“All violent crimes should be prosecuted vigorously, no matter what the circumstance,” Boehner argued. “The Democrats’ ‘thought crimes’ legislation, however, places a higher value on some lives than others. Republicans believe that all lives are created equal, and should be defended with equal vigilance.”
It is interesting to see the Crooked Timber (apparently) coming to terms with motivation being important in ethics, especially in something as objective as criminal law. (As I never tire of pointing out, it has always been central in ethics; Joseph Butler made this clear and Austen clearly understood it, and no doubt many others, but subtle confusion on this point seems to be one of the marks of modern Enlightened thought.) But anyone trained in law knows it is all based on motivation. As I said in a comment on Henry’s article, prosecutions are generally concerned with using facts to establish motivation in order to secure a conviction. So the intent to kill needs to be demonstrated in order to get a murder conviction, the intent to permanently deprive in order to get a conviction for theft, etc.
Thought crimes are where the thought alone is the crime. Nobody should want to go there. But the crimes that progressives worry about in their desire to protect vulnerable minorities (quite rightly in my view) are where folks try to sow hatred. The objective is in the mind, but as always the intent would have to be shown.
It is not at all clear that judging a crime that is already a crime differently because it is (for example) racially motivated makes sense, and a conservative might worry that liberals might want to do this. In a muddled way I think this might have been the kind of thing that Boehner was trying to get at (or maybe he really hasn’t noticed the centrality of intent in criminal law).
Thought Crimes
Over at Crooked Timber, Henry has kicked off an interesting discussion of the importance of intent in the law, based on the US conservative legislator John Boehner’s accusing liberals of thought crimes.
It is interesting to see the Crooked Timber (apparently) coming to terms with motivation being important in ethics, especially in something as objective as criminal law. (As I never tire of pointing out, it has always been central in ethics; Joseph Butler made this clear and Austen clearly understood it, and no doubt many others, but subtle confusion on this point seems to be one of the marks of modern Enlightened thought.) But anyone trained in law knows it is all based on motivation. As I said in a comment on Henry’s article, prosecutions are generally concerned with using facts to establish motivation in order to secure a conviction. So the intent to kill needs to be demonstrated in order to get a murder conviction, the intent to permanently deprive in order to get a conviction for theft, etc.
Thought crimes are where the thought alone is the crime. Nobody should want to go there. But the crimes that progressives worry about in their desire to protect vulnerable minorities (quite rightly in my view) are where folks try to sow hatred. The objective is in the mind, but as always the intent would have to be shown.
It is not at all clear that judging a crime that is already a crime differently because it is (for example) racially motivated makes sense, and a conservative might worry that liberals might want to do this. In a muddled way I think this might have been the kind of thing that Boehner was trying to get at (or maybe he really hasn’t noticed the centrality of intent in criminal law).