Bias Crimes: Unconscious Racism in the Prosecution of "Racially Motivated Violence"

Abstract

After being attacked by a gang of whites and in turn being blamed by police investigators, Rafael Gonzalez attempted to commit suicide because of his fear of walking the streets where his attackers continued to walk freely and he was blamed for his own victimization.... Rafael did not want to live in a world where his pain was not recognized.* * Puerto Rican Legal Defense & Education Fund, Testimony Presented to the Committee on International Intergroup Relations and Special Events of the New York City Council 2-3 (Oct. 21, 1987) (unpublished manuscript available from Puerto Rican Legal Defense & Education Fund, N.Y., N.Y.) [hereinafter Testimony]. 1. Other forms of violence such as arson, vandalism, and verbal harassment, whose harms are no less serious than physical injuries, are beyond the scope of this Note.

Juror Decision Making in Hate Crime Cases

“…Before a case ever reaches a jury, decisions have been made by victims, witnesses, police officers, prosecutors, defense attorneys, and judges. In fact, one criticism that has been made of hate crime laws is that they permit too much discretion on the part of prosecutors, perhaps allowing the prosecutors' own biases to operate (Hernandez, 1990). Certainly, very few hate crime cases ever go to court.…”

Good Intentions

“…However, Hernández (1995) argued that unconscious racism leads prosecutors to trivialize or ignore bias crimes, engendering a systematic bias toward nonenforcement. 3 For example, there have been few attempts to empirically determine specific characteristics of either the crime, the offender, or the victim that might influence decisions to prosecute and/or to convict.…”

“…3 For example, there have been few attempts to empirically determine specific characteristics of either the crime, the offender, or the victim that might influence decisions to prosecute and/or to convict. However, Hernández (1995) argued that unconscious racism leads prosecutors to trivialize or ignore bias crimes, engendering a systematic bias toward nonenforcement. This bias remains largely undetected, she argued, because prosecutorial discretion is traditionally not reviewed by outside authorities.…”

Hate Crimes: Perspectives on Offending and the Law

“…Early work in this area was rather descriptive and based on limited empirical data (Chorba, 2001;Hernandez, 1990;Jacobs & Potter, 1998, p. 101;Levin & McDevitt, 1993). More recently, scholars have relied on ethnographies, interviews, and surveys to better understand hate crime prosecution.…”