In spite of these problems, I have come to the conclusion that there actually is a proper role for "hate crime" laws. Specifically, an act should be considered a "hate crime" if
- it constituted a felony under other statues, and
- a confessed purpose of the act was to intimidate or outrage an identifiable group of people or
- a reasonable person would conclude that a purpose of the act was to intimidate or outrage an identifiable group of people.
Note that the only real difference between such a crime and terrorism is degree. A "hate crime" might involve things like the destruction of property; terrorism should be reserved for acts which actually cause terror: bombings, poisoning the mail, that sort of thing. The valid purpose of a "hate crimes" law should be to fill in this gap between a crime only against individual victims and acts of terrorism meant to intimidate whole groups.
As an example of what I have in mind, consider the poisoning of the oaks at Toomer's Corner. Note that although "criminal damage to an agricultural facility" is apparently a felony under existing statutes, what makes this crime really important is that it (as Updyke himself confessed below) was targeted at the entire Auburn University community.
As it is, motives such as intimidating a group may come into play at sentencing, and my default instinct is not to multiply laws unnecessarily. On the whole, though, I think the real if indirect targeting of a whole group constitutes a distinct crime.
Even so, some care would be needed in drafting the laws. I do think that the language should be kept general, rather than enumerating distinct categories that are favored for special protection. On the other hand, imagine the plausible case in which members of the Mongols motorcycle gang murder a member of the Hell's Angels "to make a point". Should that be considered a hate crime? Under the conditions I set forth above, yes; besides which it would be of practical interest to discourage hotheads from stirring up trouble. It is not clear, though, that much of anyone would be comfortable with seeming to make "membership in a motorcycle gang" a protected category.