Hate crimes prosecution a show trial

If fractious Americans can agree on anything nowadays, it should be that the punishment of thought crimes is the odious essence of totalitarianism. So, consider the constitutionally dubious conviction of Ahmaud Arbery’s three murderers for having committed “hate crimes.”

The criminal justice system has now correctly concluded that his murderers were racists whose racism manifested itself in their actions. This conclusion, however, does not justify complacency about deciding that because the killers’ gross acts reflected grotesque thinking, the thinking merits its own punishment.

The killers chased Arbery — a Black jogger in a white neighborhood — and killed him with a shotgun. For this violation of Georgia’s law against murder, a state court sentenced them to life imprisonment. Then last week, they were convicted in a federal court of violating a federal law that punishes those who violate a person’s civil rights “because of” their “race, color” etc. For this they can again be sentenced to life in prison.

But as Jacob Sullum, senior editor of Reason, said: It is therefore “equally true that the defendants were convicted ‘because of ’ their benighted beliefs. Condemning them as bigots was the whole point of this exercise, since they had already been condemned (and punished) as murderers.”

This misuse of judicial proceedings was, Sullum said, possible because of two regrettable Supreme Court conclusions: The killers’ “second, symbolic prosecution did not amount to double jeopardy, because the state and federal crimes, defined by two different ‘sovereigns,’ are not ‘the same offense.’” And prosecutions of hate crimes are deemed consistent with the First Amendment, even if they impose added punishment for speech that, however scabrous, is nevertheless constitutionally protected.

So, the government can conduct trials for the purpose of virtue signaling — to announce, however redundantly, that it condemns particular frames of mind. A bigot’s shabby mental furniture is, however, not a crime. Were it, what other mentalities might government decide to stigmatize by imposing special punishments? Arbery’s killers had expressed their racism in speech (texts, social media posts, remarks) that no jurisdiction can proscribe. But their federal punishment will be imposed precisely because their speech demonstrated their bigotry.

Proving the intent behind a criminal act is crucial. And no principle should prohibit ever making punishment proportional to the motive for a criminal act. However, deciding that an actor’s heinous behavior is made more heinous because they had a bad attitude is dangerous. It is one thing for the law to hold individuals responsible for controlling their minds, which presumably control their bodies. It is quite another thing for government to inventory an individual’s mind for the purpose of declaring how admirable the government’s mind is, and perhaps by doing so to improve the public’s mind.

This impulse melds with what C.S. Lewis called the remedial theory of punishment, whereby government detains offenders until they are cured, as determined by government’s “official straighteners.” Another totalitarian temptation.

Only an engaged judiciary vigorously applying constitutional protections prevents the woke from greasing this nation’s slide into something like Europe’s increasingly minute supervision of speech — and of the mentalities speech reflects. The European Court of Human Rights says governments may “sanction or even prevent all forms of expression which spread, incite, promote or justify hatred.” By “even prevent,” the ECHR extends permission for pre-emptive censorship and punishment. Based on what?

In today’s America, “hate speech” has become an elastic concept stretched to encompass any expression of ideas that offends any of the plethora of easily offended factions. So, various colleges and universities have proscribed speech that might “annoy or otherwise inconvenience” anyone, and certain “attitudes,” and “verbal harm” from injurious “assumptions” or “implications.” They have guaranteed “freedom from indignity of any type” and protection from “patronizing remarks.”

Congressional grandstanding includes the promiscuous multiplication of federal crimes, many of them duplicative of state crimes. From Congress’ bottomless moral pork barrel comes proposals for niche hate crime legislation: The latest, the Covid-19 Hate Crimes Act to protect Asian-Americans and Pacific Islanders, was signed into law May 20 last year.

Surely government should economize its exertions by not conducting show trials for the purpose of highlighting that it is offended by certain thinking that can precede certain behaviors that are already criminalized and forcefully punished.