by Douglas Ankney

Law professors Shirin Sinnar (Stanford Law School) and Beth A. Colgan (UCLA School of Law) explored the viability of victim compensation and restorative justice as alternatives to sentencing enhancements for hate crimes in New York University Law Review’s September 2020 issue.

During the decades dominated by the tough-on-crime movement, 48 states, the District of Columbia, and the federal government all adopted “hate-crimes” legislation. These statutes called for sentencing enhancements requiring longer periods of punitive incarceration for crimes motivated by a perpetrator’s bias toward a protected group based upon race, religion, sexual orientation, or other characteristics.

The goal of these enhancements was to express society’s unique condemnation for crimes of bias due to the impact of those crimes not only on the direct victim but also the impact upon all members who identify with that particular group.

But in a recent change of national dialogue toward restricting the scope and punitive approach of America’s criminal justice system, the effectiveness of these statutes is being questioned. The glaring flaw of these statutes is the fact that they have helped create a carceral system that disproportionately punishes people from those groups that the hate-crimes legislation was meant to protect.

Professors Sinnar and Colgan suggest that instead of sentencing enhancements, the shift should be toward compensation for victims and practices of restorative justice. But for these to work as viable alternatives, reforms are needed. For example, most victim compensation statutes unnecessarily preclude coverage of harm done to property. Consequently, when buildings of worship are destroyed because of the perpetrator’s bias toward people of that religion, the victims are not compensated.

Also, most victim compensation statutes too narrowly define “victim.” In 2017, three young Muslim students in Chapel Hill, North Carolina were murdered. Dr. Suzanne Barakat — the sister of one of the victims — testified to the “horrific trauma that [would] continue to forever haunt” her family. But North Carolina’s statute permits only the dependents of the deceased victims to be compensated.

Restorative justice includes “a set of ideas and practices” that “has emerged as a leading alternative to the existing criminal legal system.” It encompasses “apologies, restitution, and acknowledgements of harm and injury, as well as ... other efforts to provide healing and reintegration of offenders into their communities, with or without additional punishment.”

In the context of hate crimes, it is argued that the guided process of offenders meeting with victims helps to determine the necessary reparative steps, validates the survivors’ pain, gives the survivors an opportunity to be heard, and restores the survivors’ sense of control and safety. As to the offenders, it replaces conventional punishment with a more meaningful form of accountability and appreciation of the harm they inflicted, forcing them to face the consequences of their actions and take steps to repair the harm.

A restorative proceeding would also permit survivors to request forms of reparation not otherwise available from the traditional punitive approach, e.g., survivors could request an apology; they could request an admission that the crime was motivated by bias against a particular group; and they could request a promise from the offender that such crimes would never be repeated.

However, restorative justice is viable only when particular limitations are recognized. For example, there is a societal expectation that certain victims forgive perpetrators rather than demand punishment. (Many commentators argued that society “improperly expected” a Black man to embrace the White Dallas police officer who was convicted of murdering his brother.) There is also the risk that offenders may revictimize survivors, offer insincere apologies, or blame the victim.

But each of these concerns can be addressed by a thorough vetting of all parties before any meeting between offenders and survivors occurs. Restorative justice proceedings could be an “option,” meaning that they occur only if the victim or survivors agree, in lieu of more traditional punitive sanctions. And if offenders are unrepentant or avowed members of a particular hate group, then they would, of course, be ineligible.

Professors Sinnar and Colgan conclude that victim compensation and restorative justice may benefit some victims of hate crimes and affected communities; subject offenders to a more meaningful form of accountability; and preserve the message of society’s unique condemnation of hate crimes without linking that message to additional time in prison. But questions remain as to whether these alternatives can sufficiently mitigate concerns where the offenders are unrepentant or from a dominant group that victimizes those of a subordinate group. The professors suggest further experimentation and study. 

Source: nyulawreview.org

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