Burn This Article: It Is Evidence in Your Thought Crime Prosecution

By Corry, Robert J., Jr. | Texas Review of Law & Politics, Spring 2000 | Go to article overview

Burn This Article: It Is Evidence in Your Thought Crime Prosecution


Corry, Robert J., Jr., Texas Review of Law & Politics


I. INTRODUCTION

Whether he wrote DOWN WITH BIG BROTHER, or whether he refrained from writing it, made no difference. Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committedwould still have committed, even if he had never set den to paper-the essential crime that contained all others in itself. Thoughtcrime, they called it. Thoughtcrime was not a thing that could be concealed forever: You might dodge successfully for a while, even for years, but sooner or later then were bound to get you.1

If you have never hated anyone or anything, do not bother to read this article. This article is designed to be read by humans. Human beings have emotions, one of which is hate. We are imperfect; we sin in our acts and probably even more frequently in our minds.2

This article explores whether the criminal justice system should deprive us of our liberty--an interest of transcending value-because of certain politically unacceptable thoughts in our minds. If so, are we entitled to the safeguards of conviction beyond a reasonable doubt by a jury of our peers deciding that we harbor unacceptable thoughts? Finally, should there should be any limitation on the type of evidence used to prove our thoughts?

II. THE HISTORY AND FUTURE OF HATE

Hate is an emotion that has challenged, driven, and plagued mankind since our beginning, and it will probably exist in our hearts, minds, and actions until the end. The Holy Bible is replete with accounts of hatred and animosity of one person or people against another for various reasons. Hate has been ubiquitous throughout the history of mankind and civilization.4 In reflecting on the human experience in the last millennium, Richard Leiby opines:

The cliche about "ancient hatreds" arises in news coverage of most modern conflicts for a reason: Rarely do long-term antagonists learn to love and forgive. But hate's dark role in history often is offset by its modernizing, even civilizing influence. Yes, hate has conquered peoples, and enslaved them. But in so doing it has spread culture, pushing societies across borders and oceans, pollinating ideas, opening new routes for trade. It has propelled commerce, industry and communication.

In the past 10 centuries, hate has helped to propagate major religions (Christianity, Islam) and moral codes. It has brought forth enduring artistry. Hate attended the birth of the world's greatest democracy. (The American colonists vilified George III, the king of England in 1776, and called his ministers "monsters in the shape of men"-they embodied the beasts of the Apocalypse described in the Book of Revelation.) But for the many episodes of hate in this century, we might not have the concept of "human rights" nor punishment for "war crimes. "5

The founding of the United States is linked to the love of freedom and hatred of the Crown. One of the great documents of human history, the Declaration of Independence, inveighs against the "King of Great Britain."6 The Declaration and many other supporting statements of the American Revolution, were they made today, could even be used as evidence in a "hate crime" prosecution. During the Revolution, the American Patriots were branded as "murderers" by the British for "not fighting by the accepted rules of war . . . sniping at their enemies and picking them off."' These Americans could be convicted under modern "hate crime" statutes since their motivation was linked to the "national origin" of the "victims."

Human politics and hate are frequently linked8. Leaders, statesmen, and politicians throughout history have organized and exploited emotions to accomplish their ends. History suggests that the human race probably will never eliminate hate, but that an upright and moral people can transcend it 9

III. AN EPIDEMIC OF INTOLERANCE FOR INTOLERANCE

"Pish," said Judge Stang, picking a shred of tobacco from between his teeth. …

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