The enactment of hate crime law-law that enhances the punishment of those whose crimes are motivated by legislatively identified animus or bias ("hate motive")—is widespread in the United States. According to the Anti-Defamation League, almost every state has passed hate crime law in one form or another, whether the hate motive is treated as an element of a criminal offense or as an aggravating factor at sentencing. Notwithstanding its overwhelming popularity, hate crime law has always provoked and continues to provoke contentious debate within legal academia. This debate has proceeded mainly along three distinct, though not unrelated, strands of thought. The first is the (un)constitutionality of hate crime law because of its effect on free expression. The second is the political or pragmatic wisdom (or foolhardiness) of hate crime law as an instrument for the eradication of prejudicial beliefs and conduct. These are the dimensions of the debate that have been most visible, especially in more popular discourse. This Article, while doubtless having some implications for these first two strands, focuses chiefly on the third: the (non)conformity of hate crime law to the theories and doctrines of the criminal law.
Janine Young Kim,
Hate Crime Law and the Limits of Inculpation,
84 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol84/iss3/5