Recommended Reading: Avlana Eisenberg’s Expressive Enforcement
Avlana Eisenberg recently posted on SSRN her article “Expressive Enforcement” forthcoming in the UCLA Law Review. The piece makes an important contribution to the literature on hate crimes laws and enriches the literature on expressive theories of law. Eisenberg’s study of hate crimes charging decisions (based on a set of interviews with prosecutors in 23 states) finds some surprising patterns. While the prosecutors Eisenberg spoke to often don’t bother with hate crimes charges in archetypal hate crimes cases (because they already can get a serious conviction for a violent crime, and it’s not worth the difficulty of proving bias motives), many do charge hate crimes in certain kinds of cases that don’t really seem “hate”-related at all–for instance, frauds that target senior citizens. Such crimes may well involve “vulnerable victims,” but they do not involve the kind of group-based animus that hate crimes laws are generally intended to condemn. (I blogged about such prosecutions here). Eisenberg uses this to illustrate a broader point: when we talk about the “expressive message of a law,” we usually are thinking about the message legislators intended to express when they passed the law, or at least some message that is encapsulated, even if unintentionally, by the legislation itself. But the way the law plays out on the ground may be very different, and that affects the way the expressive message is actually heard by communities (and, in this case, risks devaluing it, by turning the threat of hate crimes prosecution into just another instrumental tool in prosecutors’ toolboxes).