Opinion: We are not convinced that punishment-based hate crime legislation is the best way to end abuse motivated by hate or prejudice

By Elizabeth Kiely and Katharina Swirak, UCC

The Criminal Justice (Hate Crime) Bill 2020 is expected to become law in Ireland later this year. The bill will repeal and replace the provisions in the Prohibition of Incitement to Hatred Act 1989 and is widely regarded as having cross-party, academic and public support. The hope is that the proposed legislation will, if not remedy crime motivated by hate entirely, at least serve as a significant deterrent to such crime.

However, we believe the legislation is likely to bolster a punitive response to a social problem that would better benefit from responses other than enhanced criminal penalties. American journalist Elizabeth Nolan Brown puts it succinctly: while hate laws 'might feel good, it's far from clear that they do good'. Indeed, the evidence is decidedly lacking that such laws exert a deterrent effect on hate motivated crimes, but there is extensive empirical evidence showing that the practical operation and enforcement of hate crime legislation is significantly problematic for a number of reasons in different jurisdictions.

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From RTÉ Radio 1's Morning Ireland, Minister for Justice Helen McEntee on the introduction of new legislation to tackle hate-speech and hate-crimes

Our main concern is that hate crime legislation everywhere seeks to more severely punish actions that are already against the law and already punishable. For instance, the proposed legislation creates new aggravated forms of certain existing criminal offences, where the offences are found to be demonstratively motivated by prejudice. These aggravated offences will carry an enhanced penalty compared to an ordinary offence.

Unfortunately, by putting the emphasis on these enhanced sanctions, the legislation makes the prospect that already poorly deployed restorative practices (such as victim offender mediation, reparation of harm, offender accountability) are even less likely to be utilised. When the offender’s thought process is also being punished, it increases the risk that a sanction could be disproportionate to the criminal conduct because the thought process and the conduct are both being punished. The punitive orientation of this proposed legislation also runs counter to some evidence showing that restorative practices are more successful than enhanced sanctions in terms of both satisfying and helping victims of such crimes.

As a result of this punitive emphasis, the proposed legislation, as we see it, can be expected to increase and lengthen prison sentences and ultimately shore up unequal relations of power and social control in society. Identifying hate as something that predominantly resides in the hearts and minds of individuals, as the proposed legislation does, is problematic. It takes the focus off the ways in which our political and social institutions discriminate, or sow seeds that cultivate hate or prejudice in those hearts and minds.

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From RTÉ Radio 1's Morning Ireland, Shane O'Curry, director of the Irish Network Against Racism, on why the Irish Government should enact hate crime legislation.

We should remember that it is precisely because our white, racist, settled, classist, sexist, ableist, ageist and heteronormative attitudes and practices (from which certain groups of people accrue privilege) are so institutionalised and taken for granted, that they are not adequately problematised. The achievement gap in education, the lack of women in key decision- making positions, the presence of unauthorised CCTV cameras on Traveller halting sites, the neglect of LGBTQ+ school sex education and the continuance of prison committals under immigration law, provide just some of the evidence of significant institutional, rather than individualised prejudice and discrimination in Irish society.

In our book The Criminalisation of Social Policy in neoliberal Societies (Bristol University Press, 2022), we argue that criminalisation serves as a technique to obscure social contradictions, gloss over structural causation and reframe social problems in a way that makes individual conduct its logical target. Pursuing this line of argument in light of the Hate Crime Bill, we query how and why it has become so common-sensical in Ireland to look to law and the criminal justice system to remedy so many of our social problems and why are we so reliant on this system to secure our rights?

After all, Ireland is a country with a long and shameful history, which extends into the present, of legally punishing and confining women, children, Travellers and other ethnic minorities, working class young people, poor, homeless and the drug dependent. The Irish carceral state, which alongside other key social agents, targeted such groups (and continues to do so in some instances), is now presenting itself via the proposed hate crime bill as the protector and defender of some, though not all of these citizen groups. The legislation sets out clearly who is deemed worthy of state safety and protection and who, by not being included, is not. Homeless and drug dependent persons are not being afforded hate crime victimisation protection despite the considerable risk of assault associated with their status and circumstances.

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From RTÉ Radio 1's News At One in 2020, Maggie Doyle reports on statements in the Dáil that current legisation is "not sufficient" to deter hate crime

Unfortunately, nothing about the proposed legislation is oriented to prevention, restoration or the provision of additional resources and supports for victims or communities seeking to advocate, educate or organise against hate and prejudice. Instead, it is overwhelmingly prosecution and punishment driven. The idea that punishment by criminal justice sanctioning and imprisonment can rid our societies of persons who may hate or hold prejudice is, in our view, misplaced. Equally, the idea that persons punished will enter places or spaces of punishment where they can learn to challenge their attitudes or express different and better kinds of selves is at best ironic when we consider that many of our institutions (and not only our prisons), are places where sexism, misogyny, toxic masculinity, homophobia, racism and prejudice are also encountered.

From our perspective, the investment in punishment, which is prioritised in the Hate Crime Bill, can be expected to mark a further investment in state violence against those who are already excluded and othered in our societies. We know this because prisons in Ireland and in other parts of the world are not full of educated, wealthy, white people. Instead, they are to a very significant extent places of containment of the poor, homeless, drug dependent, mentally ill and members of ethnic minorities, who are disproportionately represented.

It would be naïve to assume that the criminalisation of hate would target anyone else than the usual suspects. Tropes of criminality and the construction of the suspect population in Irish society and beyond, give us insight into who will most probably be identified as the haters, the punished and imprisoned; they are more likely to include the ‘male working-class youth’ or the ‘homophobic Muslim’ rather than the ‘anti-Traveller politician’. The UK evidence shows that Black people are over-represented as hate crime defendants.

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From RTÉ Radio 1's Drivetime, Doireann Ansbro from the Irish Council for Civil Liberties, and Annie Hoey from the Labour Party discuss new hate crime legislation

It is also worth noting that it is demonstration of hate and not greed that is being criminalised and punished in the Hate Crime Bill. However, if the Irish state is intent on punishing the demonstration of malevolent motivations in addition to criminal conduct, it might also (in the interests of fairness), focus its attention on the punishment of greed as demonstrated by those, who persistently make excessive profits during war, housing, health and energy crises. It is our contention that, after this legislation is introduced and presuming it can be enforced, the criminalised and prison population will look the same as it does now, just larger.

It has to be viewed as somewhat ironic that organisations and groups in civil society calling for or supporting the legislation are putting their hopes in a state punishment system that has shown itself to fail them and their constituents in the past. It also falls far short in its aims to deter crime, rehabilitate or to create safe communities.

We urge progressive groups advocating for hate crime legislation to stop and think about the effects of more punishment and imprisonment

But what is possibly our greatest concern is that hate crime legislation and punishment fuels a populist desire to punish. Aside from the law-and-order enthusiasts, ‘progressive’ leftist, feminist, anti-racist and LGBT+ political movements and non-governmental organisations are calling for and supporting this legislation. These are not all just simply being co-opted or complicit with the state’s punitive agenda; some are leading the charge for the introduction of hate crime punishment-based legislation. They are infusing rights-based citizenship with punitive logics and putting their trust in the state and its juridical institutions to do justice.

Based on both research evidence from other jurisdictions as well as the arguments outlined above, we strongly urge progressive groups and organisations advocating for hate crime legislation to stop and think about the distributional effects of more punishment and imprisonment in our society. Preventive and reparative interventions provide a better way forward. We too want to end abuse motivated by hate or prejudice, but are not convinced that this can be best achieved by this legislation as it is proposed.

Dr Elizabeth Kiely is a senior lecturer in the School of Applied Social Studies at UCC. She is an Irish Research Council awardee. Dr Katharina Swirak is a lecturer in the Department of Sociology and Criminology at UCC. She is an Irish Research Council awardee.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ