Issues

The U.S. has had remedies aimed at racial violence since the Ku Klux Klan Act was passed in the 1870s. Hate crime law, which is more than thirty years old, is the most recent incarnation. The passage of hate crime law, first at the federal level and later by the states, has done very little to slow the rising tide of bigotry. After a brief discussion of state and federal hate crime law, this Article will critically examine the country’s approach to hate crime. The article will then discuss one of the most prevalent forms of hate crime—bias-motivated violence that targets individuals in their homes. The Article will conclude with a discussion of the approach taken by the Justice Department in the Ahmad Arbery case as a potentially positive solution for the handling of hate crime cases.

A dominant justification for hate crime laws is that they serve a crucial expressive function—sending messages of valuation to victims, and of denunciation to defendants. Yet, as this Essay will demonstrate, the focus on criminalizing hate—through the enactment of either sentencing enhancements or stand-alone hate crime statutes—has resulted in a thin conception of messaging that fails to recognize the limitations of the criminal law in addressing psychic harm. This Essay argues that a more robust approach to addressing hate crimes must consider alternatives—beyond incarceration—that would center the trauma associated with hate crimes. This includes restorative justice models that might benefit both victims and defendants. Ultimately, the Essay calls into question conventional assumptions about the expressive function of hate crime laws while demonstrating the importance of a broad, holistic, and interdisciplinary lens, as well as interventions beyond the parameters of criminal law.

The recent surge in hate crimes alongside persistent concerns over policing and prisons has catalyzed new interest in hate crime prevention outside the criminal legal system. While policymakers, civil rights groups, and people in targeted communities internally disagree on the value of hate crime laws and law enforcement responses to hate crimes, they often converge in advocating measures that could prevent hate crimes from occurring in the first place. Those measures potentially include educational initiatives, conflict resolution programs, political reforms, social services, or other proactive efforts aimed at the root causes of hate crimes. Focusing on the public conversation around anti-Asian hate crimes, this Essay argues that very different conceptions of the hate crime problem lie beneath the support for hate crime prevention. Broadly speaking, proposals for hate crime prevention fall into three categories: 1) prejudice reduction measures; 2) political and structural reforms; and 3) socioeconomic investments in communities. Prejudice reduction measures, such as educational programs to reduce stereotyping, stem from a view of hate crimes as an extreme manifestation of bias. Advocacy for political and structural reforms corresponds to a conception of hate crimes as the product of intergroup struggles over power and resources often influenced by the state. Calls for socioeconomic investments link hate crimes to the conditions that produce interpersonal harm more generally, such as economic distress or public health failures. This Essay maps out these different conceptions of hate crime prevention and relates them to theoretical perspectives and empirical evidence from social psychology, sociology, criminology, and other fields. Drawing on this review, it argues that the project of hate crime prevention faces several empirical and normative conundrums. In addition to disagreements over conceptualizing hate crimes, these puzzles include the relationship between attitudes and behavior, the potential tension between hate crime prevention and other socially desirable policy goals, and the difficulty of maintaining support for long-term, structural change.

When prejudice-related data are combined and analyzed over time, critical information is uncovered about overall trends, related intermittent spikes, and less common sharp inflectional shifts in aggression. These shifts impact social cohesion and grievously harm specific sub-groups when aggression escalates and is redirected or mainstreamed. These data, so critical to public policy formation, show that we are in such a historic inflection period now. Moreover, analysis of the latest, though partial Federal Bureau of Investigation hate crime data release, when overlaid with available data from excluded large jurisdictions, reveals hate crimes hit a record high in 2021 in the United States that previously went unreported. This Essay analyzes the most recent national data as well as various numerical and policy milestones that accompanied the historic, yet incomplete, implementation of hate crime data collection and related statutes over recent decades. This analysis of emerging trends in the United States is undertaken in the context of bigoted aggression broken down over time.

The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? Does that enhanced punishment infringe on the perpetrator’s rights to freedom of belief and expression? How can we know or prove a perpetrator’s motivation? And, most practical of all: Do hate crime laws work? This Essay proposes that we reframe our understanding of what we label as hate crimes. It argues that those crimes are not necessarily the acts of hate-filled extremists motivated by deeply held, fringe beliefs, but instead often reflect the broader, even mainstream, social environment that has marked some social groups as the expected or even acceptable targets for crime and violence. In turn, hate crimes themselves influence the social environment by reinforcing recognizable patterns of discrimination. The Essay maintains that we should broaden our understanding of the motivations for and effects of hate crimes and draws connections between hate crimes and seemingly disparate phenomena that have recently captured the nation’s attention.