Thoughts, Crimes, and Thought Crimes

Gabriel S. Mendlow*

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 conduct. 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 concurrence.

*Professor of Law and Professor of Philosophy, University of Michigan. I’m grateful to audiences everywhere I presented some version or part of this paper: the Analytical Legal Philosophy Conference, the Fordham Law School Criminal Law Theory Discussion Group, the London School of Economics Criminal Law and Criminal Justice Theory Forum, the University of Michigan Legal Theory Workshop, the New York City Criminal Law Colloquium (the “Markelloquium”), the University of Oxford Criminal Law Discussion Group, the University of Surrey School of Law Faculty Research Seminar, the UC-Irvine Philosophy Department, the UCLA Legal Theory Workshop, and the Yale Law School Legal Theory Workshop. Special thanks to Dennis Baker, Maureen Carroll, Rich Friedman, Margaret Gilbert, Tom Green, Sam Gross, Monica Hakimi, Daniel Halberstam, Jeff Helmreich, Scott Hershovitz, Don Herzog, Doug Husak, Vic Khanna, Adam Kolber, Adrienne Lapidos, Jae Lee, Kyle Logue, Daniel Markovits, Bill Miller, Michael Moore, Julian Mortenson, Federico Picinali, David Plunkett, J.J. Prescott, Eve Primus, Richard Primus, Don Regan, Jed Rubenfeld, Alex Sarch, Fred Schauer, Scott Shapiro, Seana Shiffrin, Ken Simons, Sonja Starr, Alec Walen, Peter Westen, Gideon Yaffe, Taisu Zhang, and the students at the UCLA Legal Theory Workshop, who each wrote a short response to an early draft of this Essay. I also would like to thank the editors of the Michigan Law Review, especially Bryce Freeman and Faraz Shahidpour. Research for this project was funded in part by the Cook Endowment.

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