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Janine Young Kim, Hate Crime Law and the Limits of Inculpation, 84 Neb. L. Rev. 846 (2006). Copyright University of Nebraska.

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84 Nebraska Law Review 846 (2006)


Critics sometimes maintain that hate crime law punishes an offender for her motive and character and is therefore doctrinally and morally illegitimate. This manuscript explores the concept of culpability to examine this challenge, and argues that critics inaccurately assume that our criminal law conditions culpability on a robust understanding of choice. This inaccuracy significantly undermines the doctrinal critique against hate crime law, which in fact appears to be consistent with many other laws that consider motive and character as relevant factors in determining degree of guilt and proportionate punishment. Notwithstanding the apparent doctrinal validity of hate crime law, the author questions whether enhanced punishment for racially motivated crimes is morally (and politically) defensible in light of our current theoretical and psychological understanding of race and racism.

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