Rethinking Victim-Based Statutory Sentencing Enhancements

Punishment enhancements that are triggered by some trait of the victim are deeply en-trenched in American criminal statutes. The research underlying this Article identified over 120 distinct traits that a victim could possess that would statutorily enhance the offender’s punishment. These enhancements are often based on an inherent trait of the victim (e.g., age, disability), the victim’s occupation (e.g., law enforcement officers, utility workers), or a non-occupational role-based undertaking (e.g., jurors, visitors at a detention center). This Article argues that such victim-based statutory enhancements should be eliminated. First, they are dreadfully inegalitarian. These enhancements send the message that society prefers the victimization of individuals who do not happen to possess any of the protected characteristics. These enhancements create classes of “preferred victims” within society. Rational offenders are therefore incentivized to select victims who possess none of the triggering traits. In other words, such enhancements send the message that society wishes to protect some individuals more than others. Second, the Article identifies the four goals that these enhancements are meant to serve: (1) deterring the victimization of vulnerable individuals, (2) increasing punishment to account for the greater harm that results from victimizing certain individuals, (3) incentivizing individuals to undertake certain occupations, and (4) honoring certain types of individuals. The latter two goals are simply not legitimate uses of the criminal law because they are unrelated to any of the theoretical purposes of punishment. The first two goals, while legitimate uses of the criminal law, are not well served by the existing legislation. The victim-based traits that trigger the enhancements are poor proxies for these legislative goals. For example, an en-hancement triggered by victimizing a person over the age of sixty-five is both over- and under-inclusive to achieve the goal of deterring the victimization of vulnerable individuals because age is not necessarily correlated with vulnerability. Thus, these victim-based statutory sentencing enhancements should be repealed and replaced with legislation that better accomplishes the legitimate underlying goals