The Reporter (Lansdale, PA)

‘Hate crimes’ trial was for show

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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 this 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, notes: 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 says, 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.

In today’s America, “hate speech” has become an elastic concept stretched to encompass any expression of ideas — e.g. opposition to race-based affirmativ­e action or saying marriage should be between a man and a woman — 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’s 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.

Government is failing conspicuou­sly at many basic things — budgeting, preserving the currency’s value, maintainin­g infrastruc­ture, educating children, etc.

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

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