As public concern mounts over hate crimes in the U.S., driven recently by a surge in attacks targeting Asian-Americans during the COVID-19 pandemic, a new report is pushing more communities to look beyond the traditional law enforcement model and consider a fundamental shift in how they confront offenses inspired by prejudice.
The paper, "Exploring Alternative Approaches to Hate Crimes," from Stanford Law School and the Brennan Center for Justice at New York University, responds to what it describes as long-standing gaps in the "traditional hate crime legal model."
Congress and most state legislatures have enacted laws on crimes motivated by bias, but enforcement mechanisms continue to fall short, the report said, in part due to the general distrust between targeted communities and police, and failure by most local law enforcement agencies to record hate crimes in federal reporting.
Those shortcomings demonstrate a need for greater investments in alternative methods, such as social service and "restorative justice" programs to "empower individuals and communities to counteract the injuries hate crimes inflict," according to the report."We don't want to keep providing broad new authorities to law enforcement when there is no lack of authority to address these crimes," Michael German, a retired FBI agent and Brennan Center fellow who co-led the report with Stanford University law professor Shirin Sinnar, said in an interview with Law360. "The problem is the failure to use the authorities they have to target these crimes, and that's why it might be better for policymakers to look at alternative methods to restoring community safety and well-being."
A group of Stanford law students drafted the paper, which spotlights a number of organizations across the U.S. already experimenting with approaches to hate crimes independent of or supplementary to law enforcement. The report also draws on findings from a policy discussion Stanford and the Brennan Center hosted in March 2020, as well as law and criminology research.
Hate crimes are generally defined as criminal offenses that are motivated by bias against a person's identity, such as race, religion or sexual orientation. The federal government and most states have laws carrying sentencing enhancements for assailants convicted of these crimes.
But in recent years, conversations about the U.S. criminal justice system led to questions about whether that model is meeting "targeted communities' needs," Sinnar told Law360. She said it prompted an effort to more deeply consider approaches that go beyond methods centered on traditional law enforcement.
"Restorative justice" programs whose aim is to reduce the role of incarceration in the legal system make up one possible channel that can identify and mend the traumas associated with hate crimes, the report said.
While models vary, restorative justice aims to mediate dialogue between the accused perpetrator and the victim of a crime, where harms can be addressed and parties can agree to an alternative course for redressing an offense. Family and members of the community can also be involved in the process.
Gaps in Hate Crime Reporting
by the numbers
A special report from the U.S. Department of Justice in 2017 found that U.S. residents experienced an average of 250,000 hate crime offenses each year from 2004 to 2015, but many go unreported.
250K
The average number of U.S. residents who experienced hate crimes each year from 2004 to 2015, of which 230,000 were violent hate crimes
54%
of hate crime offenses were not reported to police from 2011 to 2015
23%
of hate crime victims who did not report the crime believed that police would not want to be bothered or to get involved, would be inefficient or ineffective, or would cause trouble for the victim
Source: Bureau of Justice Statistics' National Crime Victimization Survey
The restorative justice program in the Office of the Attorney General for Washington, D.C., took on the case in 2019, facilitating a dialogue that ultimately led the teen to express remorse and open up about his own history. The victim accepted his apology and the two agreed on conditions to meet for the case to be dismissed.
The report also cites alternative sentencing models, spotlighting a case in which the Sikh Coalition and the victim of an anti-Sikh crime asked that an offender serve out a 72-hour community service program with the group.
The report acknowledges the small scope of these programs makes it difficult for them to be evaluated against traditional methods. But the authors noted that successful cases from this method show restorative justice is an area ripe for more experimentation.
In the D.C. AG's office, the restorative justice program only handles cases involving juveniles, who historically make up a small minority of hate crime offenders. Seema Gajwani, the chief of the restorative justice section in the attorney general's office, told Law360 that the program had handled 165 cases since its launch in 2016, but that a small portion involve behavior that would amount to a hate crime.
Still, she said, the program has shown to be well suited for cases where parties display a bias on account of race and gender.
"In many ways restorative justice is a far preferable way to deal with crime and conflict generally, but in particular crime that stems from bias," Gajwani said. "The idea of restorative justice is that if we can see each other as human beings and understand a person beyond our assumptions and stereotypes, then we can recognize the humanity in each other and learn from the other person about what they've gone through, but also ourselves."
The push for more investment in the approach fits into a broader conversation about mass incarceration. While violent hate crimes are a prevalent problem and deserve an aggressive response, German said, the majority of reported instances involve less serious offenses, such as vandalism, simple assault and intimidation.
"When there is a horrible crime, a serious penalty makes sense, but when it's graffiti on a wall, does it require a long prison term, and does that long prison term actually address the harm they inflicted or make the community whole again?" German asked. "Or does it increase the friction between different communities in that area?"
There are still key questions about whether the restorative justice approach can deter serious offenses and effectively support victims and communities, the report noted. Criticisms of the practice include concerns about rights of both the alleged offender and the victim in the process. Some also question whether it adequately addresses more structural problems.
The report, however, provides a comprehensive list of other social services — victim advocate programs, mental health services, security improvements — offering greater support to targeted communities. Organizations cited include LGBTQ groups offering independent counseling and legal services to victims of violence. It also lists organizations, like Stop AAPI Hate, offering alternative reporting systems for hate crimes and hate incidents — acts of prejudice that are not classified as crimes.
The report additionally advocates for local governments to invest more resources in victim advocate programs and to consider expanding victim compensation programs to people who can demonstrate indirect impacts from a hate crime.Hate crime statistics are incomplete in the U.S., due to uneven enforcement across jurisdictions and a lack of reporting. Reported data has shown a pronounced spike in attacks against Asian-Americans over the past year, triggered by racist rhetoric about COVID-19.
President Joe Biden in May signed into law the COVID-19 Hate Crimes Act 
, which directs the U.S. Department of Justice to designate someone to expedite the review of hate crimes linked to the respiratory illness caused by the coronavirus. It also authorizes grants to state and local governments to conduct crime-reduction programs and create hate crime reporting hotlines.
More than 100 Asian American and LGBTQ groups expressed opposition to the bill, arguing that it would not confront the root causes of spikes in violence. "Relying on law enforcement and crime statistics does not prevent violence," the groups said in a statement.
Sinnar noted that this new report isn't taking a "firm line" on any one approach and is instead interested in highlighting alternative ways to handle hate crimes.
"It's not advising against a law enforcement approach altogether, but it is pointing out that there are shortcomings," she said. "From our point of view, it's up to local communities on what kind of approach they want to use. We want to serve as a resource, and be clear that nothing is cure all and help inform the work of folks on the ground."
Hate crime laws emerged as a way to recognize the exceptional harm such incidents can have on victims and targeted communities, Sinnar and German noted. That purpose can be undermined when the implementation of such laws falls short, they said, for reasons including the challenges prosecutors face in proving a bias motive.
Traditionally, the response to the shortcomings has been "to change the legal standard or improve training," Sinnar said. "Let's look outside the criminal justice system and see what the communities can do."
--Editing by Robert Rudinger.
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