Each year, across America, an average of 250,000 people are victimized by hate crimes – criminal expressions of bigotry that terrorize entire communities and fray the social fabric of our country.
As defined by the FBI, a hate crime is a violent or property crime – such as murder, arson, assault or vandalism – that is “motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”
Nine out of 10 hate crimes involve violence, and in a quarter of the cases, the offender has a weapon.
VIEW THE FBI’S MOST RECENT HATE CRIME REPORT
The federal government and 45 states – all but Arkansas, Georgia, Indiana, South Carolina and Wyoming – have enacted hate crime laws that enhance penalties for an underlying crime. The laws differ in significant ways. All cover bias based on race, ethnicity or religion, but many do not include gender, disability, sexual orientation or gender identity.
The FBI releases a hate crime report each year – typically showing between 5,000 and 6,000 – but it vastly understates the extent of the problem for several reasons.
First, in about half the cases, victims never report the crime to police. Second, many of the country’s 18,000 law enforcement agencies do a poor job collecting or categorizing hate crime data. Third, agencies are not required to participate in the FBI’s Uniform Crime Reporting (UCR) program, which gathers and compiles crime data from law enforcement to produce the data set on which the FBI hate crime report is based. In 2016, of the 15,254 agencies that participated, nearly nine out of 10 reported zero hate crimes. Mississippi agencies reported just seven incidents in the entire state.
The U.S. Justice Department’s Bureau of Justice Statistics, however, estimates there have been an average of 250,000 hate crime victimizations each year since 2004. It bases the estimate not on the UCR data collected from law enforcement agencies but rather on its annual National Crime Victimization Survey, which samples nearly 100,000 households.
Of the 8,828 hate crime victims reported to the FBI in 2016 (in 7,175 separate incidents):
- 2,458 were targeted because of anti-black bias;
- 1,338 because of sexual orientation or gender identity bias;
- 864 because of anti-white bias;
- 1,017 because of anti-Jewish bias;
- 552 because of anti-Hispanic or anti-Latino bias;
- 325 because of anti-Muslim bias;
- 321 because of anti-American Indian or Alaska Native bias.
Racial bias is the motivating factor in most hate crimes, about 60%, according to the National Institute of Justice. But other factors involving the psychology of the offender have also been the subject of research. In one study widely used by law enforcement, sociologists Jack McDevitt and Jack Levin classified hate offenders as having four main motivations: thrill-seeking, defensive, retaliatory and mission.
- “Thrill-seeking” motivates 66% of hate crimes. These offenders are simply looking for excitement; over 90% don’t know their victims.
- “Defensive” hate crimes (25%) are committed by perpetrators who rationalize their attacks by identifying some sort of threat to themselves, their identities or their community.
- In “retaliatory” attacks (8%), culprits are acting in response to a real or perceived hate crime either to themselves or to their country. Examples include crimes committed against Muslims after the 2015 San Bernardino terrorist attack.
- “Mission” hate crimes (1%) are committed by offenders who make a career out of hate. They often write at length about their hate and have elaborate, pre-meditated plans of attack.
Hateful speech – often intended to degrade, intimidate or incite violence or discrimination against certain groups – is protected by the First Amendment and is not punishable under criminal law. However, racial, anti-Semitic or anti-LGBT slurs – or other speech that vilifies a targeted group – can be evidence of a hate crime when used by someone during the commission of an underlying crime. In fact, in 99% of cases reported to police, hate crime victims cite the language used by the offenders.
Differentiating terrorist attacks from hate crimes is important to understanding motive, addressing the root causes of an offense and prosecuting the offenders. Hate crimes are motivated at least in part by an offender’s personal bias and are sometimes committed by nonpolitical youths simply for the thrill of it. Terrorist attacks, on the other hand, are violent acts inspired primarily by extremist beliefs and intended as political or ideological statements. Rather than target a specific identity – such as Jews or Muslims, as in a hate crime – offenders typically target government installations or groups of civilians related more by proximity than by their individual identity.
Sometimes, a violent crime can be considered both a hate crime and a terrorist attack. An example is the 2015 massacre of nine African Americans at a church in Charleston by white supremacist Dylann Roof. For the most part, though, terrorist attacks are not included in tabulations of hate crimes.
Though hate crime reports that turn out to be hoaxes often generate sensational headlines, the phenomenon is relatively rare. The Center on Hate and Extremism at California State University documented approximately two dozen confirmed or suspected instances of false reporting “hoaxes” of hate crimes from 2016 – 2018 – a tiny number in comparison with the many thousands that the federal government says go unreported (see above).
“We do routinely see a very small number of hate crime hoaxes, but we also see hoaxes with respect to arson and auto theft and even reports of sexual assault, yet we don’t say the overwhelming number of reports of those crimes are hoaxes, either,” Brian Levin, director of the Center on Hate and Extremism at California State University, San Bernardino, told Fox News.
Even researchers dedicated to documenting hate crime hoaxes have found relatively few. One website, fakehatecrimes.org, has tallied fewer than 350 since the late 1980s. It should be noted that this site claims to continue the work of writer Laird Wilcox, whose unpublished manuscript Crying Wolf on the site claims, “Today discrimination in schools, housing, jobs, and government is minimal. Institutional racism is virtually gone. In its place, a series of preferential policies are firmly established.”
Sites and organizations such as Breitbart News, once called “the platform for the alt-right,” continue to overhype the threat of “fake hate crimes.” Breitbart News, formerly run by Stephen Bannon, claimed in an article shortly after the election of Donald Trump: “The narrative about a wave of ‘hate crimes’ inspired by Trump is a deliberate fabrication, meant to tarnish the President-elect.”
To the contrary, in the first 34 days after the election, the SPLC documented 1,094 bias-related incidents and found that 37% of them directly referenced Trump, his campaign slogans or his notorious comments about sexual assault. Not every incident met the definition of a hate crime, but many did. The FBI later confirmed the sharp uptick in reported hate crimes in the fourth quarter of 2016. Researchers have shown that reported hate crimes following Trump’s election made up the second largest surge since the FBI began collecting data in 1992 (trailing only the increase after the 9/11 terror attacks).
Though there were no specific statutes addressing them, the FBI says it has been investigating what are now called hate crimes since World War I. During the civil rights movement, the agency used civil rights laws, including the Civil Rights Act of 1964, to prosecute a number of white supremacists who committed murders, bombings or other acts of violence to intimidate the African-American community and civil rights activists. In numerous cases, local law enforcement officials in the Jim Crow South simply refused to investigate or prosecute such crimes.
The Civil Rights Act of 1968, also known as the Fair Housing Act, made it a federal crime to forcefully injure, intimidate or interfere with someone – on the basis of their race, color, religion or national origin – because of their attempt to participate in any of six federally protected activities, including voting or attending school.
In 1990, Congress passed the Hate Crime Statistics Act. It required the attorney general to collect data about crimes that exhibit evidence of prejudice based on race, religion, sexual orientation or ethnicity. This led to the nationwide collection of hate crime data under the Uniform Crime Reporting (UCR) program, which has been gathering crime data from state and local law enforcement agencies on a voluntary basis since 1930. The FBI uses the data to produce its annual hate crime report.
Upon the passage of the Hate Crime Statistics Act, President George H.W. Bush referenced the Civil Rights Memorial, built and sponsored by the SPLC in Montgomery, Alabama. Bush quoted Dr. Martin Luther King Jr., whose words are etched on the memorial: “We will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.” Bush added, “We must rid our communities of the poison we call prejudice, bias and discrimination. … The Hate Crime Statistics Act is an important further step toward the protection of all Americans’ civil rights.”
In 1994, the Violent Crime Control and Law Enforcement Act amended the Hate Crime Statistics Act to include bias against persons with disabilities.
The Church Arson Prevention Act of 1996 cemented the Hate Crime Statistics Act by making the collection of hate crime data a permanent part of the UCR program. Enacted after 66 African-American churches were destroyed in less than two years, the Act additionally authorized the federal government to prosecute persons who burn or damage religious property.
In 2009, Congress passed the landmark Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, named for two victims of horrific crimes based partly or wholly on their identities. Matthew Shepard, a 21-year-old gay student, was beaten and murdered. James Byrd Jr., a 49-year-old African American, was dragged to death behind a truck by three white supremacists.
The Shepard-Byrd Act changed federal hate crime law in several important ways. It removed the requirement that, to qualify as a hate crime, the victim must have been participating in a federally protected activity like voting. It expanded the existing hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability. It required the FBI to add gender and gender identity as categories of hate crimes it tracks. It gave the federal government greater flexibility to prosecute hate crimes that local authorities choose not to pursue. And it required the FBI to collect data concerning hate crimes committed by or targeting juveniles. The FBI began collecting this data in 2013.
In 2013, the FBI expanded the religious bias category in its hate crime data report to include crimes against Sikhs, Hindus, Arabs, Mormons, Jehovah’s Witnesses and Eastern Orthodox persons. This data has been collected since 2015.
The FBI says that the 1964 Civil Rights Act changed the protection of civil rights from a local function to a federal function. In many ways, however, it remains a local function. Despite being a federal law, the Shepard-Byrd Act largely relies on current state hate crime laws and agencies for enforcement. States differ significantly in their definitions and enforcement of hate crimes. For example, just 28 states include gender bias in their definition. Five states don’t even have hate crime laws.
After Jeanne Clery was raped and murdered in her dorm room in 1986, The Clery Act of 1990 was created to increase awareness of crime on college campuses. The Act requires all colleges that receive federal funding to share information about campus crime – including hate crime – with their students and employees. These institutions must report how they address safety on campus, inform the public about campus crime and reduce crime rates. Colleges must also report the ways in which they are working to remedy situations with victims and include prevention education in their policies. The Campus SaVE Act of 2013 extended the Clery Act to include incidents of sexual violence.
In 2016, about 10% of reported hate crimes occurred on campuses, a category that includes both colleges and elementary and secondary schools.
Only about half of hate crime victims report the crime to police. But this doesn’t explain the vast discrepancy between the 5,000-6,000 hate crimes that the FBI reports each year in its “Hate Crime Statistics” report and the 250,000 estimated by the Bureau of Justice Statistics.
Part of the problem is that the FBI bases its report on data submitted by state and local law enforcement agencies using the Uniform Crime Reporting (UCR) program, which is entirely voluntary. The Bureau of Justice Statistics, on the other hand, bases its estimates on a survey of 100,000 households, known as the National Crime Victimization Survey.
Not all agencies report hate crime data to the FBI. In 2016, about 15% of the country’s approximately 18,000 law enforcement agencies did not participate.
In addition, many agencies do not properly identify hate crimes in the first place. Just 12 states have laws requiring that officers be trained to identify and investigate hate crimes. Numerous police departments have misconceptions about handling hate crimes. According to ProPublica, several agencies believe it is up to prosecutors to deem an incident a hate crime.
Even federal agencies do not always properly report hate crimes. Despite the 1988 Uniform Federal Crime Reporting Act, which requires federal agencies to submit crime data to the FBI, many do not. ProPublica reported in June 2017 that more than 120 federal agencies aren’t submitting the information to the FBI. For example, the Defense Department’s inspector general concluded in 2014: “DoD [Department of Defense] is not reporting criminal incident data to the Federal Bureau of Investigation (FBI) for inclusion in the annual Uniform Crime Reports to the President, the Congress, State governments, and officials of localities and institutions participating in the Uniform Crime Report program, as required by Federal law.”
The Department of Defense, as it boasts on its website, is the nation’s largest employer with 1.3 million men and woman on active duty, yet none of the offenses handled by the department are included in the FBI’s Uniform Crime Report. Moreover, it’s not just federal agencies that are not submitting data to the FBI, the FBI itself does not include offenses it handles or those handled by other federal law enforcement agencies.
The FBI thinks so. Former Director James Comey, while introducing the 2015 hate crimes report said, “We need to do a better job of tracking and reporting hate crimes to fully understand what is happening in our communities and how to stop it.”
Attorney General Jeff Sessions expressed a similar sentiment to the Justice Department in June 2017, saying, “I know the responsibility that we have, and we have a responsibility to protect people’s freedom, their religious rights, their integrity, their ability to express themselves, to push back against violence and hate crimes that occur in our country. So, we’re going to do that, I will assure you, in every way.”
In September 2017, following the deadly white supremacist rally in Charlottesville, Virginia, Congress passed a unanimous joint resolution calling for action on hate crime. The resolution, signed by President Trump, urged him to “speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy” and to “use all resources available to the President and the President’s Cabinet to address the growing prevalence of those hate groups in the United States.” It further urged federal agencies to improve the reporting of hate crimesand the attorney general to investigate acts of “violence, intimidation, and domestic terrorism” by white supremacist hate groups. The resolution, however, did not include any mechanism to enforce its provisions.
The failure of the hate crime reporting system is part of a broader data collection problem.
The Justice Research and Statistics Association (JRSA) has asked for the improvement of the overall crime reporting process. In a 2015 report, the JRSA wrote “the nation needs more than simple annual summary counts of offenses in order to think more strategically about crime, to enhance trust between communities and their law enforcement agencies, and to promote a sense of community wellness and safety.”
Such a program – the National Incident-Based Reporting System (NIBRS) – was proposed in 1982. Although created with the intention of increasing transparency, building trust within communities and improving the collection of information to appropriately address crimes, the NIBRS was unsuccessful. The system, also administered by the FBI, was originally tasked with gathering more specific information than the UCR program, such as existing relationships between the perpetrator and victim and type of weapon used. However, in 2012, 30 years after its creation, agencies contributing to NIBRS accounted for only 30% of the U.S. population.
A recent study published by Cornell University proved that discrepancies in crime statistics and underreporting prevented communities and law enforcement agencies from appropriately addressing safety concerns.
This same study also found two major reasons for the underreporting of crimes. The first being the UCR’s Hierarchy Rule. That is, if a crime such as a robbery escalates to murder, only the latter will be noted. The second reason is arguably more impactful: If the community does not trust law enforcement to help, individuals will not report the crime at all. In the Bureau of Justice Statistics’ 2004-2015 National Crime Victimization Survey, over half (52.2%) of respondents said they experienced a hate crime and did not report it for a number of reasons, including believing the police would not help or would not be able to do anything.
The United Kingdom is often cited as a model for hate crime data collection.
The Home Office, which is responsible for immigration and security, created the Home Office Data Hub, which aggregates and classifies all police-recorded data. The Data Hub is able to obtain data directly from the crime recording systems of local forces.
During the same period of the Bureau of Justice Statistics report (2015), England and Wales – with a combined population that’s 20% that of the United States – had more than 60,000 reported hate incidents. From 2014-2015 to 2015-2016, there was a 27% increase in overall number of recorded offenses. However, the Office of National Statistics (BJS’s UK counterpart) attributes the increase to improved police recording rather than a rise in actual offenses.
The main difference between the processes of reporting and addressing hate crimes in the United States and England and Wales is the option for local agencies in the United States to submit data on hate crimes. The Home Office Data Hub automatically collects and aggregates data from law enforcement agencies to appropriately classify incidents and ensure they are addressed. In terms of enforcement, in the United States, states must first create their own hate crime laws, create the structures and training that will lead to their enforcement and the recording of hate crimes or follow a number of steps to delegate responsibility to the Justice Department. These states may elect to report hate crimes or not. This difference is obvious in results. The FBI each year reports just a small fraction of the hate crime incidents estimated by the National Crime Victimization Survey.
The issues with underreporting of crimes are not the only ones creating obstacles to addressing hate crimes in the United States. The difficulty with prosecution is also an issue. According to Bureau of Justice Statistics, violent hate crimes are three times less likely to result in an arrest than violent crimes not related to bias. In nearly half of reported hate crimes, the victim doesn’t know the offender.
Even in states with sufficient hate crime laws and resources, prosecution is difficult. For example, according to the California Department of Justice, there were 837 hate incidents in 2015. Of the 189 that were prosecuted, just 59 resulted in a conviction. Hate crimes are difficult to prosecute in part because of the evidence needed to result in a conviction. Prosecutors have to prove the underlying crime beyond reasonable doubt and convince jurors that the offender was motivated by bias. Without hate speech accompanying the crime, it’s a difficult hurdle.
When states do not have the necessary resources or authority to prosecute a hate crime, the process is even more arduous. The Shepard-Byrd Act allows the federal government to prosecute hate crimes whenever local or state prosecutors choose not to. However, before the DOJ may prosecute a hate crime, several criteria must be met. The U.S. attorney general must assert that either the state does not have jurisdiction, that the state asks the federal government to assume jurisdiction, that a verdict or sentence obtained under state charges insufficiently eradicates bias-motivated violence, or that it is in the public interest of the United States to prosecute. Hence, federal hate crime prosecutions are rare. The DOJ charged just 258 defendants for hate crimes from 2009 to 2016.
The federal government should take a number of actions to combat hate crimes.
The Justice Department, for example, should:
- Incentivize, encourage and train state and local law enforcement agencies to more comprehensively collect and report hate crime data to the FBI.
- Collect hate crime data from every federal law enforcement agency.
- Work with law enforcement organizations to promote and increase funding for the FBI’s National Incident-Based Reporting System.
- Establish a separate working group or task force to address hate violence and bias-motivated incidents.
- Restore funding cuts to key civil rights office budgets.
- To encourage victims to report hate crimes to local law enforcement, rescind federal policies that undermine faith, trust and relationships with communities of color – such as immigrant communities – and create a strategic plan to rebuild relationships that have been harmed by them.
- Send a clear and consistent message that bias-motivated attacks are unacceptable.
- Aggressively enforce the Fair Housing Act’s civil and criminal provisions that address hate crimes.
- Promote anti-bias and anti-harassment education, hate crime prevention, and initiatives to combat bullying and cyberbullying.
- Provide funding for states to establish hotlines for reporting and addressing hate crimes; to support training on hate crime data collection and reporting; and to authorize effective rehabilitation services for those convicted of hate crimes.
- Provide funding, for the first time, for grants authorized under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act to promote federal coordination and support for hate crime investigations and prosecutions by state, local and tribal law enforcement officials.
- Provide funding for the Justice Department’s Community Relations Service to hire new professionals to help mediate, train and facilitate in communities with intergroup tensions and in the aftermath of hate crimes.
For a more detailed list of recommendations, see a letter from the SPLC and 81 other organizations to Justice Department here.