As much as Dingo and I may agree on many things, I think I have to disagree with him on this one -- at least until I have a better argument presented. I respect his argument about mens rea, but I think he takes it a bit too far. Mens rea is the intent to commit a physical act, not the motivation for why the act is committed. I'll put it to you this way: If I consciously pull the trigger of a gun that is pointed at a person, I've committed an act with the requisite mens rea to be charged with homicide. The definition of "homicide" does not need a REASON for why I consciously pulled the trigger. That's why prosecutors are not required to prove motive in criminal trials.
Let me give you another example, to offset Dingo's arguments about lynchings. Let's say the dead body of a minority is found in the middle of a mostly minority neighborhood, with a gunshot wound through the heart. By the way the body is found, there is no overt and public evidence of the motivation behind the murder (no burning crosses, no hangings, no racial epithets painted near the body, etc.), although there is concrete evidence that a murder has in fact been committed. Let's say there are two suspects: one black man and one white man. The police suspect that the black man might have killed the guy in a dispute over a girl -- surely a heated, emotional motivation. The police suspect the white man might have killed the guy in a dispute over racist comments the white guy made. Why should one suspect be treated differently from the other?
As for Dingo's lynching analogy, that is a completely different set of events. As he said, there are strict legal definitions of "terrorism," which come with additional jail time on top of whatever the underlying felony may have been (in this case, murder). The definition of "terrorism" does not discriminate based on the underlying motivation -- as long as there is proof of intent to terrorize a community (ANY community), then terrorism laws apply. Again, why apply the laws differently for race or gender, as opposed to political beliefs? Under the hate crimes laws, killing someone for racist reasons would be worse than killing someone for political reasons, and that just makes no sense to me. The punishment for both should be equally harsh.
When you start legislating based upon what people THINK, that's when you start down a dangerous slippery slope. Racist crimes are abhorrent, and should be prosecuted to the fullest extent of the law, but such crimes can be prosecuted under existing laws without delving into the thoughts of the perpetrator. "Murder" and "terrorism" are sufficiently broad to encompass such crimes, as well as many others, without regulating how people think.
Ahhh... but intent in a "hate crime" is more than just the physical act itself. You are confusing motivation with intent (and I apologize if I did not explain myself well). In order to show this, you have to really break it down to the elemental parts. I will contrast it to your example of the gun.
In your example, the gun is not a crime. The crime is pointing the gun at someone and pulling the trigger with the intent to commit murder - mens rea. The gun, in-and-of-itself is merely a tool used to commit a crime. Therefore, if I point a gun at someone and pull the trigger, I have the intent to commit one, and only one crime - murder.
Now, lets contrast that to a hate crime. When a person commits a hate crime, the murder (lets use a lynching) is the tool (like the gun) in order to commit a crime (terrorism). So, If a person lynches another person in order to terrorize a community, the person has committed two crimes, not just one. He has intended to commit murder and he has intended to commit terrorism. The result is a greater impact and therefore deserves a bigger punishment. The difference is that the tool used to commit the crime is also a crime.
Motivation is not needed to be proven in a hate crime either. A prosecutor does not have to prove why a person committed a hate crime, only that he intended to commit a hate crime. Just like you don't need to prove a reason for committing murder in your example, you don't need to prove a reason in a hate crime either. The prosecutor does not need to delve into the psychological underpinnings of the defendant. Just like the prosecutor needs to use evidence to prove murder - gun with prints on it, bullet matching, eye witnesses - a prosecutor must use evidence to prove hate crimes - manner of killings, burnt crosses, etc.
Further to break down and analyze your example... if the intent of the two suspects is the same, kill the guy. But if the intent of the white man was to kill the black man, and in doing so, send a message to the black community, then the intent is different. As for the definition of terrorism, I was using the Dictionary definition, not the legal definition - Sorry for the confusion.
Secondly, you and I both know that motivation is actually a factor in criminal matters. You can have the intent to kill someone, but the motivation is self defense. Additionally, if a case is based on purely circumstantial evidence, motivation is often used by both the prosecution and the defense to prove or disprove a persons guilt. It is had to pin something on someone where there is absolutely no motivation. Along the same lines, in a hate crime, it is the burden of the prosecution to prove that the perpetrator acted with intent to commit more than just murder. The burden of proof is on the prosecution that the person wanted, not only to commit murder, but to also terrorize a community. If the prosecution cannot prove intent of a hate crime, then a defendant will not be convicted of it. The same thing is true of the underlying murder.