Several empirical studies published in the 1980s and 1990s highlight how discretionary law enforcement practices enable individual officers to ignore hate crime law, selectively enforce hate crime law, and/or define their mission broadly enough to enforce hate crime law in ways that transcend the parameters of jurisdictionally relevant hate crime statutes... When combined, this research identifies institutional, organizational, community, and individual factors that shape variability in the enforcement of hate crime law on the frontlines.The problem is fundamental to the decentralized model of American criminal justice.
Although law enforcement agencies share common federal and state laws, each agency is autonomous in terms of how it orients to state statutes, develops policy to enforce the law, and, indeed, actually enforces the law. Such autonomy grants the agency significant freedom to develop its own approach to crime control based upon its assessment of the nature of its specific community problems.The authors report that in a survey of hundreds of California agencies, only 55.3 percent had a formal "hate crime" enforcement policy. Department chiefs cited lack of need or lack of proper procedure for the difference. Many claimed that hate crimes simply didn't exist in their communities. But, the authors note,
...policies may actually help officers recognize some incidents as hate crime that they otherwise would not.Whether this would represent under- or over-enforcement is a separate matter; this study is purely empirical. More important, the authors hesitate to conclude that an actual enforcement disparity exists; further research, they claim, is needed.
Interested LDers should consider the enforcement angle. Hate crime enhancements could be comparable to drug laws, artificially increasing the number of criminals, and being given lower priority in jurisdictions that don't enforce them, for whatever reason. If justice means any sort of equality in enforcement and punishment, how can such a system be just?
Added: To fill in the research gap left by the previous paper, turn to "The Context of Minority Group Threat: Race, Institutions, and Complying with Hate Crime Law," by Ryan D. King, in Law and Society Review, 2007. Early in the paper:
Most states and the federal government have enacted some form of hate crimes legislation (Jenness & Grattet 2001), yet there exists significant variation in the degree to which local law enforcement agencies enforce and comply with these laws. Participation in the federal Hate Crimes Statistics Act (HCSA, 1990), for instance, is considerably higher among policing agencies in the Northeast and the West relative to the South and Midwest (McVeigh et al. 2003). Hate crime reporting appears particularly scant in the historic "Black Belt" states. For example, only one law enforcement agency in Alabama and Mississippi combined submitted a hate crime incident report in 2000 (U.S. Department of Justice 2000: Table 12).The upshot of the article: when it comes to reports of hate crimes against blacks, the diversity of the population matters a great deal, but has different effects in different regions. Thus:
Race-based hate crimes are more prevalent in heterogeneous places, particularly in areas experiencing a recent influx of racial minorities (Green et al. 1998; Glaser et al. 2002), which according to the present research is where compliance with hate crime policy is least pronounced. This research thus contributes to debates concerning racial overtones in law enforcement by demonstrating that the nexus between race and law not only entails overenforcement (Kennedy 1997), but perhaps underprotection as well.Serious LDers interested in making an enforcement argument should track down the entire article.