Restorative Justice More Effective than Incarceration in Hate Crimes: Report

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Anti-Hate Crime March at the University of Delaware, Photo by Xander Opiyo via Flickr.

To address hate crimes, restorative justice approaches may offer a more effective solution than carceral ones, according to a joint report by Stanford Law School (SLS) and the Brennan Center for Justice at New York University Law School.

Titled “Exploring Alternative Approaches to Hate Crimes,” the report evaluated programs in New York City and Oakland, Ca., conclued that “alternative” approaches “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

Compiled by SLS students and guided by Stanford Law Professor Shirin Sinnar and Brennan Center Fellow Michael German, the report contrasts current hate-crime mitigation strategies with alternative approaches. Currently strategies often emphasize increasing the presence of police officers and imposing sentence enhancements for bias-motivated crimes. Most states have enacted laws that create “stand-alone” offenses for hate crimes.

In November, the FBI reported that hate crimes reached the highest point since 2008. Anti-Asian hate crimes are surging, and a disproportionate number of attacks have targeted women. As of April, more than 80 percent of Asian-American adults say that violence against them is increasing.

Congress passed the COVID-19 Hate Crimes Act last month, which intends to combat anti-Asian hate crimes by providing grants for regional law enforcement agencies to establish reporting hotlines and offering training to police on how to handle hate crime response, according to Vox.

In response to an increase in offenses motivated by a victim’s race, religion and sexual orientation, the Justice Department also announced it was “stepping up” its enforcement of hate crimes. 

But as reported hate crimes increase, the calls of advocates who oppose carceral solutions are getting louder.

Some people have criticized these “symbolic” measures, arguing that by bolstering policing and not prevention, they do little to address the hate crimes’ root cause. Over 85 Asian American and LGBTQ groups opposed the anti-Asian hate crimes bill, writing in a statement that “relying on law enforcement and crime statistics does not prevent violence.”

The authors of the Stanford study identified similar issues. For one, distrust of law enforcement deters many people from reporting crimes, making criminal prosecution an “insufficient response.” Evidence hasn’t confirmed that current measures actually mitigate hate crimes, but their enforcement could further harm heavily policed communities.

“Many people don’t report hate crimes because they don’t trust the criminal justice system,” Sinnar said.

“Even when they’re reported, many incidents of hate speech don’t constitute crimes, and even in the case of actual crimes, it’s often hard to prove that crimes were motivated by bias. Moreover, even on those rare occasions when you can prove a hate crime, the laws don’t directly address the trauma of communities that are targeted.”

The report aims to inform policymakers and community advocates about alternative approaches to hate crimes, including restorative justice and social services programs for people hate crimes impact.

Some 300 restorative justice programs exist throughout the U.S., and studies link these programs to increased satisfaction among victims, a greater sense of accountability among offenders, decreased recidivism and reduced costs.

Evaluating these programs both as substitutes for and supplements to existing legal approaches, the report notes that such programs need sufficient staff, funding and “culturally competent” resources to effectively serve communities.

“These programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and  well-being of impacted individuals and communities,” the report reads.

To access the full report, click here.

Eva Herscovitz is a TCR justice reporting intern.

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