The recent congressional vote to pass the COVID-19 Hate Crimes Act was notably bipartisan. Sponsored by Democratic Senator Mazie Hirono of Hawaii and Democratic Representative Grace Meng of New York, the bill was signed by President Joe Biden on May 20 after it passed a nearly unanimous Senate (with only Josh Hawley, a Republican from Missouri, opposed) and was approved 364–62 by the House. The bill is intended to complement existing hate-crime laws, and specifically to beef up state and local reporting of hate crimes. This sort of across-the-aisle consensus seems impossible in 2021. Yet most Americans appear to agree that crimes are more harmful if committed because of prejudice, and that they thus deserve additional punishment.
Nevertheless, hate-crime laws do have their critics. Some on the left argue that criminal law is the last thing that will help communities of color, and that hate-crime laws will be applied disproportionately against the most marginalized, serving only to worsen our mass-incarceration crisis. Others on the right insist that hate-crime laws penalize people for protected speech and scapegoat individuals for systemic racism.
However, there may be a more basic reason hate-crime statutes might not work as their framers intended: Few of these laws are ever actually enforced. Hate crimes are notoriously underreported by victims to police. Even when they are reported and police identify a possible bias motive, individual prosecutors have sole discretion over whether to charge a particular case as a hate crime, and they often decline to do so.
Why aren’t more perpetrators charged with hate crimes? My academic research into prosecutorial decision making has included interviews with dozens of prosecutors (under promise of anonymity) in more than 30 states. Many said they often avoid adding hate-crime charges even—and perhaps especially—when the crime is particularly horrific. This seemingly surprising pattern makes sense if one understands the challenges and incentives facing prosecutors.
First, prosecutors prefer not to bring charges when they doubt that they can secure a conviction. Many prosecutors believe that proving an actor’s motive—what was really driving their actions—is immensely difficult. As one prosecutor told me, “It’s impossible to know what’s in someone’s heart.” Jurors faced with evidence that a perpetrator acted for multiple reasons may well acquit on an added hate-crime charge because they are unwilling to treat bias as the sole or predominant motive, as many hate-crime statutes require.
Second, when a crime is particularly heinous and the defendant is already facing a long prison sentence—or even multiple life sentences—a hate-crime conviction would not have any practical effect. Without the possibility of a meaningful increase in penalty, prosecutors have little incentive to expend the additional resources and personnel necessary to pursue hate-crime charges. When discussing cases involving serious injury or death, a common refrain from prosecutors was some version of “I don’t need anything more to charge.” As one prosecutor elaborated, “Hate-crime charges wouldn’t give us more, and aren’t worth the time in such cases.”
By contrast, a higher penalty could result if lower-level crimes not involving bodily harm—such as defacement of a building or hateful graffiti—were charged as hate crimes. But prosecutors tend not to pursue these cases as aggressively, since they’re considered less important and many are difficult to trace back to the perpetrators.
Prosecutors with whom I spoke also expressed concern about jury reaction in an otherwise straightforward case. In more conservative states, some prosecutors worried that focusing on the race, gender, or sexual orientation of a victim could make their job harder, even hindering their ability to win cases. One prosecutor noted that “a person who is perfectly willing to convict a murderer … might be less inclined to do so if asked to render a verdict under a hate-crime statute based on sexual orientation.” Some prosecutors in more liberal states reported a different concern: Some sympathetic would-be jurors have been disqualified during voir dire for lack of impartiality because they expressed “too much disgust” at the suggestion that the defendant acted out of prejudice.
When prosecutors do choose to bring hate-crime charges, they often do so because of external factors. In high-profile cases—for example, the recent Atlanta-area mass shooting that claimed the lives of eight people, six of whom were women of Asian descent—a prosecutor might charge the suspect with a hate crime as a symbolic gesture, even if it will not affect the defendant’s maximum sentence. For prosecutors working in designated hate-crime units, which exist in some large cities, prosecuting hate crimes is central to their mandate, and they may be more likely to pursue hate-crime charges. Prosecutors with whom I spoke stressed that without such a designated unit or or at least one attorney in the office whose primary focus is hate-crime prosecution, hate-crime cases aren’t likely to surface with any consistency.
Some prosecutors may also bring hate-crime charges in cases that don’t appear to support them as a way to gain leverage in plea negotiations. In New York State, for example, where age is a protected category that includes anyone age 60 or older, prosecutors have included hate-crime charges in swindling cases that involved elderly victims but where there was no evidence of animus toward the elderly. By charging defendants suspected of stealing less than $1 million with hate crimes, New York prosecutors have obtained plea deals that include prison time. This is because, even though under New York law a conviction for theft of less than $1 million carries no mandatory prison time, a conviction for grand larceny as a hate crime, even for stealing a much smaller amount, carries a minimum of one year in prison and could result in a sentence of up to 25 years.
Defense attorneys have been critical of using hate-crime laws as plea-bargaining chips. Some leaders of nonprofit organizations focused on combatting hate crimes have also expressed skepticism, insisting that hate-crime charges should not be brought against those who committed “crimes of opportunity.” Instead, they maintain that these charges should be limited to situations in which the driving force behind the crime was bias based on a person’s identity, an approach that would be more in keeping with the pro-tolerance, anti-prejudice messages intended by legislators.
Ultimately, there is a massive gap between the stated purpose of hate-crime laws and how they are used in practice. This mismatch may be disastrous for the morale of affected community groups—and for the relationships between these groups and law enforcement. Under-enforcing hate-crime laws can send the message that legal progress is a waste of time, that the lives of members of an affected group are not valued, and that this country’s laws do not protect them. In the era of Black Lives Matter, when law enforcement has already lost significant credibility with communities of color, this concern is especially salient.
One option for addressing the under-enforcement of hate-crime laws would be to make these laws more user-friendly for victims and law enforcement alike. Providing additional resources to improve hate-crime reporting and investigation—as the recent COVID-19 Hate Crimes Act aims to do—is one approach. Another would be shifting prosecutors’ incentives, such as by increasing penalties for hate-crime convictions. But changing the existing incentives might be difficult, especially in light of the sweeping criminal code and already-harsh prison sentences. Moreover, we should hesitate before taking any steps that might further expand America’s carceral state.
Given the limitations of criminal law as a vehicle for achieving broad social-justice goals, we should also consider other ways to publicly affirm that bias-motivated crimes cause unique harms that ripple through impacted communities. The trust that law enforcement can build with victims and victims’ groups through increased transparency and coalition-building may be crucial to sending the message that crimes against these communities are taken seriously. Prosecutors can play a central role by forming partnerships with community organizations to improve public trust. When there is evidence of a bias motive, a prosecutor could explain why charging a hate crime in that case might be strategically inadvisable. Taking the time to explain to a victim that his or her concerns are being handled with care may prevent the victim from feeling ignored. Prosecutors with whom I spoke who follow this approach—envisioning a core element of their job as building bridges with communities—stressed the importance of “an ongoing dialogue” and reported extremely positive results.
Studies by the Yale Law professor Tom Tyler and others in the field of procedural justice have documented that a person’s belief in the fairness and legitimacy of a system—such as law enforcement—depends more on whether that person feels heard and that their dignity is respected than on the outcome of a given case. This finding should inspire criminal-justice policy makers to channel resources into fostering a more robust dialogue with community members. This human project of affirming the dignity of impacted group members is entirely separate from the legal project of developing a winning litigation strategy—but it requires no less diligence, patience, and vision.