Friday, October 23, 2009

Thought crimes

I wonder if those who are outraged at hate crimes laws realize that most every criminal law contemplates the accused's mental state as a key element? You don't have a crime without an act and a requisite mental state. This is a concept in our law that is 400 years old.

1 comment:

Andrew Oh-Willeke said...

Hate crimes laws almost never criminalized new conduct. The modify the sentences available for conduct that is already illegal (particularly in otherwise less serious crimes), although judicial discretion and sentencing guidelines mute this impact. A typical hate crime is assault motivated by . . . or vandalism motivated by . . . etc.

The downside of this is that a hate crime violation is almost never prosecuted alone, and may complicate what was otherwise a more straightforward case for prosecutors, defense counsel and the jury. More complicated cases are often less likely to result in cconviction. Prosecutors have a hard choice -- bringing up the fact that a victim is a member of a group that some people in the jury pool don't like makes it harder to get a unanimous jury than saying nothing.

Hate crimes laws give prosecutors that choice to make on a case by case basis, rather than denying it to them, but more choices also means more opportunities to make mistakes or to have to think about your objectives.

This is quite different from what anti-discrimination laws do. Those laws generally do create legal penalties for conduct that was previously legal.