Predictors of Hate Crime Prosecutions

• Author: Kiesha Warren-Gordon,James A. Jones,Bryan D. Byers
• Published date: 01 July 2012
• DOI: 10.1177/2153368712446868
• Date: 01 July 2012
• Subject Matter: Articles

Predictors of Hate Crime

Prosecutions: An Analysis

of Data From the National

Prosecutors Survey and

State-Level Bias Crime

Laws

Bryan D. Byers

1

,

Kiesha Warren-Gordon

1

and

James A. Jones

1

Abstract

Research on hate crime has focused primarily on law making, law enforcement, and

victimization aspects. Few researchers have studied hate crime prosecutions even

though this is an important element in such cases. This study uses data from the

National Prosecutors Survey of 2001 to predict the likelihood of hate crime prose-

cutions. Given the data set is a census of prosecutors, it was necessary to add 10 new

variables to the data based on the presence and absence of state hate crime laws and

their characteristics. The data were subjected to logistic regression, and it was

determined that the three strongest predictors of whether prosecutors pursue hate

crime are the presence of (a) race, ethnicity, and religion as protected groups in state

hate crime law, (b) sexual orientation as a protected status within state law, (c) the

presence of an institutional vandalism provision in state-level hate crime law, and (d) if

the prosecutor’s office assigned staff to handle community-related activities. The find-

ings are discussed along with suggestions for future research.

Keywords

hate/bias crimes, victimization, hate crime prosecution, National Prosecutors Survey,

hate crime law, antidefamation league

1

Ball State University, Muncie, IN, USA

Corresponding Author:

Bryan D. Byers, Ball State University, NQ 278, 2000 W. University, Muncie, IN 47306, USA

Email: bbyers@bsu.edu

Race and Justice

2(3) 203-219

ªThe Author(s) 2012

Reprints and permission:

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DOI: 10.1177/2153368712446868

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Introduction

The topic of hate or bias crime

1

has been addressed considerably by scholars. Some of

this treatment has involved the study of the definitions of hate crime, hate crime

legislation, policing hate crime, legal and First Amendment issues, Supreme Court

cases, reporting practices by citizens in national data, a few offender studies, and some

victimization studies. Although there have been a number of studies and works

devoted to the topic of hate or bias crime in these arenas, very little attention has been

given to the topic of hate, or bias, crime prosecution. To examine hate crime prose-

cutions, the present study utilized an existing national data set from the National

Archive of Criminal Justice Data’s (NACJD) National Prosecutors Survey of 2001,

which was supplemented with additional independent variables consisting of state-

level hate crime law characteristics obtained from the Antidefamation league (ADL).

The dependent variable for the study was whether the hate crime was prosecuted in

the jurisdiction as reported by prosecutor, or designee, respondents. Therefore, the

purpose of this study is to determine the impact of state-level bias or crime law char-

acteristics on the likelihood of such prosecutions.

Literature Review

The handful of scholars having examined hate crime prosecutions include Finn

(1988), Bell (2002), Franklin (2002), Haider-Markel (2002), Jenness and Grattet

(2004), McPhail and Jenness (2005), McPhail and DiNitto (2005), Read (2005), Levin

et al. (2007), Phillips (2009), and Hodge (2011). In addition to these scholarly treat-

ments of hate crime prosecution topics, there are a few reports and advisory papers

distributed by the National Institute of Justice, the National District Attorneys Asso-

ciation research branch American Prosecutor’s Research Institute (APRI), and private

research firms such as Abt Associates designed to inform on various hate crime topics

and, in some, instances, advise criminal justice practitioners, including prosecutors,

who might handle such cases (Shively, 2005).

It is considered to be difficult to obtain a conviction in hate crime cases for a variety

of reasons, contributing to why so few hate crime cases lead to conviction. Many bias

crimes are ‘‘low-level’’ offenses (Garofalo & Martin, 1993) and the perpetrator is

typically unknown to the victim (Byers & Zeller, 1997, 2001). As a result, and in such

cases, the incident is either minor in the eyes of prosecutors and/or there is no indi-

vidual to identify for prosecution. When the case involves the former, prosecutors

must weigh the seriousness of the offense against the likelihood of conviction, the

relative cost of prosecution, and the efficacy and efficiency of bringing charges

(Jenness & Grattet, 2004). For the most part, prosecutors have little experience with

bias-motivated criminal conduct (Jacobs & Potter, 1998), which challenges some of

the best district attorneys. Even when cases appear to have clear-cut bias motivation,

it has been found that obtaining a conviction based on the standard of ‘‘beyond a rea-

sonable doubt’’ can still be a daunting task (Jacobs & Potter, 1998) along with trying

to prove that the ‘‘bias’’ the alleged offender possessed ‘‘caused’’ the criminal act or

204 Race and Justice 2(3)