Every month, some corner of the United States becomes the scene of a brutal and bizarre murder: in Jasper, Texas, where rednecks dragged a man to death behind their truck; in Las Vegas, where a high-school student assaulted and killed a little girl as his friend and fellow student looked on without lifting a finger to help; in Littleton, Colorado, where two highschool students shot and killed a teacher and 12 classmates.

For all the hysteria over Kosovo, where 2,000 Serbs and Albanians had killed each other in the two years before the NATO assault, the real land without justice would seem to be the United States of America, where ethnic cleansing, mass murder, and a cynical contempt for human life are an everyday reality in cities like Miami and Los Angeles; and unlike Serbs and Albanians, who retain a rudimentary sense of right and wrong (if only at the level of the blood feud), Americans do not even share a common conception of justice.

In the wake of every publicized murder or massacre, the inevitable futile controversy breaks out: Is violence caused by poverty or a lack of counselors, as liberals believe, or by Marilyn Manson and video games, as conservatives like to pretend? Whatever the cause of the disease, each side has the cure—more social programs, according to the Democrats; more prisons, according to the Republicans—and in the end each side gets what it wants: more taxes spent both on Democratic social workers and on Republican cops and construction companies.

If the question of justice ever does come up, it is subject to the same distortions, from Democrats bleating about insanity, poverty, and a history of abuse as the motivations for crime, and from Republicans braying over the social costs of drugs and street crime. The facts of the crime, the deeds that have been done, get buried under the pile of position papers and special reports, and justice is reduced to “whatever is in the interest of the stronger,” the cynical definition given by the apologists for naked force whom Socrates attempted to refute.

Once upon a time, most ordinary people believed that justice was a straightforward matter of “rendering every man his due.” The object of a trial, they thought, was to discover who owed what to whom, and when a crime had been committed, it was the business of judge and jury to ascertain the guilt or innocence of the accused and, if the verdict was guilty, to mete out the proper penalty.

In these enlightened times, however, retribution is regarded as barbaric, and most judges and lawyers put more weight on the criminal’s motivation—excusing him if he is a victim, demonizing him if he is a bigot—or on the social costs and consequences of crime.

A good example of the replacement of facts by motive and consequence can be found in the response to the murder in Jasper. When three white men killed a disabled black man, much of the public outcry was concerned first with the probable racist motivation and second with the impact on the community. Much was made of the killers’ affiliation with white supremacist organizations, and one defense attorney, in response, argued that his client had only become a racist while serving time in prison and should not, as a result, receive the death penalty. Black residents of Jasper were interviewed on television and heard to say that they no longer believed that the community was making racial progress, and far-right conservatives wrote editorials arguing that whites were being demonized as racists even though blacks are more likely to kill whites than vice versa.

In the course of this debate over intentions and social impact, the simple fact of the case became blurred: Three grown men had decided to torture and kill another man for no good reason. The fact of willful murder, once established, should be sufficient both for conviction and for the death penalty. Motivation and circumstance are only useful in mitigating a crime, as in a case of self-defense or a “crime of passion.” But if a visitor from Mars had been following the trial on television, he would have concluded that, in America, racial bigotry is a more serious offense than murder.

The whole concept of a “hate crime” against a designated racial or sexual minority reflects our obsession with motive as opposed to fact. The subjectivism of this approach is clear from the federal Hate Crimes Statistics Act (1990), which covers “crimes that manifested evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property.” Although the federal government has virtually defined the hate crime, it is the states that have taken the lead on enforcement.

When a hoodlum throws a rock through a window in Boston, what matters now is not so much the broken window in an apartment as the mental suffering of the inhabitant who hears the racial slur that accompanies the rock and the mental attitude of the hooligan as he threw it. In current Massachusetts law, any damage to a person or property “for the purpose of intimidation because of . . . race, color, religion, or national origin” can result in two-and-a-half years in jail and a $5,000 fine—stiff penalties, potentially, for an act of petty vandalism.

The fact of vandalism is easy to determine, but it is notoriously hard to figure out a man’s motivation. Even a bigot might have complex personal motives for throwing a rock. If motives are hard to determine, it is even harder to assess the effect of a hate crime, particularly in a state like California whose penal code includes the infliction of emotional suffering on its list of bias crimes. And yet, far from wanting to limit the scope of such laws, President Clinton—who has reasons for wanting to obscure questions of crime and punishment—has called for a broadening of their definition to include “crimes committed because of a victim’s sexual orientation, gender or disability.”

Mr. Clinton is apparently under the impression that, until recently, bigots were free to commit assault or vandalism upon homosexuals and cripples. But even though such crimes are punished under existing laws, additional penalties are required, because hate crimes are intended to intimidate an entire “community.” Hate crimes, then, are not to be judged by the practical damage inflicted on an individual but as a kind of social poison; as Clinton puts it, “Violence motivated by prejudice and hatred . . . hurts us all.”

The only opposition to hate-crimes statutes (apart from the opposition of organizations promoting hate) has come from civil libertarians who misinterpret the First Amendment as giving the federal government the power to guarantee free expression, even when a local community or private association (e.g., a college or labor union) has reason to restrict it. There is no constitutional right to be threatening and offensive, and if a predominantly Jewish community that includes holocaust survivors chooses not to permit Nazis to stage an antisemitic demonstration, it is only by the wildest deconstruction that the Constitution can be invoked to guarantee free speech to a group explicitly calling for the harassment and murder of Jews.

Communities have a perfect right to regulate forms of offensive expression, such as spitting on the sidewalk, obscene public behavior, cursing, and threatening language or gestures. The problem with hate-crimes legislation is not that we cannot or should not penalize these extreme forms of incivility, but that we should not confuse our most basic sense of justice by introducing the concept of bias into criminal legislation against murder, assault, and arson.

Hate crimes are one among many types of criminal activity that transcend the usual categories of crime and punishment, and some lawmakers are calling for stringent, even draconian, penalties for particularly unpopular classes of felonies: crimes against children, narcotics offenses, the shooting of policemen and other public officials. To declare war on crime or drugs sounds like a noble commitment to virtue, but by implication, we as citizens are being asked to suspend our judgment, overlook legal niceties, and rally round the flag of public decency. As one anti-drug crusader is fond of saying, “We’ve got to give up our superstitious attachment to the Bill of Rights.”

Fairness in individual cases now takes a back seat to the welfare of the community. In Michigan, Ronald Harmelin was stopped in 1991 for a routine traffic violation, and when he was caught with 672 grams of cocaine, he was convicted of possessing more than 650 grams of cocaine and sentenced to life without parole. The U.S. Supreme Court upheld the conviction on the grounds that drug users often commit crimes. (So do Arkansas lawyers, but that does not prevent them, as a class, from becoming governor or even president.)

The predictable results of crusades against crime are the demonization of certain classes of criminals and the creation of an atmosphere of terror. Armed robbery is, admittedly, a serious crime, and the murder of a policeman an act worthy of death, but is it fair to give a light sentence to a killer or rapist and possibly impose the death penalty on the driver of the get-away car in a case involving the death of a policeman? Petty criminals are undoubtedly a scourge on society, but is it wise to hand out life sentences to three-time losers who get caught shoplifting? But these are the practical effects of the “get tough on crime” crusades advocated by many conservative Republicans.

The whole concept of the “threat to society” posed by organized crime, drug dealers, and cigarette smokers is in itself dangerous. It hardly seems fair, for example, to expect smokers to pay the cost of increased defense spending, but in January the Clinton administration announced “plans to propose a Federal tax increase of 5 5 cents a pack on cigarettes to help pay for new domestic and military spending programs.” I suppose someone has to pay for all the cruise missiles we have shot into Serbian villages and TV stations.

If liberals are fairly accused of being soft on crime and too concerned with the mental condition and rehabilitation of the criminal, conservatives have gone to the other extreme in protecting society through crackdowns on crime that overlook such small matters as the rights of the criminals as well as larger concerns such as justice itself “What is good for society” is an objective that governments must consider in framing any social policy, whether it is concerned with drug abuse or family assistance, but helping addicts to recover from addiction and providing mothers with financial support for their children are not primarily questions of justice. Neither is public safety.

Among the most glaring abuses of justice are the various state laws stipulating mandatory sentences for various offenses, the most outrageous being the “three strikes” laws in Washington, California, and other states. These laws, designed to take repeat offenders off the street, mandate sentences up to life for third offenses. The justification for mandatory sentencing laws is always the safety of the public and the cost of enforcement, and the criticism is almost always made on the grounds of either cost—more prisons cost more money —or kindness toward criminals. Justice hardly enters into the discussion.

In the case of violent or potentially violent crimes—assault and armed robbery, for example—a graduated scale of punishment for repeat offenses is both practical and just. A boy, after all, might be pardoned for one misguided attempt to rob a liquor store, but a man who makes a habit of threatening death to clerks who refuse to turn over the contents of the cash register has forfeited his right to live. If California were to pass a three-strikes law that laid down the death penalty for the third occurrence of crimes in which death or the threat of death was involved, such as non-accidental homicide, armed robbery, arson, rape, and kidnapping, the state would have demonstrated its commitment to justice.

However, in fact, the most common offenses are (in order) robbery and burglary, possession of a controlled substance, second-degree burglar), and possession of a weapon. Last January, the case of Michael Wayne Riggs came up before the U.S. Supreme Court. Riggs, who had a string of convictions for drugs and theft, received a 25-year sentence for shoplifting a bottle of vitamins from a California supermarket. The Court, in an unusual states’ rights decision, refused to hear the case, even though 25 years is cruel and unusual punishment for petty theft anywhere this side of Saudi Arabia.

American jurisprudence, in pursuing its obsession with the causes and consequences of crime, has succeeded in obscuring the matters of fact that lie at the center of justice. The laws of the Romans, the Greeks, the Jews, and the Germanic tribes of Europe all emphasized the facts of a crime or tort and designed penalties that corresponded, in principle at least, with the gravity of the crime that had been committed. Motives were not ignored, and even the Germanic codes distinguish between accidental and willful homicides; social consequences also played their part, in distinguishing between the murder of an armed warrior and that of a peasant and in imposing terrible penalties on arsonists, but questions of circumstance and social utility were not supposed to take precedence over retribution itself, which is the one universal foundation of justice.

Even Kant, not a philosopher I should ordinarily cite (much less recommend), insisted that

judicial punishment may never be used solely as a means to promote some other good for the criminal himself or for society, but instead must in all cases be imposed on a person solely on the ground that he has committed a crime. . . . and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it.”

The same strictures apply to schemes that aggravate, as well as those that mitigate, the penalties that a criminal has deserved.

The goddess of justice (Astraea) was the last of the immortals to leave the earth, according to a conceit of the poet Aratus, and Roman writers composing their panegyrics on the gangster-emperors of the late Empire inevitably claimed that the dead or deified ruler had brought justice back to earth. If we expect our own rulers to reestablish the rule of law, Americans will have a long wait. As Judge Learned Hand once pointed out, “When Plato tried to define justice, he found he could not stop short of building a commonwealth.” For us to recover the meaning of justice, we shall have to reestablish our own commonwealth.