enhancement by committing his crime without the epithets that are usually necessary to trigger the hate crime laws. 45
Some supporters of hate crime legislation insist that hate crime laws should be supported simply because they send a political and symbolic message that bias crime, and implicitly bias itself, is wrong. According to Weisburd and Levin:
More important, however, is the powerful signaling effect inherent in bias crime legislation. The very existence of bias crime statutes sends out a clear message to society that a discriminatory motivation for a crime is a prescribable evil in and of itself; one that we as a society will not tolerate. 46
This justification would be more persuasive if hate crime had previously been lawful, or if it had been a species of crime that had previously been criminalized in a minor way. But the opposite is true. Serious hate crimes--murders, arsons, rapes, assaults--have always been, criminalized and punishable by harsh sanctions under generic criminal and sentencing law. Furthermore, prejudice is already denounced by a huge body of constitutional law, employment law, civil rights law, and administrative law. Private lawyers and government agencies are constantly bringing, and courts hearing, unlawful discrimination claims. To the extent that law should be a tool of moral education, it is already sending the right messages in a very strong manner.
The appearance of the new wave of hate crime laws is being tested in courts and in the crucible of academic journals. The basic question is whether it is justifiable to impose enhanced sentences on criminals because they are motivated by prejudice.
Many courts and commentators have attempted to justify enhanced sanctions on the grounds that hate crimes are morally worse than other crimes, cause more physical and psychic injury to victims, and cause more psychic injury to third parties. These assertions depend upon empirical assumptions that seem dubious and have not been substantiated.
The argument that hate crimes warrant harsher punishment because they carry the potential for retaliation and social conflict is also not persuasive. The logic of this argument would lead to harsher punishments for crimes against retaliation-prone groups than for crimes against vic-