Suggested citation: Kelly, T. L. (2002). "Is Restorative Justice Appropriate for Cases of Hate Crime?"(Published in The Western Pacific Association of Criminal Justice Educators Conference Papers, from the WPACJE conference held October 2002, Lake Tahoe, Nevada.)
Introduction
I read Claudia's account of the day her world "exploded" during the period of time that I was training to be a victim-offender mediator. Perhaps it was the synchronicity of reading about a hate crime that could have happened to me or any of my friends, and absorbing Claudia's words about how she healed, while at the same time learning how to bring meaning to face-to-face encounters between victims of crime and their offenders, that made me curious about just how effective restorative justice could be in cases of hate crime. Claudia said repeatedly in her book that much of her healing had to do with an abundant support system and from working towards making sure the shooter would "rot in prison" because "his life was worthless" (Brenner 185). At the time, I really wanted to believe that restorative justice could have a part in healing so great a harm. But I didn't know enough about the causes of hate crime to know definitively how effective it could be. And what Claudia Brenner had to say was challenging my training on how to balance the needs of both victims and offenders. There was also something bothering me about all the factors of the crime not discussed in her book -- who was the "mountain man" and what was going on in his world that made sense out of shooting lesbians? What is the nature of outrage? Why does it seem like there are deeper issues at work here - that people don't just wake up one day and decide to be murderous homophobes? It was these sorts of moments of feeling that there was something else going on, that compelled me to conduct research.
Brenner's book made it clear that horrible trauma has a deep impact on one's life, but that somehow it fosters soulful growth in a way that no other life-altering event can. I wanted to know why Brenner ended up considering herself to be a stronger, more compassionate person after the long arduous process of healing form her ordeal. If restorative justice is to have a role in such a complex healing process, it will have to address the roles outrage and retribution play while healing. Could it be that restorative justice is helpful for only some types of crime, but not for hate crime? Certainly hate crime is a different variety of crime than robbery or vandalism--the sorts of crime I was used to dealing with in victim-offender mediation. But what made it different? Restorative justice is a way to focus on issues of accountability in a personal way. Who is accountable for hate crime - just the offender? Should the issue of hate even be brought up in a restorative justice action? Are mediators qualified to take it on? Is hate the only issue in a hate crime?
These are a few of the many questions that came up for me as I conducted my research, but they were the most plausible candidates for finding an abundance of literature. I took the "sponge" approach to my research - I saturated my brain with literature on hate crime and on restorative justice until I could begin to see how some things went with other things, and other things I had assumed would go together actually did not. I also immersed myself in experiential learning, by participating in victim-offender mediation and also completing an intense training in "Severe Violence Dialogue" - the form of mediation that would be most appropriate for a case so described in Eight Bullets.
There is so much to learn about both issues. I have only scratched the surface. I hope someone will go on from here, finding answers to some of the real tough questions my research uncovered.
Methodology
My research began with a broad reading of the literature on hate crimes and on restorative justice for more than a year. I also read material regarding victim and offender experiences. Then I selected a range of articles and books that appeared to best represent the material I found in the broader examination, on the basis that they were the most often cited. I organized this selection into sections for a critical literature review, and noted congruencies of principles, goals, and standards as I reviewed. I followed Comstock's seven-step critical research method (Comstock 1980) inductively, to integrate congruencies holistically into a shared set of considerations for any future framework that would bring restorative justice principles and practices to the social problem of hate-motivated violence. The result is an holistic narrative framework for the benefit of future research. [note: this section has been significantly digested for presentation in this format.]
Findings
One of the first interesting contradictions I found was actually in the form of an irony. In Gordon Allport's The Nature of Prejudice, the description of a "fanatic" has characteristics in common with the "integrated" individual who is thought to have gained control of his or her prejudicial nature. "It is the rigid consistency of the fanatic (whether of a bigot or a crusader for equal rights) that is regarded as pathological in our society" (337). At the same time, Those who want integration wish to face their prejudices and ethics and put them all "under the dominance of a wholly consistent philosophy of human relationships. This striving for wholeness and maturity requires a consistency that is extremely hard to achieve" (338). The contradiction here is that in order to overcome one's prejudicial nature, it seems that one must strive for a consistency of thought and action that at some point can be regarded by some as fanaticism - which is the mark of the extremist! As it turns out, this irony appears to play out in the rhetoric of the two fields, with each side claiming the other side to be fanatics of sorts (e.g. "right-wingers," "Zionists," "hawks," "doves," etc.), and may be implicated in what becomes "ideologically frozen understandings" (Comstock) in both fields. This contradiction is apparent in the compromise solutions cited by Allport: "An outstanding fact of social life is that the multiplicity of roles a man has to play forces him into inconsistent behavior" (337). The process of striving for integration while at the same time avoiding fanaticism can only lead to instances of inconsistent behavior that at the very least slow down the momentum of any social movement. What also appears to happen as a way to survive this inner struggle is that adherents of one movement will insulate themselves from other movements, in order to maintain equilibrium. Examples include the reluctance of white upper middle class adherents of the women's liberation movement of the 1960s to take on the agendas of discrimination against lesbians or African-American women, for fear the movement would not be taken seriously. "Part of the overwhelming frustration black women felt within the Women's Movement was at white feminists' unwillingness to admit to their racism. This unwillingness comes from the sentiment that those who are oppressed cannot oppress others" (Thistle). This denial of one's personal prejudice while struggling to eliminate prejudice in social contexts fulfills three of Allport's four modes (334) of "contrary impulses" : repression, defensive rationalizations, and compromise solutions. But the fourth mode - "integration" - is problematic. Ironically, the contradiction of definitions of "consistency" in describing fanatics and tolerant "integrated individuals" shows how fundamentally related in conviction may be the liberals and the conservatives.
The people who are studying hate crime as a social issue and restorative justice as a prescription have in common the problem of "fuzziness" of definitions. I once asked a police officer "What is a hate crime?" and she said, "I can't always define it very well but I know it when I see it." I asked a victim-offender mediator "What is restorative justice?" and he said, "I can't always define it exactly, but I know it when I see it." Fuzziness is this state of "knowing it" intuitively but not being able to adequately define it. A movement or practice can fossilize if its intent can never be adequately defined. It is clear that the public is divided on what constitutes a "hate crime," but it is also clear that the hate crime activists are equally divided. Likewise, those researching the theories and practices of restorative justice do not agree on what constitutes a restorative justice "action" versus any other kind of prescriptive action beyond the ambiguously retributive. In addition, there appears to exist separate sets of definitions of restorative justice - one set defines it in terms of principle, while another set defines it in terms of practice.
This sort of fuzzy status of definitions leads to a related problem: "bandwagon syndrome." This is a metaphor for the problem of every sort of crime eventually being defined as a "hate crime" (along the lines of how, since September 11, every violent or threatening act by a politically motivated group has been re-defined as "terrorism") and every "feel-good" action in any justice-related movement being lumped into the category of "restorative justice." The "bandwagon syndrome" in the hate crime movement is a way of saying "everybody on board who has ever been a hate crime victim!" Since the hate crime definition is constantly being changed by political rhetoric, eventually so many people "climb on board" that there is nothing distinct enough about the definition to make it viable. I have read accounts where a row of SUVs were vandalized on one street and therefore the crime is a "hate crime against SUV owners," and another an anti-fur activist was charged with a "hate crime against capitalists" for smashing a fur store window.
Likewise, in the restorative justice movement, there is a propensity for "all good things" to be claimed as restorative justice actions while "all bad things" are claimed to be retributive. This propensity not only goes for "things" that happen along the way, but "things" that happened in the long ago. "The idea of restorative justice has become so popular, the term is now applied after the fact to programs and policies that have been in place for some time, or it is used to describe reputedly new policing and correctional policies" (Daly, RJ in Diverse Societies). I personally became aware of restorative justice "bandwagon syndrome" when, after explaining a few concepts of restorative justice to a professor, she said, "I've never heard of restorative justice, but from what you're telling me, it must have come from feminist theory." Though it can be said that all justice movements have in common some principles and theories, it may be more useful to make clear the distinctions rather than the similarities while a new movement is trying to find its momentum among the plethora of social causes that individuals are daily encouraged to care about.
Critique of Ideology
The final contradiction I see in both of these issues as they play out in contemporary times is that the ideological rhetoric tends to steer clear of issues of class and economics in favor of a focus on character and principle. In other words, prejudice is presented as important because of its status as a character flaw, and upholding restorative justice principles is presented as important because it is "taking the higher ground." If we view prejudice as simply a character flaw, we don't have to pay any attention to what societal strains may be implicated in what eventually results in hate crime; we can just focus on treatments for character flaws. If we view restorative justice as being worthwhile simply on the basis that it is "taking the higher ground," we don't have to pay so much attention to what economic or power structure changes may be needed to reduce crime.
John Braithwaite, in his keynote address at the first North American Conference on Conferencing, said that “restorative justice will never become a mainstream alternative to retributive justice unless long-term R[esearch] and D[evelopment] programs show that it does have the capacity to reduce crime” (Braithwaite qtd. in Wachtel). We may have "evidence" that victims, offenders, and restorative justice practitioners find restorative justice actions to be principled and just, but we have not adequately demonstrated that any restorative justice action significantly reduces or prevents crime. Though there have been several studies conducted to measure rates of youth offender recidivism, these studies have not factored in other crucial variables at the time they participate in a restorative justice action. This is important because it may be shown that offender recidivism is often reduced, with or without any restorative justice action, by other factors. Also, there has been no study that follows offenders when and if they move out of the jurisdictional areas in which the recidivism statistics are gathered.
Restorative justice practitioners claim that recidivism is not the best indicator for success of an action, and that "empowerment" of the participants is a more important outcome. However, research has shed scant light on what "empowerment" means or how to measure it, in order to make the claim that a restorative justice action will help one to feel "empowered." In fact, recent follow-up research on victims who underwent restorative justice actions has shown that victims sometimes feel no less "empowered" than they did before the action, and sometimes feel less empowered (Daly, The Real Story; Venables).
Likewise, we may have adequately proven that hatred is a bad thing and people shouldn't have it, but we have not proven that upholding the viability of the "hate crime" category in our systems of justice will reduce the conditions that lead to the hate that leads to the crime. Jay MacLeod, in his book Ain’t No Makin’ It asserts that as long as "social problems are reduced to problems of individual morality and pathology in contemporary American politics, there is no critique of the class structure..." (267). As long as inequities in the social hierarchy are discussed solely in terms of racial and ethnic intolerance, the issue of poverty remains a discussion solely for "the ethnic community." Whites living in poverty or who are undergoing traumatic displacement of other types are excluded from this conversation. In any case, it is white upper- and middle-class citizens that should be accountable for the discussion of resolutions.
As indicated by Blazak's initial inquiry into strain theory (Blazak, Ethnographic study) as a basis for defining the problem of hate-motivated violence, no matter how much a justice practice can claim "higher ground" in principle, it will tend to reproduce existing relations of inequality (Daly, RJ in Diverse Societies 182). It may take social restructuring that redistributes wealth and changes divisions of labor and power before we will see reductions in crime of any kind, but particularly of crime that is motivated by awareness of deeply-rooted inequities.
Perry found that hate crime offenders may be using hate crime as a way to forge "relational identities" in society (Perry 52). "The structures of oppression and their supporting institutional patterns provide the context and constraints within which we 'do difference' in as human actors" (53). When there appears to be so few "niches" left in which to clearly differentiate oneself from all others in terms of identity, some may choose identification with an extremist movement as a reflection of how few choices of identity they see for themselves. This has little to do with "hate," per say, and much to do with the strain of societal inequities that are never addressed in that context.
Possibilities for Action
So far this paper has shown that the sought-after congruencies connecting hate crimes research with restorative justice principles have mostly to do with shared contradictions in principle and action. There is one shining example of how a typical restorative justice action (victim-offender mediation) played out in the case of a hate crime, when skinheads vandalized a synagogue and, after being charged in court, agreed to meet with the rabbi and other synagogue members for a mediation in order to hear out the victims on the harm done by their crime (Lerman). It was discovered during the mediation that what primarily motivated the offenders was not a principled hatred of Jews, but the strain of feeling like outcasts of society: they were runaways, poor and displaced, and had been bouncing through foster homes. "They had been inculcated into neo-nazi thought as just 'something to do,' without really understanding what it meant" (1).
This scenario has been repeated in my own personal experience as a mediator and in working with hate crime offenders and former offenders. One former skinhead, speaking as part of a presentation for which I was also a speaker, tells groups nationwide about his experience getting into the skinhead movement, and for basically the same reasons: feeling displaced and unwanted, from a broken family, and bouncing through foster homes. He also explains that he was able to leave the skinhead movement because a perceptive foster mother, a psychologist, found how to reach him:
There is evidence outside of the restorative justice field that appear to have some hope for pinpointing the basic inequities fueling xenophobia. Several youth programs across the country have focused on the issue of youth hate crime by putting offenders through a rigorous program of psychological evaluation and therapy, multi-hour educational programs, and community service (Malloy). Looking through summaries of all the programs, the overwhelming congruency is that efforts are made to relieve social inequities being experienced by the offenders. "Offenders are placed in professional settings in the community, not homeless shelters or HIV clinics, to defeat stereotypes they may have of certain groups and to increase their awareness of the inherent value of diversity" is a feature of the Juvenile Diversion Project sponsored by the Anti-Defamation League in New York City. Though the goal is to get the offenders to see how they have stereotyped others, it may also have the added value of bringing offenders into interactive social contexts they may have thought of as off-limits to them by virtue of their class or economic status. All the programs rely heavily on creative community service work (e.g. not just picking up trash on the freeway), which also may have similar effects.
An experiment in inter-group behavior carried out by Muzafer Sherif and his colleagues was discussed in the thesis. Sherif randomly assigned 12-year-old boys to two groups at a Boy Scout camp. Within each group the boys were taught to cooperate. After they were all getting along very well with members of their particular group, Sherif set up a series of competitive activities to pit each group against each other, with prizes awarded to the winning group. There were also situations set up to disrupt the balance of fairness in the distribution of food. As predicted, these conflicts and disruptions resulted in name-calling and food-throwing between members of each group, "and within a very short time a full-scale riot was in progress" (Aronson qtd. in Baird 131). Then Sherif eliminated the staged conflicts and initiated non-competitive social contact between the boys. But to the surprise of all, this did not end the hostilities...in fact, hostilities escalated, even when the boys were engaged in benign activities like sitting around watching TV (131).
What finally brought these boys back to their original state of getting along? The key appeared to be the creation of a task that required inter-dependence in order to elicit empathy. Sherif arranged for a vehicle to get stuck in the mud, and when the boys found that the only way to get unstuck was to cooperate in solving the problem, the act of cooperation spurred them to reunite as one group and hostilities vanished thereafter (132). Sherif asserts that the activity generated empathy because every boy was needed equally for the task to be successful, and each, by experience, knew how difficult the task was for all. This had the effect of putting all the boys on the same level. There were no inequities. And their former mutual hate was never addressed.
Conclusion
Claudia Brenner and Rebecca Wight were hate crime victims, but that is not all that they were. They were also both from well-to-do families and they were college students on the track toward lucrative vocations in the fields of engineering and architecture. Brenner is currently an architect in upstate New York. She endured a horrible crime that no one should have to go through, but it was inevitable that after such an event she would receive the best of care in her long recovery process. She was able to heal successfully and be a better person for it because she had the benefit of the best support system in place before she experienced her tragedy, and which made it possible for her to enter back into her community successfully and gracefully. I wonder what would have transpired if the two lesbians making love that day were actually homeless immigrants who had fled a war-torn country and were living in the park for lack of any other place to go? What story would I have read about their "healing"? If a similar fate had ever fallen upon the shooter, who was terminally homeless and was reported to have had an IQ of about 70, would there be such a support system readied for him? The victims and the offender in this case really do come from different worlds, despite the fact that on the surface the claim can be made they are all members of categorical minorities. It is easy to make the issue of hatred toward racial or sexual minorities as being "the problem," but is xenophobia the only reason for hate crimes? The idea that the victims and offender in this case are "members of the same community" that could find some point of authentic reconciliation is perhaps oversimplifying the underlying problems. Perhaps it will make the work of healers valid and empowering, but it does not solve the very real issues of poverty and oppression that will remain long after the healing rituals are over.
I found that even the legal and social complications in the hate crime issue were often smoke screens that made it possible to not deal with the real problem of why hate crimes happen: it's not only because we don't have the laws down right, or don't have the "right" kind of justice system, it's because we keep focusing on changing our justice procedures instead of changing the societal conditions that create the oppression that motivates crime. We keep talking about how "senseless" hate crimes are, but we don't get the message about how warped of a reality a person can find themselves in that makes such crimes seem liberating. We can make laws or new procedures till the cows come home, but it won't stop people from hating their lives so much that it actually relieves some of the strain to take it out on other people.
I began my thesis with the hope that restorative justice could offer some solace in the complex harm created by hate crime. It certainly made me feel good to practice it in my own life. I believe it can help in some cases, but my experience so far has been that it has been set up for and is mostly helping members of the dominant culture, whether they be victims or offenders or both. Until restorative justice practitioners get a handle on the deeper issues -- the reasons for injustice -- they can only do what is already being done: cover up the real problems by allowing people to feel like they are doing the right thing without really doing much at all. The fact of the matter is that solving the cause of hate crime is going to be very difficult, and it probably means that people like Claudia Brenner and you and me will have to make some sacrifices and step out of comfort zones we have surrounded ourselves in.
We'll have to start reframing some of our issues, such as reframing "How are we going to rid the world of terrorists?" into "What is going wrong for these people that they are so desperate to get our attention?" We'll have to listen to what the racists are telling us between the lines -- like Steve Stroud's foster mom listened to him, unconditionally -- and hear about what the world looks like when you have reached the end of your rope and everyone else is the enemy. We'll have to stop taking credit for solutions that came without our help, like the moments of clarity experienced by former leaders of extremist movements. Sometimes it takes getting into extremely unpopular positions to see the light -- how can we help that happen without tripping all over our own principles? Perhaps we need to look more deeply at the essence of conflict to see what rewards it has in store for us, what we're missing by trying to kill it with kindness.
Notes and References - available upon request by those cited