The federal jury returned its verdict against the three Arberry defendants. Guilty. Guilty of violating his civil rights by murdering him. Guilty of being motivated to murder him because of racism. Guilty of being racists. It’s unlikely that anyone will shed a tear for these three men, Travis McMichael, 36, his father, Gregory McMichael, 66, and their neighbor William Bryan, 52.

But does well-earned outrage and hatred toward them that mean this prosecution was proper?

That violation of 18 USC 245 is punishable by life in prison. But since all three defendants are already serving life sentences in state prison for murdering Arbery, the federal convictions won’t have any practical effect on their punishment. Gregory and Travis McMichael are not eligible for parole, and Bryan won’t be eligible until his early 80s, assuming he is still alive. The point of this second trial was to “send the message that the Justice Department won’t tolerate this type of racist hatred,” as a former federal prosecutor put it in an interview with The Washington Post.

The notion of prosecuting “hate crimes” independent of the crime itself has gained enormous public appeal as an offense far more despicable than murder. The idea that anyone would question whether racism is deserving of prosecution, whether as part of the original prosecution or, as here, independently when the first jurisdiction lacks a hate crime to add atop the murder charge, so that defendants will not only be convicted for their conduct, but for their committing the conduct with the most repugnant of motives, may seem crazy to many. Racism is awful. What sort of racist-apologist would challenge their prosecution?

The prosecution presented evidence that the defendants had repeatedly expressed racist sentiments in the months and years before they killed Arbery. Without contradicting that evidence, the defense argued that the three men were motivated not by racism but by their suspicion that Arbery, who had repeatedly visited a house under construction in the neighborhood, was engaged in criminal activity.

The jury evidently surmised that Travis McMichael et al. would not have viewed Arbery as a criminal suspect if he had been white. Assuming that’s true, they responded to him the way they did “because of” his race. But since the opinions they had expressed were crucial to the prosecution’s case, it is equally true that the defendants were convicted “because of” their benighted beliefs. Condemning them as bigots was the whole point of this exercise, since they had already been condemned (and punished) as murderers.

While much of the evidence presented had little to do with Arberry, but overwhelmingly demonstrated that the three defendants were generally racist, the imputation of their racist views about black people was a short hop to the finding that, but for race, they would neither have suspected Arberry of being a thief nor decided to take the law into their own hands, along with a shotgun, and kill him.

On the one hand, they didn’t pick some random black man to murder, and perhaps wouldn’t have killed Arberry if he hadn’t tried to defend himself from their illegal aggression. On the other hand, they would have been home, sitting in their La-Z-Boy drinking beer rather than on the street to catch Arberry if he hadn’t been black. That’s the conclusion reached by the jury, and the evidence supporting it seems more than ample to sustain the conviction.

But what of the double jeopardy problem? Of course, it’s not double jeopardy under the dual sovereign doctrine, but that doesn’t mandate that the feds double up on a case when the defendants are already sentenced to life in prison. Here, the feds prosecuted to make two points, the first being that they are on board with the public’s anti-racist sentiments. The signal is not only that they are virtuous, but they have the means to prosecute in furtherance of their virtue. And they did.

The second is to “send a message,” that the crime of being racist will not merely be a matter of public condemnation atop the criminal conduct for which the defendants stand convicted. Motive is not an element of murder. It isn’t the same as mens rea, intent to commit illegal conduct, but a purpose behind it. And it takes crime that is bad already and adds a layer of repugnant purpose on top, so that the defendants are not merely going to die in prison, but they will be reviled in perpetuity for being racist murders rather than mere murderers.

“As the nation continues to grapple with racially motivated violence by police and vigilantes who shroud themselves in self-appointed authority, the jury sent a powerful message: We see you for what you are, and we will not tolerate your deadly campaign of intimidation,” said Marc H. Morial, chief executive of the National Urban League. “This verdict draws a clear line in the sand.”

But this wasn’t the purpose of 18 USC § 245.

The main constitutional rationale for 18 USC 245, which focuses on interference with the use of public facilities (such as the street on which Arbery was jogging), is that the 13th Amendment empowered Congress to address “the relics, badges and incidents of slavery.”

The law cannot criminalize racist thought or beliefs, much as many would want it to, but only conduct, and from there, conduct motivated by racism. There is no argument that racism isn’t reprehensible, but whether the government should engage in secondary prosecutions so that it can add the word “racist” in front of “murderer.”

Reasonable people likewise might question the assumption that the Justice Department should use the criminal justice system to make a moral statement about people’s beliefs, as opposed to punishing them for their criminal conduct—especially when state courts have already accomplished the latter objective. Today’s verdict reminds us of all these riddles, but it certainly does not solve them.

There was a time when the notion of the government as moral arbiter by prosecution was of some concern. As Justice Jackson wrote in Barnette:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

Few will cry tears about the three Arberry defendants being punished for racism. Few will question the worthiness of punishment for racism. But even this reflects an orthodoxy that should give pause, as even racist beliefs, despicable as they may be, come within the government’s moral ambit of prosecution. The three defendants have already been convicted of murdering Ahmaud Arberry. Is that not condemnation enough to send a message or did the government need to add one final moral blow?