mhendo, I have to disagree with your statement that we’d be criminalizing thoughts. As you said already, we make certain speculations already about the offender’s state of mind. That by itself cannot be taken as anything less than punishment for a person’s thoughts. One could easily apply the anti-hate crime legislation argument and say why should his state of mind matter when the act and the result is the same thing?
The answer to that is why hate crimes legislation is necessary. I believe we have laws for a few reason, the relevent ones here being that it provides a deterrent to future crimes and protects the citizens of the law’s jurisdiction.
So we criminalize thoughts pertaining to the offender’s state of mind because based on the why’s, we can determine if a person is more or less likely to committ a crime again. If Joe catches Dave in bed with Joe’s wife and kills Dave, then Dave’s dead, but the crime had mitigating circumstances. Joe’s wife and Dave betrayed Joe in one of the worst possible ways, and Joe could be a great guy otherwise, but he couldn’t take this level of betrayal.
While murder isn’t the right way to handle things, most of us would nod our head in understanding, if not outright sympathy while still condemning Joe for his heinous deed. Joe should be punished, but if he had done simply what some of us would have done as well, and many of us have liked to, then we can see that punishing Joe severely wouldn’t really serve justice as much as giving him a lighter sentence. He isn’t any more likely to kill again, there’s nobody really to protect, and deterrence doesn’t factor in because it would be difficult to get Joe into the same circumstances.
Hate crimes legislation, I believe, works on the same principle, where deterrence factors into it. We cannot ban hate, we cannot prevent its expression, but by criminalizing crimes based on it more severely, we send a message that while the underlying thoughts are not criminal, they are still wrong and people better keep it to themselves lest they get out of control. That, I think, helps deter people.
The other thing is, as you said, there are historical circumstances that factor as well. For groups of people historically oppressed, violated, and attacked, just giving them the status quo of everyone else is not equal. If a burglar stole from me, and the punishment was simply that the burglar would be somehow prevented from stealing from me ever again, is that fair to me? I was wronged, I deserve some restitution. Minorities and gays have been historically wronged severely. It is not fair for us to simply tell them their suffering means nothing and they should just be treated like everyone else from now on. That doesnt address their historical role as the oppressed and it doesn’t serve fairness, which would demand at least some kind of reparations. Giving their current haters harsher penalties helps to equalize these groups’ historical treatment, and that, I believe, serves justice.
