Restorative justice for white supremacists: How criminal justice reform can combat far-right terror

The traditional approach to fighting hate crimes is not effective in reducing harm or deterring future attacks

Published July 3, 2019 7:00AM (EDT)

White nationalists and neo-Nazis at the "Unite the Right" rally August 12, 2017 in Charlottesville, Virginia.  (Getty Images)
White nationalists and neo-Nazis at the "Unite the Right" rally August 12, 2017 in Charlottesville, Virginia. (Getty Images)

How many violent white supremacist attacks happened last year in the United States? 50? 500? 1,000? Recent news stories have reported a rise in such crimes across the country. Yet the truth is that no one knows the scope of far-right violence in the United States because the FBI and Department of Justice deprioritize the investigation and prosecution of these crimes and fail to collect accurate national data regarding such attacks, despite a congressional mandate to do so (see here for a list of state hate crimes).

These deficiencies arise as a result of Justice Department policies, not a lack of legal authority. Congress has already done its part to equip federal agents and prosecutors with ample tools to investigate and prosecute far-right violence. It passed 52 federal crimes of terrorism that apply to purely domestic attacks, as well as five hate crimes statutes that punish the specific types of violence far-right militants often commit. Organized crime statutes provide additional authority to dismantle the violent groups that instigate and perpetuate these crimes.

Despite these broad authorities, the Justice Department chooses to deprioritize far-right violence as a matter of policy and practice, which we examine in our new report, Fighting Far-Right Violence and Hate Crimes: Resetting Federal Law Enforcement Priorities. This is a follow-up to our first report on this topic, Wrong Priorities on Fighting Terrorism, which documented the dozens of federal laws the Justice Department has available to prosecute far-right violence.

When a white supremacist unleashes deadly violence against African AmericansJewsMuslimsSikhs, or LGBTQ people, the Justice Department can label these crimes acts of domestic terrorism, or hate crimes, or simply homicides. Each of these crimes carries significant penalties, but the label is meaningful because the FBI ranks countering terrorism as its number one priority, while hate crimes rank fifth and violent crimes sixth. Applying a hate crime label to an attack that clearly fits the statutory definition of domestic terrorism narrows the scope of the investigation and limits its resources. It also sends a clear message to victims of these crimes that their lives matter less to the federal government. Making matters worse, the Justice Department defers the investigation and prosecution of the vast majority of hate crimes to state and local law enforcement, who are often ill-equipped or uninterested in pursuing them.

The Justice Department’s policies — and its official indifference — regarding far-right violence undermine our nation’s security by discounting the safety concerns of victimized American communities. The federal government’s failure to ensure equal protection of the law erodes community resilience and social cohesion. While a full and complete assessment of the true nature, scope, and impact of far-right violence is necessary to develop sound strategies to address it, as our first report argued, this does not mean policymakers must wait passively until this data is fully collected. Our new report argues for exploring new approaches to the problem of far-right violence, not only to address the present policy failures but to determine whether our traditional legislative approach to hate crimes — increasing criminal penalties — is effective in reducing the harms these crimes inflict.

First, it is important to recognize that far-right violence and hate crimes represent just a small fraction of the violence Americans suffer each year, including police violence, which disproportionately impacts the same communities targeted by far-right attacks. Half of the violent crimes committed in the United States go unsolved, including almost 40 percent of the murders. Minority communities are disproportionately victims in these unsolved crimes, leaving them underserved by law enforcement as crime victims even as they are often overpoliced with aggressive tactics as crime suspects. Studies indicate that a majority of hate crime victims do not report these crimes to the police as a result of the fraught relationships these communities have with law enforcement. Efforts to improve hate crimes enforcement can only succeed if they are coupled with broader police reform initiatives.

Second, the Justice Department must fulfill its obligation under the law to accurately account for hate crimes occurring across the country. Failing to do so blinds federal law enforcement and policymakers of intelligence about the nature, scope, and impact of far-right violence in the United States. Understanding the organized nature of this violence is key to dismantling the violent groups that perpetuate these crimes. The FBI and Justice Department should step up with federal investigations and prosecutions when state and local law enforcement are either unable or unwilling to prosecute the perpetrators of far-right violence.

Third, policymakers should re-examine the current, purely punitive approach to hate crimes enforcement and develop restorative justice methods designed to address the communal injuries hate crimes and other far-right violence often inflict. Studies show that increased criminal penalties do not serve as an effective crime deterrent, and hate crime victims indicate a preference for restorative justice approaches. Hate crimes are designed to strike fear into vulnerable communities and increase their social isolation. An effective response must include measures to restore a sense of security and inclusion to the victimized communities. Congress should study restorative justice approaches and develop a plan to fund and implement these methods when acts of far-right violence and hate crimes occur.

With these critical steps, the government can better protect our most vulnerable communities.

By Michael German

Michael German is a fellow with the Brennan Center for Justice’s Liberty and National Security Program

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By Emmanuel Mauleón

Emmanuel Mauleón is a fellow with the Brennan Center for Justice’s Liberty and National Security Program.

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