Hate Crime Report Card - United States

I. Systems of Monitoring and Reporting

What Data is Collected?

Statistics on hate crimes and incidents are collected at both the state and federal levels in the United States, by law enforcement authorities and by nongovernmental organizations.

Federal Hate Crime Statistics

The Hate Crime Statistics Act of 1990 (28 U.S.C. 534) requires the Attorney General of the Department of Justice to collect data "about crimes that manifest prejudice based on race, religion, sexual orientation, or ethnicity."[1] The director of the Federal Bureau of Investigation is the principal executor of the mandate for data collection; the FBI director is ultimately responsible for "developing the procedures for implementing, collecting, and managing hate crime data" and the official program falls within the purview of the Uniform Crime Reporting (UCR) program.[2]

The Hate Crime Statistics Act (HCSA) was amended in 1994 with the passage of the Violent Crime and Law Enforcement Act, which obliged the FBI to collect statistics on bias crime based on "disabilities," both physical and mental. The FBI's collection of data on the latter crimes commenced on Jan 1, 1997. The Church Arson Prevention Act of 1996 removed the clause of the 1990 HCSA by which it was to lapse in 1995 and made the collection of hate crime data a permanent part of the FBI's Uniform Crime Reports program.[3]

The FBI establishes guidelines to distinguish hate crimes from ordinary offenses and prepares annual reports on the incidence of hate crimes.

Additionally, the United States Department of Education collects and publishes statistics on bias crimes occurring on college and university campuses. Since 1998, after a congressional amendment to the Higher Education Act, the Department of Education has been collecting information on campus crime motivated by bias towards a person's race, religion, sexual orientation, national origin, and disability from the country's 6,000 post-secondary institutions.[4]

Participation of Law Enforcement Agencies in Reporting

As concerns data collection on hate crimes, the FBI Uniform Crime Reports program's greatest weakness is the non-participation of law enforcement agencies in many states, since the participation in the UCR hate crime data collection program is voluntary. Of the 17,546 agencies that participate in the Uniform Crime Reports program, 13,241 participated in the UCR hate crime reporting system in 2007.[5] 15.3 percent of participating agencies - 2,025 - reported hate crimes totaling up to the 7,624 incidents reported to the FBI in 2007. The remaining 84.7 percent of participating agencies reported zero hate crimes occurring in their jurisdictions during the 2006 reporting year.[6]

What Does the Data Say about the Bias Motivations and/or Victim Groups?

The FBI disaggregates hate crime statistics to include incident, offense type, victim type, number of offenders, race of offenders, and location type. Of the 7,621 single-bias incidents reported to the FBI in 2007, 50.8 percent were motivated by a racial bias, 18.4 percent were a result of a religious bias, 16.6 percent were a result of a sexual-orientation bias, 13.2 percent were motivated by an ethnicity/national origin bias, and 1 percent was motivated by a bias toward a victim's disability.[7]

II. The Framework of Criminal Law

Legislation on Bias-motivated Violence

Bias Types Covered by Provisions on Aggravating Circumstances [8]

Federal Hate Crime Laws

The Criminal Code of the United States Federal Government treats bias motivated crimes as specific offenses. Federal hate crimes legislation, 18 USC 245, was first adopted in 1968 and allows federal authorities to investigate and punish crimes motivated by bias towards a person's race, religion, or national origin and because of a person's participation in one of six federally protected activities.[9] The dual requirement of the federal statute, which obliges federal prosecutors to demonstrate that a hate crime was committed both because of bias and because of the victim's participation in a federally-protected activity, limits the scope for federal prosecutions of hate crimes.

Since 2001, the Civil Rights Division of the United States Department of Justice has prosecuted 165 defendants in 105 cases of bias-motivated crimes.[10] Federal investigations and prosecutions of hate crimes have occurred sparingly within the context of 18 USC 245, in part because of the higher evidentiary threshold that federal prosecutors must demonstrate: that a victim was targeted because of his or her race, religion, or national origin, and because of the victim's participation in one of six federally protected activities.

In 1994, the United States Congress passed the Hate Crimes Sentencing Enhancement Act (28 USC 994), which required the U.S. Sentencing Commission to increase penalties for crimes committed because of animus towards a person's "actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person."[11]

While 18 USC 245 deals with a wide range of violent crime, separate legislation was passed to specifically address destruction of property of religious institutions. The Church Arson Prevention Act of 1996, 18 USC 247, prohibits the intentional "defacement damage, or destruction" of religious property and institutions because of the "religious, racial, or ethnic characteristics of that property" and the "intentional obstruction" by force of a person's "free exercise of religious belief."[12]

State Hate Crime Laws

A large majority of all hate crime investigations and prosecutions are conducted at the state and local levels. Concurrent Federal-State jurisdiction over hate crime cases can occur when the "state lacks jurisdiction or declines to assume jurisdiction, where the state requests the Federal Government assume jurisdiction, or where actions by state and local law enforcement officials have left demonstrably unvindicated the federal interest in eradicating bias-motivated violence."[13]

Forty-five of the fifty states and the District of Columbia either have separate hate crime legislation or allow bias motivation in ordinary criminal offenses to be taken into account as aggravating circumstances in sentencing. These provisions all cover crimes committed out of bias against the victim's race, ethnicity, or religion. Arkansas, Georgia, Indiana, South Carolina, and Wyoming do not have any form of hate crime legislation.

• The laws of 30 states and the District of Columbia punish bias crimes based on sexual orientation.
• The laws of 30 states and the District of Columbia punish bias crimes based on disability.
• The laws of 26 states and the District of Columbia punish bias crimes based on gender.
• The laws of 10 states and the District of Columbia currently punish bias crimes based on transgender/gender identity.[14] 
• The laws of California, Connecticut, Washington D.C., Missouri, New Mexico, Pennsylvania, and Vermont punish bias crimes on the basis of all of the above-mentioned categories: race, religion, ethnicity, sexual orientation, disability, gender, and gender identity.
• Forty-two states and the District of Columbia have either general or specific statutory provisions that criminalize institutional vandalism.[15]

Bias-motivated Violent Crimes as Separate Offenses

Many states have legislation that treats hate crimes as specific offences. For example, in the state of Washington, Malicious Harassment (RCW 9A.36.080) is the sole state law punishing specific hate crimes as a separate offense. A person is guilty of malicious harassment if one, motivated by bias towards one's race, religion, national origin, sexual orientation, gender, or handicap, causes (a) physical injury to another person, (b) physical damage to property, or (c) "threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property."[16]

In the state of New York, when a person commits a hate crime "he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct."[17] Section 485.10 of the New York State law outlines sentencing provisions, including minimum and maximum sentences in the commission of felony hate crimes and penalty enhancements for certain misdemeanor classes of hate crimes.[18]

Similarly, in the state of Massachusetts, there is a separate offense of assault or battery for the purpose of intimidation (chapter 265, section 39 of the criminal code). This provides for punishment of a person "who commits an assault or a battery upon a person or damages the real or personal property of a person with the intent to intimidate such person because of such person's race, color, religion, national origin, sexual orientation, or disability."

Bias as an Aggravating Factor

A number of states have legislation that allow for bias motivations in the commission of a crime to be considered aggravating circumstances, and thus allow for enhanced penalties, during the sentencing phase of trial.

In the state of Arizona, for example, a court may consider as an aggravating circumstance during the sentencing phase of trial any "evidence that the defendant committed the crime out of malice toward a victim because of the victim's identity in a group or because of the defendant's perception of the victim's identity in a group."[19]

Similarly in the state of Florida, section 775.085 of the 2007 Florida Statutes provides for enhanced penalties if the commission of a felony or misdemeanor evidences prejudice based on race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim.[20]

Although penalty enhancement provisions generally apply to a wide range of violent acts, they are in some states limited to specific crimes, such as assault and battery. Penalty enhancement provisions in cases of the most serious crimes of violence, such as murder, are not available in many states, on the grounds that the punishment for such crimes, even without penalty enhancements, is already severe.[21]

For more information on the United States, read:

The United States country chapter of the 2008 Hate Crime Survey

The United States country chapter of the 2007 Hate Crime Report Card [pdf]

[2] FBI, "About Hate Crime," available at: http://www.fbi.gov/ucr/hc2005/abouthc.htm

[3] FBI, Uniform Crime Reporting Program, "About Hate Crime Statistics," page 2, available at: http://www.fbi.gov/ucr/hc2005/docdownload/abouthc.pdf

[4] Partners Against Hate, "FBI Hate Crime Statistics," available at: http://www.partnersagainsthate.org/about_hate_crimes/federal_overview.html#3 

[5] Federal Bureau of Investigation, "Hate Crime by Jurisdiction," http://www.fbi.gov/ucr/hc2007/jurisdiction.htm.

[6] Federal Bureau of Investigation, "Hate Crime by Jurisdiction."

[7] FBI, "Incidents and Offenses," http://www.fbi.gov/ucr/hc2007/incidents.htm.

[8] Federal legislation covers race, ethnicity, national origin and religion. State legislation extends to sexual orientation in 32 states, to disability in 32 states and to gender in 28 states.

[9] The 1968 "Federal Hate Crime Statute," 18 USC 245, outlines the six federally protected activities as follows: " (1) A student at or applicant for admission to a public school or public college;  (2) A participant in a benefit, service, privilege, program, facility or activity provided or administered by a state or local government; (3) An applicant for private or state employment; a private or state employee; a member or applicant for membership in a labor organization or hiring hall; or an applicant for employment through an employment agency, labor organization or hiring hall; (4) A juror or prospective juror in state court; (5) A traveler or user of a facility of interstate commerce or common carrier; (6) A patron of a public accommodation or place of exhibition or entertainment, including hotels, motels, restaurants, lunchrooms, bars, gas stations, theaters, concert halls, sports arenas or stadiums."

[10] "Two Men Sentenced for Federal Hate Crimes in Utah," Department of Justice, August 14, 2007, available at: http://www.usdoj.gov/opa/pr/2007/August/07_crt_612.html. This statistic is current as of August 28, 2007.

[11] "Hate Crime Sentencing Enhancement Act," available at: http://www.adl.org/issue_government/hate_crime_sentencing_act.asp (accessed on November 20, 2007).

[12] Miami Division of the Federal Bureau of Investigation, "Title 18, U.S.C., Section 247 - Church Arson Prevention Act of 1996," available at: http://miami.fbi.gov/statutes/title_18/section247.htm  (accessed on November 20, 2007).

[13] Senate Judiciary Committee, page 4.

[14] The states that retain legislation protecting victims of transgender/gender identity crime are: California, Colorado, Connecticut, Hawaii, Maryland, Minnesota, Missouri, New Mexico, Pennsylvania, and Vermont.

[15] See chart, "Anti-Defamation League State Hate Crime Statutory Provisions" available at: http://www.adl.org/learn/hate_crimes_laws/map_frameset.html (accessed on August 17, 2008).

[16] "Hate Crime Laws in Washington," available at: http://www.co.snohomish.wa.us/Documents/Departments/Prosecuting_Attorney/Statute.pdf

[17] New York State Division of Criminal Justice Services, "Laws of New York 2000, Chapter 107, Hate Crimes Act of 2000," available at: http://criminaljustice.state.ny.us/legalservices/ch107_hate_crimes_2000.htm (accessed on November 20, 2007).

[18] New York State Division of Criminal Justice Services, "Laws of New York 2000, Chapter 107, Hate Crimes Act of 2000."

[19] Arizona State Legislature, "Sentencing; definition," available at: http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/13/00702.htm&Title=13&DocType=ARS (accessed on November 20, 2007).

[20] The 2007 Florida Statutes, "Chapter 775: Definitions, General Penalties; Registration of Criminals," available at: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0775/SEC085.HTM&Title=-%3e2006-%3eCh0775-%3eSection%20085#0775.085 (accessed on August 30, 2007). Detailed state-by-state information on hate crime laws is available at: http://www.partnersagainsthate.org/ (accessed on September 18, 2007).

[21] Anti-Defamation League, "Hate Crimes Data Collection and Prosecution: Frequently Asked Questions," available at: http://www.adl.org/combating_hate/ (accessed on August 30, 2007).