I have heard the argument that hate crime legislation is wrong because we should not legislate what goes on in a person’s mind. We should only legislate behavior, because behavior is what impacts society. This argument, however, is wrong.
The purpose of imprisonment is to protect society from harm. When a person has killed once, that is evidence that he might kill again. As a result, we consider him to be a threat to society. The greater the chances that he will kill again, the more of a threat he is. This is why pre-meditated murder earns a higher sentence than accidental murder: we assume that a person who killed as a result of unusual or special circumstances is less likely to kill again than someone who deliberately planned and carried out an act of homicide.
So where does that leave hate crime legislation? If you kill someone because he got you fired or slept with your wife, there is no reason to think that you have a greater probability of killing me or some anonymous person down the street. (As long as I haven’t gotten you fired, or slept with your wife, presumably.) The set of “parallel circumstances” is pretty small. Even painting with a broad brush, the set of people you are likely to kill is “people who really piss you off” which, when considered in the greater scheme of things, is a very small percentage of the population.
But suppose you kill someone because he’s gay. Because the reason for the act is because the person is a member of the group, every person in that group is now automatically at greater risk from you. In fact, if the only reason you killed a person was because he was gay, then you are equally likely to open fire any any other gay person who is out there. Which is a much more substantial percentage of the population. Which means you are a much greater risk to society.
By definition, if you kill someone whom you know personally because that person did something specific to you, then your probability of killing again is less than if you kill someone because he is a member of a group.
So please don’t get boondoggled by the argument that “hate crime laws criminalize thought.” It does not. It merely acts to protect society, based on the amount of risk you pose to society. It continues the same policy that we already have for punishment in our society: the severity of the punishment is based on the chances that you will cause harm again.