Last month, two Douglas County, Georgia residents were sentenced to notably steep jail time for riding around in a Confederate-flag-laden truck and shouting at, threatening, and pointing guns at black motorists, shoppers, and attendees of an 8 year old’s birthday party. They were participating in a “Respect the Flag” group which, in no uncertain terms, was explicitly promoting white supremacy. But the young couple in question, Kayla Rae Norton, 25, and Jose Ismael Torres, 26, had actually threatened violence, even crashing an African American birthday party with guns drawn.

I can’t begin to imagine the terror the parents and children at that party felt, but I’m glad that terror was translated into a twenty year sentence with thirteen to serve for Torres and a fifteen year sentence with six to serve for Norton. But the judge, William McClain, indicated his verdict was not merely in response to the level of trauma experienced by the victims, but because what the two defendants had committed was a hate crime.

According to Wikipedia, “A hate crime (also known as a bias-motivated crime) is a prejudice-motivated crime, which occurs when a perpetrator targets a victim because of his or her membership (or perceived membership) in a certain social group.” The State of Georgia has no official hate crime statute, making it one of the few remaining states in the union not to. The couple couldn’t be charged with a hate crime here, but Judge McClain was clear that he perceived it as one, and had he been able, would have convicted them of one. Of course, it’s obvious that this was in fact a bias-motivated crime, but it just couldn’t be specially prosecuted that way.

And that’s a good thing. There’s no question that hate is bad, that bias-motivated crime is terrible. And there’s also no question that certain groups of people, as targets of especially fierce or widespread bias or hate, need special protections and attention. It further seems that the conception of hate crime laws was intended to provide just those protections by discouraging discrimination or attacks against vulnerable groups with increased penalties for the perpetrators.

But there are two ways of creating laws to protect people against bias. One way is to make illegal the act of discrimination, because bias in action is discrimination. This, in my view, is the only legitimate, Constitutional way to legislate fairness: leveling the playing field in laws, rights, business, recreation, and living situations so that no group or class is privy to unfair advantages over any other group or class. But the other way –the way of hate crime laws– is to punish people not just for their discrimination, but for their bias—not just for their actions, but for their thoughts.

If you’ve pointed a gun at someone and threatened them, then you’ve already done something illegal. There’s a law on the books for that, and there’s an accepted range of sentencing options open to a judge or jury. But as soon as that sentencing is lengthened for the sole consideration of your motives, i.e. your thoughts, then you’ve just been punished for thinking something. To be very clear, charging, trying, convicting, or sentencing someone based on their motivation is to bring someone’s very thoughts into the realm of legality.

We’re all human, and it would be asinine to pretend like we don’t notice of care if someone committed a crime out of hatred or prejudice. Of course we’ll notice and care. But the law is a very tricky thing, and if we open the door to accepting one kind of thought crime, you’d better believe the precedent can and will be followed for other kinds of thought. Right now thought is only a crime when it is accompanied by an action, but there’s no guarantee that will always be the case. We have to be vigilant about this and be ready to demand we walk back our legislative folly wherever it appears. I think current hate crime laws have already crossed that boundary.

The two morons from Douglas County that were convicted for pointing guns at people and threatening them got what they deserved. But they deserve it for what they did, not what they thought. Their motives are between them and God, and they’ll have plenty of time to think about those motives during their justifiably lengthy sentences.

Update:

I’ve gotten some good feedback bringing up the fact that it’s standard legal practice to consider motive, state of mind, and intent when prosecuting and sentencing for crimes. These considerations, for example, could make the difference in a first or second degree murder charge. Doesn’t this show that “thought” is already a firmly established factor in our legal system?

Sort of, but not in the same way we see in hate crime laws.

Motive and state of mind just help to establish intent. And intent is an important factor in establishing guilt or innocence. The degree of intent also can help determine the severity of the crime: pre-meditation (a way of saying “very, very intentional”) will get you a steeper sentence. But motivation (motive) and intent aren’t the same thing. Intent, in essence, is your decision to act, while motive is your reason for acting. A hate crime law makes motive not only a consideration in establishing intent, but a separate offense in itself. It criminalizes not just the action, and not just the decision to act, but also the secret thought of the heart: the motive. It’s no longer enough to charge you because you did it and because you meant to do it. Now you can be charged because of your motive in doing it. That’s the line I worry may be an event horizon to the irresistible gravity of undisguised thought policing.

Side note: whatever intention there may be for hate crime laws to protect minorities, many of them aren’t worded to name those minorities specifically, but only broadly list race, religion, national origin, gender, etc. as applicable categories of prejudice. So a member of a minority could just as easily be charged with a hate crime against a member of a majority if they perpetrate it with the “motive” of prejudice.