To start with, it’s impossible to conclude that hate crimes are being prosecuted on a large scale. The FBI’s data set is composed of crimes that state-level agencies have determined meet the federal definition of a hate crime. But that doesn’t mean they were charged as such, and in most cases, they’re not, with prosecutors either failing to identify bias in the motive or choosing to rest their case on simpler charges such as assault and vandalism.
Hate crime statutes also vary from state to state and don’t exist at all in Wyoming, Indiana, Arkansas, Georgia and South Carolina. And the FBI’s data set includes no notation of how many of the 6,121 incidents last year resulted in arrests or specific hate crimes charges.
It’s also impossible to say where most hate crimes are being committed. FBI data shows roughly half the hate crimes in the country occur in just six states: California, New York, Ohio, Michigan, Massachusetts and Washington. You might think that California, the location of 931 hate crimes last year — more than any other state, according to the FBI — is the worst place to be black, gay or Muslim. But that would be the wrong conclusion, says Brian Levin, a criminologist and attorney who has spent 31 years studying hate crimes. It just means California is better than most other states at reporting hate crimes.
Hate crime reporting varies widely by state. The statistics compiled by the FBI each year depend on thousands of U.S. law enforcement agencies voluntarily submitting their data to their state’s uniform crime reporting agency, which then categorizes the crimes — deciding, for example, what crimes meet the federal hate crime definition. Those state agencies then voluntarily submit their data to the FBI.
In California, fewer than 30 percent of law enforcement agencies submitted data last year. In Massachusetts, which Levin considers one of the most thorough states when it comes to reporting hate crimes, fewer than a quarter of the agencies submitted.
Then you have Hawaii, which submitted no data. In Arkansas, Pennsylvania and New Mexico, only 1 percent of law enforcement agencies sent in their hate crimes statistics. More than 80 U.S. cities with more than 100,000 residents either reported no hate crimes or simply ignored the FBI’s request for data. The result is a compilation of numbers that is startlingly arbitrary.
“We have a variety of states that are just not meaningfully participating,” said Levin, who heads the Center for the Study of Hate and Extremism at California State University at San Bernardino.
Some of the states with the highest percentages of African American residents — such as Mississippi and Alabama — reported very low numbers of hate crimes, even though half the hate crimes reported last year by the FBI targeted African Americans. That’s an indication that the data is skewed, Levin said.
Meanwhile, “Massachusetts has the highest per capita rate of hate crimes — which doesn’t mean they’re all haters,” he added. “It means they’re paying attention.”
It’s not just law enforcement agencies that are underreporting the problem, experts say. It’s also the victims.
Minority groups, particularly recent immigrants, often fail to report being victims of hate crimes for a variety of reasons, ranging from fear and mistrust of the police to language barriers and poor understanding of the laws.
“If you’re an immigrant from an undemocratic nation where the police are not to be trusted, you would never call the police,” said Michael Lieberman, the Washington counsel for the Anti-Defamation League.
Conversely, Lieberman said, American Jews, who are predominantly white and have better trust in the police, are fairly good at reporting hate crimes — 53 percent of the religiously motivated hate crimes identified in 2016 targeted Jews.
Civil rights activists say some minority groups, including blacks, Muslims and undocumented immigrants, are additionally nervous about going to the police due to a history of police discrimination and abuse.
The Council on American-Islamic Relations (CAIR) said they received reports of some 540 incidents of harassment of Muslims by law enforcement officials in 2016 alone; a statistic they tally alongside hate crimes and other forms of discrimination.
A Pew Research Center survey of Muslims this year found that 6 percent said they had been threatened or attacked for being Muslim — a vastly larger number than those incidents reported by the FBI, even with the 19 percent rise in anti-Muslim hate crimes last year and the 66 percent jump in anti-Muslim hate crimes the year before.
Critically, the fact that the FBI is tallying something as a hate crime in its annual report does not actually mean that the incident was charged as such — it just means that the incident meets the federal government’s definition.
More often than not, police and prosecutors decide not to charge incidents as hate crimes, Levin said. For one, it is hard to prove a hate crime. While convictions for other crimes like murder, vandalism or theft require only evidence that the suspect committed the act, a hate crime conviction requires proof of motive — a specific, discriminatory motive.
“Hate crimes are specific intent crimes, which means the motivation has to be proven beyond a reasonable doubt, and that is really hard,” Levin said. “Even in San Francisco, where they prosecute these crimes as hate crimes, juries are often reticent to convict on a hate crimes charge.”
It’s also often easier just to skip the hate crime charge, particularly if the crime is severe enough that prosecutors will be able to ask for the maximum penalty without it.
For example, Craig Hicks, who allegedly killed three Muslim college students at their apartment complex in 2015, is not being charged with a hate crime. The 1998 torture and beating death of Matthew Shepard, a gay college student in Wyoming, was never tried as a hate crime. Nor was the gruesome killing of James Byrd by white supremacists in Texas the same year.
There is also a fair amount of confusion and a lack of meaningful law enforcement training on how to identify a hate crime and what to do about it.
The racial epithet targeting a black Vermont high school student and spray-painted across the school’s football field in the summer initially resulted in a felony charge of unlawful mischief because, as the police chief Trevor Whipple explained, according to the Burlington Free Press: The hate crime law “applies to an individual, a crime against a person, and in this case we have a crime against an object, that being the field, and the victim being the school district.”
Nearly two months later, the federal prosecutor added a hate crime charge.
Often, as in the case of Maan S. Khalsa, a Sikh man who was attacked last year in Richmond, Calif., it takes public pressure to get the charge. Khalsa, 41, was assaulted by two men who reached through his car window, punched him repeatedly and injured him with a knife before also cutting off his hair, which Khalsa had kept long as religiously mandated. In Khalsa’s words, it was “one of the most humiliating things anyone can do to a Sikh.”
Yet the district prosecutor was initially reluctant to charge Khalsa’s attackers with a hate crime, said Charles H. Jung, president of the California Asian-Pacific Bar Association. But the charge was added after Jung’s organization and the Sikh Coalition wrote up a demand letter and issued a news release.
“I think from the trial lawyer’s perspective, if you’re trying to prove a case, the simpler the better. If you add complicating factors, I suspect the worry is you’re going to confuse the jury,” Jung said.
But the groups targeted by hate crimes want to see them branded as such, and they have good reason, he added. “It’s important to recognize the violence that these kind of hateful acts do against an entire community and not just an individual. It recognizes the broad impact of this act,” Jung said.
Such charges, as well as the reporting of incidents that meet the hate crime definition but are not charged as such, sends a message to victims that they’ll get help if they report a crime, experts say. And for that reason, civil rights advocates have been pushing states to do more — like implement a mandatory reporting system — to get the data out there.
“Data collection is a real barometer of overall response,” Levin said. “The bottom line is: We need training and modern policies, and you need executive leadership with someone saying this is important.”
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