Restorative Justice and Social Service Programs Should Be Considered to Lessen Reliance on Law Enforcement and Imprisonment

Stanford, CA — Stanford Law School (SLS) and the Brennan Center for Justice at New York University Law School today published “Exploring Alternative Approaches to Hate Crimes,” a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively. The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “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.” 

The study reviewed programs in New York City, Oakland, Calif., and other communities across the country that are already trying some alternative programs and calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms they inflict.

The report was compiled by SLS students enrolled in the policy practicum, Assessing Alternative Approaches to Hate Crimes, under the guidance of Stanford Law Professor Shirin Sinnar and Brennan Center Fellow Michael German. The study drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice and also includes research from law, criminology, and other fields.

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Sinnar. “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we’ve employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German. 

Current Hate Crime Approaches Evaluated

For the report, the SLS policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive. But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes.

For example, community distrust of law enforcement prevents the reporting of many hate crimes, making criminal prosecution an insufficient response. It is also not clear that the current laws deter further hate crimes. And the vigorous enforcement of current hate crime laws could exacerbate discrimination against communities already facing over-policing and mass incarceration.

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

Alternative Solutions Explored

“As concerns around policing and mass incarceration have grown, people in many communities—especially those frequently impacted by hate—are seeking new, thoughtful ways to respond to hate violence,” said Tyler Bishop, a recent SLS graduate and member of the policy lab. “My peers and I conducted this work with a clear goal in mind: to inform the policymakers and community advocates seeking improved responses to hate crimes.” 

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.

The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes. It notes that “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 also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.

“Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German. “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes.

Read the full report here.

About the Stanford Law and Policy Lab

The Law and Policy Lab at Stanford Law School is composed of students committed to improving public policy in a variety of fields. The Law and Policy Lab offers more than 20 practicums a year, in which law and other graduate students from Stanford get to work on a real public policy issue for a real client under the supervision of a faculty member. The practicums give students opportunities to develop knowledge about particular areas of public policy and the skills of policy analysis, including the ability to communicate policy findings.

About Stanford Law School

Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.

About the Brennan Center for Justice

The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize and — when necessary — defend our country’s systems of democracy and justice.