A Stitch in Haste

Suppose you are the victim of check fraud or some other financial offense. Should the perpetrator of the crime against you be allowed to receive a reduced punishment — or even no punishment at all — if he insists that he committed his crime to feed his gambling addiction and agrees to go to gambling court?

Following the model of about 2,000 "therapy courts" devoted to drugs and spousal abuse that have opened nationwide in the last two decades, the setup here allows defendants to avoid jail time if they follow a court-supervised program that includes counseling sessions, credit checks and twice-monthly meetings with Justice Farrell.

"Therapy courts" illustrate a basic principle of criminal justice: we often punish the exact same crime differently under different circumstances. A check-kiter might be breaking the law, creating readily identifiable victims in the process, to feed a gambling addiction. Or to feed her starving child. Or perhaps she's just a sleazeball.

So on the one hand, "check-kiting is check-kiting," but on the other hand we steer the gambling addict check-kiter to "treatment" while sending the sleazeball check-kiter to jail.

Proper or improper?

If you answered "proper," then how can hate crime laws not also be proper? To insist, as most bigots — and a few radical libertarians — do, that "a crime is a crime" and "we shouldn't punish thought" is to ignore the everyday reality of the entire criminal justice system.

We punish the same crime differently under different circumstances all the time. We punish the addict check-kiter differently than the sleazeball check-kiter. But isn't check-kiting check-kiting? Why should we care what the motivation was? Isn't that "punishing thought"?

We punish the repeat offender differently than the first offender. Why — isn't a crime a crime? We punish the DUI driver differently based on whether his crash killed one person in the other vehicle or five. But isn't "a DUI crash a DUI crash"?

Even speaking strictly in terms of adults, we punish the very old criminal differently than the very young criminal. We punish the rich differently than the poor. We punish the well-behaved in prison differently than the misbehaved. And so on.

The exact same crime, but not the exact same punishment. And very few people seem ever to be upset about it.

Nor should they be. This is not exactly a radical innovation, and was certainly not invented by homosexual activists.

So the question remains: What exactly is so improper in saying that we will punish the same violent crime differently based on whether the crime was or was not motivated by, say, anti-gay bigotry? How exactly is such a law "wrong" when gambling court is "right"?