Hate Crimes: Criminal Law & Identity Politics

By James B. Jacobs; Kimberly Potter | Go to book overview
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virulent racism, prisons have also been notable for their violence toward gay inmates. 72


It is one thing to enact hate crime laws and another thing to implement and enforce them. Because bias crimes are relatively rare, they are difficult to deter through patrol. And low-level bias crimes like vandalism and graffiti are notoriously difficult to solve. With respect to the most serious crimes of violence, it is unlikely that a bias crime label win lead to any more investigative effort than would be made absent the label. In the investigation of serious violent felonies, like bias-related murder, the existence of a bias unit would not seem to add any significant resources to the investigation. Bias-related or not, the police department gives such crimes top priority by experienced homicide detectives and other specialized forensic units. The bias unit could make the most difference in police response to low-level offenses, like harassment, vandalism, and graffiti. But it is not clear whether society really wants to divert significant investigative resources to these offenses or to punish them as serious crimes. In the final analysis, the labeling decision may be the most important function the police perform in enforcing the bias crime laws.

Some large city police departments have formed specialized bias crime units. These units clearly have symbolic importance for some advocacy groups and, at a minimum, play a public relations role that may be quite important in the politicized crime and justice environment. However, research has yet to determine whether such bias units make a difference in preventing or solving bias crimes.

Prosecutors face a difficult task in trying hate crime cases. Proving bias-motivation poses a serious challenge, one that may distract and politicize the jury. Some jurors and judges may be so offended by and hostile to the hate crime charge that they will refuse to convict at all. If so, hate crime trials may reinforce and exacerbate the social divisions that already threaten the functioning of the jury system.

Some hate crime trials raise questions about the admissibility of evidence concerning the defendant's values, beliefs, and character. There is no escaping the danger that the trial will seem, to some observers, like an inquisition into the correctness of the defendant's statements, friendships, organizational affiliations, humor, and so forth.

Where hate crime laws come into play, not as substantive offenses, but as sentencing enhancements, the jury problems are sometimes avoided because the judge makes key findings on motivation, but the


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Hate Crimes: Criminal Law & Identity Politics


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