SINNARCOLGAN-FIN.DOCX(DO NOT DELETE)

9/11/20 4:50 PM

REVISITING HATE CRIMES ENHANCEMENTS IN
THE SHADOW OF MASS INCARCERATION
SHIRIN SINNAR† & BETH A. COLGAN‡
Although civil rights advocates have largely supported hate crimes laws over the last
four decades, growing concern over mass incarceration is now leading some to question
the focus on enhancing prison sentences. This Essay explores two alternatives to the
traditional sentence enhancement model that might retain the expressive message of hate
crimes laws—to convey society’s particular condemnation of crimes of bias—while
relying less heavily on police and prisons: the reformation of victim compensation
programs to help victims and targeted communities and the application of restorative
justice processes to hate crimes. Each of these alternatives presents complications, but
both offer sufficient potential to justify further exploration.

INTRODUCTION ..........................................................................................149
I. REFORMING VICTIM COMPENSATION PROGRAMS FOR HATE CRIMES
........................................................................................................155
A. Victim Compensation Programs: Current Eligibility
Requirements ...........................................................................155
B. Potential Reforms to Victim Compensation Programs ...........160
II. RESTORATIVE JUSTICE RESPONSES TO HATE CRIMES ...................163
A. The Appeal of Restorative Justice for Hate Crimes ................164
B. Assessing Restorative Justice for Hate Crimes .......................165
CONCLUSION .............................................................................................169
INTRODUCTION

After four decades of concerted civil rights advocacy, hate crimes laws
are now nearly universal within the United States. The federal government
and most states have enacted laws directed at crimes targeting victims on the
basis of race, ethnicity, religion, and other characteristics.1 These statutes
† Shirin Sinnar is Professor of Law and the John A. Wilson Faculty Scholar at Stanford Law
School.
‡ Beth A. Colgan is Professor of Law at UCLA School of Law. The authors wish to thank
Rabia Belt, Avlana Eisenberg, Mike German, and Bob Weisberg for helpful comments and conversations on this essay; Mariel Pérez-Santiago and Shawn Choi for excellent research assistance;
and the New York University Law Review editors, especially Sam Dunkle, for careful editing during
a particularly challenging time. Copyright © 2020 by Shirin Sinnar & Beth A. Colgan.
1 Avlana Eisenberg, Expressive Enforcement, 61 UCLA L. REV. 858, 861 (2014) (noting hate
crimes laws adopted by forty-eight states, the District of Columbia, and the federal government).
All state hate crimes statutes include protections for race, ethnicity, and religion, while federal law

149

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

150

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

operate primarily by enhancing the severity of punishment that would be imposed for a similar offense that did not stem from bias.2 The goal of such
enhancements is to express society’s special condemnation for crimes of bias
in recognition of the harm caused both to immediate victims of the crimes as
well as to those who share the victims’ identity.3
Civil rights advocates and groups representing communities of color
and other marginalized identity groups have largely supported these laws,4
but now some are questioning the hate crimes sentence enhancement model
as existing uneasily with growing calls to end mass incarceration.5
These concerns are not entirely new. Hate crimes laws arose out of a
convergence between civil rights advocates and a more conservative victims’
rights movement, and arguably won acceptance by capitalizing on law-andorder politics.6 In light of these origins, a few progressives long ago criticized
and the law of some states include protections for gender, gender identity, sexual orientation, and
disability. Id. at 921–22; see also MICHAEL GERMAN & EMMANUEL MAULEÓN, BRENNAN CTR.
FOR JUSTICE, FIGHTING FAR-RIGHT VIOLENCE AND HATE CRIMES 10, 21–41 (2019) (identifying
forty-four states with hate crimes laws). Note that the recent passage of state hate crimes legislation,
especially in Georgia, may change these tallies. See Ben Nadler, Georgia’s Kemp Signs Hate
Crimes
Law
After
Outcry
over
Death,
AP
NEWS
(June
26,
2020),
https://apnews.com/5fd5d599dfd0e5f1ebebbd2d5351de12.
2 GERMAN & MAULEÓN, supra note 1, at 21–41 (observing that most state laws involve
expanding criminal liability or penalty enhancements and identifying thirty-seven states with at
least one law enhancing penalties for hate crimes against certain protected groups); Eisenberg,
supra note 1, at 922–25 (identifying twenty-seven state laws that consider hate crimes an
aggravating factor at sentencing or that create a sentence enhancement, and twenty-two state laws
that establish hate crimes as a standalone offense).
3 Eisenberg, supra note 1, at 868–70 (describing how lawmakers considering hate crimes
legislation shared the goal of “send[ing] a message” regarding the scope and severity of harms
caused); see FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW
45, 61–63 (1999) (explaining that the hate crimes victim’s “injury to autonomy . . . and . . . personal
dignity” exacerbates the effect of bias crimes on victims).
4 For example, an extensive coalition of such organizations advocated for the passage of a
landmark federal hate crimes law in 2009. Local Law Enforcement Hate Crimes Prevention Act of
2007: Support for This Legislation, HUM. RTS. CAMPAIGN (Feb. 2007),
http://web.archive.org/web/20070516110138/http://www.hrc.org/Content/NavigationMenu/HRC/
Get_Informed/Federal_Legislation/LLEEA_Coalition_Endorsement_Fact_Sheet/LLEEA_Coaliti
on_Endorsement_Fact_Sheet.htm (archived May 16, 2007) (listing supporters of the Local Law
Enforcement Hate Crimes Prevention Act of 2007, the precursor bill to the Matthew Shepard and
James Byrd Jr. Hate Crimes Prevention Act of 2009). Many of these groups continue to call for
bias crime laws in the few states that lack them. See Am. Jewish Comm. et al., Coalition Letter to
Indiana Governor Regarding Inclusive Hate Crime Legislation, ANTI-DEFAMATION LEAGUE
(Mar. 13, 2019), http://www.adl.org/news/letters/coalition-letter-to-indiana-governor-regardinginclusive-hate-crime-legislation (listing major national civil rights organizations in support of a
“strong bias crime law” in Indiana).
5 See infra notes 8–10, 18–20 and accompanying text.
6 On the convergence of the civil rights and victims’ rights movements in support of hate
crimes laws, see ELY AARONSON, FROM SLAVE ABUSE TO HATE CRIME: THE CRIMINALIZATION
OF RACIAL VIOLENCE IN AMERICAN HISTORY 164–65 (2014); CHRISTOPHER WALDREP, AFRICAN
AMERICANS CONFRONT LYNCHING: STRATEGIES OF RESISTANCE FROM THE CIVIL WAR TO THE

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

REVISITING HATES CRIMES ENHANCEMENTS

9/11/20 4:50 PM

151

the hate crimes model for relying on law enforcement to protect communities.7 But once rare, such critiques now resonate more broadly as a result of
the shifting national conversation on the need to restrict the scope and punitive approach of criminal legal systems.8
In an example of particularly staunch opposition, the Sylvia Rivera Law
Project (SRLP), a group that advocates on behalf of trans and gender-nonconforming people in New York, rejects hate crimes laws because they “expand and increase the power of the same unjust and corrupt criminal punishment system” that disproportionately incarcerates people of color and queer
and transgender people.9 SRLP opposed a federal hate crimes law that would
expand coverage to anti-LGBTQ hate crimes because it considered “a law
that links our community’s experiences of violence and death to a demand
for increased criminal punishment . . . [to be] a strategic mistake of significant proportion.”10
SRLP’s approach is consistent with a growing interest in police and
prison abolition, a vision for replacing punitive criminal legal institutions
with systems of “transformative justice,” in which governments respond to
crimes with restorative processes and reinvest in programs to eliminate

CIVIL RIGHTS ERA 117–25 (2009); Terry A. Maroney, Note, The Struggle Against Hate Crime:
The Movement at a Crossroads, 73 N.Y.U. L. REV. 564, 571–85 (1998) (“Once hate crime could
be seen as a victims’ issue, anti-hate efforts became a politically palatable species of civil rights
measure.”).
7 See, e.g., KATHERINE WHITLOCK, AM. FRIENDS SERV. COMM., IN A TIME OF BROKEN
BONES: A CALL TO DIALOGUE ON HATE VIOLENCE AND THE LIMITATIONS OF HATE CRIMES
LEGISLATION 18 (2001) (criticizing the centrality of penalty enhancements in hate crimes laws as
compounding the violence and racism of the criminal justice system). By contrast, most historical
opposition to hate crimes enhancements came from those who argued that they created “thought
crimes” by punishing some people more heavily than others because of their views. See, e.g., Martin
H. Redish, Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement
and First Amendment Theory, CRIM. JUST. ETHICS, Summer/Fall 1992. The Supreme Court
considered—and rejected—that critique as a First Amendment matter in Wisconsin v. Mitchell, 508
U.S. 476, 489 (1993). That critique, as well as the argument that hate crimes laws unfairly protect
certain victims over others, is often associated with the political right. See, e.g., Rick Callahan,
Gov. Holcomb Signs Indiana Hate Crimes Measure into Law, CHI. TRIB. (Apr. 3, 2019),
https://www.chicagotribune.com/suburbs/post-tribune/ct-ptb-indiana-holcomb-hate-crimes-st0404-story.html (noting strong conservative opposition to hate crimes law on such grounds).
8 The shift in the national conversation on mass incarceration can be seen in bipartisan support
for reform bills at both the federal and state level. See, e.g., First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194 (allowing, among other things, retroactive application of the Fair
Sentencing Act, whereby people subject to the crack-powder cocaine sentencing disparity could
reduce terms of incarceration and compassionate release for people who are terminally ill); Nicole
D. Porter, Top Trends in State Criminal Justice Reform, 2019, SENT’G PROJECT (Jan. 17, 2020),
http://www.sentencingproject.org/publications/top-trends-in-state-criminal-justice-reform-2019
(summarizing reforms focused on issues such as sentencing and racial disparity in multiple states).
9 SRLP on Hate Crime Laws, SYLVIA RIVERA L. PROJECT, http://srlp.org/action/hate-crimes
(last visited Apr. 21, 2020).
10 Id.

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

152

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

structural inequalities.11 As this essay went to press, the police killings of
George Floyd and Breonna Taylor and the massive protests that ensued
brought unprecedented attention to abolitionist ideas, as calls to defund the
police gained traction in communities nationwide.12 But for many years preceding this political moment, abolitionists have pushed back against the lawand-order and “carceral feminis[t]”13 approach to even the most serious offenses—homicides and physical assault,14 sexual assault,15 and domestic violence16—including hate crimes.17
Yet, it is not just avowed abolitionists, but a broader range of progressive civil rights advocates who now question hate crimes enhancements as
increasingly out of step with the desire to reduce the reliance on punishment
as the primary response to social problems.18 While enhancing sentences
11 See Dorothy E. Roberts, Abolition Constitutionalism, 133 HARV. L. REV. 3, 46, 3–48 (2019)
(providing a detailed account of abolitionism).
12 See, e.g., Maya King, How ‘Defund the Police’ Went from Moonshot to Mainstream,
POLITICO (June 17, 2020, 4:30 AM), https://www.politico.com/news/2020/06/17/defund-policemainstream-324816 (describing how the movement to defund the police “suddenly broke[] into
mainstream discourse” and noting the growing number of cities proposing reductions in police
budgets).
13 Elizabeth Bernstein, The Sexual Politics of the “New Abolitionism,” 18 DIFFERENCES 128,
137 (2007) (coining the term “carceral feminism” to describe the neoliberal feminist approach to
sex work that focuses on punishing individual deviancy, in contrast to the abolitionist focus on
systems of structural inequality).
14 See, e.g., DANIELLE SERED, UNTIL WE RECKON: VIOLENCE, MASS INCARCERATION, AND
A ROAD TO REPAIR 115–18, 137–38, 144–45, 152 (2019) (providing examples of restorative justice
practices in cases involving serious violence).
15 See, e.g., Kelly Hayes & Mariame Kaba, The Sentencing of Larry Nassar Was Not
‘Transformative Justice.’ Here’s Why., APPEAL (Feb. 5, 2018), http://theappeal.org/the-sentencingof-larry-nassar-was-not-transformative-justice-here-s-why (discussing how the sentencing of serial
sexual predator Larry Nassar “challenges those . . . who are committed to justice for survivors of
sexual assault and who also believe that prisons are the wrong answer to violence and should be
abolished”).
16 See generally GENERATION FIVE, TOWARD TRANSFORMATIVE JUSTICE: A LIBERATORY
APPROACH TO CHILD SEXUAL ABUSE AND OTHER FORMS OF INTIMATE AND COMMUNITY
VIOLENCE
(2007),
http://www.generationfive.org/wpcontent/uploads/2013/07/G5_Toward_Transformative_Justice-Document.pdf.
17 See supra notes 9–10.
18 For one recent example, see Kai Wiggins, The Dangers of Prosecuting Hate Crimes in an
Unjust
System,
A M.
CONST.
SOC’Y:
EXPERT
F.
(Aug.
5,
2019),
http://www.acslaw.org/expertforum/the-dangers-of-prosecuting-hate-crimes-in-an-unjust-system
(“Despite general support for hate crime penalty enhancement within the civil rights community,
there is an obvious tension between these provisions and certain fundamental principles of criminal
justice reform.”). In a further sign of the interest in alternatives to incarceration, a new federal hate
crimes bill supported by mainstream civil rights groups permits courts to order “alternative
sentencing” for federal hate crimes, such as the requirement that defendants take educational classes
or perform community service as a condition of supervised release. Jabara-Heyer NO HATE Act,
S. 2043, 116th Cong. § 8 (as introduced June 27, 2019); see also Vanita Gupta, Oppose a New
Federal Domestic Terrorism Crime, LEADERSHIP CONF. ON CIV. & HUM. RTS. (Sept. 6, 2019),
http://civilrights.org/resource/oppose-a-new-federal-domestic-terrorism-crime-2 (supporting the

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

REVISITING HATES CRIMES ENHANCEMENTS

9/11/20 4:50 PM

153

responds symbolically to the serious harms that hate crimes inflict on victims
and their communities, there is concern that extending incarceration may do
little to achieve deterrence, rehabilitation, or restoration of safety for victims.19 And many fear that, given pervasive biases within criminal legal systems, hate crimes enhancements may disproportionately affect people of
color or others from marginalized groups.20
This is not to say that progressives do not see hate crimes as uniquely
problematic. Those who question the sentence enhancement model are often
deeply concerned about the impact of hate crimes on racial, religious, and
LGBTQ communities—especially at a time when high-profile mass shootings and spiking hate crimes reports have created widespread fear among
these communities.21
In light of these concerns, the question becomes whether measures other
than sentence enhancements can express societal condemnation for the
NO HATE Act on behalf of a coalition of two hundred civil and human rights groups). In addition,
one of the authors of this essay has spoken privately with staff from several civil rights groups who
acknowledged internal divisions on hate crimes laws.
19 See GERMAN & MAULEÓN, supra note 1, at 14–15 (questioning the value of incarceration);
see also Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 CRIME & JUST. 199, 201
(2013) (concluding from a review of empirical studies that “there is little evidence that increases in
the length of already long prison sentences yield general deterrent effects that are sufficiently large
to justify their social and economic costs”).
20 See GERMAN & MAULEÓN, supra note 1, at 14 (citing data indicating high levels of hate
crimes prosecutions of anti-white bias and overrepresentation of Black Americans as hate crimes
offenders). But see JEANNINE BELL, POLICING HATRED: LAW ENFORCEMENT, CIVIL RIGHTS, AND
HATE CRIME 182–83 (2002) (reporting no evidence of differential enforcement of hate crimes laws
against minorities based on study of a hate crimes unit in one large urban police department);
Brendan Lantz et al., Stereotypical Hate Crimes and Criminal Justice Processing: A Multi-Dataset
Comparison of Bias Crime Arrest Patterns by Offender and Victim Race, 36 JUST. Q. 193, 210
(2017) (concluding from Pennsylvania Human Relations Commission data that reported hate
crimes involving white offenders and Black victims were more likely to result in arrests). Even if
police and prosecutors do not differentially target people of color in hate crimes cases, community
distrust of law enforcement may prevent victims of color from reporting incidents to police in the
first place. See infra notes 43–50 and accompanying text. In addition, new state laws making the
police a protected category under hate crimes laws have added to fears that the police will use hate
crimes laws to target people of color. At least five states have incorporated police as a protected
category under hate crimes laws or passed new laws using language typical of hate crimes laws to
enhance sentences for crimes against police. H.B. 14, 2017 Leg., Reg. Sess. § 1 (Ky. 2017),
http://legiscan.com/KY/text/HB14/2017; H.B. 953, 2016 Leg., Reg. Sess. § 1 (La. 2016),
http://legiscan.com/LA/text/HB953/2016; H.B. 645, 2017 Leg., Reg. Sess. § 1 (Miss. 2017),
http://billstatus.ls.state.ms.us/documents/2017/html/HB/0600-0699/HB0645SG.htm; H.B. 2908,
85th Leg., Reg. Sess. (Tex. 2017), http://legiscan.com/TX/text/HB2908/id/1547056; S.B. 103,
2019 Leg., Gen. Sess. § 1 (Utah 2019), http://le.utah.gov/~2019/bills/static/SB0103.html.
21 See, e.g., Erin Coulehan et al., Federal Hate Crime Charges Filed in El Paso Shooting that
Targeted Latinos, N.Y. TIMES (Feb. 6, 2020), http://www.nytimes.com/2020/02/06/us/politics/elpaso-shooting-federal-hate-crimes.html (describing the mass shooting that targeted Latinx people,
rising hate crimes numbers nationally, and fear in communities of color); Sharon Otterman, AntiSemitic Attacks Fuel Continuing Rise in Hate Crimes in New York, N.Y. TIMES (Feb. 18, 2019),
http://www.nytimes.com/2019/02/18/nyregion/anti-semitism-brooklyn-new-york.html (describing
fears created by a rise in anti-Semitic hate crimes in New York).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

154

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

distinct harms hate crimes cause to those directly affected and other members
of targeted communities, address the needs of those who are harmed, and do
both without reliance on traditional punitive approaches that contribute to
mass incarceration.
To open that conversation, this essay explores two possible reforms: the
reformation of victim compensation funds and the use of restorative justice
processes. The first approach—reformation of victim compensation funds—
is of particular interest because, like sentence enhancements, these programs
were designed in recognition of a need to better respond to harm caused by
crime writ large.22 If reformed to account for the variety of harms caused by
hate crimes and to provide alternative reporting mechanisms beyond traditional law enforcement, victim compensation programs have the potential to
take up the expressive function that enhancements were designed to serve.
The second approach—the use of restorative justice processes—is of interest
because such processes are widely understood to be a potential alternative to
incarceration and therefore may serve as a substitute for enhancements, or
even incarceration altogether, at least in some hate crime cases. Note that in
considering these approaches, we have assumed the continuing existence of
an investigative body that identifies people who are suspected of having
committed hate crimes, even if policing is reduced and transformed in other
fundamental respects.23
As detailed below, both approaches have complications. In the case of
reforming victim compensation programs, the key challenges involve moving program funding away from revenues generated from fines, fees, and

22 See James K. Stewart, Foreword to DANIEL MCGILLIS & PATRICIA SMITH, NAT’L INST. OF
JUSTICE, COMPENSATING VICTIMS OF CRIME: AN ANALYSIS OF AMERICAN PROGRAMS iii (1983),
http://www.ncjrs.gov/pdffiles1/Digitization/86442NCJRS.pdf. There are, of course, other policies
that could be adopted to help address the needs of both individual and organizational hate crimes
victims, including improved access to mental health care and safe housing. See, e.g., NYC AGAINST
HATE, NYC AGAINST HATE COALITION POLICY FRAMEWORK: INVESTING IN A RESTORATIVE
COMMUNITY-BASED
APPROACH
2,
http://static1.squarespace.com/static/5e1b96b78d93e3087ddd7675/t/5e4720bc9f8d66363b969e34
/1581719741136/NYC+Against+Hate+Policy+Platform.pdf (calling for improved access to social
services for people affected by hate crimes).
23 The national debate over the funding and continued existence of law enforcement, which
has gained significant attention in the weeks preceding the publication of this essay, raises
important questions about the scope and severity of criminal legal systems and is worthy of serious
attention beyond that which can be afforded here. See, e.g., Amna A. Akbar, How Defund and
Disband Became the Demands, N.Y. REV. OF BOOKS: NYR DAILY (June 15, 2020, 7:00 AM),
https://www.nybooks.com/daily/2020/06/15/how-defund-and-disband-became-the-demands.
While aspects of the proposals presented herein are consistent with models of responses to crime
that do not rely on law enforcement, see infra notes 42–62 and accompanying text, and the essay
generally seeks to identify potential alternatives to sentence enhancements consistent with reducing
reliance on carceral approaches and institutions, we do not directly address the question of whether
these approaches are appropriate or feasible if defunding or dismantling law enforcement came to
pass.

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

9/11/20 4:50 PM

REVISITING HATES CRIMES ENHANCEMENTS

155

other economic sanctions, as well as setting eligibility qualifications for hate
crimes victims that remediate the full extent of harm that hate crimes cause.
For restorative justice methods, the challenges are still more fundamental:
questions remain as to whether program design can sufficiently address the
power asymmetries between victims and perpetrators of many hate crimes,
and these programs are likely to be a viable option only where victims and
perpetrators are open to participating in them. In sum, while alternatives to
the traditional hate crimes model offer promise, they also present challenges
that reformers must work through.
I
REFORMING VICTIM COMPENSATION PROGRAMS FOR HATE CRIMES

Victim compensation programs—which exist in all fifty states to provide financial support to victims of violent crimes24—could play an important role in responding to hate crimes in ways consistent with increasing
concerns among progressives about the scope and severity of the carceral
state. To do so, however, these programs must be designed to capture what
makes hate crimes distinctly problematic: the breadth of physical, psychological, and citizenship harms caused to direct victims, as well as members
of the broader community who share, and organizations who represent, that
victim’s identity. This Part begins by outlining how current programs do,
and do not, provide compensation in hate crimes cases,25 and then considers
potential reforms to help ensure such programs can be amended to express
society’s recognition of hate crimes as especially problematic.
A. Victim Compensation Programs: Current Eligibility Requirements
As detailed below, a variety of eligibility requirements in victim compensation programs—including harm-type requirements, definitional limitations on what constitutes an eligible “victim,” and reporting and cooperation
requirements—limit their ability to serve an expressive function in the hate
crimes context.
Harm-Type Requirements. Victim compensation programs typically restrict eligibility based on the type of harm experienced by a crime victim.
Compensation is generally limited to medical, dental, and mental health

24 Crime Compensation: An Overview, NAT’L ASS’N CRIME VICTIM COMP. BDS.,
http://www.nacvcb.org/index.asp?bid=14 (last visited Apr. 21, 2020) [hereinafter NACVCB,
Overview].
25 For a discussion of limitations in crime victim compensation programs outside of the hate
crimes context, see, e.g., Beth A. Colgan, Beyond Graduation: Economic Sanctions and Structural
Reform, 69 DUKE L.J. 1529, 1558–61, 1579–80 (2020).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

156

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

treatment, lost earnings, loss of support, and funeral expenses.26 These requirements do, of course, allow some hate crime victims to seek financial
support.
Harms caused by hate crimes, however, often go beyond those covered
by victim compensation eligibility requirements. For example, hate crimes
often result in damage to property caused in the perpetration of violent acts
or from property offenses where no physical harm occurs.27 Yet, in most jurisdictions, eligibility requirements preclude compensation for property
damage in part or in full.28 For example, Louisiana’s victim compensation
program does allow for awards related to catastrophic property losses, but
only if the property in question constitutes the victim’s current residence.29
That rule would preclude financial support for three Louisiana churches that
a man intentionally destroyed by fire because they were houses of worship.30
Similarly, Minnesota’s crime victim compensation program allows for compensation for mental health counseling, but only for a limited subset of
crimes that excludes crimes against property.31 Therefore, any members of
the Dar al-Farooq Islamic Center in suburban Minneapolis in need of trauma
counseling following the 2017 bombing of the center32 would likely be
deemed ineligible for aid.
Definition of “Victim.” Each state’s victim compensation program includes a definition of what constitutes a “victim” eligible for financial support. As with harm-type requirements, victim definitions do allow some hate
crime victims to seek relief. For example, states make compensation
26 See,
e.g.,
Benefits,
NAT’L
ASS’N
CRIME
VICTIM
COMP.
BDS.,
http://www.nacvcb.org/index.asp?bid=16 (last visited Apr. 21, 2020) [hereinafter NACVCB,
Benefits].
27 See, e.g., The Latest: Muslim Leader: Life Sentence for Mosque Attack, AP NEWS (Jan. 24,
2019), http://apnews.com/898e8758ce7e43d28ee36a73cd77548c (describing the bombing of a
mosque and cultural center, which resulted in property damage but no physical injuries).
28 See, e.g., NACVCB, Benefits, supra note 26 (noting that property losses are typically not
available);
Crime
Victims
Compensation,
N.D.
DEP’T
CORR.
&
REHAB.,
http://www.docr.nd.gov/crime-victims-compensation (last visited Apr. 21, 2020) (“No recovery is
available for property loss or damage.”); Victim Compensation, COLO. DIVISION CRIM. JUST.,
DEP’T PUB. SAFETY, http://www.colorado.gov/pacific/dcj/Vic_Comp (last visited Aug. 7, 2020)
(limiting covered property damage to broken locks, windows, and doors).
29 Crime Victim Reparations, LA. COMM’N ON L. ENF’T & ADMIN. CRIM. JUST.,
http://www.lcle.state.la.us/programs/cvr.asp (last visited Aug. 7, 2020).
30 See Meagan Flynn, Arsonist Pleads Guilty to Torching Three Black Churches to ‘Raise His
Profile as a Black Metal Musician’ Feds Say, WASH. POST (Feb. 11, 2020),
http://www.washingtonpost.com/nation/2020/02/11/matthews-churches-blackmetal.
31 Minnesota Crime Victims Reparations Board, MINN. DEP’T PUB. SAFETY OFF. JUST.
PROGRAMS,
http://dps.mn.gov/divisions/ojp/help-for-crime-victims/Pages/crime-victimsreparations.aspx (last visited May 25, 2020) (limiting eligibility to homicide, assault, child abuse,
sexual assault, robbery, kidnapping, domestic abuse, stalking, and criminal vehicular operation and
drunk driving).
32 See The Latest: Muslim Leader: Life Sentence for Mosque Attack, supra note 27
(emphasizing the Islamophobic motives of the perpetrators).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

REVISITING HATES CRIMES ENHANCEMENTS

9/11/20 4:50 PM

157

available for physical harms to direct victims, and in most cases allow for
mental health expenses incurred by direct victims and family members of
homicide victims, as well as coverage of additional expenses for a small subset of other people with direct losses.33
In most jurisdictions, however, the definition of what constitutes a victim is not yet sufficiently capacious to account for the breadth of harm caused
by hate crimes. For example, North Carolina’s program limits eligibility to
direct victims, dependents of deceased victims, and those who are authorized
to act on behalf of or provide benefits to direct victims.34 The 2017 murder
of three young Muslim students in Chapel Hill, North Carolina, shows how
that limitation is too narrow to account for hate crimes harms. At the sentencing of the man who committed the crimes, Dr. Suzanne Barakat, the sister of one victim, described the “horrific trauma that [would] continue to
forever haunt” her family.35 Unless a particular family member met North
Carolina’s very limited definition of “victim,” however, the letter of the law
would render them ineligible for aid.
Because it is not only direct victims and their families who experience
harm, but also members of the broader community who share characteristics
that were the basis of the bias motivating the hate crime, current definitions
of “victim” need to be expanded. Hate crimes may leave people in targeted
communities with trauma, fear, and a reduced sense of belonging, equality,
and social inclusion.36 As Dr. Barakat explained, the murder of her loved
ones “didn’t happen in a vacuum,” but were part and parcel of Islamophobia
faced by the broader Muslim community.37 Following the homicides, members of the area’s Muslim community reported feeling afraid to wear head
scarves that would make them readily identifiable as Muslim and to be out
in public at night.38 Again, if a community member in need of counseling or
other forms of assistance applied, North Carolina’s definition of “victim”
33 CRIMINAL INJURIES COMP. FUND, POLICIES AND PROCEDURES OF THE VIRGINIA VICTIMS
FUND 44–46 (2019), http://www.cicf.state.va.us/sites/default/files/Documents/VVF-Policies-andProcedures.pdf (regarding the availability of mental health services for direct victims and relatives
of homicide victims, as well as other expenses); Eligibility Requirements, NAT’L ASS’N CRIME
VICTIM COMPENSATION BOARDS, http://www.nacvcb.org/index.asp?bid=6 (last visited Apr. 21,
2020) [hereinafter NACVCB, Eligibility Requirements].
34 Eligibility, N.C. DEP’T PUB. SAFETY, http://www.ncdps.gov/dps-services/victimservices/crime-victim-compensation/claims-and-application/eligibility (last visited Apr. 21, 2020).
35 Our Three Winners, Dr. Suzanne Barakat-Court Sentencing 6/12/2019, FACEBOOK WATCH
(June 13, 2019), http://www.facebook.com/watch/?v=2487268451500545.
36 See, e.g., Flynn, supra note 30 (following the 2017 arson of three Black churches in
Louisiana, the NAACP described the crimes as “the same domestic terrorism that has been the
hammer and chisel used to chip away at the humanity of black Americans and the suppression of
our political power”).
37 Our Three Winners, supra note 35.
38 Margaret Talbot, The Story of a Hate Crime, NEW YORKER (June 15, 2015),
http://www.newyorker.com/magazine/2015/06/22/the-story-of-a-hate-crime.

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

158

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

would render them ineligible for support.
In addition to certain individuals, organizational victims also typically
would not fall within a state’s definition of what constitutes a victim eligible
for compensation.39 Mississippi’s compensation fund, for example, is limited
to individuals.40 This definition means that, even if property damage were
compensable, the Emmett Till Memorial Commission would be ineligible to
receive compensation to replace a sign commemorating the 1955 murder of
the fourteen-year-old by white supremacists after it was riddled by bullets in
2019.41
In short, the restrictive definitions of “victim” used for compensation
eligibility reflects a limited understanding of the extent of the individualized
harms that people directly targeted may suffer, and also the harms hate
crimes may cause to members of, and organizations representing, the targeted community.
Reporting and Cooperation Requirements. Victim compensation programs require victims to report crimes to, and otherwise cooperate with, law
enforcement in order to qualify for assistance.42 Though this will not be a
barrier in some hate crime cases, the Bureau of Justice Statistics (BJS) has
estimated that fifty-four percent of the approximately 250,000 annual hate
crime incidents each year go unreported.43
Many victims of hate crimes do not report incidents due to a belief that
“police would not want to be bothered or to get involved, would be inefficient or ineffective, or would cause trouble for the victim.”44 One reason appears to be the general distrust of law enforcement in communities that are
39 See, e.g., Eligibility for Crime Victims’ Compensation Program, KEN PAXTON ATT’Y GEN.
TEX.,
http://www.texasattorneygeneral.gov/crime-victims/crime-victims-compensationprogram/eligibility-crime-victims-compensation-program (last visited May 14, 2020) (“A
business, agency, or organization cannot apply as a claimant.”).
40 See Victim Compensation Application, OFF. ATT’Y GEN., http://www.ago.state.ms.us/wpcontent/uploads/2013/06/Victim-Compensation-Application-Guidelines-2013.pdf (last visited
Apr. 21, 2020).
41 See Nicole Chavez & Jamiel Lynch, 3 College Students Posed with Guns by the Emmett Till
Memorial. The Justice Department May Investigate, CNN (July 26, 2019),
http://www.cnn.com/2019/07/25/us/emmett-till-marker-mississippi-studentssuspended/index.html (describing the memorial vandalism incident and introducing the Emmett
Till Memorial Commission as the custodians of the sign).
42 NACVCB, Eligibility Requirements, supra note 33.
43 MADELINE MASUCCI & LYNN LANGTON, BUREAU OF JUST. STAT., HATE CRIME
VICTIMIZATION, 2004-2015, at 5 (2017). This is a distinct problem from the failure of police to
adequately investigate, document, and make public information about reported hate crimes. See,
e.g., U.S. COMM’N ON CIVIL RIGHTS, IN THE NAME OF HATE: EXAMINING THE FEDERAL
GOVERNMENT’S ROLE IN RESPONDING TO HATE CRIMES, 175–79, 220–21 (2019) (describing
inadequacies in law enforcement documentation of reported hate crimes and noting that “[m]any
cities, and even the entire state of Hawaii, does [sic] not report hate crime data to the FBI”). For
proposals related to these and other problems related to hate crimes, see id. at 226–27.
44 MASUCCI & LANGTON, supra note 43, at 5 (describing the rationale provided by twentythree percent of victims for not reporting hate crimes).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

REVISITING HATES CRIMES ENHANCEMENTS

9/11/20 4:50 PM

159

both over-policed—disproportionately subjected to stops, surveillance, and
the use of force—and neglected through law enforcement failures to respond
to crime reports.45 For example, when an investigative reporter reached out
to community members in Chico, California about the lack of hate crime
reporting, local activists and religious leaders pointed to the police shooting
of Desmond Phillips, a young Black man experiencing a mental health crisis,
or described prior incidents in which police officers had responded to reports
of a crime with disinterest.46
Furthermore, the concern that reporting to law enforcement would result in “trouble for the victim”47 can stem from a fear of legal or social consequences. For example, some Latinx people experience deep-seated fear
that reporting will lead to deportation of themselves or others in their family
or community.48 Muslim, Arab, and South Asian victims may avoid reporting due to concerns that doing so will prompt law enforcement to surveil
them, rather than their assailants.49 Further, some LGBTQ victims state that
they do not report “due to fear of retaliation, humiliation, or having to disclose their sexual orientation or gender identity.”50
In addition to a lack of trust in law enforcement, an additional nineteen
percent of hate crime victims who declined to report incidents that do not
involve physical harm “stated that the victimization was not important
enough to report to police,”51 even though such incidents—including threats
and intimidation—may fall within the scope of what constitutes a hate
crime.52 When people are routinely subject to intolerance, including epithets
and other threatening behavior, that experience may become “normalized.”53
As a result, incidents short of serious violence may feel routine, leading to a
perception among victims that their experiences are not worth reporting.54
In sum, though hate crimes are understood as distinct because of the
45 See, e.g., David Kennedy, Reading Los Angeles: Black Communities: Overpoliced for Petty
Crimes,
Ignored
for
Major
Ones,
L.A.
TIMES
(Apr.
10,
2015),
http://www.latimes.com/opinion/bookclub/la-reading-los-angeles-kennedy-ghettoside-20150404story.html.
46 Leslie Layton, Chico Cops Report Zero Hate Crimes in 2018: Anecdotal Reports Tell
Another Story, CHICOSOL (Dec. 11, 2019), http://chicosol.org/2019/12/11/chico-cops-report-zerohate-crimes-2018.
47 MASUCCI & LANGTON, supra note 43, at 5.
48 U.S. COMM’N ON CIVIL RIGHTS, supra note 43, at 77–78.
49 See id. at 77 (noting Muslims’ fear of “additional consequences” from interactions with
government officials).
50 Id. at 76.
51 MASUCCI & LANGTON, supra note 43, at 5.
52 See Learn About Hate Crimes, U.S. DEP’T JUST., http://www.justice.gov/hatecrimes/learnabout-hate-crimes (last visited May 14, 2020) (noting that threats to commit violence motivated by
animus may constitute a hate crime even if the violent act does not occur).
53 See U.S. COMM’N ON CIVIL RIGHTS, supra note 43, at 75, 77 (discussing normalization of
intolerance experienced by members of the LGBTQ and Muslim communities).
54 Id.

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

160

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

scope of harms they cause, victim compensation programs will require redesign to adequately capture society’s recognition of those harms and better
address the needs of those affected by them.
B. Potential Reforms to Victim Compensation Programs55
An opportunity exists to reform victim compensation programs to more
fully express society’s understanding of the serious harms caused by hate
crimes. First, states could exempt hate crimes from harm-type limitations to
ensure that property damage, psychological injury, and citizenship harms are
made eligible.56 Second, states could expand “victim” definitions to include
members of the broader community who share the targeted characteristic that
served as the basis of the bias triggering the offense, as well as to include
direct organizational victims.
In addition to reforms related to eligibility, and in light of evidence that
hate crimes often go unreported, lawmakers might establish mechanisms for
reporting hate crimes outside of traditional law enforcement channels that
can also serve as a pass-through mechanism to provide victim compensation
funds to victims who choose not to report through traditional means.57 For
example, after a man yelled epithets at a teenage girl wearing a hijab and her
friend, and then killed two men and seriously injured a third who came to
their aid,58 city officials in Portland, Oregon offered $350,000 in city grants
for community groups “to act as a point of contact for those who have

55 Though discussed here as reforms to existing programs, the expansion of aid eligibility
could also be addressed through the creation of a separate program. See Monica C. Bell, The Case
for Racism Response Funds—A Collective Response to Racist Acts, APPEAL (July 17, 2020),
https://theappeal.org/the-case-for-racism-response-funds-a-collective-response-to-racist-acts
(proposing the creation of funds to address harms created by behaviors rooted in racism).
56 California has added hate crimes to its list of qualifying offenses. Who’s Eligible, CAL.
VICTIM COMPENSATION BOARD, http://victims.ca.gov/victims/eligibility.aspx (last visited Apr. 23,
2020). This does not yet ensure full compensation for hate crimes, however, because such offenses
are still limited by harm type, with property-related expenses restricted to crime scene clean-up,
moving and relocation, and improvements to home security. Application for Crime Victim
Compensation,
CAL.
VICTIM
COMP.
BD.,
http://victims.ca.gov/docs/forms/victims/apps/victimcompensationapp_eng.pdf (last visited Apr.
23, 2020). Our thanks to Mariel Pérez-Santiago for bringing this program’s listing of hate crimes
in its eligible crimes list to our attention.
57 While victim compensation programs have long been seen as having the potential benefit of
improving cooperation between victims and law enforcement, even in their early days there was
little evidence suggesting that such results occurred. See MCGILLIS & SMITH, supra note 22, at 72–
73. Allowing for compensation through non-traditional means may, of course, further
disincentivize people from reporting hate crimes to law enforcement. But for victims who would
never have turned to law enforcement, community-based victim compensation programs could
provide societal recognition of harm.
58 Maxine Bernstein, MAX Attack Unfolded Quickly: Extremist Cut Three in Neck, Police Say,
OREGONIAN
(May
28,
2017),
http://www.oregonlive.com/portland/2017/05/horrific_scene_unfolds_on_max.html.

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

REVISITING HATES CRIMES ENHANCEMENTS

9/11/20 4:50 PM

161

experienced hate crimes, to train individuals or groups on how to resist hate
crimes, or to gather, analyze and publicize data about such crimes.”59 As a
result, a coalition of community-based organizations has created a reporting
system that allows victims and witnesses to report hate crimes in person at
neighborhood centers throughout the city60 or anonymously online.61 Officials have taken pains to assure users that the anonymous reporting system
is not operated by the government.62 Though Portland’s system has not yet
coordinated with the state’s victim compensation program, the system could
be designed to do so.
These reforms are not without their complications, including one that
contributed to the eligibility restrictions noted above: limitations on funding
for victim compensation. Since their inception in the United States in the
1960s, eligibility restrictions in victim compensation programs have largely
been driven by lawmaker concerns that requests for compensation will outpace fund resources.63
Yet, the expansion of these programs to accommodate hate crimes may
not actually result in significant pressure on available funds, so long as they
are adequately supported. Victim compensation funds are designed to be a
resource of last resort, meaning that if an otherwise eligible victim has “collateral resources”—e.g., insurance benefits, coverage through government
programs such as Medicaid, or restitution paid directly to the victim—those
resources must be used up prior to accessing victim compensation programs.64 Organizational victims and many individuals made eligible by these
reforms will undoubtedly have access to at least some collateral resources,
thereby limiting a potential drain on program resources.65
59 Jessica Floum, Portland Offers Grants to Combat City’s Rising Hate Crimes, OREGONIAN
(July
5,
2017),
http://www.oregonlive.com/portland/2017/07/portland_offers_grants_to_comb.html.
For
an
example of methods of resisting hate crimes, see generally S. POVERTY L. CTR., TEN WAYS TO
FIGHT HATE: A COMMUNITY RESOURCE GUIDE (2017), http://www.splcenter.org/20170814/tenways-fight-hate-community-response-guide.
60 PUAH
Member
Directory,
PORTLAND
UNITED
AGAINST
HATE,
http://sites.google.com/view/portland-tracks-hate/report-in-person (last visited May 14, 2020).
61 Home, PORTLAND UNITED AGAINST HATE, http://sites.google.com/view/portland-trackshate/home (last visited May 14, 2020); Report Online, PORTLAND UNITED AGAINST HATE,
http://docs.google.com/forms/d/e/1FAIpQLSfMtuIUHIj3zOtWrtmHaVIv1y7PhBg97NjCtj3JTl69
qvCJgw/viewform (last visited May 14, 2020).
62 Community & Civic Life: Portland United Against Hate, CITY PORTLAND OR.,
http://www.portlandoregon.gov/civic/72583 (last visited May 14, 2020) (“ReportHatePDX.com
takes you to a website outside the City system and is *not* a government website.”).
63 See, e.g., MCGILLIS & SMITH, supra note 22, at 20–21, 40–43, 61, 69 (documenting that
property crimes and property damage were often excluded largely because of “the fear that the costs
of such compensation would be astronomical” given the frequency of property offenses).
64 NACVCB, Eligibility Requirements, supra note 33.
65 In addition, victim compensation programs cap awards, which if retained would also help

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

162

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

The fiscal implications of these reforms also raise a related issue regarding the source of funding for victim compensation programs that complicates efforts to use them in a way that is commensurate with the goal of
shrinking the carceral state. Victim compensation programs primarily draw
funds from fines, fees, forfeitures, and other economic sanctions.66 As many
civil rights organizations and progressives have recognized, the use of economic sanctions can result in serious, long-term financial and social instability for people of limited means and operates as a form of regressive taxes
against heavily policed communities, thereby working against efforts to decrease the footprint of criminal legal systems.67
This does not mean that victim compensation programs are unworkable
in the hate crimes context, but rather that to be consistent with broader goals,
the sources for these funds require reform. This may be possible with the
adoption of meaningful systems for graduating economic sanctions according to ability to pay along with a redirection of economic sanction revenues
away from more punitive law enforcement projects.68 In addition, governments could invest tax revenue or work with private foundations or other
donors to generate funding independent from economic sanctions revenues,
as the federal government has done to support victim compensation programs through the Office for Victims of Crime since 2002.69 Thus, the reform
and expansion of current funding structures for victim compensation programs, alongside the loosening of existing restrictions on their use, could
benefit hate crimes victims and affected communities outside traditional law
enforcement approaches. Full financial support for such funds would also
better acknowledge collective responsibility for societal structures that perpetuate or enable individual acts of hate.70
Beyond their fiscal implications, and whether crimes are reported
through traditional or non-traditional reporting mechanisms, these reforms
raise other programmatic design issues. Given that prosecutors may decline
prevent a serious drain on the system. See, e.g., CRIMINAL INJURIES COMP. FUND, supra note 33,
at 3 (noting the cap on awards of $35,000 with up to an additional $10,000 to cover funeral expenses
in homicide cases).
66 NACVCB, Overview, supra note 24.
67 See, e.g., Joanna Weiss, New York State Testimony: The Regressive Tax Burden, FINES &
FEES JUST. CTR., http://finesandfeesjusticecenter.org/content/uploads/2019/02/2.11-NYS-StateTestimony_02072019.pdf (last visited May 14, 2020). Traditionally conservative organizations and
advocates often share these concerns about abuses related to economic sanctions. See generally,
e.g., DICK M. CARPENTER II ET AL., INST. FOR JUST., THE PRICE OF TAXATION BY CITATION
(2019), http://ij.org/wp-content/uploads/2019/10/Taxation-by-Citation-FINAL-USE.pdf.
68 See generally Colgan, supra note 25.
69 About
OVC:
Crime
Victims
Fund,
OFF.
FOR
VICTIMS
CRIME,
http://www.ovc.gov/about/victimsfund.html (last visited Apr. 23, 2020).
70 See Bell, supra note 55 (noting that funds for aid following incidents grounded in racism
“can also be a concrete way of expressing the community’s recognition of its complicity in
perpetuating racism, segregation, and their accompanying ills”).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

9/11/20 4:50 PM

REVISITING HATES CRIMES ENHANCEMENTS

163

to include hate crime charges in a given case despite evidence of bias, and
that police reports may not capture such evidence71 or may not exist at all
where crimes go unreported,72 other mechanisms for verifying a hate crime
has occurred must be devised. Further, expanding victim compensation programs beyond direct victims and their families raises complicated questions
about the bounds of the arguably affected community and what organizational victims should be considered eligible.73 The answers to these questions
are beyond the scope of this essay, but directly affect the extent to which
victim compensation programs adequately capture society’s understanding
of the scope of harms caused by hate crimes.
If such questions can be resolved, victim compensation programs provide an opportunity to satisfy the desire to express the distinct nature of the
harms created by hate crimes. In doing so, they may reduce the need for
enhancements to serve that expressive function while simultaneously providing much needed support to hate crime victims.
II
RESTORATIVE JUSTICE RESPONSES TO HATE CRIMES

A second set of potential alternatives to the sentence enhancement
model presents harder questions and would likely generate greater controversy. Over several decades, a set of ideas and practices under the heading
of “restorative justice” has emerged as a leading alternative to the existing
criminal legal system.74 Restorative justice encompasses “apologies, restitution, and acknowledgments of harm and injury, as well as . . . other efforts
to provide healing and reintegration of offenders into their communities,
with or without additional punishment.”75 Restorative justice programs vary
widely with respect to whether they supplement, replace in part, or exist entirely outside of criminal legal processes.76 In its most common form,
71

See Eisenberg, supra note 1, at 885–87.
See supra notes 43–54 and accompanying text. Even where an alternative reporting channel,
like that in Portland, relies on self-reporting of victims, there must be some mechanism to verify
that a reported incident falls within the broader eligibility requirements detailed herein. Verification
need not, however, require a finding beyond a reasonable doubt as would be required in a criminal
prosecution. See In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.”).
73 For a related discussion of what constitutes the affected “community,” see infra notes 101–
02 and accompanying text.
74 See Carrie Menkel-Meadow, Restorative Justice: What Is It and Does It Work?, 3 ANN.
REV. L. & SOC. SCI. 10.1, 10.3–10.4 (2007) (describing the beginning of the restorative justice
model and its growing movement into larger national and international areas).
75 Id. at 10.2.
76 See Thalia González, The Legalization of Restorative Justice: A Fifty-State Empirical
Analysis, 5 UTAH L. REV. 1027, 1030–32 (2019) (describing a variety of restorative justice practices
72

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

164

9/11/20 4:50 PM

NEW YORK UNIVERSITY LAW REVIEW ONLINE

[Vol. 95:149

restorative justice involves facilitated interactions between victims, people
who cause harm, and, sometimes, other community members, and are designed to acknowledge fault and reach agreement on how people can repair
the harm they inflicted.77
A.

The Appeal of Restorative Justice for Hate Crimes

Within the United States, restorative justice programs have only sporadically addressed hate crimes, though interest in their use appears to be
expanding.78 For example, in early 2020, San Francisco prosecutors dropped
charges, including a hate crimes charge, against a twenty-year-old who videotaped the beating of an elderly Asian man after the victim expressed interest in a restorative proceeding.79 A coalition of progressive New York City
organizations has also called for a restorative justice pilot program for minors who commit hate violence.80
Advocates argue that restorative justice meets the needs of both survivors and responsible parties more effectively than incarceration. For instance, Danielle Sered, director of a New York organization that offers an
opt-in, restorative justice alternative to incarceration for violent crimes, contends that the guided process of meeting those responsible for a crime and
determining reparative steps validates survivors’ pain, facilitates healing by
providing information about what happened, gives survivors an opportunity
to be heard, and restores survivors’ lost sense of control and safety.81 For
those who commit harm, she argues, the process replaces conventional punishment with a more meaningful form of accountability because it requires
people to face the consequences of their actions and take steps to repair the
harm.82
and providing evidence of the growing codification of such programs into statutory or regulatory
law).
77 Menkel-Meadow, supra note 74, at 10.2.
78 For past U.S. examples of restorative justice responses to hate crimes, see Robert B. Coates
et al., Responding to Hate Crimes Through Restorative Justice Dialogue, 9 CONTEMP. JUST. REV.
7, 8 (2006) (noting a study identifying seven U.S. communities that used “dialogue” to prevent or
respond to hate crimes) and SERED, supra note 14, at 115–18 (describing Common Justice’s work
with the victim and perpetrator of an anti-Semitic hate crime).
79 Evan Sernoffsky & Alejandro Serrano, SF District Attorney Withdraws Charges Against
Defendant in Attack on Asian Man, S.F. CHRON. (Mar. 2, 2020, 3:55 PM),
http://www.sfchronicle.com/crime/article/SF-Bayview-attack-Second-suspect-surrenders-to15098296.php. Prosecutors retain the ability to reinstate charges should a restorative justice process
fail, but the choice to attempt a restorative proceeding shows the expanding interest in that option.
80 See NYC AGAINST HATE, supra note 22.
81 SERED, supra note 14, at 23–30, 133–40.
82 Id. at 96. For a discussion of why rehabilitative programs designed to enable people to
confront their biases are particularly important in cases where the crime is committed by a youth,
see generally Jordan Blair Woods, Comment, Addressing Youth Bias Crime, 56 UCLA L. REV.
1899 (2009).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

9/11/20 4:50 PM

REVISITING HATES CRIMES ENHANCEMENTS

165

In a hate crimes context, a restorative proceeding could enable some
survivors to request forms of reparation that they often do not get in a traditional process—such as an acknowledgment by the person who committed
the crime that they did so out of bias or an apology for their actions. Hate
crimes victims often desire hate crimes charges to receive acknowledgment
that bias motivated a crime.83 But prosecutors often do not charge crimes as
hate crimes or seek sentence enhancements because of the difficulty of proving such a motivation beyond a reasonable doubt.84 More flexible than criminal legal processes, restorative proceedings might allow for reparations that
respond to survivors’ desire for an acknowledgment of bias or expression of
regret.85
B.

Assessing Restorative Justice for Hate Crimes

In an overview of empirical studies assessing whether restorative justice
programs achieve their stated goals, Professor Carrie Menkel-Meadow concluded that a “variety of different studies on at least three continents” substantiated claims that restorative justice “creates greater compliance with
agreements or judgments, reduces imprisonment (and therefore costs to the
system), provides greater satisfaction for both victims and offenders, and reduces recidivism rates.”86 In addition, while little research examines restorative justice programs focused on hate crimes in the United States, some research on programs abroad finds such efforts to be promising. Professor
Mark Walters, a criminologist who studied U.K. programs used in hate crime
cases, concluded that restorative justice practices helped mitigate many victims’ harm by allowing them to vocalize their experience, receive support
from facilitators, and obtain “assurances of desistance” from those who had
hurt them.87
This research has important qualifications. As Professor MenkelMeadow noted, most empirical restorative justice studies are affected by significant methodological limitations, especially the difficulty of comparing
across restorative and conventional criminal processes when participants are
83 One such example is the public statement of the father of a murdered Muslim college
student. See Talbot, supra note 38 (“We are not seeking any revenge. Our children are much more
valuable than any revenge. When we say that this was a hate crime, it’s all about protecting all
other children in the U.S.A. . . . . We need to identify things as they really are.”).
84 See Eisenberg, supra note 1, at 862–64 (describing reasons that prosecutors often fail to
charge cases as hate crimes).
85 See, e.g., Coates, supra note 78, at 14 (describing the public apology of a man who phoned
in death threats to a mosque).
86 Menkel-Meadow, supra note 74, at 10.14; see also MARK AUSTIN WALTERS, HATE CRIME
AND RESTORATIVE JUSTICE 53 (2014) (“[T]he growing body of research now strongly suggests
that [restorative justice] practices provide both material and emotional reparation to a greater
percentage of victims when compared to those whose cases go to court.”).
87 WALTERS, supra note 86, at 184.

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

166

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

not randomly assigned to different settings.88 In addition, the study of restorative justice in the hate crimes context is too early and small-scale to permit
generalization.89
Moreover, restorative justice methods present several challenges when
applied to hate crimes in light of the subordinated status of many survivors
and targeted communities vis-à-vis offenders and society at large. Some feminist scholars have long argued that restorative justice applied to domestic
violence or sexual assault may fail to account for asymmetries of power and
the societal trivialization of violence against women.90 The use of restorative
justice methods for hate crimes invites similar critiques.
One concern is that some members of the public may interpret the use
of restorative justice as expressing insufficient condemnation for hate
crimes. The concern is greatest in contexts where segments of society equivocate in condemning certain acts or only weakly recognize a form of bias.
For instance, calls for restorative justice to deal with post-9/11 hate crimes
targeting Muslims91 may have communicated the message that such crimes
were “understandable” or undeserving of complete condemnation.92 Separately, for hate crimes survivors in communities afflicted by mass incarceration, the exposure to lengthy prison terms sometimes heightens the belief
that society should respond to hate crimes with harsh sentences—at least as
a way of equalizing treatment across crimes.93
Another concern is that meetings between victims and those who committed hate crimes might revictimize survivors. People whose biases find
support in a dominant community—or among friends and family who take
88

Menkel-Meadow, supra note 74, at 10.12–.13.
For instance, Professor Walters’s positive findings stemmed largely from a single program:
the Hate Crimes Project at the Southwark Mediation Centre in London. WALTERS, supra note 86,
at 91, 95, 119–20 (describing the interviews of twenty-three victims who took part in the Hate
Crimes Project). Walters found his interview findings on victims’ emotional reparation to be
corroborated by interviews with twenty-three other U.K. restorative justice practitioners who had
handled twenty-eight other hate crimes cases, although those practitioners’ impressions were
secondhand. Id. at 115–16.
90 See, e.g., Julie Stubbs, Beyond Apology?: Domestic Violence and Critical Questions for
Restorative Justice, 7 CRIMINOLOGY & CRIM. JUST. 169, 173 (2007).
91 See generally Maria R. Volpe & Staci Strobl, Restorative Justice Responses to PostSeptember 11 Hate Crimes: Potential and Challenges, 22 CONFLICT RESOL. Q. 527 (2005).
92 See generally Muneer I. Ahmad, A Rage Shared by Law: Post-September 11 Racial Violence
as Crimes of Passion, 92 CALIF. L. REV. 1259, 1264 (2004) (arguing that, unlike other hate crimes,
post-9/11 hate crimes against those who appeared to be Muslim were viewed as morally
understandable “crimes of passion” stemming from widely-shared societal biases).
93 For one example, see Michael E. Miller & Steven Rich, Hate Crime Reports Have Soared
in D.C. Prosecutions Have Plummeted., WASH. POST (Aug. 21, 2019),
https://www.washingtonpost.com/graphics/2019/local/dc-hate-prosecutions-drop. The article
describes the perspective of Ashley Taylor, a Black lesbian woman who—on account of her lesbian
identity—was shot by a co-worker. Id. Taylor expressed outrage that her assailant received only
three years in prison with no hate crimes enhancement when her father had been imprisoned for ten
years for a shooting. Id.
89

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

REVISITING HATES CRIMES ENHANCEMENTS

9/11/20 4:50 PM

167

part in a meeting with victims—might offer insincere apologies or even shift
the blame to those victims.94 Some perpetrators might be unrepentant, such
as those who remain ideologically committed to excluding racial minorities
from white neighborhoods or to instigating a “race war” to preserve white
supremacy.95
There is also a risk that individuals from subordinated communities
might be subject to “coerced compassion”—the gendered or racialized social
expectation that certain victims forgive perpetrators rather than demand punishment.96 As an example even out of the hate crimes context, after a Black
man embraced the white Dallas police officer convicted of murdering his
brother, many commentators argued that society improperly expected Black
victims “to ‘make nice’ with the perpetrators of their trauma.”97 Social pressure could lead some victims to consent to restorative processes or accept
offers of reparation even when they would have preferred more retributive
measures.
Questions remain as to whether the careful design of restorative justice
processes can surmount these challenges. For instance, Professor Walters
concluded that, in the hate crimes restorative justice meetings he studied, the
comprehensive preparation of participants before a face-to-face encounter,
the active involvement of facilitators trained to counter prejudice, and the
setting of clear ground rules largely preempted survivor revictimization.98
Other aspects of program design may also partially address the concern that
some perpetrators will seek to exploit restorative processes. In jurisdictions
with restorative alternatives, prosecutors who have charged a person with a
crime often have the choice to proceed with conventional prosecution and

94 For a discussion of these concerns, see Stubbs, supra note 90, at 174; WALTERS, supra note
86, at 189–91. A separate problem faces accused individuals who genuinely wish to participate in
restorative justice processes but who hesitate to do so if the backstop in a given jurisdiction is
prosecution. Some may fear, for instance, that admissions of guilt in a restorative process will be
used against them if the restorative process fails. See González, supra note 76, at 1051–52 (noting
limited court rules guaranteeing confidentiality of restorative justice processes, leading many
programs to rely on memoranda of understanding with prosecutors instead).
95 See generally JEANNINE BELL, HATE THY NEIGHBOR: MOVE-IN VIOLENCE AND THE
PERSISTENCE OF RACIAL SEGREGATION IN AMERICAN HOUSING (2013) (detailing the rise and
contemporary persistence of violent tactics aimed at preventing residential racial integration); Jason
Wilson, Prepping for a Race War: Documents Reveal Inner Workings of Neo-Nazi Group,
GUARDIAN (Jan. 25, 2020, 4:10 AM), http://www.theguardian.com/world/2020/jan/25/inside-thebase-neo-nazi-terror-group (documenting the workings of a white supremacist group that promotes
a race war).
96 See Stubbs, supra note 90, at 174, 177–78 (describing the gendered nature of expectations
of forgiveness).
97 Tayo Bero, Amber Guyger Deserves to Go to Jail. Black People Shouldn’t Have to Feel
Sorry
for
Her,
GUARDIAN
(Oct.
9,
2019),
http://www.theguardian.com/commentisfree/2019/oct/09/amber-guyger-jail-black-forgiveness.
98 WALTERS, supra note 86, at 198–204.

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

168

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

punishment or refer a person to a restorative alternative.99 Screening mechanisms can help ensure that people who have committed hate crimes are amenable to meaningful participation in the process.
With respect to the risk of “coerced compassion,” a combination of
well-articulated opt-in procedures making clear that participation is voluntary, alongside the training of facilitators on the cultural or social dynamics
that might pressure some victims to consent, could reduce the risk. But it is
not clear whether such practices could eliminate a risk that stems from deepseated norms or hierarchies, such as structures of racial subordination that
disempower some victims from articulating true preferences.
A separate question raised by restorative justice models is how much
these programs can do to alleviate the effect of hate crimes on affected identity groups, as opposed to direct victims. Restorative justice meetings sometimes include community representatives who speak to the hate crime’s
wider impact and ask those responsible to work towards its repair, for instance, by making public apologies or attending classes to learn about the
group they targeted.100 But any expansion of participants beyond those immediately involved necessarily raises questions of who has the right to speak
for a “community.”101 This challenge may be relatively surmountable when
a hate crime targets a preexisting group with designated leaders, such as a
membership-based religious institution.102 It becomes harder when no such
bounded community exists and where many people broadly linked to the
victim’s identity care deeply about the state’s response. It is not clear who
should have a role in deciding how the accused should repair the harm when
“communities” are internally divided or where advocacy groups seek a different resolution from the direct victims.103 Some in affected communities,
for instance, will not want a process they view as putting the onus on community members to reeducate those who have committed hate crimes.
99 See, e.g., Sernoffsky & Serrano, supra note 79 (noting San Francisco’s ability to reinstate
charges if a restorative process fails).
100 See, e.g., Coates et al., supra note 78, at 14 (describing a meeting between the victims,
perpetrator, and twenty community members in response to a death threat targeting an Oregon
Islamic center that led to the perpetrator’s public apology and continued attendance at lectures on
Islam).
101 For the classic critique of the concept of “community” in restorative justice discourse, see
generally Robert Weisberg, Restorative Justice and the Danger of “Community,” 2003 UTAH L.
REV. 343 (2003) (warning against the uncritical use of the term “community” and arguing that
greater awareness of what “community” means is essential to implementing successful restorative
justice programs).
102 Even here, questions remain about whether such leaders represent all segments of such
communities, given internal stratifications of race, gender, and class within many communities.
103 Cf. Nicolas Carrier & Justin Piché, Blind Spots of Abolitionist Thought in Academia, 12
CHAMP PÉNAL 1, 8–9 (2015) (articulating a critique of abolition theory—in which many restorative
justice programs have roots—regarding a lack of clarity as to whether and when to designate the
relevant community as local, national, or international).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

September 2020]

REVISITING HATES CRIMES ENHANCEMENTS

9/11/20 4:50 PM

169

In short, while the use of restorative justice processes may better aid
some victims and community members in processing the harm caused by
hate crimes, as well as help some perpetrators in taking responsibility for
their actions, such processes present difficult questions that advocates and
researchers have yet to resolve. At a minimum, the design of such programs
will be critical to preempting problematic power asymmetries. Moreover,
programs to implement restorative justice in hate crime cases will likely gain
traction with subordinated groups only as part of a larger move towards restorative justice in all contexts. Otherwise, such programs risk sending the
message that those who commit hate crimes deserve opportunities to avoid
prison that are not available to others who commit harm.
Still, the possibility that restorative justice processes will better serve
both victims and perpetrators suggests they should be explored further,
whether to replace incarceration in a given case or, at least, to replace a sentence enhancement. Restorative programs could begin with categories of
hate crimes or perpetrators that might suggest greater potential for growth:
for instance, less serious offenses or crimes committed by youth.104 Programs
could then be expanded more broadly as appropriate based on lessons
learned. Further, though the goal of some advocates is to replace incarceration entirely, restorative justice is not an all-or-nothing proposition, particularly in this context. It may well be that in the most serious cases, restorative
processes could be used to replace the sentence enhancement that might otherwise be applied, if not the sentence itself.
CONCLUSION

Conceived of in the tough-on-crime era, hate crimes sentence enhancements were designed to express society’s condemnation of the distinct harms
that hate crimes inflict on direct victims and those who share the victims’
identity. They arose out of a desire to recognize and respond to the physical
harm, psychological trauma, and citizenship harms that left the targets of
hate crimes feeling cut out from the fabric of society.
Though the tough-on-crime movement is by no means defunct, there
has been a sea change in the national conversation on crime—its scope, how
it is policed, how it is prosecuted, and whether it is better addressed by attending to social inequality rather than through punitive measures. This shift
allows for reexamination of whether sentence enhancements are the appropriate means of addressing the harms that hate crimes create.105 Seven
104 See Woods, supra note 82, at 1926 (arguing that youth who commit bias crimes are more
amenable to intervention and reform).
105 See, e.g., Akbar, supra note 23 (describing the recent shift in the national debate towards
divestment from the prison industrial complex and investment in responses to social problems “that
do not rely on violence and punishment”).

SINNARCOLGAN-FIN.DOCX (DO NOT DELETE)

170

NEW YORK UNIVERSITY LAW REVIEW ONLINE

9/11/20 4:50 PM

[Vol. 95:149

decades of ramping up punishment as the primary means of addressing
crime106 has left the nation with a crisis of mass incarceration, resulting in
the confinement of nearly 2.2 million juveniles and adults today.107 This crisis has left civil rights advocates across the progressive spectrum questioning
the efficacy of carceral policies, creating a tension between the desire to treat
hate crimes as especially harmful and the broader progressive push to reduce
the scope and severity of the criminal legal system.
This essay raises two potential alternatives to sentence enhancements—
reforms to victim compensation programs and the use of restorative justice
mechanisms—that may preserve the expressive message of hate crimes laws
while de-linking that message from lengthening prison terms. Though some
questions regarding issues of design remain, victim compensation programs
could be reformed to exempt hate crimes from harm-type limitations, expand
the definition of victim to include both members of the broader community
who share the victim’s targeted characteristic as well as organizational victims, and provide alternatives to reporting and cooperation requirements for
the significant number of hate crime victims who choose not to report to law
enforcement. Restorative justice approaches present a more difficult set of
questions. They may benefit some hate crimes victims and affected community members in healing from hate crimes and subject some of those responsible to a more meaningful form of accountability. But questions remain as
to whether program design can sufficiently mitigate concerns raised by
power asymmetries—where perpetrators from socially dominant groups victimize individuals from subordinated communities—and regarding the scope
of hate crimes offenses for which restorative programs should be employed.
Far from resolving the range of questions that potential alternatives present,
this essay has advanced them with the hope of generating further experimentation and study.

106 See generally ELIZABETH HINTON, FROM THE WAR ON POVERTY TO THE WAR ON CRIME:
THE MAKING OF MASS INCARCERATION IN AMERICA (2016) (documenting how the “War on
Crime” began in the Civil Rights Era).
107 These figures exclude tribal, territorial, immigration, and involuntary confinement facilities.
Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, PRISON POL’Y
INITIATIVE (Mar. 24, 2020), http://www.prisonpolicy.org/reports/pie2020.html.