The starting point for understanding hate crimes and their impact is to recognize that criminal activity motivated by bias is different from other criminal conduct. First, these crimes occur because of the perpetrator’s bias or animus against the victim on the basis of actual or perceived status. The victim’s race, religion, ethnicity, gender, gender identity, sexual orientation, or disability is the reason for the crime. In the vast majority of these crimes, absent the victim’s personal characteristic, no crime would occur at all.
Second, because hate violence is intentionally, specifically targeted at individuals because of their personal, immutable characteristics they are very personal crimes, with very special emotional and psychological impacts on the victim – and the victim’s community. Hate crimes physically wound and may effectively intimidate other members of the victim’s community, leaving them feeling terrorized, isolated, vulnerable, and unprotected by the law. By making the victim’s community fearful, angry, and suspicious of other groups – and of the power structure that is supposed to protect them – these incidents can damage the fabric of our society and fragment communities.
It's impossible to address our nation’s hate crime problem without measuring it accurately. The FBI has been collecting hate crime data as part of its Uniform Crime Reporting (UCR) system since 1991 and provides the best national snapshot of the issue. As will be discussed below, however, this data is still clearly incomplete. In 2020, the FBI documented 8,263 hate crimes, reported by more than 15,000 law enforcement agencies across the country. However, according to national surveys conducted by the Department of Justice’s Bureau of Justice Statistics (BJS), almost 250,000 hate crimes occurred each year between 2005 and 2019. The BJS bases the estimate not on the UCR data collected from law enforcement agencies but rather on its annual National Crime Victimization Survey, which samples about 95,000 households. The actual number of hate crimes is likely somewhere between the BJS estimate and the number reported by the FBI.
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.” In addition to the federal statutes, 46 states and the District of Columbia have hate crime laws. These 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. Arkansas, Indiana, South Carolina, and Wyoming do not have hate crime laws but still report hate crime data to the FBI
The FBI releases a hate crime report each year, but it vastly understates the extent of the problem for several reasons. First, hate crime reporting by law enforcement agencies (like the entire FBI crime reporting system) is voluntary. In 2020, 85% of the 15,136 agencies that reported data to the FBI reported zero hate crimes. Those agencies included about 60 cities with populations over 100,000. Another 2,500 jurisdictions, including 10 cities over 100,000, did not report any data. Second, according the BJS, in almost half of all hate crimes, victims never report the crime to police. Reporting is a two-way street: Officers must be trained to identify, report, and respond to hate crimes – and victims will only report if they trust the police and believe officials will respond effectively.
In its most recent report, the FBI reported 8,263 against persons, institutions, and property in 2020, compared to 7,314 reported in 2019, a 13% increase and the highest number reported since 2001.
Of the 8,263 hate crimes reported in 2020:
- 2,871 were because of anti-Black bias;
- 1,376 because of sexual orientation or gender identity bias;
- 869 because of anti-white bias;
- 683 because of antisemitic bias;
- 517 because of anti-Hispanic or anti-Latino bias;
- 110 because of anti-Muslim bias;
- 96 because of anti-American Indian or Alaska Native bias;
- 279 because of anti-Asian/Pacific Islander bias.
Every year since 1991, the FBI has documented that racial bias has been the motivating factor in most hate crimes. 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, the First Amendment does not protect violence, nor does it prevent the government from imposing criminal penalties for violent discriminatory conduct directed against victims on the basis of their personal characteristics. Americans are free to think, preach, and believe whatever they want. It is only when an individual commits a crime based on those biased beliefs and intentionally targets another for violence or vandalism that a hate crime statute can be triggered. Of course, racial, antisemitic, or anti-LGBTQ 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.
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 disproportionately committed by nonpolitical youths, acting alone, not under the direction of an organized hate group, 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. In some cases, perpetrators target individuals or institutions association with a specific identity – such as Jews or Muslims, as in a hate crime. In other cases, offenders 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 Black people at a church in Charleston by a young white supremacist. For the most part, though, terrorist attacks are not included in tabulations of hate crimes.
For much of American history, local law enforcement officials – especially in the Jim Crow South – simply refused to investigate or prosecute lynchings and other race-based crimes. Recognizing this fact, as part of the Civil Rights Act of 1968 Congress enacted 18 U.S.C. §245 (Violent Interference with Federally Protected Rights) to prosecute a number of white supremacists who committed murders, bombings, or other acts of violence to intimidate the Black community and civil rights activists. This law 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 publish an annual report on crimes that exhibit evidence of prejudice based on race, religion, sexual orientation, or ethnicity. The FBI was tasked with collecting and reporting this data under its UCR program, which has been gathering crime data from state and local law enforcement agencies on a voluntary basis since 1930.
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 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 Black 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 [Division E of the National Defense Authorization Act for FY 2010], 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 in Wyoming. James Byrd Jr., a 49-year-old Black man, was dragged to his death behind a truck by three white supremacists in Texas.
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 2015, the FBI expanded the religious bias category and began collecting and reporting on hate crimes directed against Sikhs, Hindus, Arabs, Mormons, Jehovah’s Witnesses, and Eastern Orthodox persons.
The vast majority of hate crimes today are investigated and prosecuted by state and local law enforcement officials. Yet, as mentioned, four states do not have hate crime laws. In addition, only 30 states and D.C. cover sexual orientation; only 30 states and D.C. cover gender; only 16 states and D.C. cover gender identity/expression; and only 31 states and D.C. cover disability. The Shepard-Byrd Act serves as an essential backstop when state or local law enforcement officials either cannot or will not investigate and prosecute a hate crime.
• UPDATE: New federal action around hate crimes
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. A 2008 amendment to the Clery Act requires postsecondary institutions to report hate crime incidents. The U.S. Department of Education publishes the number of hate crimes reported by these institutions annually.
There are many reasons why hate crime data reporting is incomplete. As previously mentioned, only a fraction of the nation’s 18,625 federal, state, local and tribal law enforcement agencies reported even a single hate crime to the FBI in 2020. Many agencies lack the training to identify, report and respond to hate crimes. Only 14 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 a national survey by ProPublica, many agencies believe it is up to prosecutors to deem an incident a hate crime. And, though the FBI itself has begun reporting hate crimes, many federal law enforcement agencies – and the military service branches – do not.
Absolutely. In May, responding to significant increases in community-based reporting of hate crimes, especially against individuals and institutions in the Asian American/Pacific Islander (AAPI) community, Congress overwhelmingly enacted the COVID-19 Hate Crime Act, The new law is designed to address the disturbing rise in hate violence directed against AAPI communities and will also help improve the response to other hate crimes. The law includes the provisions of the Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality Act of 2019 (NO HATE Act), which authorizes incentive grants to spark improved local and state hate crime training and data collection initiatives, as well as state-based hotlines to connect victims with support services. The Justice Department has taken important first steps to implement this new law.
Attorney General Merrick B. Garland issued a statement to accompany the August 30, 2021, release of the 2020 HCSA report:
“These numbers confirm what we have already seen and heard from communities, advocates and law enforcement agencies around the country. And these numbers do not account for the many hate crimes that go unreported.
“Our commitment to investigating and prosecuting hate crimes is deeply rooted in the department’s founding. At my direction, the department has rededicated itself to combatting unlawful acts of hate, including by improving incident reporting, increasing law enforcement training and coordination at all levels of government, prioritizing community outreach and making better use of civil enforcement mechanisms. All of these steps share common objectives: deterring hate crimes and bias-related incidents, addressing them when they occur, supporting those victimized by them and reducing the pernicious effects these incidents have on our society.”
Importantly, significant organizations in the law enforcement community have elevated their voices in support of more comprehensive hate crime data collection. In March, 2021, the International Association of Chiefs of Police updated its Model Policy and Concepts and Issues Paper on Hate Crime – adding mandatory hate crime reporting for the first time as a best practice. And the National Police Foundation’s Open Data Initiative has demonstrated conclusively the police-community relations benefits of credible, publicly accessible, real-time hate crime data.
The issues with underreporting 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 the 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 the vast majority of hate crime cases, the victim doesn’t know the offender.
Hate crimes are difficult to prosecute in part because of the evidence needed to result in a conviction. Prosecutors must 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. A July 2021 BJS report found that, from October 1, 2004, to September 30, 2019, U.S. attorneys investigated 1,864 suspects accused of violating federal hate crime laws, with just 17% of the suspects later referred for prosecution.
The federal government should take a number of actions to combat hate crimes.
The Justice Department, for example, should:
- Speak out against hate: Send a clear and consistent message that bias-motivated attacks are unacceptable.
- Promptly implement the Covid-19 Hate Crime Act, working with community-based stakeholders to fund and create the state hate crime hotlines housed in non-law enforcement agencies.
- 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 and with Congress 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.
- Facilitate reporting by marginalized and targeted community members – including immigrants, people with disabilities, LGBTQ community members, Muslims, Arabs, Middle Easterners, South Asians, and people with limited language proficiency.
- Mandate that FBI Field Office and FBI Resident Agent offices keep track of law enforcement agencies in their jurisdictions that are substantially underreporting hate crimes, communicate directly with them and take more responsibility for ensuring their increased participation in the FBI’s HCSA program.
- Mandate that all 94 U.S. Attorney offices promote comprehensive hate crime reporting for cities in their jurisdictions. Each office should designate a person or team to lead hate crime prevention and response – to enable community-based organizations to have a point of contact.
- 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.
- Undertake comprehensive research to understand gaps in hate crime reporting by law enforcement agencies, including why law enforcement agencies don’t report, barriers to reporting by hate crime victims and identification of best practices in hate crime training, data collection and reporting.
- After 30 years of incomplete data and consistent underreporting, Congress should expand incentives – more carrots and more sticks – towards making hate crime reporting mandatory. Congress should make hate crime prevention initiatives and credible reporting by all law enforcement agencies a condition necessary for receiving federal funds.
- Congress should provide funding for the Justice Department’s Civil Rights Division to investigate and prosecute hate crimes – and more funding for the 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.
- The Department of Education should fund programs aimed at preventing extremism and promoting deradicalization – and move from punishment models to restorative justice initiatives that build community resilience. Funding should also be provided for the Department of Education to promote civics education and develop curricula on structural racism, as well as funding for states to implement their own related initiatives.
Additional contributions to this essay were made by Swathi Shanmugasundaram.
Photo at top by STRF/STAR MAX/IPx/AP Images