The recent upwelling of interest in "hate crime" legislation around the country has resulted in Georgia's HB 426, recently signed into law by Gov. Brian Kemp. The immediate urgency of this proposal grew out of a social convulsion sparked by the vile murder of a Black man committed by a white police officer, and a national reaction that has itself indiscriminately led to deaths and destruction of property of numerous other innocents. A conflagration of this sort would hardly seem an environment conducive to the kind of intelligent and sensitive consideration appropriate to important legislative acts. The resulting law proves the point.

It's axiomatic that statutes should be drawn as narrowly as possible, with careful clarity and precision. A statute broadly drawn invites narrow and selective application. What does our new hate crime law say? It enumerates nine victim-attributes shared by virtually everybody on the planet, including race, gender, sexual orientation, religion, nationality and mental or physical disability. If the offender commits some underlying offense against a victim, from simple assault to murder, this statute creates a separate crime if the offense was committed "because of" one of those attributes and provides for an additional sentence of "not less than two years" to be added to that imposed for the underlying offense. No upper limit for the add-on is given; might his "hate" cost the offender life imprisonment at the whim of the judge?

A criminal prosecution, honorably conceived, seeks to condemn the act, not the man. For one charged with a crime and put on trial, evidence may not generally be entered to show his bad character. The sole question is whether he committed the act that the Legislature has defined as a crime. Did he pull the trigger or not? If so, it's for that act alone that he is punished. It makes no difference that he may have loathed his mother and tortured small animals. His motive may be relevant to support the conclusion that he did pull the trigger—for instance, to collect on an insurance policy or free himself of an inconvenient spouse—but nothing about his motive changes the simple nature of the crime, which lies solely in his having pulled the trigger.

To prosecute a "hate crime" is essentially to prosecute thought. If the prosecution is for murder while harboring hate, as soon as you've left off proving and convicting the underlying murder, you've then moved to proving and convicting the hateful thought. 

Even aside from punishing thought, which should be unthinkable, there are serious defects in the hate crimes statute. It doesn't even attempt to define the sole element of the crime, which is motive: "because of." What of mixed motives, for instance where someone kills a Black person who's driving a red convertible, simply because he hates red convertibles or mildly disapproves of both, would it make a difference if the Black person cut him off in traffic? Great care should be taken in matters predicated on the complex universe of human frailties, especially in the realm of criminal law. I'm not aware of any indication that anyone was thinking very carefully in the case of this legislation.

The General Assembly is a blunt instrument. For much of my career, the reflexive legislative remedy for crime was to "get tough" by increasing sentences, culminating in high mandatory minimums which, almost any Georgia prosecutor will agree, proved to be singularly unhelpful. Now it's so-called hate crimes. Have we learned nothing?

If the danger lurking here isn't already obvious, consider: Even assuming there's a justification in American jurisprudence for criminalizing thought and even if the statute somehow defined the degree or nature of the motive which is only suggested by the phrase "because of," how will it be possible to prove it? The motive of the offender will seldom be discoverable by direct proof, which means it will have to be inferred by the jurors. Inferred from what? I've already mentioned the rule against prosecutors putting up evidence of the bad character of the accused where the sole issue is whether he did or did not pull the trigger. When the issue becomes his motive in committing the specific offense at hand, is the jury now going to hear that he loathed his mother and tortured small animals, to help persuade them that he acted against the victim out of hate, because he's the very sort that we hate? Or will it be enough simply to show the jury that the victim possessed one or more of the protected attributes that the offender didn't possess? How comfortable are we as a society with lowering the standard of proof for imprisonment from facts proved to those inferred?

Once we've accepted that motive has legal relevance to culpability and not just factual probability, what will we think when social mores change (and social justice, too) and racial or ethnic hate becomes a defense to a crime: "Sure I killed him, he's a *** and we all know we'd be better off if they were all dead" (think Jim Crow and Nazi Germany)?

This hate crime law seems to invite discrimination. If the only actionable hate is that directed against the specially enumerated attributes, what will we say about the bedrock principle of equal protection of the law? Does the dead victim feel better about it if the killer didn't hate him—or worse if he did? Further, since the statute specifically protects every human condition except bipedalism, it is utterly inevitable that its application will eventually be—or appear to be—arbitrarily selective. What will be the response of this bill's proponents when Muslims begin to protest that the hate crime law is disproportionately invoked in cases involving gay victims, who in turn complain that its application seems designed to benefit only Blacks; and what will Asians say of the whole reeking mess? 

Every prosecutor knows that the only honorable way to do that job is to keep it as apolitical as possible. This law was drafted to defeat that purpose. It is precisely political. Every humane person will agree that no one should be victimized for his status–or for that matter, for any reason. What's the need for special categories?

It's true that our law already establishes as separate crimes certain offenses against specific groups of people—children and the elderly, for instance. However, these are based on a recognition of a unique degree of defenseless vulnerability inherent in extreme youth and age, and the motive of the offender is essentially irrelevant to the issue of culpability. 

This law is different. Formed in the cauldron of a highly charged political environment, it is intended to signal special legal protection to every class of people any of whose members can articulate some distinctive quality in their group and a fear of people who "hate" them and who can then command the favor of politicians—or prosecutors—whether through campaign contributions or violence.

Given the tenor of the times we live in, once we've accepted that a separate crime can consist in harboring hate while committing an underlying crime, how long will it be before there are prosecutors and juries willing to dispense with the burdensome necessity of actually proving the underlying crime in the first place and who will just slide smoothly to convicting the guy of having hate in his heart—or at any rate the kind of hate we particularly hate?

It's generally thought to be a good idea, before adopting a solution to a problem, to have some clear idea what actually is the problem that needs solving and whether the solution does any good. Is the statutory law prohibiting and punishing murder not sufficient to its own end?

I fully appreciate and agree with the intensely felt need for our society as a whole to make a clear and emphatic statement condemning hate-motivated conduct of any kind, but I also fear inevitable unwelcome consequences from using the criminal law as a vehicle to that end.

Spencer Lawton served as district attorney of Chatham County, Georgia, from 1981 to 2008.