Can a defendant's motive for murder be considered a factor in determining his sentence?

The essential argument presupposes that motive is not and can not be an element of the crime, and thus it may not constitutionally be punished. This supposition is, however, incorrect. In Barclay v. Florida (1983) 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134, the defendant argued that his sentence should be set aside because the trial judge, in making his sentencing choice, discussed the defendant's racial motive for the murder.

The plurality opinion rejected this argument, holding (although not in a First Amendment context) that "[t]he United States Constitution does not [17 Cal.App.4th 1365] prohibit a trial judge from taking into account the elements of racial hatred in this murder." (Barclay v. Florida, supra, 463 U.S. at p. 949, 103 S.Ct. at p. 3424.)