Federal authorities are investigating whether they will bring hate crime charges in last weekend’s mass shooting at an El Paso shopping center, which killed 22 people and injured at least 24. The suspect told police he was targeting “Mexicans,” and an online statement authorities believe he wrote denounced a “Hispanic invasion of Texas.”

The El Paso attack comes amid a five-year upward trend in reported hate crimes in the United States, according to the FBI. The spike is marked by particularly shocking killings, including those of nine members of a historically black church in Charleston, S.C., in 2015, 49 people at a Latino gay nightclub, Pulse, in Orlando in 2016, and a counterprotester at the 2017 Unite the Right rally in Charlottesville. During a House Judiciary Committee hearing in April, Chairman Jerrold Nadler (D-N.Y.) called this rise in hate crimes “an urgent crisis in our country” and blasted law enforcement agencies for failing to take stronger action.

Here’s what’s surprising in the data

Data from the newest Bureau of Justice Statistics hate crimes briefing suggests that the FBI statistics may be misleading. Unlike the FBI, which collects data on the number of incidents that law enforcement agencies report as hate crimes, the BJS uses national survey data to gauge the level of both reported and unreported hate crimes.

What the BJS finds is, in fact, a slight decrease in unreported hate crimes at the same time that the United States has seen a spike in reported hate crimes. In short, U.S. law enforcement agencies are increasingly willing to report and label acts as hate crimes.

As other researchers have pointed out, enforcing hate crime laws is complex. It requires law enforcement to report, investigate and prosecute crimes as hate crimes. States can decline to do so at any point in that process. What factors, then, influence why some states choose to enforce hate crime laws more stringently than others?

Our research, forthcoming in Law & Policy, takes a look at the first part of this enforcement process — the conditions under which governments report hate crimes.

How we did our research

To measure the frequency of law enforcement reporting of hate crimes, we used the FBI’s Uniform Crime Reporting Program, the longest-running collection on hate crimes that aggregates reports by cities, universities and colleges, suburban and rural counties, and state police and other government agencies. We restricted our study to hate crimes based on sexual orientation in particular because this crime has one of the biggest discrepancies between those that go reported and unreported.

Because other research finds that advocacy groups are important in pressuring state governments to pass hate crime legislation, we took a look at the presence of LGBT political groups and general pride organizations in each state over time. We expanded Melinda Kane’s data set on LGBT organizations, drawn from the Gayellow Pages. Published since 1973, the Gayellow Pages provides listings on LGBT social movement organizations, LGBT-owned and -friendly businesses, legal services, chapters of the ACLU and PFLAG, and other related NGOs.

Finally, we measured the dominance of the Democratic and Republican parties in state legislatures; whether the same or different parties control the legislature and the executive branch; and how ideologically liberal or conservative those states’ parties are.

We put those data sources together and took into account other factors such as demographics, economic conditions, the level of general violent crime, and whether the state has an active LGBT hate crime provision on the books. Then we analyzed which factors influenced variation in LGBT hate crime reporting across states and over time between 1995 and 2008. This period allowed us to capture trends in hate crime reporting before passage of the Matthew Shepard Act, which added sexual orientation to the groups protected by national hate crimes laws.

States more actively enforce hate crime laws under these two conditions

Previous research finds that states are more likely to pass hate crime legislation when their legislatures and governors’ mansions are controlled by Democrats. But for reporting hate crime incidents, our research finds that states controlled by Democrats are no more active than their Republican-led counterparts. Rather, we found that when advocacy groups are strongly mobilized, the state is more likely to report hate crimes — but only when different parties control each branch of the state’s government.

Why? Advocacy groups can make political officials pay attention to their cause when their lock on power is not secure. Those officials, in turn, allocate resources, conduct oversight and set directives for law enforcement.

For instance, governments in Maryland and North Carolina, states with split political control of the legislative and executive branches, are both seeking measures to strengthen reporting requirements. A 2018 Baltimore Sun investigation uncovered chronic underreporting of hate crimes by Maryland agencies, prompting the Maryland State Police to conduct bias training sessions for agencies across the state and pushing one Maryland county to launch an internal police investigation. Maryland Gov. Larry Hogan (R) announced that he would increase funding to “prevent and address” hate crimes and backed legislation to broaden reporting requirements.

And the North Carolina General Assembly is reviving efforts to expand hate crime protections, create a new statistics database and expand training for law enforcement and prosecutors. Its sponsors say the legislation has renewed momentum following national attention on El Paso, pressure from groups such as the Anti-Defamation League and business boycotts after the 2016 “bathroom bill” that targeted the transgender community.

What this means for hate crime enforcement

Our research focuses on state authorities’ reporting of hate crimes, as one part of the enforcement process. But the findings suggest that, if the same forces are at play at the state and national levels, the current political climate might be particularly conducive to focusing federal resources on hate crime reporting.

Here at TMC, political scientists Erica Chenoweth and Jeremy Pressman have been documenting the surge in — and in some cases, record-breaking — numbers and sizes of social-justice-focused protests in the United States since 2016. This political mobilization may be having an effect.

Nadler announced mere days after Democrats won back the House majority in 2018 that he would make hate crimes one of his top congressional oversight priorities, pledging to investigate Justice Department efforts to combat the problem. At a time when public advocacy has focused on hate crimes, our work study suggests that political officials — particularly those facing a closely divided electorate — may be increasingly willing to pay attention.

Alison Faupel works for the State Department as an analyst on social movements, political change and democratization. The views expressed are her own and not necessarily those of the U.S. government.

Heather L. Scheuerman is an associate professor in the department of justice studies at James Madison University.

Christie L. Parris is an assistant professor of sociology at Oberlin College.

Regina Werum is a professor of sociology at the University of Nebraska-Lincoln.