Manx

But in actuallity, we do prosecute and bargain based on motivations. The most obvious one that came to mind is Al Capone. He had the book thrown at him for tax evasion. Any non-gangster would have almost assuredly been able to get off with little or no jail time. But Capone's motives were well known, so he received no mercy on the otherwise minor charge he was convicted on.

We constantly give mercy based on motivations and even character (you'll do better if you wear a suit to court and behave politely). Maybe in the clean-room version of the law, there is no massaging of the penalties, but the clean-room version of the law doesn't exist.

So - in society, there is a problem of hatred. Society has deemed it harmful to itself to sit idly by as hate motivated crimes are treated with the same penalty as a comparable non-hate motivated crime. This policy is, effectively or ineffectively, used to dissuade the spread of hatred for certain groups of people. As such, I can see how it might be argued that it is ineffective and therefore unnecessary (such as I would argue about the death penalty) but I do not see any reason to argue based on the principle of the matter.

Depending on the circumstances of the case and the character of the accused, we do provide mercy. Why should we not then carry that principle to its logical conclusion and enact the inverse: harsher punishment? In fact, we do. Hate crime policies are nothing more than the continuation of what we have been doing for decades and decades.