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.Via David Lat.
The distinction [law-and-philosophy prof Heidi M.] 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.”...
In most cases, hate crime laws take offenses that would carry more modest sentences — assault, vandalism — and ratchet up the penalty two or three times because we know, or think we know, what evil disposition lurked in the offender’s mind. Then we pat ourselves on the back. As if none of us, pure and righteous citizens, ever entertained a racist thought or laughed at a homophobic slur.
April 3, 2012
Bill Keller, the former executive editor of the NYT, explains "Why Liberals Should Hate ‘Hate Crime Legislation.'"