Then you don't understand what "legislation" is. Perhaps not, but the ability of juries to add mitigating or aggravating factors is founded by legislation as well though. Juries can't give penalties that aren't approved by legislators. You can't sentense someone to more than the penalty prescribed by law. Hate crimes just prescribe harsher penalties for worse actions. Aggravating factors is the EXACT same thing. And should be. Hate shouldn't be against the law. ACTS should be, not feelings. No they shouldn't. While physically they are the same act, the repurcussions of both are vastly different. Hate crime takes into account the added repurcussions of the seemingly simple act. A jury looking at this as just an aggravated circumstance does the SAME THING.