Indeed, one can argue — and I did argue in a column several years ago — that hate-crime laws may have the paradoxical effect of privileging some victims of violence over others. I put it this way: “If their overarching purpose is to affirm the equality of all people, then the law should punish all assaults the same, regardless of the race, gender, religion, sexual orientation, disability or veteran status of the victim. The ‘protected class’ should be human beings.”
I recognize — and respect — the opposing view that treating bias-related crimes differently is aimed not merely at individual acts of violence but also at the hateful ideologies that inspire them. But that creates another problem: Those ideologies are protected by the 1st Amendment.
And there are other difficulties with hate-crime laws, both those that define bias-related violence as a distinct crime and those that allow for enhanced penalties for an “ordinary” crime if it is motivated by bigotry. The role of bias in the killings in Overland Park may be obvious, but other situations are more ambiguous. Is an armed robber who utters a racial slur when he shoots a shopkeeper guilty of a hate crime? Are the races of the assailant and the victim relevant?