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Exploring Alternative Approaches to Hate Crimes Exploring Alternative Approaches to Hate Crimes A collaborative report by: June 2021 ACKNOWLEDGMENTS This publication is a joint report of the Stanford Law School Policy Lab on Assessing Alternative Responses to Hate Crimes and the Brennan Center for Justice. The report was co-written by the following Stanford Law students under the supervision of Stanford Law Professor Shirin Sinnar and Brennan Center Fellow Michael German: Tyler Bishop ’20 Arielle Andrews ’21 Sam Becker ’22 Lauren Martin ’21 Benjy Mercer-Golden ’21 Mariel Pérez-Santiago ’20 Tiarra Rogers ’22 Kai Wiggins ’23 We would like to acknowledge the following individuals and organizations for their support and assistance on this project: Shirin Bakhshay Jeannine Bell Jami Butler Angela Chan Beth Colgan Proteus Fund Luciana Herman Stanford Center for Comparative Studies in Race and Ethnicity Stanford Clayman Institute for Gender Research Stanford Law School Dean’s Office Becky Monroe Eun Sze Participants in the “Empowering Communities in the Face of Hate Crimes” Convening at Stanford Law School (March 6, 2020) (see Appendix) Exploring Alternative Approaches to Hate Crimes | June 2021 ABOUT THE STANFORD LAW SCHOOL POLICY LAB Engagement in public policy is a core mission of teaching and research at Stanford Law School. The Law and Policy Lab (The Policy Lab) offers students an immersive experience in finding solutions to some of the world’s most pressing issues. Directed by former SLS Dean Paul Brest, the Policy Lab reflects the school’s belief that systematic examination of societal problems, informed by rigorous data analysis, can generate solutions to society’s most challenging public problems. Policy Lab students, closely guided by seasoned faculty advisers, counsel real-world clients in an array of areas, including environmental, trade, education, intellectual property, public enterprises in developing countries, policing, technology, and energy policy. The Policy Lab on Assessing Alternative Responses to Hate Crimes was taught by Professor Shirin Sinnar in 2019-2020. ABOUT THE ABOUT THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL The Brennan Center for Justice is an independent, nonpartisan law and policy organization that works to reform, revitalize, and when necessary, defend our country’s systems of democracy and justice. Exploring Alternative Approaches to Hate Crimes | June 2021 TABLE OF CONTENTS Executive Summary ................................................................................................................. 3 Chapter I: The Hate Crime Problem ...................................................................................... 6 What Is a Hate Crime? ...................................................................................................... 6 The Individual and Community Harms of Hate Crimes ............................................... 7 Problems with Hate Crime Data ...................................................................................... 8 Chapter II: The Traditional Hate Crime Legal Model ........................................................ 10 Core Features and Objectives ........................................................................................ 10 Shortcomings of the Traditional Model ........................................................................ 10 Chapter III: Envisioning Alternative Approaches to Hate Crimes ..................................... 16 Restorative Justice ........................................................................................................... 16 Social Services for Targeted Communities.................................................................... 24 Conclusion ............................................................................................................................. 35 Appendix ................................................................................................................................ 37 Endnotes ................................................................................................................................. 38 Exploring Alternative Approaches to Hate Crimes | June 2021 Executive Summary Even before racist political rhetoric around the coronavirus triggered a wave of hate crimes against Asian Americans, white supremacist incidents around the country had fueled a vigorous public debate about the proper responses to hate violence.In March 2020, Stanford Law School and the Brennan Center for Justice at NYU Law School hosted a convening of experts in the fields of criminal law, civil rights, community advocacy, and restorative justice to assess the current hate crime enforcement model and explore alternative approaches that could more effectively redress the harm resulting from hate crimes. The Proteus Fund, the Stanford Center for Comparative Studies in Race and Ethnicity, and the Stanford Clayman Institute for Gender Research provided additional support for the convening. This report, written by Stanford Law School Policy Lab students1 under the guidance of A “hate crime” is a criminal offense Professor Shirin Sinnar and Brennan Center motivated by animus against certain Fellow Michael German, assesses several critiques of hate crimes laws articulated within actual or perceived characteristics communities of color and other targeted of a victim’s identity. Most states and communities and evaluates potential alternative the federal government have laws approaches to responding to hate crimes. The report draws on the March 2020 discussion, that create “stand-alone” offenses as well as research within law, criminology, or impose sentence enhancements for and other fields, to inform policymakers and community advocates seeking improved crimes with a bias motive. responses to hate crimes. may be subject to increased punishment. The A “hate crime” is a criminal offense motivated enactment of hate crime laws resulted from an by animus against certain actual or perceived unlikely convergence of civil rights advocacy on characteristics of a victim’s identity. Most behalf of frequently targeted communities and states and the federal government have laws a more conservative victims’ rights movement, that create “stand-alone” offenses or impose beginning in the 1980s.2 Civil rights groups sentence enhancements for crimes with a bias were responding to the impunity that often motive. Under these laws, defendants found surrounded hate violence against members to have committed a crime motivated by of their communities, such as the murder of someone’s actual or perceived characteristics Exploring Alternative Approaches to Hate Crimes | June 2021 | 3 Chinese American Vincent Chin by two white empirical and normative questions that arise men who received only probation and a $3,000 in this context. Some important questions fine for the crime.3 In subsequent decades, many are outside the scope of this examination. civil rights groups have supported the vigorous The report does not address, for instance, the implementation of hate crime laws with the hope potential dangers of prosecuting hate crimes of expressing strong societal condemnation for under an expanded “domestic terrorism” hate crimes and deterring further incidents. statutory framework.4 It likewise does not address the full range of social, economic, or But in recent years, some community groups educational interventions possible to prevent and racial justice advocates have questioned hate crimes. Nor does it assess mechanisms both whether the traditional hate crimes legal to strengthen the reporting of hate crimes approach relies too heavily on carceral solutions, at the federal level. These important issues especially through sentence enhancements, and deserve additional attention. Here, the focus is whether it sufficiently responds to the unique on evaluating the traditional hate crime legal individual and community harms of hate crimes. model and assessing alternative approaches They have also emphasized the importance of that are designed to empower individuals and confronting state violence, not just interpersonal communities to counteract the injuries hate violence. Calls to defund or abolish police crimes inflict. and prisons, which have gained steam in the wake of George Floyd’s killing, reflect growing With those limitations acknowledged, this report skepticism in many communities of color about suggests the following about the traditional hate the primary reliance on police, prosecution, crime legal approach: and imprisonment to address social problems. • Existing hate crime laws do not address a large Faced with heightened fear for their safety in number of hate crimes because community the wake of hate violence, but concerned about distrust of law enforcement prevents many the traditional response that links recognition people from reporting hate crimes to law of hate crimes to increased imprisonment, many enforcement in the first instance; within targeted communities are reevaluating that approach and considering potential • There are substantial questions about whether alternatives. This report responds to the growing the traditional approach to hate crime is interest among community members, civil rights serving its goals. Specifically, impediments to investigating, charging, and proving hate groups, and policymakers, in exploring a wider crimes, including apathy within some law range of responses to hate crimes. enforcement agencies, undermine the laws’ No single report could provide a comprehensive intended expressive function,
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