Reconciling Ideals: Restorative Justice as an Alternative to Sentencing Enhancements for Hate Crimes

By Olivia Levinson. Full Text. 

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (“the Act”) was seen as a significant step forward in legal protections for LGBTQ+ people and racial minorities. It expanded the federal definition of hate crimes to include gender, disability, gender identity, and sexual orientation, and made it easier to prosecute race- and religion-motivated crimes. Ironically, the sentencing enhancements provided for by the Act feed the same hyper-carceral system that disproportionately impacts LBGTQ+ and racial minority groups. These enhancements do little to address the causes of hate crimes or bridge understanding in diverse communities. Indeed, hate crime rates have remained steady since the Act’s inception.

This Essay examines an alternative to sentencing enhancements for hate crimes. Restorative justice, when successful, can repair relationships between victims, offenders, and their communities. It has potential to create understanding across different community members that reduces fear and prevents hate crimes from occurring. However, restorative justice is not appropriate for every situation. Acknowledging that, this Essay proposes an amendment to the Act that creates an option for restorative justice methods in addition to the strict sentencing enhancements already in place. This amendment could achieve the goals of protecting targeted groups while moving away from the default of incarceration.