Enforcing Bias Crimes Laws Without Bias: Evaluating the Disproportionate Enforcement Critique

Abstract

One of the standard arguments asserted by those who have challenged the efficacy, propriety, and even legality of bias crime laws, is that these laws will end up hurting the very people they are designed to protect. This disproportionate enforcement critique argues that bias crime laws, as implemented, will disproportionately be used against minority defendants and will otherwise cause disproportionate harm to minority groups. This paper addresses the disproportionate enforcement critique on a number of levels, concluding at the very least that there is insufficient basis to accept the critique, that the critique is to a large extent based on a misunderstanding of the goal of bias crime laws, and that, although the critique should make us watchful of the potential for disproportionate enforcement of the criminal laws generally, with bias crime law no exception, it ought not to call into serious question the overall project of enforcing laws against bias-motivated violence. After introducing the overall context of bias crime laws, the paper first reviews the disproportionate enforcement critique and offers a typology of the criticisms that have been brought. Some of these criticisms are not based on a concern with disproportionate enforcement, but ironically with a concern for proportionate enforcement. The common difficulty facing most of the critics, however, is the absence of empirical support for their assertions and concerns. Nor is this absence surprising. There are serious and systemic difficulties in obtaining support for any sustained empirical argument where bias crimes are concerned. This is the subject of the next part of the paper. After reviewing these difficulties, the paper proceeds to analyze the data that are available from Federal statistics and those compiled by three major cities to evaluate the strength of the disproportionate enforcement critique. I suggest that there is reason to reject the critique and that the one significant effort to support the critique empirically is ultimately unpersuasive. In addition, I suggest that there is reason, albeit softer, affirmatively to support the converse of the disproportionate enforcement critique: subject to the general concerns of disproportionate representation of minorities in our criminal justice system, bias crimes can indeed be prosecuted and punished without discrimination. Simply put, if we are to seek to root out the effects of racism - conscious and unconscious - in the criminal justice system, the area of bias-motivated violence is the wrong place to start, and perhaps even the wrong place to look altogether.