Criminal Law Commons^™

Expressive Enforcement, Avlana Eisenberg

Scholarly Publications

Laws send messages, some of which may be heard at the moment of enactment. But much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions in the context of domestic criminal law have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws—the paradigmatic example of expressive legislation—as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message …