On a post at “Alas,” Plunky writes in comments:
I ain’t a lawyer, but I don’t think we should have laws about hate crimes. It is the act of the crime that is reprehensible, not whether the crime occurred because of prejudice, stupidity, whatever. Judges and juries have been weighing the motives of criminals for a long time, and they should be able to keep doing it without legislation that makes some _thoughts_ more criminal than others.
Essentially, I think hate crime laws are a violation of the First Amendment. They take something that is not criminal: hating a certain minority/class/etc and then using that to compound criminal sentencing. It is not illegal to hate women. It is illegal to rape women. If a person is on trial for raping a woman, it should not matter that he hated all women. He should be punished for the one illegal act, not his legal thoughts.
I think Plunky’s analysis is mistaken, because it ignores that many “hate crimes” are crimes not just against an individual, but also against an entire community. If I build a small campfire and roast some hot dogs on Woody Allen’s lawn because I’m hungry, that should be recognized as a different crime from burning a cross on Woody’s lawn because I want to tell all the area Jews that they might be assaulted or killed if they don’t move out.
I agree with David at Orcinus:
Bias-crime laws no more create “thought crimes” than do any other laws consigning greater punishments for crimes committed under certain species of mens rea (or the mental state of the perpetrator), including anti-terrorism laws. Differences in intent and motive can make the difference between first-degree murder and manslaughter. Enhanced punishments are especially warranted when crimes are believed to cause greater harm — and hate crimes quantifiably do so. These are standard features of criminal law, and no more create “thought crimes” than do laws providing the death penalty for first-degree murder.
More to the point (and as I also argue at length in Death on the Fourth of July), hate-crimes laws are not about taking away anyone’s freedoms — rather, they are about ensuring freedoms for millions of Americans.
As I point out in the book, hate crimes have the fully intended effect of driving away and deterring the presence of any kind of hated minority — racial, religious, or sexual. They are essentially acts of terrorism directed at entire communities of people, and they are message crimes: “Keep out.”
Amanda once suggested that we should start using the term “domestic terrorism” rather than “hate crime,” because that better explains why it is that these crimes should be punishable. I think she’s right.