We should think long and hard about the sort of society we want to be.
I have written about why intent is crucial for forming the predictive models necessary for moral judgements. Making moral evaluations hinges on ascertaining how someone is likely to behave in the future. It’s not enough to simply know what someone did, or what the outcome was, without understanding the intention behind it, because without understanding the intention, we cannot predict their future behavior. Why are we right to recognize a difference between someone who is jostled in a crowd and accidentally spills hot coffee on another person, versus someone who has intentionally thrown the beverage at them? Because in the first scenario, we have no reason to expect that this person will continue throwing scolding coffee on people, or doing anything else violent, on the basis of this one incident — it was an accident. The same cannot be said of the person who did so intentionally. In some political circles, “Intent doesn’t matter” has become an increasingly common sentiment, a development with troubling implications for concepts like due process, justice, and fairness.
On the other flank is a fetish over intentions to the point that special, additional crimes, often carrying severe penalties, can be invoked and imposed, over and above the crimes committed, because of certain, apparently uniquely evil motives. Enter hate crimes and terrorism. If a crime is motivated by political or ideological goals, or the animus against a particular protected identity group, it becomes a more serious infraction than the same act intentionally done for another reason. What’s interesting is that some of the same people who proclaim “Intent doesn’t matter” also embrace hate crime or terrorism laws, and would clutch their pearls in horror if someone suggested a problem with them as concepts. There are people in society, by the millions, who would see someone punished just as harshly over accidental or unwitting harm as someone who did so intentionally, because intent supposedly doesn’t matter, while being foremost in calling for extra and additional penalties on those whose crimes have been deemed motivated by “hate.” Cognitive dissonance is a pit we all fall into from time to time, but without consistent — and consistently applied — first principles, we end up spending our whole lives down there.
This is going to sound more controversial than it should: Hate crime and terrorism shouldn’t exist as types of crime. They should not be legally or criminally recognized concepts. Why? Because it’s thought crime. To reiterate, intent matters enormously, both morally and legally. We have to establish whether a crime was premeditated or spontaneous, intentional or accidental, and whether the perpetrator is sane or insane. Beyond that — beyond establishing criminal intent — what went on inside someone’s skull should not impact their sentence. Some will misinterpret this as saying the acts we currently prosecute as hate crimes or terrorism should themselves be decriminalized — that a murderer who kills someone because of their identity group, or to advance some political agenda should walk away scot-free. This is not at all what is being argued for here. Virtually every component act that comprises a “hate crime” or act of “terror” is already a crime. If you murder someone, that is still murder. If you assault someone, that is still assault. If you blow up a building, or bomb a crowd of people, or mail packets of poison, that does not suddenly cease to be a crime. Vandalism, property damage, hijacking vehicles, computer hacking, and death threats — these are already crimes. Doing away with hate crime and terrorism would change nothing about these preexisting crimes.
Why should it be an additional crime that carries a more severe punishment if you kill someone because of their identity group versus doing so in revenge of a perceived slight, or because they witnessed you in the act of another crime, or because you saw them as an obstacle to your success? If the deeds and end results are identical, why should it be worse to rob a series of banks in the hope of inducing a public panic and crashing the financial system versus robbing them to get fantastically rich? In both cases, it amounts to the same thing in terms of harm caused and probability of future harm. If hate crime is a philosophically defensible notion, why not consider scammers who prey on the elderly to be hate criminals? Or burglars who target specific neighborhoods by socioeconomic factors? As a reader once insightfully remarked: “These are virtue signaling laws perpetrated by lawmakers for votes. I could never understand which crime doesn’t involve hate.” If we aren’t calibrating crime and punishment with harm caused and likelihood of future harm, we are lost.
To take an act that is already a crime and make it an extra crime because the perpetrator had super duper double-dog bad thoughts in their head (again, once criminal intent is established), is thought crime. There’s no way around it. To defend these concepts is also to implicitly defend thought crime. We should think long and hard about whether this is the sort of society we want to be. It’s often difficult to determine where to draw various lines. Thought crime seems to be an easy place to put our foot down and insist “No further.”
The cherry on top is the incalculable waste of time and energy whenever a possibly-qualifying atrocity occurs. Society squanders days, weeks, sometimes months — millions, even billions of hours collectively flushed away — arguing over whether particular cases should count as a hate crime or act of terror, with all of the partisan and tribal histrionics, political theater, point-scoring, hypocrisies, and finger-pointing it entails. This is an absurdity with no redeeming social value that abolishing these legal rules would relieve us of. Every moment we waste squabbling over this nonsense is a moment we aren’t talking about policy, root causes, solving problems, or viable paths forward. It’s time to rethink hate crime and terrorism.