The erstwhile Captain Ed at Hot Air has been expounding on the impending hate-crimes legislation. The primary concern for conservatives about this type of legislation is that it criminalizes thought.

I’ve heard only one thought-provoking defense of hate-crime laws — from Erwin Chemerinsky, I believe — that hate crimes are particularly onerous because they are meant to intimidate a particular group of people because of their membership in a group. For example, the mid-20th-century lynchings of black men are a clear case of murder as a way to send a message: don’t get uppity, n****r, or you’re next.

Is that more heinous than knifing a black man in a random bar brawl? Yes, you can easily make that case.

But at what point do you draw the line between obvious hate crimes like public lynchings and “mere” boorishness taken to an extreme? I caught part of a Law and Order (and how do you avoid that?) where a trio of young punks decided to kidnap Hispanic immigrants, brand them on the face with a red-hot Mexican coin (so that everyone knows they’re immigrants!), and in one case they murdered the guy.

Is that equivalent to the public lynchings? There is at least one significant difference — they were not acting as part of a public mob: they were working in secret, without the tacit or overt approval of the populace. That would have a different effect on other Hispanic men than the lynchings would have on black men. It would be similar to the effect you would get from the police announcing that a rapist was targeting tall blonde women with long hair.

That is the salient difference: those who committed the lynchings were fairly sure that they wouldn’t be punished by the law. That’s an additional degree of intimidation that is not present today: if you were a black man who was a potential target for lynchings, you had no protection from the police or the courts.

THAT is truly horrific, whereas today, if some punks beat the crap out of you for being gay, you know that the punks aren’t going to be shielded by the populace or the police — they can be prosecuted for assault and battery just like anyone else.

Which means that if conventional laws against murder and assault are routinely enforced, it’s impossible for intimidation crimes to take place. If someone burns a cross on your lawn, the law is automatically on your side: you don’t have to worry that you have no recourse to the government for a redress of your grievances, and you can reasonably assume that the perps are a small group of people who are not operating with the tacit approval of the populace.

Therefore, the only time that “hate crimes” actually take place is when law enforcement turns a blind eye to crimes against a certain group of people. In that case, shouldn’t the law prosecute the cops and courts? If you can show that complaints by a certain group are ignored more often than in the general populace, then the crime is not so much with the perp as it is with the system.

Ergo, the target of hate crimes should not be individual perps but rather cops, judges, and DAs. Current hate-crimes legislation misses the point and it is unnecessary. As long as people know that their complaint will be handled by the law, it doesn’t matter what motivates the perp.