Constructing justice: prosecutorial decison [sic] making in hate crime enhancements and a grounded theory of justice construction



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This study sought to determine 1) prosecutors’ opinions on the James Byrd Jr. Hate Crime Act (2001), with a sub focus on the status category of gender; 2) factors relevant to prosecutors when deciding whether to add a hate crime enhancement; and 3) prosecutors’ main concern and how they resolve it. This study utilized a grounded theory methodology through interviews with a purposive sample of sixteen prosecutors and one defense attorney in Texas, who were diverse with regard to race, gender, and geographic and urban/rural locations. The data suggest that prosecutors fall into one of four categories with regard to their opinions of hate crime law: Enthusiastic support, neutral support, ideological opposition, and conflicted opposition. The largest group (56%) consists of neutral supporters. When deciding whether or not to add a hate crime enhancement, prosecutors use a standard five-step decision making process while denying extralegal factors play a role. Prosecutors add few hate crime enhancements because they tend to narrowly define bias motivation. They report bias motivation is difficult to prove and increases their evidentiary burden. Prosecutors generally prefer to try the case based on the underlying crime rather than addressing bias motivation. For the most part prosecutors do not find violence against women to be a good fit with the hate crime paradigm. Prosecutors view violence against women as motivated by power and control rather than hate. The study developed a grounded theory of justice construction termed constructing justice. Although prosecutors often speak of seeking justice through the application of objective, external standards, when their practices are analyzed, prosecutors are doing or constructing justice using local knowledge and agreements. Constructing justice has three stages: 1) determining justice eligibility; 2) negotiating justice with a goal of justice agreement; and 3) contesting justice with its sub-stage of performing justice for a justice decision. The study has implications for advocates who desire to increase the number of hate crime enhancements and implications for what is taught about the criminal justice system. The results suggest the importance of continued attention to the ethics education of all actors in the criminal justice system.