On Tuesday, March 17, a gunman opened fire in three Atlanta-area massage businesses killing 8 people—6 of them Asian women. Two days later, Professor Shirin Sinnar, an expert in national security law, civil rights and liberties, and civil procedure, testified before the U.S. House Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties for a hearing on “Discrimination and Violence against Asian Americans.” In the Q&A that follows, Sinnar discusses the rise of hate crimes in the U.S., the effect politicians’ speech has on the population—and how law and governmental programs can help to mitigate it. Her reflections draw in part on research from a Stanford Law School policy lab she taught on assessing alternative approaches to hate crimes, in partnership with the Brennan Center for Justice.

Has there been an increase in hate crimes directed against Asians in the U.S., particularly since the start of the COVID-19 pandemic?

Asian American communities over the past year have experienced fear and stigma from what appears to be a wave of harassment and hate violence. During the first six months of the pandemic alone, the coalition Stop AAPI Hate logged over 2,500 anti-Asian hate incidents across the nation, including verbal harassment and physical assaults. The Center for the Study of Hate and Extremism at California State University-San Bernardino reports that anti-Asian hate crimes in 2020 in 16 of the largest U.S. cities, as reported to police departments, surged to 149% of the previous annual total.

How is this affecting the Asian community? Are researchers looking at the personal toll of hate crimes?

As hate crime scholars have documented, hate violence inflicts psychological and citizenship harm on both direct victims and the larger communities that share the victims’ identities, in addition to society at large. The recent spate of anti-Asian violence has left elderly people afraid to leave their homes and parents reluctant to send their children to in-person school out of fear of racial harassment. For many people within targeted communities, hate incidents shake one’s sense of belonging in this nation—affecting even those born in the United States or whose families have lived here for generations. For many Asian Americans, hate violence sends the message that, no matter how deep your roots, you remain “perpetual foreigners.”

What has research shown us about the motivations for and causes of hate crimes?

The causes of hate crimes are complex and cannot be reduced to a single explanation. That said, academic studies substantiate the notion that government speech and actions towards racial minority groups can influence the level of hate crimes committed against those groups.  For instance, hostile rhetoric from elites targeting particular racial groups can embolden people to engage in hate violence against those communities.

And has research shown any impact from incendiary speech by politicians, such as the “China virus” remarks by former president Trump?

Former President Trump’s use of racist language to characterize the coronavirus, such as the “China virus” or “kung flu,” licenses the public to blame Chinese Americans for the pandemic. According to Stop AAPI Hate, a quarter of anti-Asian hate incidents reported to them during the pandemic used “language similar to Trump’s,” such as his racist terms for the virus.  Political rhetoric that scapegoats a particular ethnicity makes that group vulnerable to both racially motivated and opportunistic attacks.

Studies have shown an increase in hate crimes following political events that change perceptions of social norms, such as the acceptability of anti-immigrant or racist views.  For example, multiple studies showed a surge in hate crimes immediately after the 2016 presidential election, which Donald Trump won after campaigning to ban Muslims from entering the United States and build a wall barring Mexican migrants.

Moreover, some reports found that a significant fraction of perpetrators in these earlier hate incidents invoked then- President Trump or his campaign policies. A 2018 report from the South Asian Americans Leading Together asserted that, of 302 incidents of hate violence targeting South Asian, Muslim, Sikh, Hindu, Middle Eastern, and Arab communities in the year after the election, one in five perpetrators “referenced President Trump, a Trump policy, or a Trump campaign slogan, underlining a strong link between President Trump’s anti-Muslim agenda and hate violence post- election.” To cite just one example, after the Trump administration announced its second “travel ban” directed at citizens of several majority-Muslim countries, hateful messages sent to a Hawaii mosque stated: “Now we have a president who knows that you guys are evil and we’re going to exterminate you.”

What can be done to tamp down the current environment of hate speech and hate crimes against Asians, in particular?

In light of the fraught U.S.-China relationship, the U.S. government has a responsibility to ensure that opposition to the Chinese government’s economic, geopolitical, or human rights practices does not lead to stigmatization, racial profiling, and discrimination targeting Chinese Americans and immigrants. Even before the Trump Administration, Chinese American scientists and researchers had faced wrongful prosecutions in which their ethnicity likely played a role. As with the post-9/11 framing of Muslim, South Asian, and Arab Americans, the “public” framing of Chinese Americans as national security threats exposes the community to a greater risk of “private” discrimination and violence.

How have legal responses to hate crimes developed over time?

Much of the official response to hate crimes over the past several decades has centered on the enactment and enforcement of laws that either create standalone hate crime charges or that lengthen criminal sentences for bias-motivated crimes. For instance, in California, the application of a hate crime enhancement can add up to four years to a person’s felony conviction. States and the federal government adopted hate crimes laws both because civil rights advocates pressed for governments to take hate violence seriously and because the political climate of the 1980s and 1990s emphasized “tough on crime” responses to social problems. Nearly all states now have laws directed at crimes targeting victims on the basis of race, ethnicity, religion, and other protected characteristics (with states differing as to whether they include sexual orientation and other categories). At the federal level, Congress mandated the collection of hate crime statistics in 1990, authorized federal penalty enhancements for hate crimes in 1994, and expanded federal hate crimes offenses and their coverage of sexual orientation and gender identity through the 2009 Shepard Byrd Hate Crimes Prevention Act.

What about the community response?

While the dominant hate crimes legal model involves charging bias-motivated crimes as hate crimes or seeking enhanced penalties, civil rights and community organizations are also pursuing a range of other strategies to prevent and respond to hate incidents. There are several reasons for this interest in broader strategies. First, many hate incidents directed at Asian Americans and others do not necessarily qualify as criminal violations, such as hate speech that does not rise to the level of an actionable threat or assault. The law does not criminalize hateful speech alone in part because of First Amendment constraints, but these incidents nonetheless cause significant stigma and harm. Second, even when hateful conduct amounts to a crime, many people do not report those crimes to police, especially in communities of color with significant mistrust of law enforcement.  If a majority of victims do not report hate crimes—as some national data suggests—then policy responses must consider other means of supporting victims. Third, there is growing concern that the U.S. legal system relies too heavily on criminal law and carceral solutions to social problems, contributing to police lethality and mass incarceration. For all these reasons, many hate crime survivors, community groups, and policymakers are exploring additional avenues to help victims heal, hold perpetrators accountable, and prevent hate violence.

You’ve looked at the importance of social service programs to support the victims of hate crimes and affected communities. Can you talk about that?

Much of this is the subject of research by the Stanford Law School policy lab on hate crimes, which will be issuing a joint report with the Brennan Center for Justice later this year.

One set of alternative responses to hate crimes focuses on mitigating the harm to victims and communities through expanding social services. Beyond providing support, such efforts can serve one of the traditional purposes of hate crimes laws: to send a message that society recognizes the distinct harm that hate crimes inflict. These efforts can take a variety of forms. For instance, government programs can fund mental health care services for hate crime victims, including through funding nonprofit groups already serving particular identity groups. The city of Portland, Oregon, recently funded trainings on hate violence for mental health professionals through Portland United Against Hate, a coalition of over 80 community organizations.  In addition, states can reform their existing victim compensation programs to better support hate crimes victims, both by ensuring that such programs fully cover hate crimes and that they do not exclude victims who did not report the crimes to law enforcement. Furthermore, several states have established grant programs to protect institutions frequently targeted by hate crimes, such as places of worship or community centers. Apart from securing sufficient funding for these new initiatives, one challenge will be to design social service programs that can reach people in geographic areas without nonprofit providers or resources tailored to affected communities.

And what about restorative justice?

Interest in restorative responses to hate crimes appears to be growing, especially as applied to youthful offenders and relatively less serious offenses.  Some programs exist entirely outside the criminal justice system, like school-based programs to prevent conflicts from escalating.  Other programs seek to divert select criminal cases from traditional prosecution or sentencing.

Existing restorative justice programs in several jurisdictions have included hate crimes cases among the larger set of cases they address. Some of these programs are only for juveniles or misdemeanor cases, while others include adult cases and even violent crimes.  The idea is that, when both victims and perpetrators agree to a restorative process, trained facilitators bring them together to account for the harm that occurred and agree to a set of reparative commitments.  That might include public apologies, educational requirements, counseling, participation in anti-violence programs, or community service.    Such programs offer potential in the hate crimes context, but should be evaluated systematically to ensure that they are serving their multiple goals of helping survivors heal, reducing recidivism, and providing a meaningful alternative to imprisonment.

Shirin Sinnar is Professor of Law and the John A. Wilson Faculty Scholar at Stanford Law School. Her scholarship addresses the legal treatment of political violence, including terrorism and hate crimes, and national security oversight through courts and executive agencies. Prior to joining Stanford Law School’s faculty, she served as a civil rights lawyer for the Asian Law Caucus and the Lawyers’ Committee for Civil Rights in San Francisco.