Legislating thoughts?

Last night I was watching an episode of West Wing's first season (give me break, being in Mali I have a right to be behind). One of the issues raised in the episode was whether or not hate crime laws needed to be revisited after a recent and particularly egregious hate crime had occurred against a homosexual.

A little background on my thoughts previous to watching this episode. To me any physical or mental assault against anyone is not to be tolerated. I believe pretty firmly that such a crime is one of the most cut and dry impediments to one of our most fundamental rights - the pursuit of happiness. As are bigotry, racism, homophobia, sexism, and religious intolerance. So by logical deduction I had concluded that two wrongs combined - as is the case in a hate crime - seemed, somehow 'wronger' to me and therefore worthy of harsher punishment. Such was my thinking.

However, in last nights West Wing episode, one of the characters, Leo McGarry, said that he just wasn't sure you could or should legislate how someone thinks. This made so much sense and I couldn’t believe that I had never thought if it like that before. While bigotry, racism, homophobia, sexism and racial intolerance are to my mind despicable and morally reprehensible, I can't say that I would pass a law against someone's right to have those feelings. After all, another fundamental right exists which protects freedom of thought and expression.

This got me thinking about whether or not I believed in harsher punishments for hate crimes. It seems wrong to me to legislate how someone thinks. But we do this all the time. Are there not harsher punishments for premeditated murder vs. non-premeditated murder?

According to Wikipedia...

In common law jurisdictions, murder has two elements or parts:

1.the act (actus reus) of killing a person

2.the state of mind (mens rea) of intentional, purposeful, malicious, premeditated, and/or wanton.

So there is precedent for taking a criminal’s state of mind into consideration. In the case of murder, the qualifying aspect is whether or not the act was premeditated and/or malicious (by the way, an appropriate synonym for malicious is hateful). In hate crime legislation the qualifying aspect of the state of mind would be whether or not personally held beliefs of morality were involved.

Certainly it is not illegal to premeditate going to the store. So, one has to assume that the context does matter and does have legal implications. Should this be applied to hate crimes as well? Certainly it is not illegal to be racists. But, in the context of a hate crime, should there be legal implications for its involvement in the crime? For now the verdict is still out for me. But it’s got me thinking.