If we have stringent federal hate crime laws, why don’t they seem to be working as a deterrent?

Professor Andrew Hayashi of the University of Virginia School of Law says in a new paper that preventing hate crimes will require doing more to address the animus behind the acts — and using economics in a way that currently isn’t being applied.

Recent mass shootings involving Latino shoppers in El Paso and synagogue members in Pittsburgh have been among the most high-profile hate crimes — crimes in which people are physically harmed because they share (or are perceived to share) common characteristics such as sexual orientation, race or religion.

Hayashi wrote “The Law and Economics of Animus” in part, he said, because prejudiced people continue to lash out, and the current methods of addressing the problem aren’t working.

“I’ve long been interested in revisiting some of the traditional problems studied by law and economics scholars and tweaking the analysis to allow for goodwill among people and also understanding that sometimes there will be ill intent,” the professor said. “My own frustration with our political stalemate about how to deter hate crimes and the heightened significance of animus in constitutional litigation gave this work some urgency.”

Hayashi is the Class of 1948 Professor of Scholarly Research in Law and an expert in behavioral economics, which combines economics with psychology. He is also a McDonald Distinguished Fellow at the Center for the Study of Law and Religion at Emory University.

“The existence of animus is not an economics problem — it’s a spiritual or psychological problem,” Hayashi said. “But the fact that people act on their animus is an economics problem. Economics is about understanding how people respond to incentives, and so deterrence is a natural place for the use of economics.”

The solution he offers is twofold: make the enforcement of damages routine and in proportion to the animus, and promote community deterrence.

While the word “animus” is often thought of as meaning hostility because of its close association to the word “animosity,” in a legal sense the term simply means the intent with which something is done. The greater the intent to harm another or deter a right, in theory, the greater the culpability.

Forcing an offender to pay damages to his victim is the first prong of Hayashi’s plan, because it goes toward meaningfully countering the intent.

“States should make it easier to allow for damage recoveries in the case of hate crimes,” he said. “Damages are better than fines or imprisonment in this way. They are especially unpleasant for people with animus for their victims because it means paying money to the person they hate.”

Since Congress expanded the law in 2009, the Civil Rights Division of the Department of Justice has been given greater latitude to prosecute hate crimes, with federal judges having the discretion to tack on additional sentencing as compared to other, similar crimes. But in individual states the enforcement of damages, a civil remedy, has not been routine for myriad reasons — among them, evidentiary and procedural hurdles.

Hayashi added that, by strengthening the right to damages, lawmakers can put in place a strong deterrent that doesn’t implicate constitutional issues such as free speech and gun ownership, often resulting in gridlocked policy debates.

As the second prong of his plan, Hayashi recommends the development of community funds that could serve as a form of what he calls “solidarity deterrence.” The money could be applied immediately after a crime to begin mitigating the impact of the harm.

As an example, he said, an anti-immigrant attack could be countered by the community channeling money to groups that help people immigrate legally.

Such schemes “should support the victims of animus-based violence promptly, visibly and overwhelmingly, so that would-be bad actors know that their intent to harm vulnerable groups will result in a boomerang effect that leaves that group better off than it was before.”

He said approaches like these won’t deter the most committed offenders or bring back lives. But the next plotter may think twice if he will end up bettering the victim class he despises.

“There are people who cannot be deterred even by the threat of death,” he said, “but anyone who is motived by the consequences of their actions can be deterred if they know that their purposes will be thwarted.”

Hayashi said that the solidarity idea was inspired by the efforts of groups such as Germany’s Nazis Against Nazis. When neo-Nazis marched through the streets of Wunsiedel in 2014, the activists raised money in “walkathon” fashion, with the proceeds going to a charity that undermines Nazi organizing.

Early conversations with colleagues Michael Gilbert, Michael Livermore and Rich Hynes, whose areas of expertise intersect with the issues discussed, were “especially helpful” as he developed the paper, the professor said.

Hayashi joined the Law School in 2013. Previously, he was the Nourallah Elghanayan Research Fellow at the Furman Center for Real Estate and Urban Policy at New York University, where his research focused on the effects of tax policy on real estate and housing markets. Before joining the Furman Center, he practiced tax law as an associate at Davis Polk & Wardwell.

He earned his Ph.D. and J.D. from the University of California at Berkeley. He also holds advanced degrees from the London School of Economics and Georgetown University.

Behind the Scholarship” is an occasional series that details the backstories of the faculty’s work.

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