Motive and Criminal Liability
According to Jerome Hall, “Hardly any part of penal law is more definitely settled than that motive is irrelevant." This thesis is endorsed, sometimes with minor qualifications, by almost all leading criminal theorists. Hall and these commentators must be understood to mean that motive is and ought to be immaterial to liability. Roughly, criminal justice is dispensed in two stages: first it is decided whether the defendant is liable; if so, it is next determined to what extent he is to be punished. it is beyond dispute that motive is relevant to the latter inquiry. Thus a bad motive might aggravate,or a good motive might mitigate, the severity of the defendant’s punishment but the goodness or badness of his motive does not bear on the prior issue of his liability.
Commentators should have been more critical of the thesis that motives are and ought to be material to sentencing, but not to liability. A defense of this thesis requires a theory about why a...