Posted by Kai Wiggins on September 06, 2018 in Blog

On Thursday, September 6th, 2018, Congressman Raja Krishnamoorthi, in coordination with the Muslim Public Affairs Council (MPAC), hosted a congressional briefing titled "Improving Federal Hate Crimes Enforcement." The following are prepared remarks from AAI's Policy Associate, Kai Wiggins, who served as a panelist.


Improving Our Response to Hate Crime: The Need for Better Data

Since 2017, the Arab American Institute has conducted extensive research into the quality and accuracy of federal, state, and local hate crime statistics. This research is the subject of our July 2018 report, Underreported, Under Threat: Hate Crime in the United States and the Targeting of Arab Americans. Our findings demonstrate the urgent need for improvements to our hate crime reporting and data collection system. I am here today to discuss that research and identify potential solutions to the shortcomings that plague our nation's response to hate crime. While my presentation will focus on laws and policies relating to hate crime reporting and data collection, I will also take some time to discuss the issue of variance between state and federal hate crime statutes, which not only presents a challenge to enforcement, but also complicates hate crime reporting and curtails effective police officer training.

Broadly speaking, the federal government employs two prevention and response strategies when it comes to the issue of hate crime. The first is the enforcement of federal hate crime statutes. Codified in Title 18, Chapter 13, of U.S. Code, these are criminal statutes prohibiting crimes committed with intent to deprive another individual of their rights or because of protected characteristics, such as race, color, religion, national origin, sexual orientation, disability, gender, and gender identity. The second approach is the collection of hate crime data under the Hate Crime Statistics Act, or HCSA. Passed in 1990, the HCSA required the Department of Justice to collect data on crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity. Subsequent amendments to the HCSA have incorporated the additional bias motivation categories of disability, gender, and gender identity to the national data collections.

The legislative branch gave the Department of Justice broad discretion with respect to the design, implementation, and scope of the national hate crime data collections. After consulting with state and local agencies already collecting data on bias-motivated crimes and related incidents under state authority, the Department decided the new data collections should be administered through the FBI's Uniform Crime Reporting Program, or UCR. First developed in 1930, the UCR provides national crime statistics based on voluntary data submissions from law enforcement agencies across the country. From small-town or tribal offices, to massive departments in major cities like New York or Chicago, nearly every law enforcement agency in the United States—about 18,000 in total—participates in the UCR. In most states, participating agencies submit their hate crime data to state-level UCR programs, which then aggregate and forward the data to the FBI UCR Program, where the data are aggregated once again and then published in the form of annual statistics. Since 1992, the FBI has published annual reports based on hate crime data voluntarily submitted through the UCR. The most recent edition of the report, which is titled Hate Crime Statistics, is based on data from 2016. We can expect the FBI to release 2017 statistics in November of this year.

Now, before I talk about what the data show, or in most cases, fail to show, I should first mention why the data collected under the Hate Crime Statistics Act are important, and why we should support efforts to produce more accurate and representative statistics. Congress passed the HCSA amidst an apparent surge of targeted violence against specific communities, including American Jews, African Americans, Arab Americans, Asian Americans, and LGBT Americans. Despite the overwhelming sense that hate crimes were indeed on the rise in our country, the lack of official statistics curtailed an effective response. Advocates, policymakers, and law enforcement were left ill-equipped to protect their communities. At a Senate Judiciary Committee hearing on the HCSA in 1989, Senator Paul Simon, who introduced the legislation, spoke of the violence targeting those specific communities and the potential benefits of data collection. He said, "Whenever that violence occurs, whenever that poison of hatred comes into our society, we have to fight it. And one of the effective ways of finding out how much of a problem we have is to have adequate data gathered."

Today, we find ourselves in the midst of yet another apparent surge of targeted violence, with specific communities facing more severe threats than others. The threats against these communities deserve our attention. These communities deserve the guarantee of basic civil rights. As advocates and policymakers, we rely in part on data to achieve those ends. Today, however, just as thirty years ago, adequate data remains a distant goal.

According to the most recent edition of Hate Crime Statistics, a total of 6,121 hate crime incidents were reported in the United States in 2016, representing the first consecutive annual increase of reported incidents since 2004. These incidents were reported from 1,776 law enforcement agencies in 49 states and the District of Columbia. Apart from the agencies that submitted incident reports in 2016, an additional 13,478 agencies are said to have participated in the national UCR hate crime statistics program that year. In order to be considered a participating agency, a police department merely needs to explicitly report that no hate crime incidents occurred within its jurisdiction during at least one quarterly submission period. This is called a "zero data" submission. When a participating agency fails to submit incident reports or zero data during a given submission period, that results in what we call a "blank submission."

So, now that we have an understanding of the terminology, let me put that in context. There are approximately 18,000 law enforcement agencies in the United States. In 2016, just over 15,000 agencies participated in the national UCR hate crime statistics program. Of those participating agencies, the vast majority submitted only zero data to the FBI, indicating that no hate crime incidents occurred within their jurisdictions. That leaves us with a total of 1,776 agencies, accounting for less than 10 percent of the law enforcement agencies in this country, that reported a hate crime incident in 2016.

The issue of blank submissions is also significant, as in 2016, nearly as many agencies that submitted incident reports delivered blank submissions during at least one quarterly submission period. Some of these agencies represent large populations with high rates of hate crime for the periods in which they submitted incident reports. A total of 20 agencies representing populations of 100,000 people or more, including Tampa, St. Louis, Orlando, Scottsdale, Spokane, and Paterson, delivered a blank submission in 2016. The cause of blank submissions remains unclear, but could result from something isolated like a tabulation mistake or something more systemic. Whatever the cause, the result is less accurate and representative statistics.

At this point, you might be asking yourself, "Isn't it a good thing that most agencies report no hate crimes per year?" Well, if the data were accurate, it would be, but we have reason to assume they are not. According to the Justice Department's National Crime Victimization Survey, or NCVS, approximately 250,000 hate crime victimizations occur annually in the United States. Now, the disparity between 6,000 and 250,000 is already staggering, but there is another aspect of the national survey that we often fail to consider. Intimidation, vandalism, arson, and other types of property crime, which accounted for a majority of incidents reported in the 2016 edition of Hate Crime Statistics, are not incorporated into the NCVS. If we adjust for this discrepancy, we are left with a sobering figure: of the hate crimes that likely occur in the United States, approximately one percent are recorded in federal statistics.

We know that more hate crimes are occurring in individual jurisdictions than are reported in official statistics, and we can cite specific incidents as proof. According to the most recent edition of Hate Crime Statistics, the Tulsa Police Department reported zero hate crime incidents between July and September of 2016. On August 12, 2016, a 37-year-old Arab American named Khalid Jabara was shot to death on the front porch of his family home. His family lives in Tulsa. His murderer was convicted of a hate crime. His death was covered in news outlets around the world. Despite all of this, the incident was never recorded in official statistics. In 2016, just nine hate crime murders were recorded in the FBI's annual report. This, I am afraid, is a gross miscounting.

As I conclude, let me consider what exactly is wrong and how we can fix it. Improving the data collected under the HCSA will require reforms at the state, local, and federal level. First, state legislatures must pass laws requiring state and local law enforcement to report hate crime incidents and collect hate crime data. Currently, only 23 states have such laws in place. So long as participation in the UCR remains voluntary, and it will, state-level reporting requirements will be an integral component to promoting quality and accuracy of federal statistics. In addition, state legislatures must pass laws requiring mandatory basic and in-service police training on investigating and reporting hate crime incidents. As of now, only 15 states have such laws in place. Additionally, disparate state and federal definitions of what constitutes a hate crime leads to confusion as to which incidents should and should not be reported. Currently, five states do not have a hate crime statute, and only 14 states offer hate crime protections consistent with those under federal law. This must change.

With respect to federal legislation, Congress has the opportunity to incentivize hate crime reporting through the provision of federal assistance to agencies committed to submitting hate crime data. Most law enforcement agencies in the United States have yet to transition to the National Incident-Based Reporting System, or NIBRS, which for multiple reasons facilitates more accurate data collection. According to the FBI, all agencies must transition to NIBRS before 2021. Given the costs and training associated with the transition, many agencies will require assistance, and this is something the federal government can and must provide.

When it comes to improving our hate crime reporting and data collection system, potential solutions abound. It just takes pursuing them.