And these differences bring us to the third special feature of the mens rea required for hate and bias crime liability. If I am right that hate crime legislation punishes persons for bad character, then hate and bias crime statutes have some surprising implications and raise some very important political questions. Let me pose three such questions, and say why the answers that one gives may have profound implications for the future of American criminal law. Most of us are pretty confident that would-be defendants can choose not to rape, steal, and kill. But it seems less clear to what degree people can will away, or choose not to have, particular character traits, and specifically, particular emotions.
People clearly spend lots of money in therapy to change themselves for the better.
And people can, with mixed success, alter their character by repeatedly putting themselves in circumstances that challenge them to behave in ways that, over time, affect their beliefs, emotional reactions, and dispositional responses. And perhaps by punishing people particularly harshly when they do bad deeds out of hatred for, or bias against, their victim's race, ethnicity, religion, sexual orientation, etc., we will motivate people to take actions that will indirectly alter, over time, their emotional responses to such characteristics. But mothers are famous for telling their daughters not to marry men on a promise that they will change. And parents regularly marvel that their children's most defining character traits were largely fixed at birth. So while it's certainly the case that character isn't immutable, it also can't readily be changed merely by willing it to be other than it is.