Abstract

http://ssrn.com/abstract=2322438
 


 



Expressive Enforcement


Avlana Eisenberg


Harvard Law School

September 17, 2013

UCLA Law Review, Forthcoming

Abstract:     
Laws send messages, some of which may be heard at the moment of enactment. However, much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions in the context of domestic criminal law have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws – the paradigmatic example of expressive legislation – as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message of hate crime laws?

To answer that question, the Article presents original data from the first multi-state qualitative empirical study of hate crime prosecution. The findings help to explain a paradox: in archetypal hate crime cases involving animus directed at a victim’s core identity features – such as race or sexual orientation – prosecutors may decline to include hate crime charges because of statutory incentives, difficulty of proving motive, and concerns about jury reaction. Conversely, hate crime enforcement may be appealing to prosecutors in precisely those cases that are least likely to further the expressive purposes of hate crime laws. After exploring this mismatch, the Article identifies some areas where there may be irreconcilable tensions between the expressive goals of legislators and the incentives of prosecutors and, in other areas, offers recommendations to align legislative goals with enforcement practices.

Number of Pages in PDF File: 65

Keywords: criminal law, enforcement, prosecutors, hate crimes, empirical research

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Date posted: September 10, 2013 ; Last revised: October 7, 2013

Suggested Citation

Eisenberg, Avlana, Expressive Enforcement (September 17, 2013). UCLA Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2322438

Contact Information

Avlana Eisenberg (Contact Author)
Harvard Law School ( email )
1563 Massachusetts Ave
Cambridge, MA 02138
United States
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