying tongue, and hands that shed innocent blood…"--Prov. 6:16-17

"Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death:
but he shall be surely put to death."--Num. 35:31

Posted by: Adamakis | Jan 9, 2013 1:28:00 PM

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