THOUGHTS, CRIMES, AND THOUGHT CRIMES.

• Author: Mendlow, Gabriel S.

TABLE OF CONTENTS INTRODUCTION I. THE ACTION-AS-OBJECT REQUIREMENT AND CONVENTIONAL CRIMINAL JURISPRUDENCE II. THE CASE FOR THE ACTION-AS-OBJECT REQUIREMENT A. The Action-as-Object Requirement as a Principle of Political Morality B. The Action-as-Object Requirement as a Precept of Criminal Jurisprudence C. The True Meaning of Concurrence III. THE ACTION-AS-OBJECT REQUIREMENT IN CRITICAL COMMENTARY AND JUDICIAL REASONING IV. ARE HATE CRIME LAWS AND TERRORISM OFFENSES THOUGHT CRIMES? CONCLUSION INTRODUCTION

Sophocles's Ajax is among other things a play about thought crime. It begins just after the Greek commanders have awarded the armor of Achilles to Odysseus, the worthiest and wisest Greek to survive the Trojan War, but not the strongest in battle. That honor belongs to the dimwitted Ajax, who is humiliated at having been passed over. In the play's opening scene, the goddess Athena describes how Ajax had sneaked up on the commanders' camp the night before, planning to torture and kill them. But Athena intervened at the last second, clouding Ajax's mind so that he would mistake the army's sheep for his human targets. When Ajax discovers later in the play that the men he thought he had tortured to death were actually livestock, he commits suicide in embarrassment. But his death does little to mollify his intended victims. Menelaus is especially unforgiving, demanding that the Greeks leave Ajax's body unburied, a punishment extremely severe in that it would prevent Ajax's soul from entering the afterlife. Menelaus doesn't care that Ajax's conduct ultimately posed no threat. He cares only about Ajax's murderous intention, which he equates with murder itself. Is it "just," asks Menelaus, "that my murderer have a peaceful end? ... By his will, I am dead." (1)

If the punishment Menelaus demands is extreme, the rationale he offers for it is not. In branding Ajax's murderous intention a serious wrong, Menelaus gives voice to an idea familiar from ordinary morality and the criminal law. When you pursue a malevolent purpose through ineffective means, your evil mental state may attract stronger censure than your in-itself-innocuous conduct. If you point a gun at someone and pull the trigger, and the gun turns out to be a fake, we will blame you for your failed action, but we will blame you equally for your malevolent intention. In fact, we probably will blame you more for your intention than for your action--judging it more severely and condemning you for it more harshly. And if we prosecute you for a criminal attempt, we may take a page from Menelaus and demand that you serve a long prison sentence.

If imposed, that prison sentence may in turn draw a pointed criticism: that you are being punished not for your in-itself-innocuous conduct but for the evil state of mind that motivated it. We are likeliest to hear this sort of criticism when your methods aren't just ineffective but are by their nature incapable of bringing your purpose to fruition--when you seek to kill someone by sticking pins in a doll, for example. In that case, the innocuousness of your conduct contrasts starkly with the malevolence of your state of mind. But whenever the badness of your state of mind exceeds by any appreciable degree the badness of your conduct, punishing you for a criminal attempt may draw the accusation that you are being punished for your thoughts (a word I'll use to denote the entire class of mental states).

So the venerable law of attempts has something in common with recently enacted terrorism and hate crime offenses: all have been accused of punishing people for their thoughts. (2) It is an accusation that can seem hyperbolic. No terrorism or hate crime offense, and certainly no attempt statute, actually punishes defendants who've failed to act. But critics don't mean that these laws neglect to prohibit conduct. They mean that the nominally prohibited conduct isn't what these laws truly aim to censure and sanction. When you commit an attempt or violate a terrorism or hate crime law, you act with a particular mental state: the intention to commit a crime, the intention to promote or facilitate terrorism, or the hatred of some group. And it is this mental state taken in itself, rather than your outward conduct, that critics see as the true object of punishment--the real transgression for which the law imposes censure and sanction.

This criticism raises two questions, which the present Essay seeks to answer. The first is whether the criticism is factually accurate: Does any criminal statute really punish offenders not for their outward conduct but for their inner states of mind, conceived as transgressions unto themselves? The second question is whether the criticism is truly a criticism: Is there anything amiss about a statute that treats an actor's mental state, taken in itself, as the ultimate object of punishment, as long as that mental state is executed through or realized in the actor's conduct?

The conventional answer to the second question is no. No recognized axiom of criminal jurisprudence forbids the law to punish you for a mental state that is executed through or realized in your conduct. As I'll explain in Part I of the Essay, punishment for an executed mental state doesn't flout the voluntary act requirement, which says (only) that the law mustn't punish you in the absence of voluntary conduct. Nor does punishment for an executed mental state flout Justinian's maxim cogitationis poenam nemo patitur, (3) which says (only) that the law mustn't punish you for a mere mental state--one on which you have not yet begun to act. No principle of conventional jurisprudence says what the critics of terrorism and hate crime laws presuppose: that the object of an offender's punishment, the transgression for which the offender's punishment is imposed, must always be an action. I use the term "action" to denominate a broad and familiar category of doings, a category that encompasses both affirmative conduct and voluntary omissions but excludes activity that is entirely mental, such as believing, desiring, fantasizing, and intending. An action in this familiar sense may have a mental component that, taken separately, is a mental doing, such as resolutely intending to achieve a goal. Conventional criminal theory contains no principle rendering such mental doings off limits--no principle requiring that the law punish you only for your actions and never for the mental states that your actions partly comprise, conceived as separate transgressions. In short, conventional jurisprudence contains no action-as-object requirement.

The requirement's absence matters--both for the scope of the criminal law (which offenses the state may punish) and for the apportionment of punishment (how severely the state may punish them). Absent the action-as-object requirement, the state may punish you as soon as your conduct evinces a malevolent intention, and the state may punish you harshly for that intention even if the conduct that evinces it merits far less condemnation in itself. A criminal legal system that respected the action-as-object requirement would differ subtly but significantly. Offenders whose conduct was minimally wrongful would receive only a minimal punishment, despite the malevolence of their intentions. The law would apportion offenders' punishment to the gravity of their conduct, not to the gravity of any associated mental states. A judge could enhance offenders' sentences based on the malevolence of their mental states only if those mental states affected the badness or blameworthiness of their actions.

Critics of terrorism and hate crime laws seem to take the action-as-object requirement as given. But no learned treatise recounts the principle, no judicial opinion expressly endorses it, and many criminal theorists implicitly reject it. I refer particularly to those theorists partial to the "subjectivist" version of the offense of attempts, (4) which Britain's preeminent twentieth-century scholar of criminal law, Glanville Williams, approvingly described as "punishing [the attempter] for his intention, the act [of attempting] being required [merely] as evidence of a firm intention." (5)

It is my contention that the action-as-object requirement is nevertheless a principle we should embrace. As I'll argue in Part II, the action-as-object requirement is compelling not only as a principle of political morality--one that precludes a kind of indirect mind control--but also, and even more so, as a principle of criminal theory. If we embraced the action-as-object requirement as a core legal axiom, we would discern a deep unity among the seemingly miscellaneous principles of criminal jurisprudence: the voluntary act requirement, Justinian's maxim, and the requirements of actus reus, mens rea, and concurrence. We would see these principles as implementing doctrines of the action-as-object requirement--not as disparate precepts with independent functions but as principles working in service of a common end: to help ensure that criminal statutes punish offenders only for their actions, conceived not as mere aggregates of (bad) acts and (culpable) mental states, but as psychological and moral unities.

In defending the action-as-object requirement, the Essay will accordingly uncover a second unsung principle of criminal law: the essential unity of criminal wrongs. This unity is something that conventional criminal doctrine obscures. The formal distinction between actus reus and mens rea invites us to misconceive the criminal wrong as a pair of wrongs--the bad act and the blameworthy mental state. To think of criminal wrongs this way is to take too literally Justice Robert Jackson's oft-quoted remark that "crime, as a compound concept ... [is] constituted ... from concurrence of an evil-meaning mind with an evil-doing hand." (6) As we will see, the true point of the largely overlooked and rarely understood requirement of concurrence is...