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Hate as an Aggravating Factor in Sentencing

New Criminal Law Review (formerly known as Buffalo Criminal Law Review), Volume 15, Number 4, pp. 572-611, Fall 2012

41 Pages Posted: 3 Jan 2013  

Susan Dimock

York University, Students

Mohamad Al-Hakim

Florida Gulf Coast University

Date Written: September 1, 2012

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.

Keywords: Hate Crime, Proportionality, Principles of Justice, Enhanced Punishment, Hybrid Theories

Suggested Citation

Dimock, Susan and Al-Hakim, Mohamad, Hate as an Aggravating Factor in Sentencing (September 1, 2012). New Criminal Law Review (formerly known as Buffalo Criminal Law Review), Volume 15, Number 4, pp. 572-611, Fall 2012. Available at SSRN: https://ssrn.com/abstract=2195686

Susan Dimock (Contact Author)

York University, Students ( email )

Ontario
Canada

HOME PAGE: http://www.yorku.ca/dimock

Mohamad Al-Hakim

Florida Gulf Coast University ( email )

Ft. Myers, FL 33965-6565
United States

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