AuthorEisenberg, Avlana

INTRODUCTION 730 I. EXPRESSIVE THEORY AND PSYCHIC HARMS 731 A. The Psychic Harms of Hate Crimes 731 B. The Expressive Purpose of Hate Crime Laws 732 II. LIMITATIONS OF THE TRADITIONAL APPROACH 733 A. Obstacles to Enforcement 733 B. "Hate Entrepreneurs" and the Problem of Deterring Martyrs 734 C. Psychic Harms in the Shadow of Criminal Enforcement 736 III. A TRAUMA-CENTERED APPROACH 737 A. Restorative Justice and the Criminal Legal Process 738 B. Restorative Approaches in the Hate Crime Context 739 C. Optimizing Program Design 742 1. Consent of Both Parties 742 2. Proxies 743 3. Equal access 743 4. Limitations 744 CONCLUSION 747 INTRODUCTION

The category of hate crimes spans a vast spectrum, from instances of vandalism to mass shootings. These otherwise unrelated crimes are understood to be united by the significant psychic harms they cause to the intended victims as well as to members of targeted identity groups who may also suffer harm. (1) When enacting hate crime laws, legislators at both the state and federal levels have emphasized the expressive weight of these laws and the importance of sending messages to victims, defendants, and society at large promoting tolerance and equality and condemning bigotry and bias. (2)

Yet, this approach to combatting bias-motivated conduct through criminalization--through the enactment of either sentencing enhancements or stand-alone hate crime statutes--suffers from substantial limitations at the enforcement stage and fails to fully address the harms of hate crimes. Prosecutors face strong incentives against charging hate crimes, especially in particularly heinous cases, since the more serious the crime, the less likely a hate crime conviction would increase the defendant's sentence. (3) Even when these crimes are charged, they may not have the intended messaging effect. Many hate crime perpetrators view themselves as martyrs and are unlikely to be deterred. (4) And, while some victims may gain solace from the labeling of a crime as hate-motivated, a hate crime conviction is unlikely to address a victim's deep-seated trauma; the criminal law is ill-equipped to address the emotional harms experienced by individual victims. (5)

A more robust approach to addressing hate crimes must consider alternatives beyond the traditional criminal law to address the psychic harms associated with hate crimes. This includes restorative justice models that may benefit both victims and defendants. (6) There are many possible models, and program design choices should include safeguards to ensure that participation is voluntary, that proxies are used when appropriate, and that there is equal access to participate in these programs such that restorative justice programs do not replicate existing inequities in the criminal legal system. (7)

This Essay calls into question conventional assumptions about the expressive function of hate crime laws while demonstrating that the harms of hate crimes will require a broad, holistic, and interdisciplinary lens, as well as interventions beyond the parameters of criminal law. In doing so, it exposes alternatives to traditional criminal law, relevant well beyond the hate crime context, that could better address victims' needs while curbing a reliance on incarceration as the primary way to address criminal harms.

The Essay proceeds as follows. Part I introduces the special psychic harms of hate crimes, and the intended expressive function of hate crime laws. Part II highlights the limitations of hate crime laws in sending their intended messages, as well as the limits of a traditional criminal justice approach in addressing victims' psychic harms. Part III explores a "trauma-centered approach," examining the potential for restorative justice programs in the hate crime context and proposing program design choices that could optimize fairness, promote equality, and most effectively address the psychic harms at the root of hate crimes.



      The category "hate crime" is vast. As defined by the FBI, a hate crime is a "criminal offense... motivated... by an offender's bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity." (8) Accordingly, hate crimes can range in seriousness, from vandalism to a mass shooting. One unifying feature of these otherwise vastly different crimes is that they are understood to be impactful beyond the particular crime and to a larger group of people than the direct victim or victims of the crime. Harm from these crimes thus can have an exponential reach, rippling through communities that otherwise have no connection to the crime or victim.

      This harm that ripples through communities is best described as psychic harm. The psychological trauma caused by hate crimes has been documented, both as it affects direct victims and as it affects other members of the identity group targeted by the crime. Research findings suggest that hate crime victims, to a greater degree than victims of parallel non-hate motivated crimes, "tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation." (9) Studies also demonstrate collateral harms of hate crimes--members of a hate crime victim's identity group may "perceive that crime as an attack on themselves directly and individually." (10)


      Proponents of hate crime legislation have sought to address the psychic harm that affects both the direct victims of hate crimes and those who belong to targeted identity groups. Proponents have long argued that these laws serve a crucial expressive function: "if a perpetrator sends a message of hatred to the victim and the victim's group, the state in turn should send a message that such hatred is not acceptable in our pluralistic society."" According to Yale Law professor Dan Kahan, this "call and response" represents a dialogue between crime and punishment. (12)

      Legislators have publicly announced their expressive purposes in enacting these laws. For example, in support of federal hate crime legislation during congressional debates, Senator Levin encouraged the U.S. Senate to "send a clear message that America is an all-inclusive nation--one that does not tolerate acts of violence based on bigotry and discrimination" and stressed that hate crime legislation "will send the message that we are a country that treasures equality and tolerance." (13) Senator Cardin similarly referred to the message sent through hate crime legislation, explaining, "[t]he message when we pass this--and I certainly hope that we will pass this--is that America has made a priority protecting people from violence because of diversity, that diversity is embraced in America as our strength." (14)



      An expressivist account might identify distinct messages sent by hate crime laws to different groups: to the victim and victim's group, the message is one of valuation; to the defendant, it is one of stigma and denunciation; and to society, it is one of a commitment to tolerance and equality. (15) However, at every stage of enforcement, there are significant limitations on how the intended messages of hate crime laws are delivered. The reasons for these expressive limitations include statutory inconsistencies across jurisdictions, prosecutorial incentives, and contextual factors regarding the place of hate crime laws in the broader lexicon of criminal laws and sentencing.

      First, there are limitations regarding what crimes can be named as hate crimes. Given that jurisdictions define hate crimes differently, a crime could be classified as a hate crime in one state but not in another. (16) Or the same crime could be classified as a hate crime at the federal level but not at the state level.

      Second, there are substantial limitations to hate crime enforcement based on prosecutorial incentives and resulting charging decisions. For example, prosecutors may choose not to charge what appears to be a crime motivated by animus because of such factors as contravening statutory incentives (e.g., a hate crime conviction would not increase the maximum penalty for a particular crime), (17) the challenge of proving motive, (18) and concerns about muddying the waters for jurors by delving into fraught cultural and social issues. (19) If a crime widely perceived to be a hate crime is not charged as such, the intended messages of hate crime laws are arguably thwarted by this lack of enforcement. (20)

      Third, even if a crime is charged as a hate crime and the defendant is convicted of this charge, if the defendant's sentence is not materially affected by this conviction, again this may thwart the intended messages of hate crime laws. Once one contextualizes hate crime laws within the broader framework of sentencing, it becomes clear that the messaging potential of these laws often breaks down at the sentencing stage. (21) In archetypal hate crime cases that are particularly violent and traumatic to the victim's identity group (such as Matthew Shepard's brutal murder), there is simply no possibility for a meaningful sentence increase since, depending on the state, a defendant will likely already be sentenced either to life without parole or to death. (22)


      The traditional approach also fails to account for the fact that many perpetrators of hate crimes do not attempt to cover their tracks, with some even viewing themselves as martyrs. Utilitarian proponents of hate crime laws argue that these laws are appropriate to "counterbalance strong impulses motivated by animus." (23) Yet, where a person self-identifies as a martyr, that person is not engaged in a rational cost-benefit analysis and deterrence is not possible. (24) The claim that hate...

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