The Evolving Federal Role in Bias Crime Law Enforcement and the Hate Crimes Prevention Act of 2007

Abstract:     
Debate over the proper role of federal law enforcement concerning bias-motivated crimes, popularly known as hate crimes, implicates criminal law doctrine and theory, issues of federalism, definitions of equality, and questions of free expression. The Hate Crimes Prevention Act of 2007 is the most recent step in the evolving federal statutory response to bias-motivated violence. Although not enacted, by some measures this proposed legislation would have been the most important piece of federal criminal civil rights legislation in nearly forty years, and in some ways, the most important such legislation since Reconstruction.

This Article focuses on four interrelated questions that deal with fundamental American values, offer a firm answer in the affirmative as to each: Is it appropriate for a criminal law to punish on the basis of a perpetrator's motivation? Should gender, sexual orientation, gender identity, and disability be included in a federal bias crime law? Are bias crime laws consonant with principles of free expression? Is a prominent federal role in the prosecution and punishment of bias crimes consistent with the proper division of authority between state (and local) government and the federal government in our political system?

This article concludes that the lessons learned in the debate concerning the Hate Crimes Prevention Act of 2007 help us see a path not only toward more effective enforcement of bias crime law enforcement, but also a path toward bias crime legislating, and perhaps, therefore, legislating more generally.

Number of Pages in PDF File: 33

Keywords: hate crimes, free expression, federalism

JEL Classification: K14, K42

Accepted Paper Series