Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal Enforcement?

Abstract

This article explores some of the policy issues raised by current proposals to amend federal law to create a broad new federal hate crime. This proposal has passed the Senate twice in recent years, and appears to have substantial support in the House as well. This article lays to one side several serious issues dealt with by other scholars (the constitutional basis for federal jurisdiction and the wisdom of enacting separate penalties for bias-motivated crimes), in order to focus on another feature of the current proposal. Instead of creating a new federal offense that federal officials intend to prosecute aggressively, the proposal would create a new federal offense primarily as a means of sending a symbolic message and providing a legal basis for a partnership in which the federal government provides behind the scenes assistance to state and local efforts. Both the emphasis on symbolism and the effort to create a continuing federal-state partnership create issues that have been largely ignored in the debate over federal hate crimes legislation. This article explores the political science literature on symbolic politics and interest group theory, concluding that they provide one possible explanation for hate crime legislation that evokes intense emotions and provides symbolic reassurance to key interest groups, though it would have little impact on law enforcement. Emphasis on the expressive function of federal criminal law has the potential to alter public perceptions, though it is not clear how that process will play out. The techniques for controlling the enforcement of a new crime are better understood than those for controlling the social meaning of such a law. It may create and strengthen valuable norms and bring about desirable shifts in social capital, but it might also undermine the moral force of the criminal law. The isolation of the symbolism or expressive function also changes the dynamic of the federal legislative process, and the related public debates. The other side of the proposal is the attempt to create a permanent partnership in which federal, state, and local officials work together to investigate and prosecute hate crimes in a task force model. The task force brings to bear resources in an efficient manner, but it strains the constitutional image of separate sovereigns each enforcing their own laws and takes a step towards the integration of the current autonomous police and prosecutorial agencies in the fragmented criminal justice systems within each state. Finally, the deliberate strategy of bringing rare federal prosecutions selected from among thousands of cases allows prosecutors to forum shop and negate state laws that embody state policies, exposing a few defendants to different procedural and substantive laws, and different sentences, than all others who have committed the same conduct.