Trying to incarcerate anti-Semitism away only makes it worse

Following a series of anti-Semitic attacks across the nation, many Jews are afraid for their safety. As an Israeli-born Jew who has family who died in the Holocaust, I take anti-Semitism very seriously. But some people, including policymakers in positions of power, are using our legitimate fears to advance illegitimate efforts to incarcerate our way out of the problem. We need to reject that approach.

In the past month, lawmakers have proposed responses to anti-Semitism that have included calling for an expansion of the nation’s domestic terrorism laws, the creation of new hate crime laws, the deployment of the national guard, and tougher sentencing and prosecution. In New York, there are calls to repeal the recently enacted bail reform law, which was passed to prevent the pre-trial incarceration of people who are arrested but are unable to afford cash bail, and who before these reforms remained incarcerated in jail for prolonged periods while awaiting their trials.

These “tough on crime” proposals, which for many policymakers come from good intentions, are a mistake. They rely on an old and discredited notion that locking up more people for longer periods of time — including before they have been convicted of any crime — is the solution to broader social problems. An approach to anti-Semitism that is rooted in incarceration will fail to address the underlying bias that led to the attack and will actually further perpetuate racial inequalities.

The tough-on-crime approach that is now being touted by many as the solution to anti-Semitism is what made the United States the world’s leader in mass incarceration. Take, for example, the calls to repeal bail reform. Cash bail was created as a mechanism to ensure that people show up for their court dates. It was not meant to be a form of preventive detention that allows the government to incarcerate people without a trial. Yet expanding the reliance on a cash bail system will lead to thousands of people, disproportionately people of color, being locked up for being poor.

Similarly, creating new hate crimes does not deter anti-Semitism, but simply creates longer sentences for behaviors that are already criminal, and sets a higher ceiling for the length of all other sentences.

A more effective response to anti-Semitism would be to engage people directly through a comprehensive approach that is rooted in prevention, accountability and healing. This includes public education programs on social media, in communities and in schools, such as incorporating the history of anti-Semitism into school curriculums and organizing events that foster greater solidarity and understanding between communities and religious groups.

But a comprehensive approach cannot stop at deterrence, and must go further to change the way we respond to an act of anti-Semitism once it does take place. As a preliminary matter, when anti-Semitic attacks involve people with mental health needs or substance use disorders, responses should focus on providing people with appropriate medical services.

A comprehensive response would also seek to repair behavior motivated by bias and hold people accountable for their actions by taking responsibility for the harms they caused the victims and to the broader community. An example of such a response can be found in restorative justice practices. Under such a model, which should be engaged in only if the victim consents, the person who perpetrated an offense comes face-to-face in dialogue with the victim of the attack, and trained professionals ensure a process where the person who committed the offense is educated on the impact of their actions. A response is then formulated that is tailored to the individual circumstances. While this approach may not be appropriate for more serious attacks, when done right and when appropriate, this process leads the person who perpetrated the offense to take personal responsibility for their actions, and prevents them from engaging in it again by challenging the underlying beliefs that led to the wrongful behavior.

For example, if an Orthodox Jew is walking down the street and is attacked by a stranger who says something anti-Semitic, a carceral-only approach would lead to that person being arrested and sent to jail. With repeal of recently enacted bail reform they may not be able to get out of jail, and they could wait months for trial. They would then serve their months or years-long sentence and eventually be released.

The major issue with this approach is that it doesn’t solve the underlying bias that caused the attack in the first place and further damages individuals. Through a more comprehensive approach, if that person is mentally ill, they would receive treatment. They would potentially face the person they attacked to learn more about the impact of their actions and the broader history of anti-Semitism. The process would ultimately end with a direct apology and personal responsibility for their actions, and a tailored accountability plan approved by the victim. Most importantly, the odds are that they will be less likely to engage in this behavior again than they would through a carceral-only approach, which has been shown to lead to high recidivism rates.

This approach may sound utopian, but it has already been implemented successfully in some instances in the United Kingdom, as a response to a recent rise in anti-Semitic attacks. One person who participated in this program after perpetrating an anti-Semitic attack said, “I had actually no idea that being anti-Semitic had this kind of impact. I had no idea that all these people died during the Second World War.” In another instance, a Rabbi explained, “I felt that the offenders needed to understand the true impact of their actions and to become better examples to their own children and friends, so I opted to try restorative justice.”

These approaches do not excuse anti-Semitism or let people off the hook, but rather they engage in the hard work of changing peoples’ behaviors to prevent future bias attacks. We can’t fight anti-Semitism by relying solely on building more walls around Jewish communities and fortifying Jews with a ring of police officers and prosecutors. We need to engage directly by reducing these attacks from occurring in the first place, and then instituting effective ways to hold people accountable once attacks do take place.

Anti-Semitism is a dangerous problem. But we can’t incarcerate our way out of it. Instead we must rely on community solutions that tackle prejudices head on through education and holding people accountable for their actions in a way that emphasizes, when appropriate, alternatives to incarceration and addressing a person’s underlying needs. Responding to anti-Semitism with a mass incarceration focused strategy will not make Jews safer, but only continue to hurt communities who have also been historically disenfranchised and ostracized. Let’s choose prevention and healing over retribution and further damage.

Udi Ofer is director of the ACLU’s Justice Division.