Hate Crimes

Bias crime statutes in the United States encompass crimes that are motivated by the race, color, ethnicity, national origin, or religion of the victim. Many reach sexual orientation or gender as well, and some include other categories such as age or disability. Bias crime laws may either create a specific crime of bias-motivated violence or raise the penalty of a crime when committed with bias motivation.

The key factor in identifying an actor as a bias criminal is the motivation for the conduct. Bias crimes are unusual but not unique in their focus on motivation rather than the traditional focus on intent. Some scholars have criticized bias crime laws on this basis, a critique that is addressed below.

There are two analytically distinct, albeit somewhat overlapping models of bias crimes. These models may be referred to as the discriminatory selection model and the group animus model. (In this terminology, group is used to represent all group characteristics that constitute bias crimes, such as ethnicity, race, or religion.)

The discriminatory selection model of bias crimes defines these crimes in terms of the perpetrator's selection of his victim. It is irrelevant why an offender selected his victim on the basis of race or other group; it is sufficient that the offender did so. The discriminatory selection model received much attention because it was a statute of this model that was upheld by the Supreme Court in Wisconsin v. Mitchell, 508 U.S. 476 (1993). The group animus model of bias crimes defines crimes on the basis of a perpetrator's animus for the group of the victim and the centrality of this animus in the perpetrator's motivation for committing the crime. Florida and Massachusetts, among other states, have adopted group animus bias crimes laws. Many and perhaps most cases of discriminatory selection are in fact also cases of group animus bias crimes, but not all. A purse snatcher, for example, who preys solely on women, finding it more efficient to grab purses than to pick wallets out of men's pockets, would have discriminatorily selected a victim on the basis of gender, but not with group animus.

Most states with bias crime laws have adopted statutes that draw on both models. These laws provide enhanced sentences for crimes committed "because of " or "by reason of " the victim's real or perceived membership in a particular group. Although these statutes lack explicit reference either to discriminatory selection or animus, they share attributes of both. "Because of " statutes look to the perpetrator's selection of the victim. In addition, particularly in those states that require a finding of maliciousness, "because of " statutes are akin to animus as well.

Under any of these models, bias crimes can arise out of mixed motivation where the perpetrator of a violent crime is motivated by a number of different factors in the commission of the crime, bias among them. To constitute a bias crime, the bias motivation must be a substantial motivation for the perpetrator's criminal conduct. Under the Supreme Court decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), all elements of a bias crime must be submitted to a jury (or judge as a trier of fact) and proven beyond a reasonable doubt; a sentence enhancement for a bias crime may not be imposed on a finding by preponderance of evidence by the sentencing judge.