THOUGHTCRIME AND THOUGHTPUNISHMENT

In The New York Times today, Bill Keller uses the Tyler Clementi and Trayvon Martin incidents as a reason to inveigh against hate-crime laws. His argument is largely boilerplate from the Big Book of Pseudo-Liberal Liberal-Bashing: hate-crime laws = thoughtcrime.

But the fact that it is constitutional and commonplace does not quiet the nagging sense that hate crime legislation resembles something from an Orwell dystopia. Horrific crimes deserve stern justice, but don't we want to be careful about criminalizing a defect of character?

But in America, we don't punish bigots for bigotry alone, in the absence of a crime -- we give bigots book deals and radio shows. Their speech is protected (and sometimes greatly rewarded) if their prejudices don't lead them to commit criminal acts.

Now, I guess a lot of right-thinking people agree with Keller. But it's always seemed to me that assessing the prejudices that might have led to a crime is no different from assessing whether a killing was premeditated.

The odd thing is that Keller acknowledges the similarity -- but then, citing Professor Heidi Hurd, author of a famous article titled "Why Liberals Should Hate 'Hate Crime Legislation,'" he tells us that they're not the same at all:

There is nothing novel about the law taking into account a criminal's state of mind; one of the prerequisites for a conviction under common law is "mens rea" -- a guilty mind, malice aforethought, criminal intent. The law also recognizes gradations of guilty purpose. A premeditated killing is more punishable than one committed in the heat of the moment, which is worse than a killing that results from negligence. New York law compounds the punishment if you kill someone to prevent him from being a witness.

The distinction Hurd makes -- convincingly, I think -- is that when you penalize intent you are punishing matters of choice. One can choose not to pull the trigger, not to throw the rock, not to steal the purse.

"You can't choose not to be prejudiced or biased -- at least not willy-nilly, on the spot," she told me, when I called her the other day at the University of Illinois. "We pass moral judgments all the time against bigots and chauvinists and homophobes and so forth. But this is a question not of what we should morally blame people for, but of what we should deprive them of liberty for."

But is there really a difference here? In each case, you've got a state of mind (prejudice or murderous intent) plus an actual crime. Hurd looks at laws that deal out different sentences for killings with different degrees of deliberation and says, "Look, the crime is being punished." Then she looks at hate-crime laws and says, "Look, the state of mind is being punished." But the crime is being punished in both cases -- and, yes, in both cases the state of mind helps determine the sentence. Am I missing some fundamental distinction?

Keller finds this convincing, however. He also thinks this should give supporters of hate-crime laws pause:

In her criminal law class, Hurd teaches the cases of Matthew Shepard and James Byrd, and says that every time she confronts those monstrous crimes a part of her wonders, "Why don't we use the power of the state to make people less evil?" But, as she points out, those were both crimes eligible for the death penalty. "What are you going to do, kill somebody twice?"

But what does this have to do with the two deaths Keller cites -- those of Tyler Clementi and Trayvon Martin? Dharun Rani wasn't charged with a death-penalty crime in Clementi's death. And George Zimmerman hasn't been charged with anything at all.

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And Keller misses the obvious point that Trayvon Martin actually was the victim of something Orwellian -- not thoughtcrime but thoughtpunishment.

The evidence suggests that Trayvon Martin was killed because George Zimmerman thought he was dangerous, a state of criminality that existed only in Zimmerman's mind. How do you write about this case as Orwellian and overlook that fact?