First, prosecutors prefer not to bring charges when they doubt that they can secure a conviction. Many prosecutors believe that proving an actor’s motive—what was really driving their actions—is immensely difficult. As one prosecutor told me, “It’s impossible to know what’s in someone’s heart.” Jurors faced with evidence that a perpetrator acted for multiple reasons may well acquit on an added hate-crime charge because they are unwilling to treat bias as the sole or predominant motive, as many hate-crime statutes require.
Second, when a crime is particularly heinous and the defendant is already facing a long prison sentence—or even multiple life sentences—a hate-crime conviction would not have any practical effect. Without the possibility of a meaningful increase in penalty, prosecutors have little incentive to expend the additional resources and personnel necessary to pursue hate-crime charges. When discussing cases involving serious injury or death, a common refrain from prosecutors was some version of “I don’t need anything more to charge.” As one prosecutor elaborated, “Hate-crime charges wouldn’t give us more, and aren’t worth the time in such cases.”
By contrast, a higher penalty could result if lower-level crimes not involving bodily harm—such as defacement of a building or hateful graffiti—were charged as hate crimes. But prosecutors tend not to pursue these cases as aggressively, since they’re considered less important and many are difficult to trace back to the perpetrators.