The Rhetoric of Motive and Intent

This article offers a critical analysis of the traditional maxim that motive is irrelevant to criminal liability. It retraces the history of this principle to show how its meaning has changed and its validity has declined over time. Originally promoted by reformers, the irrelevance of motive maxim derived meaning from their efforts to codify criminal law. In this context, the irrelevance of motive stood for two related reforms: (1) legislators should condition criminal liability on expectations of harm rather than desires, and (2) courts should require proof of statutory mental elements. With the success of codification, however, the irrelevance of motive maxim has fragmented into two different propositions, one lacking authority, and one lacking content. If motives are understood as desires, the claim that motive is irrelevant to criminal liability is descriptively inaccurate, because modern codes define both offenses and defenses in terms of desires. If motives are taken to be mental states other than those defined as offense or defense elements, the motive is irrelevant maxim is true, but trivial. The article applies this critique to numerous contemporary controversies, including the propriety of hate crime enhancements.