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Abstract:
In our society, race can act as a proxy for a long list of characteristics, qualities, and statuses. For people of color, the most powerful of these associations have too often been negative, and have carried with them correspondingly negative consequences. We often link color with undesirable personal qualities such as laziness, incompetence, and hostility, as well as disfavored political viewpoints such as lack of patriotism or disloyalty to the United States. Race even acts as a proxy for susceptibility to some diseases. Medical professionals so often diagnose schizophrenia in blacks, for example, that the association has come full circle, and the diagnosis now acts as a proxy for race. The association with perhaps the most far-reaching effects is that of race as a proxy for criminality and deviance, an association that not only carries into the criminal justice system through practices such as racial profiling in law enforcement, but also has implications for how people of color are treated in contexts as mundane as retail transactions and as consequential as health care. The use of race as a proxy for criminality even supports the converse notion that people of color are suitable targets for crime.

The DePaul Law Review chose an apt phrase in titling this Symposium "Race as Proxy," for the word "proxy" captures the offhand, unthinking, "default" manner in which race often influences decision making. Accordingly, the term also highlights a basic problem with which legal standards have, so far, not come to terms. Despite the wealth of antidiscrimination laws that would seem to prohibit the use of race as a proxy in a wide range of contexts, much race-based decision making escapes legal sanction. Recent legal scholarship has been particularly critical of the prevailing model of intentional discrimination. Scholars have pointed out the inadequacy of individual adjudication under that model to account for the largest share of modern-day discrimination by illuminating the complex and subtle means by which race has come to carry its significant and pernicious associations.

This Article makes the case for institutional change as a means of disrupting the processes by which we come to expect and accept the current state of affairs, adopting as our default the notion that much of the differential treatment of people of color is acceptable and appropriate. It argues for lessening our emphasis on individual wrongdoers and increasing our attention to the context in which individuals operate.

racial discrimination, situational racism, stereotypes, race-based decision making, antidiscrimination laws, discrimination, people of color, adjudication, institutional change, race, proxy

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.

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

Abstract:
This article discusses aspects of hate crime that make it somewhat unexceptional. By making these points, I do not in any way mean to imply that hate crime is not a problem worthy of attention in the law. To the contrary, I believe that to point out the unexceptional aspects of hate crimes is to highlight just how important a problem hate crime is, and may help us to develop more effective ways of addressing it. My points are based largely on lessons drawn from social science and historical research on the effects of and motivations behind bias-related violence. Specifically, that literature shows that the way we have tended to think about hate crime-as an extreme, deviant, and isolated phenomenon-greatly oversimplifies the problem. The social science and historical research shows instead that hate crimes are connected to the mainstream social context, for they are strongly influenced by the social environment and in turn exert an influence on that environment. I also draw on points made by other legal scholars with regard to what might be considered more mundane or "everyday" forms of discrimination, such as racial profiling (particularly "Driving While Black"), consumer discrimination, and street harassment of women. Each of these areas is a context in which, as with hate crimes, the law has tended to exceptionalize the motivations and conduct of perpetrators. It thereby overlooks the extent to which those acts are influenced by the mainstream social context and, in turn, reinforce mainstream society's message that certain social groups have been designated as suitable or appropriate targets for ill treatment.

This Article identifies and describes the reciprocal influences between the mainstream social environment and the perpetration of both extreme and everyday discrimination, as well as the reciprocal influences among various types of discrimination. The law seldom does but ought to take into account these relationships because, as this Article also discusses, to exceptionalize discrimination has the ironic effect of "normalizing" or rendering acceptable a range of discriminatory practices that continue to reinforce widespread beliefs, assumptions, and expectations concerning the value and place in society of vulnerable groups.

hate crime, discrimination, bias-related violence, bias crime, antidiscrimination laws, mainstream social environment, mainstream society, social context, ethnic intimidation statutes

Abstract:
Although at far from the level of intensity and prominence that it reached 10 years ago, the controversy over hate crimes legislation continues. In the early 1990s, debate centered on two main points of contention: whether such laws, which either criminalized traditionally racist acts or increased the punishment for other crimes when they were motivated by racial or ethnic bias, violated the First Amendment right to freedom of expression, and whether the laws were unwise and illegitimate because they seemed to provide greater protection against crime to minority groups and to emphasize, rather than obscure or obliterate, the racial divisions in our society.

While courts and politicians wrestle with these issues at a more abstract level, prosecutors and defense lawyers handling individual cases must contend with questions that implicate the same concerns and are no less important to the larger debate about the legitimacy and wisdom of treating hate crimes differently. Decisions made at the level of individual cases - from the decision whether to treat a case as a hate crime for purposes of investigation and prosecution to questions of trial strategy, such as how to tell the story of the crime or to portray the defendant and victim - have a wide impact, because those decisions influence both society's perception of what a hate crime "is" and our broader understanding of the fundamental social problem underlying the phenomenon of hate crime.

These case-specific decisions, though more particularized and practical, are often based on the same assumptions and value judgments that are more prominently aired in the wider debate. In this article, I suggest that uncritical acceptance of these assumptions presents a significant and far from theoretical problem in the prosecution and defense of hate crimes, for the assumptions paint a distorted and overly narrow picture of such crimes that can lead prosecutors to overlook cases that warrant penalty enhancement, promote the use of unproductive, socially harmful, and potentially unconstitutional trial strategies, and invite acquittals on illegitimate grounds.

bias crimes, hate crimes, First Amendment, penalty enhancement, trial strategies, civil rights laws, targeted groups, social vulnerability, social context

Abstract:
While hate crimes may tend to be less routine and more violent than discriminatory traffic stops, closer examination of each shows the need to complicate our understanding of both. The work of social scientists who have studied racial profiling reveals striking similarities and connections between these two practices. In particular, both hate crimes and racial profiling tend to be condemned only at extremes, in situations where they appear to be irrational and excessive, but overlooked in cases where they seem logical or are expected. The tendency to see only the most extreme cases as problematic, however, fails to recognize that neither practice is as marginal as it might seem. Both forms of discrimination are strongly influenced by a social context that has designated certain social groups as the accepted or "suitable" targets for ill treatment. They both reflect especially strongly the myth that certain groups are prone to criminality or deviance. In turn, the perpetration of both practices also reinforces both the suitable target designation and myth of criminal propensity by influencing the perceptions and behavior of both members and non-members of vulnerable groups.

By pointing out the parallels and connections between the two practices, I do not mean to suggest that the legal responses to hate crimes and racial profiling should be the same. Rather, I suggest that the legal responses to each should take account of the ways in which that practice both influences and is influenced by the larger social context, as well as how it relates to discrimination, in contexts such as education and employment, that denies some groups equal access to fair treatment and opportunity.

hate crimes, racial profiling, similarities, connections, discrimination, targets, bias, discriminatory traffic stops, driving while Black, hate crimes legislation, Fourth Amendment, Equal Protection Clause