INTRODUCTION

Hate crime laws, which specify punishments for offenses motivated by prejudice based of ethnicity, religion, sexual orientation, disability, or other characteristics (Reference WaltersWalters, 2022), are firmly institutionalized in the United States. This was not always the case; only in the 1980s did a handful of states draft hate crimes legislation (Reference Jenness and GrattetGrattet & Jenness, 2001). Since that time, these laws diffused across the country and survived constitutional challenges in the appellate courts (Reference Jenness and GrattetJenness & Grattet, 2001; Reference King, Krohn, Hendrix, Hall and LizotteKing, 2019).

Yet the enforcement of these laws is contested and varies considerably across jurisdictions. Hate crimes are prone to underreporting (Reference KingKing, 2007; Reference Lantz, Gladfelter and Barry RubackLantz et al., 2019) and official crime statistics underestimate their incidence (Reference Ruback, Gladfelter and LantzRuback et al., 2018). Prosecutions and convictions are also rare. For example, data from Miami, Florida, show that only 15% of 400 LGBTQ victims reported the incident to the police, and only a handful of them were prosecuted (Reference KutateladzeKutateladze, 2022). Even districts with heavy caseloads and dozens of police reports of hate crimes can go several years without a prosecution (Reference KingKing, 2008, pp. 1379–1380). According to the 2001 National Survey of Prosecutors—one of the few surveys ever to inquire about hate crime prosecution nationally—only 20% of districts in the United States prosecuted one or more hate crimes that year. The only categories with smaller percentages were telemarketing fraud and police use of excessive force (Reference DeFrancesDeFrances, 2002). As Reference ThebaultReis Thebault (2021) of the Washington Post summarized, “Researchers, advocates and law enforcement officials have described a breakdown at nearly every step of the justice system leading to a disturbing conclusion: Hate crimes go unpunished.”

Why are hate crime prosecutions uncommon, despite their established presence in criminal statutes? More generally, how do organizations, and the professionals that inhabit them, respond to innovations in their legal environment? Legal change is a fixture of modern society. New federal and state laws are enacted each year that require implementation in various settings, including the workplace (e.g., minimum wage laws), the criminal courts (e.g., sentencing reform), or law enforcement agencies (e.g., hate crime reporting mandates). Appellate court cases sometimes upend decades of established practice, as evidenced by the recent Supreme Court decision ending affirmative action in college admissions (Students for Fair Admissions v. Harvard, 2023). When legal terms are introduced by the courts or legislatures, implementation falls on the organizations responsible for compliance and enforcement, which have their own cultures and standard operating procedures.

What happens, then, when a legal innovation, even one as established as hate crime law, presents challenges to organizational practices? This question has been particularly important for laws that are ostensibly intended to protect minority groups from discriminatory treatment. For instance, equal employment laws, such as Title VII of the Civil Rights Act, have had limited impact on workplace equity (Reference EdelmanEdelman, 2016). In the realm of criminal law, many law enforcement agencies were slow to comply with the Hate Crime Statistics Act and hate crime statutes often remain dormant in prosecutors' offices (Reference KingKing, 2007, Reference King2008).

This article examines police and prosecutors' approaches to hate crime prosecution to understand how organizations determine the practical meaning of laws, in this case a law that requires additional resources such as investigatory time. We see this case in criminal law as comparable to cases in civil rights and employment law, such as anti-discrimination and EEO laws that likewise have ambiguous statutory language, require the deployment of office resources, and necessitate an organizational response. To this end, we take theoretical guidance from the literature on law and organizations, which developed around the related question of why civil rights and anti-discrimination laws often fall short of achieving their objectives. Prosecutors' offices, akin to corporate workplaces, are organizations that must respond to a legal environment and to oversight from external groups (e.g., government oversight, advocacy groups). Likewise, public and private organizations must determine how to implement laws that are ambiguous and that create opportunities in organizations for personnel to construct the practical meaning. The meaning of legal terms such as “hatred” and “prejudice,” like “harassment” and “discrimination,” is often determined at the organizational level.

This investigation thus makes two contributions to law and society scholarship. First, we examine the meaning-making process in criminal law by focusing on an infrequently studied case: hate crime prosecution. National statistics indicate that hate crime indictments are rarely pursued, and early research on the topic suggests that prosecutors have a narrow vision of what constitutes a hate crime, thus limiting the cases seen as fit for prosecution (Reference McPhail and JennessMcPhail & Jenness, 2005). Prior work also suggests that prosecutors adopt symbolic responses to hate crime, such as identifying hate crime prosecutors or community liaisons, without actually prosecuting many hate crimes (Reference KingKing, 2008).

We approach the issue from a slightly different angle, looking explicitly at the construction of the meaning of hate crime law in the office for purposes of criminal prosecution. As Reference EdelmanEdelman (2016: 12) wrote, “the meaning of law evolves… not in the halls of Congress but rather in the halls of work organizations.” This premise also applies to criminal law enforcement, where concepts such as hate, bias, and proof of motivation are vaguely defined in statutory law, allowing practitioners to construct its meaning at the local level (Reference Grattet and JennessGrattet & Jenness, 2005). We also examine ways in which prosecutors' constructions of what constitutes a hate crime—that is, their assumptions about the characteristics of offenses and the burden of proof legally required—influences the investigation process, and what implications these assumptions have for charging.

Second, we contribute to research on law and stratification. Hate crime law is an example of the social control of intergroup conflict, a type of law that is thought to be under-enforced (Reference BellBell, 2002; Reference KingKing, 2008, p. 1352). The criminal justice process, including the gathering of evidence and the decision to prosecute (Reference FrohmannFrohmann, 1997), often works against those with less power and against minority groups. In the context of hate crime prosecution, we examine law enforcement's assumptions about victims and whether the social distance between police and hate crime victims inhibits investigation. This is an important issue for prosecution because the dominant perspective on charging—that prosecutors take cases with a high probability of conviction—does not always consider the process that generates the evidence. The legal stratification perspective suggests that evidence available in a case is itself a function of law enforcement's willingness to investigate (Reference CooneyCooney, 1994), which has implications for the notion of convictability. We probe about evidence collection and victim characteristics in our interviews with law enforcement.

We put these ideas in theoretical context in the following section. We then turn to two types of data—a review of case files and interviews with prosecutors and other law enforcement officials in one jurisdiction—to investigate hate crime charging. The data suggest that hate crime prosecutions are not merely a function of the availability of evidence. To understand the types of cases that are prosecuted also requires attention to the embedded knowledge of hate crimes in district attorneys' offices and specific organizational practices. We identify other possible applications of these findings in the discussion.

LAW AND ORGANIZATIONS: IMPLICATIONS FOR HATE CRIME PROSECUTION

Prosecutors generally move forward with a prosecution when they are confident about the chances of conviction (Reference AlbonettiAlbonetti, 1987; Reference Frederick and StemenFrederick & Stemen, 2012). Factors that can increase the “convictability” of a case include the availability of physical evidence, the presence of eyewitnesses, and the promptness of reporting. For example, the likelihood of filing charges in intimate partner violence cases increases when an arrest is made promptly and physical injury is documented (Reference MessingMessing, 2014; Reference Worrall, Ross and McCordWorrall et al., 2006). Likewise, prosecutors invoke hate crime charges in cases entailing injury and clear evidence that racial, religious, or other slurs were written or uttered during the offense (Reference McPhail and JennessMcPhail & Jenness, 2005).

The notion that prosecutors charge when the evidence supports conviction is uncontroversial and aligns with social science research and legal norms. The less settled question is how a case is defined as “convictable.” Neither the presence of evidence nor its interpretation is exogenous to the system. To this end, theory and research in the law and organizations tradition emphasizes the endogeneity of legal regulation (Reference EdelmanEdelman, 2016; Reference Edelman, Uggen and ErlangerEdelman et al., 1999). Law is not simply created outside of an organization and then applied evenhandedly within it. Rather, actors in an organization—managers and legal counsel in the private sector or prosecutors and victim advocates in a criminal justice setting—reframe the practical meaning of laws in subtle but consequential ways (Reference EdelmanEdelman, 2016).

Two processes described in legal endogeneity theory are relevant to hate crime law enforcement. The first is the redefinition of ambiguous law in the organization. Many laws, hate crime among them, leave room for substantial discretion and variable interpretations of statutes. For example, California's hate crime law, like many others across the nation, refers to crimes committed “in whole or in part” based on the actual or perceived characteristics of a victim (Cal. Penal Code § 422.55). This law leaves room for discretion and interpretation. For instance, how much prejudice must be evidenced to constitute “in part”? And what type of evidence could be used to prove motive? Reference Grattet and JennessGrattet and Jenness (2005) describe how law enforcement agencies interpret the same law differently. In a study of hundreds of department-level policy documents in California (“general orders”), the authors identify a range of hate crime definitions at the organizational level. Ambiguous state law was to some extent redefined at the agency level, which is consequential for determining procedures for training and investigating hate crimes.

Within an organization, this meaning-making process can reflect a process of reframing the law in ways that that help negotiate the tension between the requirements of the law and the efficient practices of the organization. Reference EdelmanEdelman (2016, pp. 25–26, 124) refers to this process as the managerialization of law: the reframing of law or policy to align with the organization's values and prerogatives, potentially at the expense of enforcement. For example, complaints of sexual harassment in the workplace are reframed by complaint handlers as “workgroup issues,” or characterized benignly as the result of differences in management style (Reference Edelman, Erlanger and LandeEdelman et al., 1993, p. 516). Informal dispute resolution, seen as a legitimate organizational response in the eyes of the courts, becomes an efficient and expedient means of handling complaints. As such, the meaning of harassment is reframed in such a way as to reduce the risk of litigation and minimally disrupt standard management practices.

An analogous process plays out in criminal law. For instance, prosecutors in large counties manage heavy caseloads that require a balancing their formal mandate of “seeking justice” (ABA, 2017) with the brute necessity of efficiently disposing of a high volume of cases. Some prosecutors expressed reluctance to prosecute hate crimes, even in the presence of evidence that the victims were targeted because of their race, electing to prosecute using the predicate crime instead (e.g., assault but not hate crime assault; Reference KingKing (2008, e.g., pp. 1375–1376)). Prosecutors downplayed the evidence of victim selection based on race, acknowledging the difficulty of proving this motivation. This practice effectively raises the evidentiary threshold for hate crime charging. As such, law enforcement agencies can subtly reframe the law for practical purposes of efficiency. We investigate the possibility of this kind of interpretive drift in our analysis.

A second relevant process is organizational decoupling, a term that is used in two ways in prior research on law and organizations. Decoupling most commonly refers to a disconnect between an organization's policies and its practices. Decoupling is deployed to effectively separate symbolic compliance with a regulation from the organization's actual operations (Reference Meyer and RowanMeyer & Rowan, 1977). For example, diversity training programs can signal attention to diversifying the workplace, yet the programs are often disconnected from actual change in the diversity of managers (Reference Kalev, Dobbin and KellyKalev et al., 2006).

Reference KingKing (2008, p. 1380) illustrates how decoupling can unfold in law enforcement settings. He interviewed prosecutors in jurisdictions with heavy caseloads, some of which were located in areas with significant advocacy group activity around hate crimes. Some district attorneys faced a quandary; they wanted to respond to the external pressure from the community to take hate crimes seriously, but they also sought to maintain the efficient disposition of cases in the office, which can be interrupted by the additional investigatory work needed for some hate crime cases. The district assigned a member of the office to work out of a police substation and liaise with the community on issues of race and hate crime. However, the “community prosecutor” had no authority to charge cases; the position was largely symbolic.

Decoupling can also refer to the absence of coordination across agencies that work on a given task. The U.S. criminal justice system is a loosely coupled system in that various agencies have autonomy and discretion over initiatives and priorities. A consequence of autonomy in a loosely coupled system is the lack of coordination and information sharing across parts of the system. To be sure, police and prosecutors collaborate; but autonomy creates a condition that is ripe for miscommunication when agencies in a loosely coupled system become “self-contained” (Reference HaganHagan, 1989, p. 128).

Both types of decoupling have implications for hate crime charging. Reference KingBuilding on King's (2008) work, we expect the presence of hate crime law and even designated hate crime prosecutors to result in few actual hate crime prosecutions. The volume of cases in a typical urban office creates a necessity to focus on the predicate crime (e.g., assault) with minimal additional investigation into prejudicial motive (Reference Boyd, Berk and HamnerBoyd et al., 1996, p. 841). We also explore the implications of coordination across subunits, police and prosecutors in this case. Following Reference HaganHagan (1989), we inquire about the degree of coordination between police and prosecutors, and whether the degree of decoupling is consequential for hate crime prosecution.

LAW, STRATIFICATION, AND HATE CRIME PROSECUTION

Classic law and society theory states that law works to the advantage of the powerful and often to the detriment of the poor and minority groups (Reference BlackBlack, 1976; Reference GalanterGalanter, 1974; Reference Pager, Goldstein, Ho and WesternPager et al., 2022; Reference Songer, Sheehan and HaireSonger, 1999). Even seemingly neutral laws work against less powerful groups in society, as evidenced by voting restrictions (Reference Bentele and O'BrienBentele & O'Brien, 2013; Reference Manza and UggenManza & Uggen, 2006), fines and court fees (Reference Menendez, Crowley, Eisen and AtchisonMenendez et al., 2021), or drug law enforcement (Reference AlexanderAlexander, 2010). Hate crime law, as legislation intended to protect minority groups from bigotry-motivated crime, would appear to challenge the very premise of the law and inequality thesis. The purpose of such laws, based on the early testimony and advocacy, was to protect minority groups from hate-inspired crime (Reference Jenness and GrattetJenness & Grattet, 2001). Yet laws designed to protect minority groups can be blunted at the level of enforcement and implementation (Reference EdelmanEdelman, 2016).

The process through which protective laws are rendered impotent can be subtle and reflect apathy more than malice. Reference FrohmannFrohmann (1997), for instance, shows that prosecutors make assumptions about victims and witnesses based on the locations of crime incidents and the victim's race and gender. Prosecutors tend to think “downstream” (p. 535) by anticipating how jurors or judges will view the credibility of defendants, victims, and witnesses. The organizational imperative of charging only convictable cases and the social distance between victims and anticipated jurors increases the odds case rejection.

We anticipate a similar process for hate crime cases, although our interest is in the decision to invoke a charge enhancement rather than rejecting a case outright. Police culture tends to emphasize masculinity, conservatism, and distrust of outsiders (Reference CrankCrank, 2014; see Reference MartinMartin, 1999 on masculinity). In the past, some police officers and units resisted enforcing hate crime laws (Reference Balboni and McDevittBalboni & McDevitt, 2001; Reference Boyd, Berk and HamnerBoyd et al., 1996). Recent studies show that police officers approach potential hate crimes with some skepticism or preconceived notions of what a “real” or “normal” hate crime looks like (Reference Lantz, Gladfelter and Barry RubackLantz et al., 2019). For law enforcement, the stock image of a hate crime involves a violent offense in which the victim and offender are of different races, and the racial motivation is signaled through the use of specific words (e.g., slurs) or symbols during the offense (Reference Boyd, Berk and HamnerBoyd et al., 1996).

We anticipate that prosecutors will gravitate toward such archetypical cases when invoking hate crime charges. In addition, and in keeping with the law and stratification tradition, we probe about the role of social distance between law enforcement and hate crime victims. For instance, does a profession that emphasizes masculinity and conservatism, such as policing, face impediments when interacting with victims of potential hate crimes, such as those motivated by animus based on gender and sexual orientation?

LEGAL MOBILIZATION AND HATE CRIME LAW ENFORCEMENT

If the literature on law and organizations identifies headwinds for hate crime prosecution, then prior research on legal mobilization points to some tailwinds. Pioneering research on the creation of hate crime law demonstrates that organized advocacy groups, for instance civil rights and victim's rights organizations, successfully lobbied state congresses to create hate crime laws (Reference JennessJenness, 1999; Reference Jenness and GrattetJenness & Grattet, 2001). Other organizations, such as the Anti-Defamation League, collected data on alleged hate crimes and crafted statutory language that could serve as a template for legislation, which was significant in the development of federal law (Reference Jacobs and PotterJacobs & Potter, 1998).

The role of advocacy organizations continued after legislation. For example, hate crime reporting by law enforcement varies across jurisdictions, such that some police departments report no hate crimes for consecutive years while comparable departments report dozens. Among the factors that distinguish law enforcement agencies that report hate crimes from those that do not is the presence of civil rights advocacy organizations (Reference McVeigh, Welch and BjarnasonMcVeigh et al., 2003; Reference Scheuerman, Parris, Faupel and WerumScheuerman et al., 2020).

Prosecutors also acknowledge ways in which advocacy groups can exert some influence through subtle means. For instance, organizations share information or literature (e.g., from the Southern Poverty Law Center) and invite prosecutors to community meetings in an effort to put hate crimes on the prosecutor's radar (Reference BellBell, 2002; Reference KingKing, 2008). Reference McPhail and JennessMcPhail and Jenness (2005) similarly report that prosecutors are willing to listen to local advocacy organizations. However, they did not view external pressures from advocacy groups and the media as affecting prosecutorial decision-making (Reference McPhail and JennessMcPhail & Jenness, 2005, p. 109).

In the current study, we inquire about prosecutorial responses to advocacy group and media attention to hate crimes. Based on prior research, we anticipate that prosecutors are receptive to communication with advocacy organizations, although extant work suggests minimal influence on prosecutorial decision-making.

DATA

The Miami-Dade State Attorney's Office provided access to case files for criminal cases processed as hate crimes in Miami for the period 2005–2019. There were 23 hate crime cases during this time, which included those motivated by victims' race, religion, sexual orientation, mental disability, or homelessness (a comparable number of cases was reviewed by Reference PhillipsPhillips, 2009 when studying hate crimes in New Jersey). Cases involving juveniles are sealed and not available for review. Four additional cases flagged as hate crimes were still pending at the time of data collection and, therefore, unavailable for review. Furthermore, cases filed prior to 2005 were housed outside of the office and became logistically difficult to obtain; as such, they were also excluded.

The information from case files was obtained and recorded following a standardized data collection tool used with prosecutorial case files in other jurisdictions (see Reference Kutateladze, Lawson and AndiloroKutateladze et al., 2015; Reference Kutateladze and AndiloroKutateladze & Andiloro, 2014). The tool was modified to more effectively capture the information on hate crime enhancement and to allow recording of additional qualitative information. It was then piloted with select case files and discussed with prosecutors, a process resulting in adding new fields, revising others, and dropping some. The resulting instrument contains 41 quantitative and qualitative data fields, capturing the characteristics of a case (e.g., top charge at arrest, evidence type and nature, and disposition type), defendant (e.g., prior record, substance use and mental health note, and defense counsel type), and victim (race/ethnicity, injury, and relationship type with an offender). Generally, more information was available about defendants if the forensic evaluation was conducted, because some of these cases included extensive notes from psychiatrists describing possible traumas, mental health diagnoses, and childhood experiences.

To conduct the review, paper files of criminal cases were brought to a private conference room and stored in locked cabinets between review sessions. Only one person, the principal investigator, conducted all reviews to ensure the consistency in recording information. Case files ranged from a 50-page folder to multi-box case documents. While an examination of most cases took approximately an hour, a few cases required between 3 and 5 hours to review. Given that files within the folders and boxes were not organized, prosecutors were called upon to assist with finding relevant documents, decipher difficult-to-read handwriting, and clarify various notes.

Data from case file reviews were combined with semi-structured interviews with 10 practitioners, all of whom were identified through a combination of key informants' referrals and snowball sampling. Although the small sample size and sampling method preclude a claim of representativeness, this design is consistent with previous qualitative research on prosecutorial perspectives about hate crimes (Reference McPhail and JennessMcPhail & Jenness, 2005, interviewed 16 prosecutors; Reference KingKing, 2008, interviewed 11 prosecutors).

The interviews were carried out in person by the principal investigator with support from a research assistant who took verbatim notes. Interviews lasted between 40 and 95 min. The resulting transcript contains 84 single-spaced pages of notes. While a semi-structured questionnaire was used to guide the interview, these interviews took the form of a discussion during which it was not uncommon for the respondent to ask questions, both clarifying and substantive, to the interviewer.

The interview instrument used open-ended questions organized around two broad sections. The first section—case processing—includes questions on collaboration with police, factors considered in determining hate motivation, and the role of the enhancer in plea negotiations, among others. The second section—challenges and opportunities for reform—covers questions about the barriers to hate crime reporting and prosecution, legislative and training opportunities for improving crime reporting and prosecution, and the role of social media and technology in identifying hate-motivated offending and gathering evidence to establish offenders' bias.

Because practitioner interviews and case file reviewers were closely related, it was difficult to determine the sequence of data collection. At times, insights from the case file review provided information for engaging in a productive discussion with respondents. On the flip side, practitioner interviews were also an important source of information about how to best capture data from criminal case files. Given this interdependency, case file reviews and practitioner interviews were carried out concurrently between July 2018 and December 2019.

ANALYTIC STRATEGY

Data from case file reviews and practitioner interviews were analyzed qualitatively. Given the lack of published research on prosecutorial decision-making in hate crime cases (save Reference McPhail and DiNittoMcPhail & DiNitto, 2005), this work is exploratory, making qualitative research especially appropriate. Data from case file reviews was examined descriptively and through qualitative content analysis (Reference MayringMayring, 2004) with an emphasis on the analysis of documents and records (Reference Wolff, Flick, von Kardorff and SteinkeWolff, 2004). Practitioner interviews were analyzed through the Directed Qualitative Content Analysis (QCA) method (Reference Assarroudi, Nabavi, Armat, Ebadi and VaismoradiAssarroudi et al., 2018). Unlike conventional content analysis, where coding categories are derived from the text data, Directed QCA analysis starts with a theory or prior research findings as guidance for initial codes (Reference Hsieh and ShannonHsieh & Shannon, 2005). For example, earlier studies showed that prosecutors rely on verbal slurs as the most common types of evidence, followed by the presence of an eyewitness, location evidence, and confessions (Reference Levin, Rabrenovic, Ferraro, Doran and MetheLevin et al., 2007). Accordingly, the analysis looked into whether such evidentiary factors are still dominant, or if social media, for example, has begun to play a larger role in gathering evidence of prejudice.

A priori thematic codes were created based on research questions informed by prior research and research team members' experience of working with prosecutors (Reference Kutateladze, Lawson and AndiloroKutateladze et al., 2015). For example, the codes for case file reviews were created to assess what type of evidence is being used to demonstrate hate motivation, to what extent offender and victim attributes were different, at what point of case processing the hate crime enhancement is being added or dropped, and how often hate crime enhancers are used as a plea-bargaining chip. For practitioner interviews, the codes aimed at assessing challenges with hate crime identification and case processing.

CONVICTABILITY

Prosecutors are risk-averse when making charging decisions, particularly in hate crime or civil rights cases (Reference BellBell, 2002). Cases that move forward in the system are typically strong cases that stand a good chance of a guilty verdict if the case proceeded to trial. This “convictability” standard was referenced several times during the interviews. As one prosecutor states, “The facts of the case matter—what I can prove. Whether I can make a good faith effort to continue.” Consistent with this approach, a colleague adds,

As evidenced by this downstream thinking, and consistent with Reference FrohmannFrohmann's (1997) insights, prosecutors' anticipation involves an appraisal of potential jury bias, in this example based on sexual orientation. A consequence is that prosecutable hate crime cases are reduced to those in which suspects make overt and unmistakable statements of bigotry during the commission of the crime, such that a jury can understand them unambiguously.

In line with this claim, research finds that arrests and prosecutions are most likely when cases fit the stereotypical depiction of a hate crime, such as swastikas painted on synagogues (Lantz et al., 2019; Reference McPhail and JennessMcPhail & Jenness, 2005). This notion is also reflected in our interview data. Prosecutors took interest when “statements are made specifically [and] in cases where certain signals or symbols are indicative of hate; i.e., Nooses, swastikas.” When asked what he looks for in a case, one prosecutor responded,

The image of a prosecutable hate crime invoked by law enforcement is the egregious but uncommon act that constitutes only the tip of the iceberg of possible hate crime cases. Cases below the surface that require a closer look are given far less consideration.

A review of case files in this office leads to the same conclusion. In several cases, victim testimonies formed the basis for the hate crime charge. One case involved homophobic insults that preceded a physical attack. The defendant was quoted as saying, “You're a faggot. Gay people don't pay for nothing. What are you, trans? What do you want to be, male or female? This is why I hate gay people.” In another case, the victim was attacked in a parking lot and later testified to police that the defendant had said to him: “You're a fuck'n Indian. You are a fuck'n terrorist.”

In addition to overt statements during the crime, prosecutors were attentive to location and the use of symbols. For example, in a criminal mischief case, the defendant sprayed swastikas and wrote “hail Hitler” [sic] using red paint on a driveway, the house, and the mailbox of a Jewish family. In two Islamophobic hate crime cases, the defendant spray-painted over the name of the mosque and left a threatening message on the mosque's voice mailbox: “Hate the Muslims. I hate all of you. I am going to go to your center and shoot all of you. I hate the Koran.”

These types of cases fit the law enforcement archetype of a hate crime and align with other observations (Reference McPhail and JennessMcPhail & Jenness, 2005). However, police and prosecutors we interviewed were quick to mention that such cases are rare, which may explain why only 23 cases had been brought forward during a 15-year period according to our review of case files. As our interviews with police and prosecutors turned from prosecutable cases to the more frequent cases that are less likely to be charged as hate crimes, some commonalities emerged that help us understand why hate crime prosecutions are rare events (more on this below).

Furthermore, while “convictability” is an important factor for pursuing hate crime prosecutions, it appears that this consideration comes into play mainly at case screening. If a prosecutor decides to file hate crime charges, they are likely to pursue them. For example, we were told that the enhancement is not used as a plea-bargaining chip. As one senior prosecutor noted: “I can't think of an instance since I've been doing this that we've dropped the enhancement in exchange for a plea.” “We don't use enhancements as leverage,” added another prosecutor. Case file reviews were consistent with this observation. Respondents note that some defendants would not plead guilty because of the stigma associated with the “hate offender” label. Still, most cases with the enhancer are disposed of through guilty pleas. The charge enhancement makes defense counsel worry about the trial outcome, which may encourage them to take the plea offer. We should also note that these were difficult discussions for prosecutors, often reflected in taking a pause before responding or rearticulating their previous points, suggesting that the organizational culture on hate crime case processing is still in a forming stage.

IMPEDIMENTS TO HATE CRIME PROSECUTION

Interview data revealed three tendencies of police and prosecutors that reduce the likelihood of hate crime charges in cases that do not involve overt statements during the commission of the crime: evidentiary inflation; loose coupling of investigations; and cultural distance.

DISCUSSION

Hate crime law is an instructive case for advancing our understanding how practitioners respond to the legal environment. These laws provide another tool for law enforcement, but also an additional element to prove to a jury and new legal concepts to operationalize (e.g., “hate-motivation”). Our interviews with police and prosecutors revealed that working definitions of hate crime differed slightly but consequentially from statutory law, and that cultural distance can impede investigation in subtle ways, such as preventing probatory questions. The findings also reveal how the degree of coupling between organizations influences enforcement. Specific to hate crime laws, our data help us understand why they are infrequently prosecuted, even where the law has been in place for years and the district attorney's office has identified personnel to oversee potential cases.

Before discussing the broader implications of our findings, we draw attention to a couple of dogs that did not bark. For instance, the police and prosecutors we interviewed expressed neither hostility nor derision toward hate crime laws, which past research as shown to be a relevant factor at some times and places (Reference Balboni and McDevittBalboni & McDevitt, 2001; Reference Boyd, Berk and HamnerBoyd et al., 1996). Antipathy toward hate crime laws almost certainly exists in pockets of the United States legal system, but our data show that prosecutions are rare even in the absence or overt resistance. Likewise, we did not observe ceremonial policies or structures that were systematically decoupled from actual enforcement, as some prior work has reported (Reference KingKing, 2008).

Factors that impeded prosecution were subtle and resembled what Reference Edelman, Fuller and Mara‐DritaEdelman et al. (2001) called the managerialization of law. In this case, law enforcers interpreted the requirements for a hate crime in a way that mapped on to workplace norms and prerogatives. This was most visible through the process of evidentiary inflation, in which police casually referred to a higher threshold for hate crime cases than what is required by statute. Although none of our questions directly asked respondents about their view of the evidentiary threshold for hate crimes, when interviewees discussed cases, either real or hypothetical, they typically assumed that hatred or prejudice must be the sole motivation for the crime. The prosecutor's logic of minimizing risk of acquittal—an organizational objective—also results in some disjuncture between statutory requirements and the practical definition of hate crime. This observation in the realm of criminal law generally aligns with studies of regulatory law that document how organizations reframe policies to maintain organizational efficiency (Reference Edelman, Uggen and ErlangerEdelman et al., 1999; Reference TaleshTalesh, 2009).

We also identified consequences of loose coupling between sub-agencies in a system. We do not imply any strategic decoupling of police and prosecutorial practices concerning hate crimes. Rather, police and prosecutors can sometimes make assumptions about each other's investigative responsibility in the absence of strategic coordination. Our observations are an interesting contrast with Reference BellBell's (2002) careful analysis of an anti-bias crime task force in pseudonymed “Center City.” As Bell describes, this unit worked closely with the DA's office and often felt that it had a stake in the outcome of the case (p. 174). Indeed, the police unit was accustomed to having its charging recommendations endorsed by the DA's office. This is an example of tight coupling between police and prosecutors, which coincides with more frequent prosecution. Whereas we illustrate the ways in which loose coupling can limit investigation, Bell's example is a useful analogue to show how tight coupling can result in more prosecutions.

It also appears that social distance between police and crime victims can impede the identification of hate crimes in the initial stage of an investigation, which is crucial for eventual prosecution because charging attorneys rely heavily on police reports. Some police were reluctant to ask probing questions about sexual orientation, ostensibly out of fear of offending the victim. This concern, at least in the officers' eyes, seems to trump the harm of not identifying a possible hate crime. Sometimes the anachronistic terms used by police (“homosexual”) constitute an unforced error that could work against cooperation from gay victims. As such, cultural distance between the police and community, especially in the absence of training on this issue, reduces the chances of identifying hate crimes in the early stages of investigation.

The latter finding puts an interesting twist on Reference BlackBlack's (1976) proposition concerning law and cultural distance. For Black, cultural distance between law enforcement and an alleged perpetrator results in harsher legal sanctions than in cases involving less distance (e.g., same race or same sexual orientation). Our findings suggest a corollary; cultural distance between officials and victims appears to lessen the law enforcement response. This claim aligns with prior research showing that theories of crime and punishment apply differently to hate crimes, in which victims are often from minority or disadvantaged groups (Reference Lyonssee Lyons, 2007 on hate crime behavior; Reference KingKing, 2008 on enforcement).

The findings also revealed circumstances that can increase attention to hate crimes. In certain cases, the media and advocacy groups impelled action. Some attorneys were surprisingly candid in their assessment of the media and organized interests, noting that although the media attention should not matter, in practice it is relevant. The same was true for advocacy groups. Knowing that an alleged victim was associated with a group that was capable of pressing the issue in the public eye was not lost on prosecutors. We detected no overt coercion, but the subtle influence was acknowledged. This finding aligns with other interview-based work (Reference BellBell, 2002; Reference KingKing, 2008; Reference McPhail and JennessMcPhail & Jenness, 2005) and with quantitative findings showing the advocacy group activity is associated with hate crime reporting (Reference McVeigh, Welch and BjarnasonMcVeigh et al., 2003).

Finally, the results inform socio-legal research on prosecution and the decision to charge. Prior research emphasizes the importance of case convictability—that is, prosecutors move forward with a case when they feel that a conviction is likely (Reference Frederick and StemenFrederick & Stemen, 2012; Reference Richardson and KutateladzeRichardson & Kutateladze, 2021). Weaker cases are dropped or result in a plea bargain (Reference Bushway, Redlich and NorrisBushway et al., 2014). We see evidence of this perspective in our data. However, convictability is not exogenous to the investigatory and charging process. The degree of coupling, the vagueness of the law, and the external scrutiny of media and advocacy groups can inform the perceived convictablity of a case and thereby propel or hinder prosecution.

Our conclusions might be applied in other contexts, particularly for laws or legal innovations that can be perceived as protective of vulnerable groups and entail significant ambiguity. For instance, our results partly align with Reference FrohmannFrohmann's (1997) influential work on sexual assault, although we saw less evidence of place-based bias against victims' testimonies for the case of hate crime. The concepts of evidentiary inflation and loose coupling may be pertinent in sexual assault cases as well, as prosecutors construct meanings of terms that often appear in these statutes, such as “impaired,” “capacity,” or “coercive.”

Another application is the recent spate of state laws relating to the expungement or concealment of criminal records, which would disproportionately help people of color given their overrepresentation among those convicted of crimes. In some states, for instance Ohio (Revised Code 2953.32), certain convicted persons may be eligible for expungement or sealing of the record, but judges must decide based on “circumstances related to offender's rehabilitation.” Other agencies are also involved, including prosecutors, victim liaisons, and probation officers. As a legal innovation with vague definitions, we anticipate that the meaning of “rehabilitation” and other criteria will be constructed in the courts, including the evidentiary threshold. We also anticipate that loose versus tight coupling between investigators (probation officers in this case) and deciders (judges) will influence the frequency of expungement.

While this research offers insights into hate crime charging in a large and diverse jurisdiction, we are mindful that the results are not necessarily characteristic of all legal environments. For example, Oregon's statute includes all federal bias categories, including gender identity and disability, while the Pennsylvania Ethnic Intimidation Law (§2710)—comparable to a hate crimes statute—only captures “race, color, religion or national origin.” In some states, hate crime is a sentencing enhancer (e.g., Florida and Louisiana), while in others hate crimes represent dedicated charges (e.g., Oregon and Illinois). Some offices have a long history of processing hate crimes and even publishing data (e.g., Multnomah County District Attorney's Office) while most prosecutorial offices have limited experience of processing hate crimes. Perhaps most consequentially, some offices have dedicated hate crimes units while others do not. Our interviewees were chosen, in part, because they had experience working with hate crime cases. We would expect similar results in jurisdictions without hate crime task forces and in states with similar laws.

CONCLUSION

Legislation determines which behaviors can be sanctioned by the state, but practitioners are instrumental in shaping the everyday meaning and the enforcement of laws. When a criminal statute requires additional resources or imposes new standards at the organizational level, for instance investigatory time on cases or an additional element to prove beyond a reasonable doubt (e.g., hate-motivated), underenforcement can result. This situation resembles observations of civil rights and employment law, in which organizations must implement vague laws aimed at reducing unequal treatment. The net effect in each situation can be inaction or inefficacy. Drawing on concepts from legal endogeneity theory (Reference EdelmanEdelman, 2016), our study illustrates how and why criminal laws are sometimes under-enforced.

We found that hate crime laws were reframed and rarely enforced even when law enforcement showed no evidence of defiance or antipathy. Rather, subtle but consequential drift from the legislation occurs when the law eventually confronts the norms and practical constraints of the organizations responsible for enforcement. When law and organizational culture are misaligned, managerialization works against enforcement, a situation that appears exacerbated when cultural distance between parties is present and tight coupling is absent. Consideration of these organizational factors helps us understand why some laws are regularly enforced, while others require a higher bar for prosecution.