Kenneth W. Simons, On Equality, Bias Crimes, and Just Deserts, 91 J. Crim. L. & Criminology 237 (2000).
In a recent article, Professors Alon Harel and Gideon Parchomovsky propose to widen the focus of criminal law beyond the culpability of the offender and the wrongdoing he commits. Criminal law, they believe, should also encompass the state's special egalitarian duty to protect the interests of the most vulnerable victims of crime. They offer this suggestion for two reasons - to give a convincing justification of bias crime legislation, which they claim a retributivist approach cannot do; and, more broadly, to remedy retributivism's supposedly inadequate attention to the interests of crime victims.
Although these egalitarian goals are worthy, the authors' suggestion is largely unnecessary and potentially dangerous. It is largely unnecessary because the authors greatly understate the ability of the retributive paradigm (1) to justify bias crime legislation, and (2) to incorporate egalitarian principles, including the protection of especially vulnerable victims. Yet the proposal is potentially dangerous. Some forms of egalitarianism - including the duty to protect the vulnerable that they endorse - permit or even require convicting defendants who are not blameworthy. To that extent, the egalitarian demand is in conflict with retributive values. To be sure, the state does have a duty to promote egalitarian goals, and has many legitimate means for doing so. But sometimes we must decline to pursue these goals through the instrument of criminal law, if we care about giving offenders their just deserts.