After Charleston, hate crime laws are more important than ever

In the wake of the awful South Carolina shooting, the debate about hate crimes legislation has come back to the fore.

There's a popular view, especially in certain precincts of the intelligentsia, that hate crimes legislation is somehow depraved because it represents "legislating people's thoughts." This view could not be more misguided, and betrays a basic misunderstanding of what the law (especially criminal law) is.

The first problem with this idea can be explained by a basic principle of criminal law: To have an actual crime, you need both a factual aspect and intent. (If you want to get fancy, you can use the Latin phrases: actus reus and mens rea.)

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The classic first-year law school example is grabbing someone else's suitcase off the carousel at the airport. Did you mistake the other person's suitcase for your own? Or did you want its contents? In either case, the observable facts are exactly the same. But in one case, you have a felony — theft — and in another you have absolutely nothing illegal. The only difference is what goes on in your head at the time of the act.

In other words, every single criminal investigation and every single criminal trial and every single criminal statute involves "legislating people's thoughts" and makes what goes on inside a person's head a key component of a crime. That's not some bizarre deviation from the normal way of doing things, it is the normal way of doing things.

If this seems vaguely totalitarian, think about the alternative. What would happen if you got thrown in jail for long sentences for doing things you never intended to do?

This basic principle of criminal law is a key element of due process. It's there to make it harder to sentence people. In many areas of tort law, the only thing that matters is fact, not intent. If you rear-end someone else's car, it doesn't matter whether you did it by accident — you still have to pay for the damage you caused. Among other reasons, that's because the stakes in civil liability are lower — mere money — than in criminal law, where people's freedom and even their lives are at stake. And so in criminal law, there are stronger due process requirements to find someone culpable.

In other words, the fact that criminal law legislates people's thoughts is not only perfectly normal, it's also a really good thing that helps strengthen due process and protect people's rights.

But there's another, more fundamental reason why "legislating people's thoughts" is totally fine: That's what the law is. It reminds me of another tired and wrongheaded cliché: that we shouldn't "legislate morality." The problem with this trope is that's all that legislation does.

Every single major law is based on a decision that "X" is bad and there ought to be less of it. It's tautological — every law is intended to reach a desired outcome. The reason that outcome is desired is ultimately a reason that is derived from moral principles. Every single law is about morality. Now, there are some things that are immoral but also legal, but the reason is because of a higher moral judgment on, say, the proper role of government.

Here's the point: A key difference between civil and criminal law is that while civil law is there to redress liabilities and material wrongs, criminal law exists to defend a society's values. That's the reason why criminal law is prosecuted by the state, whereas there is no prosecutor in civil law. A civil lawsuit requires a tort, that somebody be wrong. This is not the case in criminal law. Imagine that a homeless vagrant with no family is murdered. You can argue that nobody has been directly wronged by this except for the victim, but being dead, he can no longer bring a lawsuit. Nonetheless, the state will still investigate and attempt to prosecute the murder, because murder goes against our society's values, and therefore must be punished even when nobody alive is wronged.

And that's the real issue here. All murder is repugnant to our deeply shared values, and that is why we make it illegal and we prosecute it. Is it really that crazy to say that murder motivated by racial hatred is especially repugnant to our shared values, and therefore should be punished especially harshly?

There's nothing crazy about that. In fact, it makes perfect sense.