Thoughts, crimes, and thought crimes

Abstract

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their con-duct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, one that this Essay aims to excavate, elaborate, and defend: that the proper target of an offender’s punishment is always the criminal action itself, not the offender’s associated mental state conceived as a separate wrong. Taken seriously, this precept would change how we punish an assortment of criminal offenses, from attempts to hate crimes to terrorism. It also would change how we conceive the criminal law’s core axioms, especially the poorly understood but surprisingly important doctrine of concur-rence.