For the victims of hate and their families, this is unconscionable. For advocates and policymakers addressing hate crime, it is untenable.
Since 1990, the Department of Justice has been required by federal law to collect data on “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity.” Congress has subsequently passed legislation to expand the scope of data collection to include crimes motivated by disability, gender and gender identity. Since 1992, the FBI Uniform Crime Reporting Program has published data on hate crimes in an annual report. In most states, law enforcement agencies submit data to the FBI through a centralized repository, typically operating within the department of state police. While no federal requirement exists, agencies in many states are required under law to report hate crimes and collect hate crime data.
But those states don’t always actually report crimes obviously motivated by hate as hate crimes as they should, which means the statistics are flawed. Virginia is required by a state law to collect and report hate crime data, despite the Charlottesville omission. Oklahoma has a similar law, with law enforcement agencies required to report hate crimes to the State Bureau of Investigation. Yet according to the 2016 edition of the federal hate crime report, agencies in Oklahoma reported 33 hate crime incidents for that year. That total does not include the murder of Khalid Jabara, a 37-year-old Arab American man from Tulsa. Jabara’s next-door neighbor shot him to death on the Jabaras’ front porch that August. The shooting was without doubt a hate crime — it was one of the nation’s most publicized cases of bias-motivated violence in 2016. And yet it was never recorded in federal hate crime statistics. (Jabara's killer was just found dead in prison seven months into his life sentence.)
One reason some hate crimes aren’t reported is because of strained relationships between residents and law enforcement authorities. But there are other factors, too. In most states, agencies are not required to report hate crimes or collect hate crime data, and few states require specific instruction relating to hate crime and cultural awareness for police certification. Disparate state and federal definitions of hate crime potentially confuse responding officers as to what sort of incidents should be reported. In total, just 14 states provide hate crime protections that are consistent with those under federal law. And even beyond that, sometimes all it takes for a hate crime to escape official statistics is a simple tabulation mistake.
These factors contribute to a massive undercount in federal hate crime statistics, one that is acknowledged by all stakeholders, including the very agencies reporting. According to the Justice Department’s National Crime Victimization Survey (NCVS), approximately 250,000 hate crime victimizations occur in the United States each year, compared to just over 6,000 hate crime incidents reported in the 2016 edition of the hate crime report. The NCVS does not incorporate intimidation, vandalism and other kinds of property crime, either, which account for most of the incidents in the 2016 FBI report. Accounting for the difference between 250,000 and 6,000 and adjusting for the discrepancy in what is not incorporated into the NCVS, the result is staggering: Of the hate crimes that likely occur each year in our country, only about 1 percent are reported in official federal statistics.
So the unthinkable prospect of the high-profile deaths of Jabara and Heyer being excluded from official hate crime statistics suddenly becomes quite easy to explain. Our hate crime reporting system is broken, and the lack of accurate data limits the potential for an informed, concerted effort to prevent hate crime in communities across the country.
Fortunately, concrete solutions do exist. States should pass criminal statutes with inclusive hate crime protections, enact requirements for reporting and data collection and authorize mandatory basic and in-service police training on hate crime and cultural awareness. At the local level, law enforcement agencies must demonstrate a commitment to reporting hate crimes and collecting hate crime data.
On the federal level, the transition to the National Incident-Based Reporting System (NIBRS) by 2021 will help. As it stands, most law enforcement agencies transmit hate crime data using an antiquated format that dates to the 1930s. For many police departments, the transition to NIBRS will require additional funding and training. Congress can provide this assistance through legislation, like the NO HATE Act, that incentivizes hate crime reporting. Altogether, these measures will promote not only better data, but greater transparency and accountability on the part of law enforcement as well, thereby facilitating one aspect of criminal justice reform.
Legislation was also a remedy in 2009 when the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act passed. The law, which bears the name of two people taken from their families and friends by unspeakable violence, had a significant impact on our nations’ ability to respond to hate-motivated violence, including providing more inclusive protections and expanding the federal government’s ability to investigate and prosecute hate crime. What we need now is for advocates and policymakers to come together to draft and pass new legislation to address our system of hate crime reporting. We can call it the Khalid Jabara and Heather Heyer Hate Crime Reporting Act.