Recognizing Opportunistic Bias Crimes

Abstract

The federal approach to punishing bias-motivated crimes is more limited than the state approach. Though the federal and state methods overlap in some respects, two features of the federal approach restrict its range of application. First, federal law prohibits a narrower range of conduct than do most state bias crimes laws. In order to be punishable under federal law, bias-motivated conduct must either constitute a federal crime or interfere with a federally protected right or activity-requirements that exclude racially motivated assault, property damage and many other common violent or destructive bias offenses. In most states, however, hate crimes encompass a wider range of criminal conduct. In some states, any crime may be punished as a hate crime if bias motivated the criminal conduct. Second, federal law, particularly civil rights law, protects against fewer types of discrimination than do many state laws. Most federal civil rights laws do not cover crimes motivated by gender, sexual orientation, or disability, while many state laws do.

Proposals to expand the scope of federal hate crimes law aim towards making federal law more closely resemble state bias crimes laws. While these expansions may be needed in order to fill the gaps in current federal law, the most common state law approach itself suffers from incomplete coverage. The prevailing approach tends to focus on only one set of cases and fails to recognize and address the full range of cases that merit attention. Accordingly, I argue that the prevailing state law model could in turn expand appropriately by considering an approach from federal sentencing law. The federal vulnerable victim sentence adjustment offers a basis for understanding why the state law model should be expanded, as well as a starting point for outlining the careful expansion of that model.

Keywords: bias crimes, bias-motivated crimes, state bias crime laws, bias offenses, discrimination, civil rights laws, hate crimes, penalty enhancement, sentencing, Federal Hate Crimes Sentencing Enhancement Act, federal vulnerable victim sentence adjustment