Unwarranted Assumptions in the Prosecution and Defense of Hate Crimes

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.

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

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