Study of Literature and Legislation on Hate Crime in America - Book Summary - United States literature - Michael Shively, Summaries of American literature

Download Study of Literature and Legislation on Hate Crime in America - Book Summary - United States literature - Michael Shively and more Summaries American literature in PDF only on Docsity! The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: Study of Literature and Legislation on Hate Crime in America Author(s): Michael Shively Document No.: 210300 Date Received: June 2005 Award Number: ASP-T-049 This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this Federally- funded grant final report available electronically in addition to traditional paper copies. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. ANALYTIC SUPPORT PROGRAM CONTRACT STUDY OF LITERATURE AND LEGISLATION ON HATE CRIME IN AMERICA TASK REQUIREMENT T-049 PREPARED BY MICHAEL SHIVELY, PH.D. MARCH 31, 2005 PREPARED FOR BERNIE AUCHTER NATIONAL INSTITUTE OF JUSTICE 810 SEVENTH STREET, NW WASHINGTON, D.C. 20001 Abt Associates Inc the offense committed against them; (2) reluctance of some victims to report known offenses to police; and (3) law enforcement that does not recognize or prefers not to acknowledge the role of hate in certain offenses. Differences in Definitions between Federal and State. Differences between state and federal hate crime definitions create differences in reported levels of hate crime. For example, Wyoming has no hate crime statutes, yet five hate crimes were reported in the 2002 Uniform Crime Reports. It is likely that the predicate crimes (e.g., vandalism) were locally recorded as conventional crimes, and the hate- motivated nature of the crime was noted elsewhere and reported as such to the UCR. It is also possible that some or all of the five hate crimes were reported to local law enforcement, and then were subsequently referred to federal authorities. UCR and State Reports. In several states differences were observed between hate crime reported to the Federal Bureau of Investigation (FBI) for the UCR, and hate crime recorded in state-level crime statistics. Among the main reasons for these discrepancies are differences in the state and federal definitions. Cross State Definition Variation. Cross-state variation in hate crime definitions and crime reporting laws and practices make it difficult to combine local and state data into a coherent national picture. Collection History. While UCR and National Crime Victimization Survey (NCVS) data are uneven nationally, and NCVS has only recently been collected, there are many localized, longstanding data collection efforts. For example, Minnesota passed a law in 1988, requiring peace officers to report incidents that were motivated by bias, and annual statewide statistics have been compiled since � ��� ��� ��� ��� ���� ���� ���� ���� ���� ���� ���� ���� ���� ���� ���� ���� ���� ���� ���� ���� ������������������ ��������������� ������ ���������� ������� ������������ UCR Data 1999-2003 iii C ou nt o f H at e C rim e I nc id en ts , N at io na lit y 1989. Similarly, California has collected statewide data on hate crime since 1995, collected according to statutory guidelines and broader in scope than the UCR hate crime data collection. Mandatory Reporting. Federal statute requires reporting of all crime, including hate crime, occurring at institutions of higher education receiving federal funds. The statutes allow reporting to either the Office of Postsecondary Education (OPE) of the U.S. Department of Education (ED), or to the FBI’s UCR Program. In 2002, only 400 of nearly 7,000 colleges and universities in the U.S. reported crime data (of any kind) to the UCR, while over 6,000 of these institutions reported crime data to ED. College Campus Discrepancies. There are discrepancies in ED and UCR statistics on hate crime occurring on college campuses. College-by-college comparisons of counts of hate crimes reported to the UCR and ED show differences, in some cases that are very significant. In instances where a college or university reports to both the UCR and ED and the figures differ for the same college, the number of hate crime incidents in the UCR database are usually larger, even though most colleges are bound by federal statute to report to ED but UCR reporting is optional. It is unknown to what extent these discrepancies between agency data sets and differences across colleges are due to reporting errors, to different interpretations of reporting requirements, different case processing and referral procedures, differences in the structure of college public safety departments (e.g., university police departments with sworn officers versus security departments without police powers or training), or other factors. Campus Policy Education. It is unclear whether colleges whose security or campus safety staff are sworn law enforcement officers are aware of ED crime reporting requirements. Also unknown is whether non-sworn campus security staff receive guidance for routing cases to local police departments (thus triggering UCR reporting mechanisms), and whether they regard offenses they choose not to refer to local police as crimes and report them to ED. Data Collection Improvement Efforts. Current efforts to improve official data include the FBI’s investment in training in how to properly collect data for the UCR, as well as the dissemination of training and data collection guides, and state efforts such as those put forth by the California Department of Justice, which invests in training law enforcement in the collection of state hate crime data. Hate Crime Data Lags Behind. Though there have been important areas of tangible progress, the current “state of the art” data are not sufficient to establish the true national scope of the problem or trends over time. Hate crime data gathered through large national collection efforts lags behind data regarding most other types of crime. New NCVS Questions. A promising recent development in hate crime data is the addition of questions about hate and bias crime victimization to the NCVS in 2001. Data derived from these questions in the 2001 and 2002 survey are available, but as of mid-2004, research fully describing and analyzing vi The lack of theory ..., coupled with the lack of evaluation research, makes it difficult to determine impact of programs the results has not yet been published. As of March 2005, the Bureau of Justice Statistics is preparing a report on the data collected in the NCVS. Advocacy Group Qualitative Data. Several advocacy groups (e.g., Anti Defamation League [ADL]; Human Rights Campaign, Southern Poverty Law Center [SPLC]) continuously compile and periodically disseminate reports and anecdotal evidence of hate crime. Many of the incidents are gathered through direct reporting to the organizations or are gleaned from media accounts. These reports constitute an important and underutilized source of qualitative data on hate crime. Hate Crime Research Many Programs. There are many major hate crime prevention and response efforts, supported by criminal justice and other government agencies at all levels of government as well as by non-government organizations (NGOs). Little Evaluation. Few hate crime prevention, response, or victim support programs or policies have been rigorously evaluated. The impact of hate crime law reform has not been subject to rigorous evaluation. Limited Basic Research. There are many descriptive studies, debates, typologies, thought-pieces, and overviews of prior research on hate crime, but basic research on the etiology of bias motivated offenses remains relatively underdeveloped. Lack of Research. The lack of theory with the demonstrated ability to explain or predict hate crime, coupled with the lack of evaluation research, makes it difficult to determine the realized or potential impact of criminal justice programs and policies aimed at preventing and effectively responding to hate crime. The Internet. The use of the internet to commit hate- motivated harassment, to broadcast hate messages, and to coordinate organized hate group activities is an area of growing concern. Geographic Analysis. A promising recent development is analysis of the geographic distribution of hate crimes. Advances in mapping and geographic profiling software and analytic techniques, and the demonstrated utility of crime mapping to researchers and police crime analysis units, suggests this will continue to be an area of growth in hate crime research. Information Fragmentation. The fragmentation of information across organizations, public and private sectors, and across geographic areas may serve as an impediment to the many public and private efforts to understand and respond to hate crime. Dr. Michael Shively is an Associate in the Center for Crime and Drug Policy at Abt Associates v Study of Literature and Legislation on Hate Crime in America 3 in 1990. This has been followed by several other pieces of federal legislation (e.g., Hate Crime Sentencing Enhancement Act, Violence Against Women act of 1998, Church Arson Prevention Act of 1994), with several other bills pending as of the fall of 2004 (Equal Rights and Equal Dignity for Americans Act of 2003). Issues currently being debated regarding hate crime law include the set of traits covered. For example, as of 2003, nearly all state criminal codes specify race, religion, and ethnicity, but less than two thirds of the states include sexual orientation, and approximately half of the criminal codes include gender (ADL, 2003). Advocates for gays, lesbians, people with disabilities, and women are among those actively seeking additions of their respective groups for coverage in hate crime legislation in states not currently offering it. Also in play are the application of civil remedies for hate crimes, and whether “hate speech” should be considered a criminal offense or should be protected as political speech under the First Amendment. Hate Crime Data Prior to 1991, there were no “official” national hate crime data from which to form a picture of the size and shape of the problem, nor to observe trends. The Hate Crime Statistics Act of 1990, mandated the collection and reporting of hate crime data, and UCR collection of hate crime data began in 1991. But by the end of the 1990s, as many as half of local law enforcement jurisdictions were not complying with the Act (McDevitt et al., 2000). UCR data on hate crime still appear incomplete. Crime victimization surveys are the standard alternative to law enforcement data. Although surveys have problems of their own as sources of crime data (e.g., respondent recollection of events and their willingness to disclose them), they do avoid the problems of dependence upon public willingness to report to the police and are not highly dependent upon law enforcement activity and statutory definitions of hate crime. Among the significant barriers to determining the prevalence of hate crime and trends over time has been the failure, until recently, to use representative sampling on a national level in a longitudinal or repeated cross-sectional design. Fortunately, this situation is currently being remedied. In 2001, the National Crime Victimization Survey began asking respondents who have been the victims of vandalism and various interpersonal crimes whether they believe that hate was a factor in the offenses committed against them. This survey involves random sampling of thousands of households in a rotating panel design. In developing an understanding of other types of crime the NCVS (particularly in combination with the UCR) has been invaluable, e.g., in helping to determine the prevalence, offense profiles, trends, and other important dimensions of crime. This has proved to be particularly true in crime types known or expected to be severely underreported to police, with sexual assault being the best example2. 2 In the 1970s and early 1980s, UCR data were almost universally considered to profoundly underrepresent the prevalence and incidence of sexual assault (e.g., Feldman-Summers and Ashworth, 1981; Kilpatrick et al., 1987; Koss et al., 1987; Williams, 1984). Independent victimization surveys of localized samples supported the Study of Literature and Legislation on Hate Crime in America 4 Given the best available current information, it appears that the ongoing addition of NCVS data on hate crime may allow estimation of the extent of underreporting, and examination of whether current cross-state variations in hate crime rates in UCR data are functions of different levels of hate crime or of different reporting practices. At this point, research on NCVS hate crime data is not yet available, so it is difficult to determine its impact3 on our understanding of the size and scope of the problem. Aside from UCR data and independent, localized victimization surveys, evidence of the prevalence and character of hate crime has been primarily anecdotal (e.g., ADL, 2004; Human Rights Campaign, 2003; National Coalition of Anti-Violence Programs, 2004), or localized (e.g., Barnes and Ephross, 1994; Ehrlich, 1994; Herek et al., 2002; Shively et al., 2001). Independent studies have attempted to measure the prevalence of hate crime for selected types of victims (e.g., for gays and lesbians, or among high school students), but their estimates have varied widely depending on sampling and how hate crime was operationally defined (e.g., Herek et al., 1997; McDevitt et al., 2002; Schulthess, 1992; Shively et al., 2001), and there have been no true replications to validate results. Hate Crime Research and Evaluation In addition to the rapid spread of federal and state hate crime legislation over the past 20 years as well as the large investment in government data collection programs, there has been recent and dramatic growth in the volume of research literature on hate crime. While there is a long history of research on crimes motivated by bias and bigotry (e.g., Asbury, 1939; Collins, 1918; Culter, 1905), the term “hate crime” did not appear with any substantial frequency in the social research literature until relatively recently. Studies in which hate crime is so named and defined (in ways consistent with contemporary hate crime statutes) have grown from the occasional study in the 1980s (e.g., Finn and McNeil, 1988; SPLC, 1989; Weiss and Ephross, 1989) to a steady flow over the past ten years (e.g., Balboni and McDevitt, 2001; Barnes and Ephross, 1994; BJS, 2001; Ehrlich, 1994; Bell, 2002; Dharmapala, 2004; Flint, 2004; Koopmans, 1996; Hagan et al., 1995; Hamm, 1998, 2004; Herek et al., 2002; Kuehnle and Sullivan, 2001; contention that sex crimes were vastly underreported to and by law enforcement, but both the methodological quality and the results varied widely across studies and as one-time cross sectional studies they could not provide trend information (e.g., Lizotte, 1985; Murnen et al., 1989; Tjaden and Thoennes, 2000). From the mid 1970s through the early 1990s, UCR data showed an increase of over 200 percent, and the independent surveys could not confirm or dispute the validity of this trend. The NCVS over this time period showed no significant trend either upward or downward over this time frame, suggesting that the UCR increase was mainly a function of public willingness to report to police, improvements in police response to sexual assault cases, and better record keeping. The NCVS, particularly after its sex crimes questions were redesigned in 1993, has served to solidify the knowledge base and coupled with UCR data provides the only truly national and ongoing source of quality information supporting analyses of prevalence and trends. 3 The major threat to the potential value of NCVS data on hate crime is that few hate crimes might be reported. Although there are over 50,000 households in the NCVS panel, with few cases being reported there would be small numbers to work with in any particular state or city. This small sample of incidents would make it impossible to provide valid national prevalence estimates. It is also a barrier to something perhaps more valuable than a national estimate: a picture of hate crime occurring within states and local communities. Study of Literature and Legislation on Hate Crime in America 5 Lee and Leets, 2002; McDevitt et al., 2001; Perry, 2003; Rayburn et al., 2003; Shively et al., 2001; Steen and Cohen, 2004) The body of research on the causes and consequences of hate crime has been reviewed elsewhere (e.g., Berk et al., 1992; Boeckmann and Turpin-Petrosino, 2002; Craig, 2002; Green et al. 2001; Herek and Berrill, 1992; Herek et al., 1999; Levin and McDevitt, 1993, 2001; McPhail, 2002; Perry, 2001, 2003), and the major conclusions are that: (1) hate crimes are more prevalent than is suggested by reported crime data; (2) victims seldom report hate crime to law enforcement; and (3) compared to the analogous conventional offenses, hate crimes have more serious negative consequences for victims. Theories from all branches of social sciences have been posited as explanations of hate crime, including those from psychology (e.g., personality theories, usually focusing on authoritarianism among aggressors), sociology (e.g., modernization and classical Durkheimian theories involving anomie as a causal factor), and economics (e.g., competition for scarce economic resources driving aggression against “other” groups such as new immigrants of different races and nationalities). However, there has been little formal or rigorous hypothesis testing and thus there is little in the way of a theoretical foundation for explaining or predicting hate crime. Our review found detailed descriptions of dozens of criminal justice responses to hate crime, and reports summarizing or presenting as best practices a sampling of criminal justice programs and initiatives (e.g., ADL; Bell, 2002; Human Rights Campaign; Levin and McDevitt, 2002); Martin, 2000). We found nearly every state or major metropolitan area to have some form of government-sponsored hate crime initiative involving criminal justice agencies. Many local law enforcement initiatives are collaborative endeavors involving federal agencies (such as the ATF, FBI, or the Community Relations Service), large national non-governmental organizations (such as the SPLC or the ADL), or state and community organizations (such as local advocacy groups). Most states and large cities have hate crime task forces involving coordination of effort across agencies and levels of government, and with independent community organizations. The voluminous descriptive literature has produced suggestions for “best practices” (e.g., Bureau of Justice Assistance, 1997, 2000a, 200b, 2001), and many recommendations for how the criminal justice system can more effectively address, prevent, and respond to hate crime (CRS, 2001; International Association of Chiefs of Police, 1998; National Crime Prevention Council, 2003; SPLC, 2004). While these recommendations are built upon practical experience and expert opinion, appear well-conceived, and pass the “common sense” test of validity, few evaluations of various law enforcement and community practices have been conducted. Such evaluations would determine whether or not any particular initiative, program, or set of practices has, for example, prevented hate crime, improved the efficiency of criminal justice programs, or provided more effective support for victims (i.e., aiding their recovery, improving cooperation in prosecutions, and preventing subsequent victimization). Study of Literature and Legislation on Hate Crime in America 8 28,000 publications and the full text of over 6,000 publications. For reports on applied research and program evaluations in the field of criminal justice, we used the online capacities of the National Criminal Justice Reference Service (NCJRS). NCJRS maintains one of the largest repositories of web sites devoted to criminal justice statistics, and is arguably the world’s most extensive source of research and statistical information on criminal justice. NCJRS is a central source of information produced by all the bureaus of the U.S. criminal justice agencies, including the Department of Justice, Office of Justice Programs, the National Institute of Justice (NIJ), the Office of Juvenile Justice and Delinquency Prevention (OJJDP), the Bureau of Justice Statistics (BJS), the Bureau of Justice Assistance (BJA), the Office of Victims of Crime (OVC), and the Office of National Drug Control Policy (ONDCP). The NCJRS search functions also cover research and practice journals, and reports by state and municipal criminal justice agencies. To double-check for published articles that may have evaded Ingenta and NCJRS, we used free online services to search university library collections, and searched the major law and criminal justice journal web pages. In addition, we searched for books on hate and bias crime with on-line searches of university library collections and Amazon.com. To supplement and double-check for sources that may have been missed through the NCJRS, Ingenta, Amazon.com, and library searches, we used commercial search engines. These broadened the search considerably, identifying websites of state and local government agencies, non-governmental organizations, and individuals, blogs, newspaper articles, state and federal laws, and other materials. Some of the source materials found through these search engines were available in full-text form online and free of charge. Other sources were obtained through local libraries, library duplication and loan services, or were purchased by Abt Associates’ staff. Figure 1.1 illustrates the breadth of source materials identified by several of the online search engines.4 While numerous key words and phrases were used, the most narrowly and appropriately focused were the phrases “hate crime” and “bias crime.” As can be seen here, the NCJRS concept search of full text sources reached its limit of 500 sources for “hate crime” and identified 316 sources for “bias crime.” Ingenta identified 71 journal articles when searching for “hate crime,” and 10 for “bias crime.” Amazon.com identified over 2,000 “hate crime” and 163 “bias crime” books and monographs. Google listed over 300,000 “hate crime” and 8,000 “bias crime” source materials. 4 These numbers are provided for illustrative purposes, to provide a sense of the breadth of material available and the magnitude of the task of reviewing it. These figures were accurate on one day in mid-2004, but change frequently as new sources are added and links to some web sites are added or deleted. For example, a Google search on the phrase “hate crime” returned over 700,000 in October 2004, but had returned only about 330,000 four months earlier. Given this, the numbers provided in Figure 1.1 are not replicable. Study of Literature and Legislation on Hate Crime in America 9 Figure 1.1: Sources Identified by Select Internet Search Engines Phrase Searched Search Engine “Bias Crime” “Hate Crime” NCJRS Abstracts (concept) 60 247 NCJRS Full Text (concept) 316 500 Ingenta 10 71 Amazon 163 2,241 Google 8,420 337,000 It is also important to note that the numbers presented in Figure 1.1 cannot be totaled, either across rows or down columns, due to considerable overlap. For example, many of the 60 “bias crime” sources identified in the NCJRS abstracts search were also included in the list of 247 “hate crime” sources. Similarly, some of the source materials were identified by more than one search engine. For example, some government-sponsored research reports would simultaneously appear in the NCJRS searches, as monographs in the Amazon.com search, and as sources identified by Google. In some cases, reports on the single study resulting in a research report or monograph would also appear in journal article form, and would be identified in the Ingenta search as well as in Amazon.com or NCJRS searches. Finally, the numbers returned by the Google searches are inflated by repetition and by a high percentage of sources inappropriate for our inquiry, such as listings for television shows, lecture notes for college courses, newspaper articles, and commentary in blogs and “position statements” by private individuals with no apparent expertise as either practitioners or researchers in the area of hate crime. The NCVS search engine was highly effective in identifying relevant reports describing applied and academic research reports and scholarly journal articles. Ingenta returned many of the same journal articles as those identified by NCJRS, and was useful for finding articles addressing hate and bias crime published outside of mainstream criminal justice journals (e.g., sociology and psychology journals), and those addressing subjects not tied to the criminal justice system: e.g., those examining causation, victim impact, and community experiences with hate crime. Amazon.com was effective in identifying many books and monographs not located by NCJRS (or, obviously, Ingenta, since it only deals with journals). Google was in some ways the most valuable search engine, while simultaneously being in some ways the most difficult to manage. Google was least valuable when searching on broad key words, such as “hate crime.” Its search algorithms use web site traffic to prioritize a listing, and with hundreds of thousands of listings, prioritization is critically important. The result was that many excellent sources were peppered throughout hundreds of listings not suitable for the present purposes (e.g., news accounts of recent high-profile incidents, encyclopedia sections, pamphlets, extremist web sites, blogs addressing hate crime with discussions conducted by people with little apparent expertise in the area); reports on highly useful studies that fail to draw the same level of popular attention lay buried thousands of listings deep. Google, however, was more and more useful the more narrowly the search terms were defined. For example, “hate crime violence prevention programs” returned about 85,000 listings; still a dauntingly large number, but with a higher percentage of the top listings being relevant. One of the Study of Literature and Legislation on Hate Crime in America 10 advantages of Google was that it uncovered sources not found by the other search engines. For example, some of the organizations providing violence prevention resources and victim support were found in the Google search using the keywords, “hate crime violence prevention programs”). Google was invaluable in identifying sources falling outside the range of research reports, journal articles, and federal government resources, such as commentary and legislative testimony on hate crime law, web sites of independent organizations addressing hate crime, and reports and web sites of state agencies, departments within state agencies, and government sponsored hate crime task forces. Organization Web Sites The web sites of organizations addressing hate or bias crime issues were examined for research reports, legal resources, and other references. For example, foundations and advocacy groups such as the ADL, Leadership Council on Civil Rights, SPLC, Human Rights Campaign Foundation, Partners Against Hate, and the American Civil Liberties Union all have made available reports, position statements, news updates, links to other sites, and other materials regarding hate and bias crime. Web sites of research organizations (e.g., Urban Institute, Police Executive Research Forum, and the Institute for Law and Justice) and of professional associations (e.g., International Chiefs of Police Association, National District Attorneys Association, American Prosecutors Research Institute) were examined to find studies and other materials focusing on criminal justice and other government responses to hate crime. Statutes Several organizations closely monitor hate and bias crime law (both statutory and case), and to control costs and expedite the collection of materials we built upon their publicly- accessible monitoring and analysis of relevant law. For example, the Anti-Defamation League provides an overview of state hate crime statutory provisions including information on whether a state’s statutes allow for civil action, and a listing of groups legally recognized as subject to hate or bias (race, religion, disability, sexual orientation, etc.). The site provides links to the relevant statutes within each state. The Human Rights Campaign, SPLC, Partners Against Hate, and other groups also provide information on current statutes, monitor ongoing legislation, and provide updates of case law. To ensure a rigorous and comprehensive review, copies of all state and federal hate and bias crime provisions were obtained. All 50 states provide on-line access to criminal codes and general laws, and access to summaries of current legislative activity. Similarly, federal laws and legislative activities are available on-line (e.g., Thomas: Legislative Information on the Internet provides a comprehensive search and retrieval service through the Library of Congress of all federal legislation). We used the free online services of the Cornell Law School’s Legal Information Institute (LII, which provides on-line access to all state criminal codes), LexisNexis, and links provided by Partners Against Hate to obtain the statutes, which were examined to double-check the currency and accuracy of the materials provided by the ADL and other sources. In Study of Literature and Legislation on Hate Crime in America 13 identity of the victim is irrelevant. A bias crime occurs not because the victim is who he is, but rather because the victim is what he is… Not every crime that is motivated by hatred for the victim is a bias crime. Hate based violence is a bias crime only when this hatred is connected with antipathy for a racial or ethnic group or for an individual because of his membership in that group… I use the term “bias crime” rather than “hate crime” to emphasize that the key factor in a bias crime is not the perpetrator’s hatred of the victim per se, but rather his bias or prejudice toward that victim.” Lawrence, 1999:9 While it is important for Lawrence to make the distinction between hate and bias crime to establish clarity for his detailed analysis of American law, the distinction he makes is not generally followed in the criminal justice field or by researchers. Researchers conducting studies and criminal justice personnel documenting training or other interventions usually put forth working definitions or, at minimum, an operational definition is stated or can be readily inferred. In statutory law and in the criminal justice system activity that is tied to these statutes, the definitions are critical and are stated. In statutes regarded as addressing hate crime, the term is actually rarely used. Most use “bias” or “prejudice” when addressing the offender’s motivation, which is the key to separating bias from its conventional counterpart. This is true even of legislation with hate crime in its title, such as the federal Hate Crime Statistics Act of 1990, that uses the term “prejudice” rather than “hate” when discussing motivation. While it may be true that the term “hate crime” less accurately captures the essence of the motivation behind the behavior, we generally use the term “hate crime” throughout the remainder of the report. We take this approach because in most research and criminal justice contexts the terms are essentially interchangeable, and “hate crime” is more widely used and commonly understood to address the range of offenses under consideration here. In state and federal statutes, the essential elements in defining what constitutes hate crime are: (1) stating the range of predicate crimes (or, the range of conventional crimes that may potentially be regarded as hate crimes, given the second criterion); (2) stating or implying that the crime was motivated by bias or prejudice; and (3) describing the range of traits identifying protected groups. Hate crime statutes all share the necessary condition of stating or implying that some form of hate or bias motivates offenses, although there are many ways that this is communicated in the statutes. There is wider variation among statutes in the degree of specification of predicate crimes and, when specified, the range of offenses listed. There are also significant differences across statutes in the level of specification and number of protected groups listed. To facilitate the discussion of hate crime definitions (as well as subsequent discussions of hate crime law and research), we present in Figure 2.1 an overview of hate crime statutory provisions in all 50 states and the District of Columbia. Study of Literature and Legislation on Hate Crime in America 14 Figure 2.1: State Hate Crime Statutory Provisions State Criminal Penalty Civil Action Bias Toward: Race, Religion, Ethnicity Bias Toward: Sexual Orientation Bias Toward: Gender Bias Toward: Disability Bias Toward: Age Bias Toward: Political Affiliation Institutional Vandalism Interfering With Religious Worship Data Collection Training for Law Enforcement Personnel AL     AK     AZ         AR     CA             CO     CT         DC            DE      FL          GA    HI        ID       IL          IN  IA           KS       KY       LA            ME          MD      MA          MI        MN             MS      MO         MT    NE          NV        NH      Study of Literature and Legislation on Hate Crime in America 15 Figure 2.1: State Hate Crime Statutory Provisions (continued) State Criminal Penalty Civil Action Bias Toward: Race, Religion, Ethnicity Bias Toward: Sexual Orientation Bias Toward: Gender Bias Toward: Disability Bias Toward: Age Bias Toward: Political Affiliation Institutional Vandalism Interfering With Religious Worship Data Collection Training for Law Enforcement Personnel NJ         NM           NY         NC      ND    OH     OK        OR           PA         RI           SC   SD      TN       TX         UT  VT        VA       WA          WV     WI       WY Source: Anti-Defamation League, 2003 Study of Literature and Legislation on Hate Crime in America 19 Protected Groups The five columns with reverse-shaded headings in Figure 2.1 present which states do and do not specify prejudice, bias, or hate toward specific groups defined by the traits: (1) race, religion, or ethnicity; (2) sexual orientation; (3) gender; (4) disability; (5) age; and (6) political affiliation. As can be seen here, for example, Arizona defines hate crimes as those motivated by bias toward race, ethnicity, sexual orientation, gender, or disability (Arizona Revised Statutes, § 41-1750), but not those motivated by biases toward age or political affiliation. To provide a better sense of the portion of states with provisions identifying each type of protected group, we have tabulated the number of states with each provision in Figure 2.2. We present the percent of states with each provision in Figure 2.3. As can be seen in Figure 2.2, 46 of the states, or 90% (Figure 2.3), have statutes specifying race, ethnicity, and/or religion as traits identifying protected groups. Over 50% of states specify sexual orientation, gender, and/or disabilities as targets of bias or prejudice, while relatively few states specify age (27%) or political affiliation (12%). Washington DC has one of the most inclusive statutes in terms of the range of specified protected groups, listing 13 distinct group traits. A bias-related crime is defined (D.C. Code §22-4001) as a: “…designated act that demonstrates an accused's prejudice based on the actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibility, physical handicap, matriculation, or political affiliation of a victim of the subject designated act.” California’s Penal Code (§ 1170.75) is also inclusive, specifying nine actual or perceived victim traits: “race, color, religion, nationality, country of origin, ancestry, disability, gender, or sexual orientation.” Similarly, Florida statutes (e.g., 2004 Florida Statute § 775.085) list prejudice based on “the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim." Texas statutes are potentially very broad, but they are not specific about the range of protected groups, with several statutes using the phrase “bias or prejudice against a group” (e.g., Texas Government Code §42.014) or simply stating that offenses occurring because of “prejudice, hatred, or advocacy of violence” (Texas Government Code § 411.046) without stating specific target groups. Study of Literature and Legislation on Hate Crime in America 20 Figure 2.2: Count of Provision by State Study of Literature and Legislation on Hate Crime in America 21 Figure 2.3: Percentage of Provision by State Study of Literature and Legislation on Hate Crime in America 24 snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.” The 1990 version of the Federal Hate Crimes Statistics Act listed eight predicate offenses that could potentially be hate crimes (if there is manifest evidence that they were motivated by prejudice): murder, non-negligent manslaughter, forcible rape, aggravated assault, simple assault, intimidation, arson, and destruction, damage, or vandalism of property. The list was later expanded to include robbery, burglary, and motor vehicle theft. No other offenses would be considered hate crime under this definition even if they were motivated by hate, prejudice, or bias (see discussion by Jacobs and Potter, 1997). At the most restrictive end of the scale are states such as Georgia (Official Code of Georgia §16-7-26) and Indiana (Burns Indiana Code Annotated §35-43-1-2), whose identifiable hate crime statutes address only one crime, institutional vandalism (e.g., toward places of religious worship in Georgia, and to places of religious worship, community centers, or schools in Indiana), and where no reference is made to protected groups. South Carolina statutes cover damage to places of religious worship (S.C. Code Ann. §16-11-535 and S.C. Code Ann. §16-11-110) and to the deprivation of the civil rights of others (S.C. Code Ann. §16-5-10), again without specifying victim groups. Hate or Bias Motivation With few exceptions, the statutes provide statements about how either bias, prejudice, or hatred led to the commission of offenses or the selection of victims. The exceptions include the aforementioned statutes of Georgia, where no reference is made to prejudice or bias or any other kind of motivation, and Wyoming, with no hate crime provisions of any kind. Among the majority of statutes addressing motivation, there are differences in how this is phrased. Ironically, most of the central statutes covering hate crime – whose distinguishing feature is the motivation of the offender – do not include the terms “hate” and many do not use “motivation” in their language, although many of the provisions use “hate crime” in their title. The most common structure of statutory descriptions of hate or bias motivation is: (1) a statement about crime occurring, followed by (2) the phrase “because of,” “by reason of,” or “based on,” followed by (3) “prejudice toward” or “bias toward,” which is then followed by (4) a list of traits defining protected groups. For example, Florida Statute §877.19 enhances penalties for crimes arising from, "prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim." A provision of the Texas criminal code (§42.014) states that a hate crime occurs when the selection of victims for certain crimes happens “…because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.” Similar phrasing, using either “because of” or “by reason of” or another similar term, is used in most statutes, including those of California, North Carolina, Mississippi, Texas, Nebraska, and Nevada. Study of Literature and Legislation on Hate Crime in America 25 Some provisions omit the second component, and do not mention either “prejudice or bias.” For example, a Montana provision (e.g., Montana Code Annotated 2003, §45-5- 222; see similar language in California Penal Code §1170.75; New York CLS Penal §485.05) contains the language that offenses were committed “because of victim's race, creed, religion, color, national origin, or involvement in civil rights or human rights activities.” A few statutes make explicit reference to hate as a motivation (e.g., Oregon, Minnesota). For example, the previously mentioned provision of Rhode Island’s Hate Crimes Sentencing Act (Rhode Island General Laws §12-19-38) is stated as: “because of the actor's hatred or animus toward the actual or perceived disability, religion, color, race, national origin or ancestry, sexual orientation, or gender…” While the relevant provisions of the Texas criminal code use the terms “bias” and “prejudice,” statutes regarding the administration of state government contain a provision (§411.046) on hate crime reporting using the term “hate crime” in the provision’s title, as well as in the description of offenses on which data is to be collected: The bureau of identification and records shall establish and maintain a central repository for the collection and analysis of information relating to crimes that are motivated by prejudice, hatred, or advocacy of violence… Provisions of some hate crime statutes use the term “motivation” (e.g., Connecticut, Minnesota, Oregon). For example, an Arkansas statute regarding civil remedies (Arkansas Statutes Annotated §16-123-106) describes the relevant offenses as those “motivated by racial, religious, or ethnic animosity." Among the states whose statutes are least specific in how they state prejudice or bias is Georgia, whose criminal code (OCGA §16-7-26) addresses just one predicate offense and in which the hate or bias motivation is implied, rather than stated: A person commits the offense of vandalism to a place of worship when he maliciously defaces or desecrates a church, synagogue, or other place of public religious worship. The ADL determined that the implication of hate or bias motivation for ‘malicious’ damage targeting places of religious worship was strong enough to warrant categorizing this statute as addressing hate crime, although others may disagree. Penalty Enhancements and Criminalization As can be seen in Figure 2.1, the vast majority of states have provisions providing criminal penalties for hate crime. Criminal provisions either: (1) enhance penalties for hate or bias motivated crime, and/or (2) create new categories of crime (or criminalization). There is significant overlap, however, between penalty enhancement and criminalization. While ‘criminalization’ is often used and implies the creation of new offenses, review of these provisions show that most are, in essence, extensions of Study of Literature and Legislation on Hate Crime in America 26 statutes governing predicate crimes and function as sentence enhancements. For example, Partners Against Hate (2004) describes Hawaii Revised Statute (HRS) §711- 1107 as criminalizing desecration to a place of worship. Annotations attached to this provision (HRS §0711-1107 Annotations) contain this discussion: Previous Hawaii law prohibited certain types of desecration. For example, desecration of the United States flag was prohibited. Section 711-1107 deals more generally with all acts of desecration; i.e., acts of physical damage to or mistreatment of venerated places and objects under circumstances that the defendant knows are likely to outrage the sensibilities of persons who observe or discover the defendant's actions. Thus, any desecration of a public monument or structure; or a place of worship or burial (public or private); or, in a public place, the national flag, or any other object (such as certain religious objects) revered by a substantial segment of the public, will constitute an offense. Damage by desecration is treated separately from other types of property damage because the sense of outrage produced by such acts is out of proportion to the monetary value of the damage. Thus, desecration is a misdemeanor, although many such cases might otherwise be petty misdemeanors under §708-823 because the object desecrated is worth less than $50. HRS §711-1107 thus serves as a penalty enhancement for institutional vandalism, creating a special crime category separate from most other forms of property destruction and elevating the penalties above other forms of vandalism. For most practical purposes, the criminalization of certain acts and penalty enhancement for existing offenses are functionally equivalent. Most of the 47 states with criminal hate crime provisions provide for penalty enhancements. For example, Louisiana’s criminal code §107.2 contains the following description: (B) If the underlying offense named in Subsection A of this Section is a misdemeanor, and the victim of the offense listed in Subsection A of this Section is selected in the manner proscribed by that Subsection, the offender may be fined not more than five hundred dollars or imprisoned for not more than six months, or both. This sentence shall run consecutively to the sentence for the underlying offense. (C) If the underlying offense named in Subsection A of this Section is a felony, and the victim of the offense listed in Subsection A of this Section is selected in the manner proscribed by that Subsection, the offender may be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than five years, or both. This sentence shall run consecutively to the sentence for the underlying offense. Study of Literature and Legislation on Hate Crime in America 29 On establishing the repository, the department shall develop a procedure to monitor, record, classify, and analyze information relating to incidents directed against persons and property that are apparently motivated by the factors listed in this subsection. Local law enforcement agencies shall report offenses … in the form and manner and at regular intervals as prescribed by rules adopted by the department. The department shall summarize and analyze information received under this subsection and file an annual report with the governor and legislature containing the summary and analysis. The department shall make information, records, and statistics collected under this section available to any local enforcement agency, political subdivision, or state agency to the extent the information is reasonably necessary or useful to the agency or subdivision in carrying out duties imposed by law on the agency or subdivision. This subsection may not be construed to limit access to information, records, or statistics which access if permitted by other law. Dissemination of the names of defendants and victims is subject to all confidentiality requirements otherwise imposed by law. Massachusetts hate crime data collection provisions are similarly comprehensive (Massachusetts General Laws [M.G.L.] §22C-33). Responsibility for hate crime data collection and management is placed with the State Police, who are required to promulgate regulations relative to the collection of hate crime data including: (1) establishment of a central repository for the collection and analysis of hate crime data and, upon the establishment of such repository, the crime reporting unit shall be responsible for collecting, analyzing, classifying and reporting such data, and shall maintain this information in a central repository; (2) procedures necessary to ensure effective data-gathering and preservation and protection of confidential information, and the disclosure of information in accordance with section thirty-five; (3) procedures for the solicitation and acceptance of reports regarding hate crimes which are submitted to the crime reporting unit; (4) procedures for assessing the credibility and accuracy of reports of hate crime data from law enforcement agencies. Another Massachusetts provision (M.G.L. §22C-34) requires the crime reporting unit to summarize and analyze reports of hate crime data received from the local law Study of Literature and Legislation on Hate Crime in America 30 enforcement agencies, and to provide summary reports to the governor, the attorney general, and the state legislature. A Minnesota statute (§626.5531) is unusually specific in outlining how law enforcement officers are to determine whether a hate crime occurred and how to report such instances. Peace officers are required to: ... report to the head of the officer's department every violation of chapter 609 or a local criminal ordinance if the officer has reason to believe, or if the victim alleges, that the offender was motivated to commit the act by the victim's race, religion, national origin, sex, age, disability, or characteristics identified as sexual orientation. The Bureau of Criminal Apprehension of the Minnesota Department of Public Safety is required by this provision to adopt a reporting form to be used by law enforcement agencies in making the reports. The reports must include for each incident all of the following: (1) the date of the offense; (2) the location of the offense; (3) whether the target of the incident is a person, private property, or public property; (4) the crime committed; (5) the type of bias and information about the offender and the victim that is relevant to that bias; (6) any organized group involved in the incident; (7) the disposition of the case; (8) whether the determination that the offense was motivated by bias was based on the officer's reasonable belief or on the victim's allegation; (9) any additional information the superintendent deems necessary for the acquisition of accurate and relevant data. The head of each of Minnesota’s local law enforcement agencies or state law enforcement departments that employs licensed peace officers must file monthly reports with the Bureau of Criminal Apprehension. The commissioner of public safety must summarize and analyze the information received and file an annual report with the Department of Human Rights and the legislature. The commissioner may include information in the annual report concerning any additional criminal activity motivated by bias that is not covered by this section. Law Enforcement Training Twelve states, or nearly one in four, have statutory provisions addressing training of law enforcement personnel on at least some aspect of hate or bias motivated crime (Figure 2.3). Typically, the statutes require training for law enforcement officers in investigating, Study of Literature and Legislation on Hate Crime in America 31 identifying, and reporting hate crime. In addition to these, some states have provisions assigning responsibility for providing training and creating standards and materials to existing law enforcement agencies or organizations, while others mandate the creation of new departments or organizations to design and deliver training. For example, Oregon’s statute (§181.642) on training includes the following: The Board on Public Safety Standards and Training shall ensure that all police officers and certified reserve officers are trained to: (1) Investigate, identify and report crimes: (a) Motivated by prejudice based on the perceived race, color, religion, national origin, sexual orientation, marital status, political affiliation or beliefs, membership or activity in or on behalf of a labor organization or against a labor organization, physical or mental handicap, age, economic or social status or citizenship of the victim … In Massachusetts (Massachusetts General Laws, §6-116B), a statute designates the state’s existing primary law enforcement training organization, the Municipal Police Training Committee, as responsible for providing: ... instruction for police officers in identifying, responding to and reporting all incidents of hate crime…. The municipal police training committee shall include such instruction in all curricula for recruits and in-service trainees and in all police academies operated or certified by said committee. A Louisiana statute (La.R.S. §2403) outlines in detail the composition of a council charged with overseeing hate crime training of law enforcement personnel. This provision mandates that: The Council on Peace Officer Standards and Training, hereinafter referred to as the council, shall be placed under the jurisdiction of the Louisiana Commission on Law Enforcement and Administration of Criminal Justice within the office of the governor. The council shall consist of the attorney general and eleven members of the Louisiana Commission on Law Enforcement and Administration of Criminal Justice, as follows: (a) Three sheriffs, appointed by the governor. (b) Three police chiefs, appointed by the governor. (c) Two district attorneys, appointed by the governor. (d) The executive director of the commission on law enforcement. (e) The superintendent of state police. (f) The president of the Louisiana chapter of the National Constables Association. Study of Literature and Legislation on Hate Crime in America 34 subjectivity. There are differences of opinion about the wisdom of having hate crime statutes in any form. For those opposed to hate crime law, all of the statutory provisions would be considered misguided and inherently flawed, built on faulty assumptions and yielding unintended negative consequences.11 Those in support argue that crimes motivated by hate or bias are inherently different and more severe than their conventional counterparts, and thus require separate and more severe criminal justice and civil consequences for offenders. For those supporting the general principle of hate crime statutes, there remain grounds for critique, such as statutes covering too narrow a range of protected groups and/or predicate crimes. While weaknesses can be identified by both supporters and opponents of hate crime laws, discussions of their strengths must proceed from the assumption that hate crime can and should be addressed by law as a separate category of offense. Strengths Those generally in favor of hate crime statutes argue that they are necessary additions to criminal law and produce many positive outcomes: • First, they have been argued to be necessary responses to a more serious and fundamentally distinct class of crimes. While opponents argue that criminal codes addressing predicate crimes are sufficient to cover crimes committed for all types of motivation, proponents argue that hate crimes are different and thus require distinct laws to address them (e.g., Franklin, 2002; Iganski, 1999; Israel, 1999; Levin, 1999; McDevitt et al., 2001). Evidence indicates that hate crimes are usually more serious than their conventional counterparts, involving more violence, physical injury, and more negative psychological and emotional consequences for victims (e.g., Barnes and Ephross, 1994; Ehrlich et al, 1994; Herek et al., 1999; Iganski, 2001; McDevitt et al., 2001). Hate crimes also have more serious consequences for communities than other crime. If a person is beaten for conventional reasons (such as an interpersonal dispute), other members of the community have little reason to fear being targeted. When a person is targeted specifically for their race or religion, all those of that race or religion feel like potential targets and experience a shared sense of persecution. Indeed, studies show bias crime victims to feel less safe than victims of analogous conventional crimes (e.g., McDevitt et al., 2001). In addition to having a more severe impact on victims and communities, hate crimes have other predictable dissimilarities compared to their counterpart offenses: hate crimes more often involve multiple offenders who more frequently victimize strangers selected haphazardly (Levin and McDevitt, 2002). Proponents argue that it is fair and just that the law should respond to hate crime in ways proportional to its severity and tailored to its unique character. 11 Although there are occasional concessions that the laws are generally well intended (e.g., Franklin, 2002; Jacobs and Potter, 1998). Study of Literature and Legislation on Hate Crime in America 35 Hate crime laws are also necessary to deliver fair, proportional justice, calling for elevated penalties in response to the elevated seriousness of the crimes (e.g., Lawrence, 1999; Levin and McDevitt, 2002). The presumption behind increased penalties is that hate motivation makes the crimes more serious, and the penalties serve to reinforce the message to current and potential offenders that the criminal justice system (and society) considers them to be more serious. Increased penalties may also promote public safety by providing a deterrent effect (e.g., DOJ, 1998). Finally, hate crimes have been argued to be necessary to provide effective protection to historically victimized groups, which has not been provided under conventional criminal law. For example, one of the major arguments for including sexual orientation in hate crime statutes is that assaults against gays and lesbians have been “notoriously under-investigated by the police and under- prosecuted by local district attorneys” (Lawrence, 1999: 161-162). • Second, there is precedent for enhancing penalties and criminalizing actions on the bases of the motivation of the offender and traits of the victim. In determining the seriousness and appropriate sanctions for many other crimes, the level of intent is a key consideration. Premeditation is deemed to make a crime more egregious and for such acts more severe punishments are meted out than for “crimes of passion” or those occurring due to negligence, even if they have an equal result. For example, state laws provide for several levels of homicide. The key factor distinguishing whether a homicide is considered negligent homicide, manslaughter, second degree homicide, or first degree homicide is the state of mind of the offender, even though in each case the offender caused the unlawful death of another person. Insanity defenses are built upon a similar principle. If a person is not deemed to fully understand or to be able to control his or her behavior, the offense is treated differently and the offender usually receives less serious sanctions than an offender committing equally damaging offenses with a greater understanding of his or her actions and malicious intent. If the only salient feature of homicide were proving that one person caused the death of another, there would be a need for only one category of homicide. Similar acts can result from different kinds of motivation, but the law regards motivation to be important for establishing culpability and egregiousness. In addition to considering offender motivation, there is precedent for adjusting punishment in response to victim traits. For example, many criminal codes make distinctions based upon a victim’s age, and incorporating special provisions for crimes against the elderly and the young. • Third, hate crime statutes in at least twelve states are contributing to the professionalization and elevating the proficiency of law enforcement by requiring training of officers. Training provisions require that law enforcement officers and prosecutors keep informed about statutory changes to hate crime law and case law affecting how the statutes are interpreted and put into practice in the Study of Literature and Legislation on Hate Crime in America 36 field. They necessitate the investigation and identification of hate crime and promote more rigorous data collection and reporting practices. These investigative, legal, and data collection skills are generalizable and increase law enforcement’s proficiency at addressing all crime, benefiting law enforcement agencies and the communities they serve. • Fourth, the statutes are contributing to the understanding of hate crimes, which is crucial to effectively combating them. Creating unique criminal offense codes for bias motivated crime and prosecuting them separately, coupled with data collection and reporting requirements and training of law enforcement personnel, makes it possible to collect accurate information about these crimes. Accurate information is crucial for government and non-governmental organizations to effectively plan and program criminal justice responses and prevention activities to combat hatred. Although stricter punishment is critical, the goal of hate crime laws is often tied to the idea of educating perpetrators, law enforcement officers, and the public about hate in society (e.g., Religious Action Center of Reform Judaism [RAC], 2002). Without statutes requiring separate treatment for hate crimes, their magnitude and trends could only be known through victimization surveys, and such surveys require resources beyond the capacity of most law enforcement agencies and communities to conduct periodically. • Fifth, hate crime statutes represent the will of the people. Many surveys of the U.S. public regarding support for hate crime legislation have been conducted, and most find from two-thirds to three-fourths of the population supports such laws. For example, a survey conducted by the Henry J. Kaiser Family Foundation in 2000, found that 73% of Americans support federal hate crime legislation that includes sexual orientation as a protected group. A Gallup Poll in 2000, found 65% of American adults support “special laws that provide harsher penalties for crimes motivated by hate of certain groups." When asked which groups should be covered by such a law, 81% of the respondents said racial minorities, 79% said religious and ethnic minorities, 78% said women, and 72% said homosexuals (Gallup Poll, February 2000). A 1999 Gallup poll found that 75% believed that lesbians and gays should be protected by hate crimes laws (Gallup Poll, February 1999). In addition to opinion polls, state legislatures indirectly reflect the will of the public in passing hate crime statutes. Weaknesses There are several critiques of hate crime statutes that question the assumptions upon which the laws are built, such as whether they follow from basic constitutional principles and whether they are fundamentally fair and just (e.g., Hurd, 2001; Jacobs and Potter, 1998; Lynch, 1999). Among these purported weaknesses are: • First, hate crime laws base crime punishment on the perceptions and traits of the criminal and the victim rather than on the crime. The statutes focus the criminal justice system away from the actions of the offender and harm to the Study of Literature and Legislation on Hate Crime in America 39 Columbine school shootings, and it is safe to assume that hatred toward them motivated the attacks. Yet as Lynch (1999) argues, their systematic mass murder would not be considered a hate crime in any state or federal jurisdiction. While athletes do not fit the usual criteria for inclusion in groups for hate crime law protection (i.e., historically oppressed groups often targeted because of their immutable traits) and virtually nobody is calling for their plight to be addressed by hate crime law, the relevant point of this aberrational example is that arguments can be made for including many other groups once the precedent has been set. The possibilities range from the absurd (people with piercings, blondes) to groups for which a reasonable case can be made: government employees are among the objects of targeted violence by some militia groups; physicians who work in family planning clinics are targeted for attack by other groups. • Seventh, hate crime laws can create unnecessary difficulty for law enforcement and the courts. Hate crime statutes demand that many factors in addition to those needed to address the predicate crimes are investigated, documented, and presented in court. For example, the conditions may be in place for a very solid case for an assault conviction: a demonstrably injured, alleged victim exists and is cooperative; there are witnesses willing to testify that the accused committed the assault; and physical evidence corroborates the testimony. At the same time, someone alleges that the assault was motivated by hate. Now police must establish all the facts necessary to prove this, which leads to an additional layer of testimony and evidence collection and preservation, and the prosecution must integrate and present this evidence in court (in addition to all the evidence necessary to prove the predicate offense). For opponents of hate crime laws, this is regarded as placing an unnecessary burden on the criminal justice system. Defining protected groups by gender can be problematic for prosecutors, since there is significant overlap between many kinds of sex offenses and gender- motivated hate crimes (see discussion by McPhail, 2002). When predatory rapists target women unknown to them and commit rape, should they be charged with a hate crime or a rape? To a greater extent than occurs in other conventional crime, the immutable traits of victims are deeply imbedded in the predicate crimes of rape and other categories of sexual assault. The evidence is strong that sexual violence (at least, crimes involving adults) typically involves antipathy toward people of a particular gender as a primary motivation (see Burgess-Jackson, 1999; Maletsky, 1991; Marshall et al., 1988). Many assaults and acts of vandalism occur without regard to the victim’s race, but few sexual assaults occur where gender is not a motivating factor.14 14 Levin and McDevitt (2003) note that states debating whether to add gender to their hate crime statutes are encountering the difficulty of separating sex crimes and gender motivated hate crimes. They write that the debate is productively advanced in some states by applying the interchangeability criterion, which asks the question: to what extent are victims interchangeable? In hate crimes, victims are much more highly interchangeable;, e.g., any Latino who walks by will be attacked, or woman encountered will be raped. This contrasts with conventional offenses, where ethnicity or gender may play a role but Study of Literature and Legislation on Hate Crime in America 40 To be pragmatic, prosecutors may look at hate crime laws as simply giving them another sentencing option for sex crimes, and would make a decision about prosecuting under hate crime or sex crime codes based upon which allowed for a range of sanctions they believe are reasonable for the case. Since hate crime statutes generally enhance sentences for predicate crimes, prosecutors may appreciate the option for more severe sanctions when they have particularly heinous crimes and solid cases. In jurisdictions where hate crime statutes include gender, prosecutors have a choice of pursuing either a conventional criminal code violation, or a hate crime. While it is true of all hate crimes that offenders can be charged with either the predicate crime alone or with its hate crime analogue to enhance penalties, the relationship between gender motivated hate crime and sex crimes creates special challenges for prosecutors. In addition to potentially complicating prosecution and investigation, for those trying to track crime rates for the purposes of deploying resources for prevention and response, the overlap between sex crimes and gender motivated hate crimes may be problematic. • Eighth, some hate crime statutes have been criticized or overturned for having vague language. For example, Georgia’s statute (OGA § 17-10-17) was overturned by a 7-0 vote of the Georgia Supreme Court on October 25, 2004 (the decision was in response to two cases, Botts v. The State of Georgia, S04A0798, and Pisciotta v. The State of Georgia, S04A0799). The statute was ruled to be unconstitutionally vague: “persons of common intelligence must necessarily guess at its meaning and differ as to its application,” with the potential to be applied to every possible form of prejudice, “no matter how obscure, whimsical, or unrelated to the victim it may be.” Most hate crime laws have not met such drastic consequences for having vague language. Many of the states passing hate crime statutes since the mid 1990s have adopted, or at least have been informed by, ADL model legislation. Wisconsin adopted the ADL’s model language, and the statute was unanimously upheld by the U.S. Supreme Court in Wisconsin v. Mitchell (1993). In addition to these broader legal and ethical criticisms, there are more narrowly focused and pragmatic concerns, most of which proceed from the assumption that hate crime laws in general are necessary. • Ninth, particular statutes are regarded by some as covering too narrow a range of protected groups. For example, in states where gender, sexual orientation, or disability are not listed as traits targeted by hate or bias motivation, advocacy groups focusing on these issues are pushing to make these additions to the list of protected groups (e.g., The Center for Gay and Lesbian Civil Rights). victims are far less interchangeable, which is supported by studies finding a greater percentage of hate crime victims to be strangers to their attackers (Levin and McDevitt, 2002). Study of Literature and Legislation on Hate Crime in America 41 • Tenth, many statutes do not address state-level hate crime data collection and the law enforcement training to support it. Those that do seldom provide much guidance in terms of specifying the content of the training, requiring accountability, or setting standards for data collection quality. • Eleventh, state laws generally do little to support UCR hate crime reporting. Most state laws with provisions for data collection refer to fulfilling their own statistical reporting requirements, and not the UCR’s. Exceptions to this rule include an Oregon statute (§181.550) directing all law enforcement agencies within the state to report to the Department of State Police hate crime statistics for the purposes of the UCR system, and a Louisiana statute providing for the imposition of penalties on agencies who fail to comply with UCR data reporting requirements (La. R.S. §15:1204.5). But, aside from a few cases such as these, most states put law enforcement in the position of operating with two (often dissimilar) definitions of hate crime: that defined in their state’s statutes, and that outlined in the UCR reporting guidelines. In states with definitions of hate crime that are very different from that in the UCR guidelines it can be confusing to law enforcement: A police department’s own classification of criminal charges and descriptions in police reports will all categorize offenses according to their state’s criminal code, while the UCR will ask for an accounting of offenses defined differently. For example, Maryland’s statute specifies only race, religion, and ethnicity as necessary for reporting, while the UCR guidelines include these plus sexual orientation, gender, disability, and other traits. For accurate UCR compliance, Maryland would have to keep a dual data collection system, with each system recording crimes meeting a different set of criteria. In addition, law enforcement personnel would have to use investigative protocols that gathered information about both types of hate crimes, those according to the UCR’s and those according to Maryland’s definitions. For example, Maryland officers investigating an assault that potentially could be a hate or bias crime must inquire about racial, religious, and ethnic biases, but if these do not apply they need look no further and simply tally the offense as an assault. To fully comply with UCR requirements, however, they would need to fully investigate additional forms of bias (disability, sexual orientation, age) associated with any assault even though those are not covered by the state’s hate crime law. Of course, since the UCR is a voluntary federal program asking state and local government employees to report on crimes outside of federal jurisdiction, it should remain voluntary. But there is precedent and a good case to be made for states passing laws supporting UCR reporting if they so choose. • Twelfth, most statutes do little to support hate crime victims and witnesses. Laws addressing sexual assault victims could be used as models to address issues that are relevant for hate crime. For example, provisions could be written to Study of Literature and Legislation on Hate Crime in America 44 focused on the "by reason of" or "because of" language that define crimes as bias motivated, arguing that these clauses do not make clear when bigoted behavior is punishable. Because the statutes require the commission of an underlying crime whose due process clarity is not in question, most defendants have been unsuccessful in arguing that they were unclear about their acts being punishable, and the state courts largely have rejected the claims of due process violations. But, as discussed previously, in at least one instance a statute has been overturned for vague language as when the Georgia Supreme Court overturned the state’s statute (OGA § 17-10-17, enacted in 2000) declaring it unconstitutionally vague. An examination of the statute reveals that Georgia did not follow the ADL’s model language or the language of other state laws that have withstood similar challenges.16 Key Federal Statutes Given that most of criminal law is state law and that federal jurisdiction is limited, state statutes most directly affect the processing of the vast majority of hate crime cases. However, in addition to addressing hate and bias motivated federal crime, federal legislation has been very important on a symbolical level as a statement that the federal government accepts the assumptions on which hate crime statutes are built. The set of federal hate crime laws has also had a substantial, material impact on prevention and response efforts occurring at all levels of government by mandating and funding training programs and providing materials to all criminal justice agencies. In addition, federal statutes have been perhaps the most important engines propelling the growth and availability of hate crime data and research. The text of these statutes and excellent summaries and analyses are readily available online17 and have been expertly analyzed by legal scholars and researchers (e.g., Bell, 2002; Jacobs and Potter, 1997; Jenness and Grattet, 2001; Lawrence, 1999). The major pieces of federal legislation addressing hate crime are briefly described below, followed by descriptions of additional federal legislation pending as of Fall, 2004. Hate Crime Statistics Act (HSCA). Passed into law in 1990, the HCSA requires the Department of Justice to acquire data on crimes manifesting “prejudice based on race, religion, sexual orientation, or ethnicity" from law enforcement agencies across the country and to publish an annual summary of the findings. The vehicle for this data collection effort is the Uniform Crime Reporting system, in which law enforcement agencies voluntarily provide data on crime occurring within their jurisdiction. As part of the Violent Crime and Law Enforcement Act of 1994 (commonly referred to as “the Crime Bill” or “the Crime Act of 1994”), the HCSA was amended to require the FBI to collect data on hate crimes involving disability. 16 In re M. S. (1995) 10 Gal. 4th 698, the California Supreme Court upheld the constitutionality of California's hate crime statutes, rejecting defense claims that the laws are over broad, vague, or impermissible regulations of speech. 17 The enacted and pending statutes are available at “thomas.loc.gov” and summaries and analyses are available at the websites of organizations such as the ADL, Civilrights.org, Human Rights Campaign, NCJRS, ReligiousTolerance.org, and the Southern Poverty Law Center. Study of Literature and Legislation on Hate Crime in America 45 In addition to the benefits for research (discussed in more detail in Chapter 3 of this report), the UCR hate crime data resulting from the HCSA benefits law enforcement agencies and communities by allowing them to track hate crime and responding to it in a priority fashion. While law enforcement agencies operating in states with hate crime statutes could keep records and track hate crime without the HCSA, at the time the federal statute was enacted nearly half the states did not have hate crime laws. The HCSA provided guidelines and a definition of hate crime that were valuable tools for facilitating record keeping and tracking for agencies operating in states without (or with very limited or narrowly defined) hate crime statutes. By compiling statistics and charting the geographic distribution of these crimes, police officials may be in a position to discern patterns and anticipate an increase in racial tensions in a given jurisdiction. The Crime Awareness and Campus Security Act of 199018. This Act requires that higher education institutions receiving federal aid must report annual campus crime statistics, and disclose campus safety policies and provide timely warnings of crime threats. The act included language requiring that colleges collect and annually report on hate crime, to be defined consistent with the HSCA. Subsequent amendments of the Act strengthened the language to require that colleges have policies addressing campus safety and crime prevention, including specific provisions for describing programs designed to inform students and employees about crime prevention, and describing related policies and crime prevention programs (34 CFR 668.46-b-11). The Act was amended in 2003 (34 CFR 668.46), requiring institutions to report crimes according to category of prejudice, and to report to local police agencies or to a campus security authority any crimes involving bodily injury that “manifest evidence that the victim was intentionally selected because of the victim's actual or perceived race, gender, religion, sexual orientation, ethnicity, or disability.” Hate Crimes Sentencing Enhancement Act. As a part of the Violent Crime Control and Law Enforcement Act of 1994, the Hate Crimes Sentencing Enhancement Act provides for longer sentences where the offense is determined to be a hate crime. Longer sentences may be imposed if it is proven that a crime was motivated by "race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation.” This Act is similar to many state laws and the ADL model legislation, but is of course limited to crimes under federal jurisdiction (e.g. crimes involving interstate commerce, or associated with the commission of other federal offenses, interfering with an individual's access to a federally protected right or benefit, such as serving on a jury, voting, or going to school). Church Arson Prevention Act of 1996. This act was passed in response to a series of arsons occurring at churches with predominantly African American congregations. To put provisions of this act into action, the National Church Arson Task Force (NCATF) was created to oversee the investigation and prosecution of arsons at houses of worship. 18 Also informally known as the Clery Act, after the family promoting the legislation in response to the murder of their daughter on a college campus; a revision of the act in 1998 included formally changing the name to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. Study of Literature and Legislation on Hate Crime in America 46 The NCATF is a collection of about 200 enforcement officers and prosecutors from the FBI, ATF, DOJ, and state and local law enforcement agencies, and provides for broader federal criminal jurisdiction to aid criminal prosecutions. The NCATF has worked in concert with FEMA and HUD in order to provide resources through a loan guarantee recovery fund for rebuilding churches damaged by relevant criminal offenses. Violence Against Women Act of 1998. This is a comprehensive federal statute intended to reduce violent crime against women through supporting domestic violence and rape crisis centers and education programs for law enforcement officers and prosecutors. The bill includes a federal civil remedy for victims of gender-based violent crimes, providing them with the right to compensatory and punitive damage awards and injunctive relief. Key Federal Statutes Pending as of Fall, 200419 There are several key pieces of federal legislation pending as of the Fall of 2004, which if passed into law would have a significant impact on hate crime research, prevention efforts, and criminal justice responses. The Hate Crimes Prevention Act of 2003 (H.R. 80) was introduced in the U.S. House of Representatives and referred to the House Committee on the Judiciary on January 7, 2003. It was referred to the Subcommittee on Crime, Terrorism, and Homeland Security on March 6, 2003. The bill would amend the federal criminal code to set penalties for willfully causing or attempting to cause bodily injury to another person through the use of fire, a firearm, or an explosive device, because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, or disability of any person. The Act also (1) directs the United States Sentencing Commission to study the issue of adult recruitment of juveniles to commit hate crimes and, if appropriate, to amend the federal sentencing guidelines to provide sentencing enhancements for such offenses; (2) requires the Office of Juvenile Justice and Delinquency Prevention (OJJDP) to make grants to state and local programs designed to combat hate crimes committed by juveniles; and (3) authorizes appropriations to the Department of the Treasury and to DOJ to increase the number of personnel to prevent and respond to alleged violations of provisions regarding interference with specified federally protected activities, such as voting. Equal Rights and Equal Dignity for Americans Act of 2003 (S.16) was introduced in the Senate on January 7, 2003, and was referred to the Committee on Finance. The Act would authorize the Attorney General, upon request, to provide assistance with the investigation or prosecution of any crime that constitutes: (1) a federal crime of violence; (2) a felony under State or Indian tribal law; and (3) is motivated by prejudice based on race, color, religion, national origin, gender, sexual orientation, or disability, or is a violation of state or Indian tribe hate crime laws. It would also amend the federal criminal code to provide criminal penalties for certain hate crimes. 19 A summary, complete text, legislative history, and current status of each of these pieces of federal legislation can be obtained through Thomas: Legislative Information on the Internet, a service of the Library of Congress, at: http://thomas.loc.gov/ Study of Literature and Legislation on Hate Crime in America 49 CHAPTER 3: RESEARCH AND EVALUATION LITERATURE Accompanying the rapid spread of federal and state hate crime legislation over the past 20 years has been dramatic growth of the research literature on hate crime over the same time period. However, it would be is misleading to suggest that hate crime research is a recent phenomenon. Studies of lynching (e.g., Collins, 1918) and other forms of race- motivated violence (e.g., Asbury, 1939) preceded this period by decades. But the term “hate crime” did not appear with any substantial frequency in the social research literature until recently. Studies in which hate crime is so named and defined in ways generally consistent with contemporary hate crime statutes have grown from a trickle in the 1980s (e.g., Finn and McNeil, 1988; SPLC, 1989; Weiss and Ephross, 1989) to a steady stream over the past ten years (e.g., Balboni and McDevitt, 2001; Barnes and Ephross, 1994; BJS, 2001; Ehrlich, 1994; Bell, 2002; Dharmapala, 2004; Flint, 2004; Koopmans, 1996; Hagan et al., 1995; Hamm, 1998, 2004; Herek et al., 2002; Kuehnle and Sullivan, 2001; Lee and Leets, 2002; McDevitt et al., 2001; Perry, 2003; Rayburn et al., 2003; Shively et al., 2001; Steen and Cohen, 2004). This chapter of the report presents the result of a systematic review of well over 100 documents and web sites, including sources describing federal and state hate crime data collection efforts, government sponsored and independent research, and prevention and response efforts by criminal justice agencies and independent organizations. While the volume of research and breadth of this review means we cannot fully describe and adequately convey the contributions of every significant source, we describe dominant themes and trends. Given our goal of informing future empirical research, we have focused on gaps in data and research and point to lines of inquiry that could help to close these gaps. To this end, we: (1) examine the strengths and weakness of major data sources; (2) describe the current scope of the hate crime problem as gleaned from the best available data; (3) describe select prevention and response efforts, and (4) summarize the research examining hate crime and evaluations of programs designed to prevent and respond to it. Measuring Hate Crime One of the fundamental tasks necessary to develop a sound understanding of any problem is measuring its occurrence. Measurement proceeds from definitions, which determine the range of acts and circumstances to be examined. As we saw in the review of hate crime legislation, there is debate about whether and how to define hate crime. The definitional debate over hate crime among researchers and practitioners covers much of the same territory as that traveled in discussions of hate crime law. After discussing definitions of hate crimes, we turn to addressing how hate crime is measured in major data collection efforts. Study of Literature and Legislation on Hate Crime in America 50 Definitions Definitions are crucial to consider when interpreting hate crime statistics, comparing rates across locales, and assessing the results and implications of research and program evaluations. For example, the more narrowly one defines hate crime (i.e., fewer protected groups, fewer specified predicate crimes) the lower the hate crime rates. Conversely, data collected under definitions with a longer list of protected groups and no restrictions on the range of predicate crimes will show higher hate crime rates. Differences in the hate crime rates of two states, for example, may have more to do with definitions than with crime occurrence. Across state and federal legal systems, there are dozens of definitions currently being used to distinguish hate crime from other offenses for purposes of data collection. For research purposes, perhaps the most important definitions of hate crime in the U.S. are those presented by the FBI, since they affect collection of UCR data (which is arguably the single most important source of hate crime data in the nation). The UCR definition follows from those in the previously described federal hate crime legislation, particularly the Hate Crime Statistics Act (presented in the previous chapter of this report). In its Training Guide for Hate Crime Data Collection, the FBI (1999) defines hate or bias crimes as follows: A hate crime, also known as a bias crime, is a criminal offense committed against a person, property, or society which is motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, or ethnicity/national origin. Definitions provided by advocacy groups, state hate crime task forces, criminal justice professional associations, and researchers are important because they frame the issues addressed by these organizations and individuals, affecting range of crimes and victim groups that the research or interventions are intended to cover. For example, in Massachusetts the Governor’s Task Force on Hate Crime (1997) provides a definition very similar to the FBI's, except that it adds gender to the list of individual traits for which victims are targeted. A hate crime is one: … in which the perpetrator’s conduct was motivated, in whole or in part, by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, gender, disability, or sexual orientation of another group or individual. The task force is a collection on criminal justice personnel, researchers, educators, and independent advocates spearheading interdisciplinary efforts to study, prevent, and effectively respond to hate crime in the state. The task force definition of hate crime drives research efforts that they sponsor and infuses the content of their programs and educational materials. The International Association of Chiefs of Police (IACP) defines a hate crime as Study of Literature and Legislation on Hate Crime in America 51 a criminal offense committed against a person, property, or society which is motivated, in whole or in part, by the offender's bias against an individual's or a group's race, religion, ethnic/national origin, gender, age, disability, or sexual orientation. This definition is influential since the IACP is a professional association of law enforcement leaders and conducts empirical research on hate crimes and other topics that is nationally disseminated in the fields of public safety as well as research and policy via the association’s journal, Police Chief, and other publications. The definitions presented by advocacy groups addressing hate crime also have an impact on research and practice. LAMBDA GLBT Community Services, a non-profit agency dedicated to reducing homophobia, inequality, hate crimes, and discrimination, defines hate crime as: a criminal act which is motivated, at least in part, because of someone's bias or hatred of a person's or group's perceived race, religion, ethnicity, sexual orientation, or other characteristic. LAMBDA, 2004: www.lambda.org The National Education Association (NEA), which provides training and education meant to combat hate crime in schools, operates with the following definition: Hate crimes and violent acts are defined as offenses motivated by hatred against a victim based on his or her beliefs or mental or physical characteristics, including race, ethnicity, and sexual orientation. National Education Association, 1998: Hate Motivated Crime And Violence: Information For Schools, Communities, & Families. Definitions such as these that are used to collect data and guide the activities of organizations are broader than the definitions included in many of the state and federal laws. For example, the definition used by LAMBDA GLBT Community Services is, for research purposes, as broad as it could possibly be, encompassing any criminal offense at least partially motivated by bias toward any perceived characteristic of victims. The IACP definition is less broad (as are most definitions), but is still more inclusive than many of the state laws that law enforcement officers are bound to enforce: the IACP definition specifies age as a trait defining a protected group, but only 14 states have hate crime statutes specifically addressing age (Figure 2.2). Similarly, disability, sexual orientation, and gender are specified by IACP, but are not included in the statutes of 20 states. These differences do not suggest that the IACP definition is necessarily problematic for law enforcement: officers are trained to enforce law according to criminal codes defined by statute, and most officers are probably unaware of (and Study of Literature and Legislation on Hate Crime in America 54 Figure 3.1: Bias-Motivated Offenses Reported by the Uniform Crime Reports, 1991-2002 Type of Bias Motivation 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Race 2963 5050 5085 4387 6170 6767 5898 5360 4295 4368 4366 3642 Anti-White 888 1664 1600 1253 1511 1384 1267 989 781 886 889 719 Anti-Black 1689 2884 2985 2668 3805 4469 3838 3573 2958 2904 2900 2486 Anti-Native American or Alaskan Native 11 31 36 26 59 69 44 66 47 57 80 62 Anti-Asian or Pacific Islander 287 275 274 267 484 527 437 359 298 281 280 217 Anti-Multiracial Group 88 198 190 173 311 318 312 373 211 240 217 158 Ethnicity or National Origin 450 841 701 745 1022 1163 1083 919 829 927 2098 1102 Anti-Hispanic 242 498 414 407 680 710 636 595 466 567 597 480 Anti-other 208 343 287 338 342 453 447 324 363 360 1501 622 Religion 917 1240 1245 1232 1414 1500 1483 1475 1411 1483 1828 1426 Anti-Jewish 792 1084 1104 1080 1145 1182 1159 1145 1109 1119 1043 931 Anti-Catholic 23 18 31 17 35 37 32 62 36 56 38 53 Anti-Protestant 26 29 25 30 47 80 59 61 48 59 35 55 Anti-Islamic 10 17 13 16 39 33 31 22 32 28 481 155 Anti-other religious group 5 77 58 72 122 139 173 138 151 173 181 198 Anti- multireligious group 11 14 11 14 25 27 26 45 31 44 45 31 Anti-atheist, agnostic, and so on 4 1 3 3 1 2 3 2 4 4 5 3 Sexual Orientation 425 944 938 780 1266 1256 1375 1439 1317 1330 1392 1244 Anti-male homosexual 0 0 665 561 915 927 912 972 915 925 980 825 Anti-female homosexual 0 0 113 119 189 185 229 265 187 181 205 172 Anti- homosexual 421 928 111 77 125 94 210 170 178 182 173 222 Anti- heterosexual 3 13 28 16 19 38 14 13 14 22 18 10 Anti-bisexual 1 3 1 7 18 12 10 19 23 20 16 15 Disability 0 0 0 0 0 0 12 27 19 36 33 45 Anti- physical 0 0 0 0 0 0 9 14 10 20 12 20 Anti-mental 0 0 0 0 0 0 3 13 9 16 21 25 Multiple Bias 0 0 0 0 23 20 10 15 5 8 9 3 Total 4755 8075 7969 7144 9895 10706 9861 9235 7876 8152 9726 7462 As many people had feared, 2001 witnessed a spike in bias motivated crime. While one- year changes of the same magnitude had occurred previously (from 1994 to 1995) and might represent a random fluctuation, if that were true, one would expect to have seen increases more or less evenly spread out across types of bias motivation. Instead, increases in the specific kinds of hate crime fit the pattern expected by those bracing for a wave of misguided retaliation against those appearing to be of Middle-Eastern decent in Study of Literature and Legislation on Hate Crime in America 55 the aftermath of the terrorist attacks on September 11. As Figure 3.1 shows, there was a considerable increase in crimes motivated by bias based on ethnicity or national origin, more than doubling from 927 incidents in 2000 to 2098 in 2001. There was also an increase in crimes motivated by bias toward religion, from 1483 in 2000 to 1828 in 2004. A breakdown of trends by specific religion reveals that all of this increase was crime motivated by anti-Islamic bias, which experienced a seventeen-fold increase from 2000 to 2001. No other category of religion experienced any increase beyond minor increases easily within the bounds of random fluctuation. From 2001 to 2002, these numbers declined close to average annual levels. To illustrate the magnitude of increase in crime motivated by bias toward ethnicity and Islamic religion, Figure 3.2 presents trends in select categories of hate crime as measured by the UCR21. To provide a more stable baseline number than just the one year preceding 2001, we computed the average number of select categories of hate crime incidents nationally from 1992 to 2000 (we excluded 1991 as a “start up” year in which law enforcement agencies were clearly not participating at the levels they would in each subsequent year). In Figure 3.3 we present a comparison of the 1992-2000 mean number of reported hate crimes with the 2001 figures, and then the following year. As can be seen here, crimes motivated by bias toward Hispanic ethnicity, Jewish and Protestant religions, and sexual orientation did not show significant changes in 2001. However, crime motivated by bias toward Muslims and people of “other” ethnicity rose profoundly. 21 It is assumed that most of the incidents accounted for in the sharp rise in offenses based on bias toward “other” (non-Hispanic) ethnicities involved people who were perceived by offenders to be of Middle- Eastern origin. Anecdotal accounts and the corresponding increase in UCR data on offenses involving bias toward people of Islamic religion would support this assumption. Figure 3.2: UCR 1991 to 2003 Study of Literature and Legislation on Hate Crime in America 56 Figure 3.3: Bias Crime Reported in UCR, Highlighting Select 2001 Numbers While it was certainly unwelcome to see evidence of increased senseless acts of hatred, this evidence validated the collection of the UCR data. In the aftermath of September 11th, there would almost certainly have been anecdotal evidence of crimes against certain groups of people, with or without the UCR data. One can easily imagine intense speculation about the magnitude of the increase in hate crime, with interest groups arguing that any particular guess was either exaggerating or underestimating the problem. The hard data provided by the UCR served to confirm that a problem had occurred and helped to place discussions of appropriate responses on relatively firm empirical ground. While the UCR hate crime data are certainly preferable to sheer guesswork, they are not without weaknesses, and there are plausible explanations for the 2001 rise in hate crime reported to police. For example, once it was established that the terrorist attacks were conducted by people of Middle Eastern decent, the public and law enforcement personnel almost certainly had a heightened awareness of the potential for a backlash against anyone perceived to be a Muslim or to be from the Middle East. It is possible that the UCR data may reflect an increase in reporting to police alleged hate crimes that otherwise would have gone unreported. Another possibility is that police were more alert to the potential for crimes against certain groups of people or their places of worship or businesses, and that they more aggressively investigated whether such crimes were bias motivated. Perhaps there was not real increase in hate crime, but rather the spike could have been caused by a combination of increased reporting to police and an increase in their willingness to investigate and categorize offenses as hate crimes. One of the Study of Literature and Legislation on Hate Crime in America 59 Violence in the United States (1995) estimated that for every anti-gay or lesbian crime reported to the police, 4.67 are identified by community agencies. Other studies find that the proportion reported to police is even lower. For example, Shively et al. (2001) found less than five percent of hate crime victims in high schools to have reported the offenses to police. Nolan and Akiyama (2002), found that many victims resist reporting hate crime victimization for fear of insensitivity and abuse by police, while Shively et al. (2001) found fear of retaliation, the belief that nothing could be done about their victimization, embarrassment, and the belief that some of the incidents were not serious to be the primary reasons for non-reporting. Nolan and Akiyama (2002) also examined in some detail how police respond to the rare instances where victims or witnesses have reported hate crime to them. They found that police do not always make an official record of what they are told by crime victims and do not always record alleged hate crimes. The authors argue that there are five key factors affecting whether police support participation in UCR hate crime reporting: 1. Shared attitudes about the value of hate crime reporting 2. Perceived utility in police/community relations 3. Organizational self preservation (motivation of police administration to have the organization thrive in its social environment) 4. Perceived efficacy of police involvement 5. Availability of police resources To overcome deficiencies in hate crime recognition and reporting by the public and processing by law enforcement, McDevitt and colleagues (2000) argue that improving national data will require: … a broad-based strategy that addresses four overarching areas: 1) building trust between members of the minority community and their local police, 2) improving law enforcement’s ability to respond to victims who do come forward to report bias crimes, 3) making the national data more “user friendly” for local law enforcement purposes, and 4) using supplemental data to both shed light on the level of unreported hate crime and promote community collaborations. McDevitt et al., 2000:12 On December 6, 2004 the ADL issued a press release stating concern that at least 5,000 police departments failed to participate in national data collection on hate crimes in 2003, and announced that it is leading a coalition of national groups seeking to expand federal Study of Literature and Legislation on Hate Crime in America 60 training, outreach and education materials on hate violence. ADL and a coalition of national organizations has recommended a series of changes to the FBI's Criminal Justice Information Services (CJIS) Advisory Policy Board that they assert would enable better and more accurate reporting of hate crimes by local law enforcement authorities pursuant to the HCSA. The ADL applauded the FBI's efforts in gathering and publishing hate crimes data but urged the Bureau to: (1) expand its training initiatives; (2) provide greater specificity in the data collected; (3) give incentives for state and local police agencies to participate in the national hate crime data collection effort; (4) collect additional information about the age, gender, sexual orientation, and national origin of victims and perpetrators of these crimes; and (5) revise and update its 1999 training manual and data collection guidelines to reflect the aforementioned changes. National Incident Based Reporting System (NIBRS). For the UCR, police agencies submit crime data using the quarterly report that has little or no information about the victim or offender, and does do not allow for information about multiple offenses, victims, offenders, or contextual information involved in any single criminal event. To correct these deficiencies, the National Incident Based Reporting System (NIBRS) was developed and was piloted in one state in 1988 and agencies from 10 states were submitting data by 1997. NIBRS is an incident based system that provides for the collection of many pieces of information grounded in each incident, e.g. traits of the victim, offense, offender, and harm resulting from the offense. NIBRS provides a far richer source of information about crime, and its participation by state and local law enforcement is growing. Between 1995 and 2002 participation in NIBRS grew from covering only 4% of the U.S. population to 17%. But while the coverage of NIBRS is moving in the right direction, the fact remains that it provides no information about the majority of jurisdictions and crimes. Hate crimes were added to NIBRS data collection protocols in response to the 1990 HSCA. Law enforcement agencies participating in NIBRS began collecting hate crime data in 1991, at the same time that agencies began UCR hate crime data collection. However, it took several years before adequate data collection became prevalent enough to sustain meaningful analyses: As mentioned above, it took six years to reach the point where almost 10% of law enforcement agencies (representing just six percent of the U.S. population) from ten states were submitting NIBRS data, and hate crime represents a very small subset of this limited pool of data.23 The Bureau of Justice Statistics conducted an analysis of hate crime data collected from 1997 to 1999. A briefing of the NIBRS hate crime data collection program and an overview of the resulting data and description of major findings is presented in the report, Hate Crime Reported in NIBRS, 1997-99 (BJS, 2001). Among the key findings were: 23 Of the 5.4 million NIBRS incidents reported by law enforcement agencies between 1997 and 1999, only about 3,000 (or .01% of the total) were identified as hate crimes (BJS, 2001). Study of Literature and Legislation on Hate Crime in America 61 • Violence: In 60% of hate crime incidents, the most serious offense was a violent crime, most commonly intimidation or simple assault (intimidation, defined as verbal or related threats of bodily harm, is one of the predicate offenses collected in NIBRS that is not addressed by UCR guidelines of the HSCA). • Predicate Crime: In nearly 4 out of 10 incidents the most serious crime was a property offense, 73% of which were damage, destruction, or vandalism of property. • Bias Motivation: Sixty-one percent of hate crime incidents were motivated by race, 14% by religion, 13% by sexual orientation, 11% by ethnicity, and 1% by victim disability. • Motivation Varies by Predicate Crime: The majority of incidents motivated by race, ethnicity, sexual orientation, or disability involved a violent offense, while two-thirds of incidents motivated by religion involved a property offense, most commonly vandalism. • Victim Religion: Of incidents motivated by hatred of a religion, 41% targeted Jewish victims and 31% targeted unspecified religious groups. • Victim Race: Racially motivated hate crimes most frequently targeted blacks. Six in ten racially biased incidents targeted blacks, and 3 in 10 targeted whites. • Offender Age: Younger offenders were responsible for most hate crimes. Thirty-one percent of violent offenders and 46% of property offenders were under age 18. • Location: Thirty-two percent of hate crimes occurred in a residence, 28% in an open space, 19% in a retail/commercial establishment or public building, 12% at a school or college, and 3% at a church, synagogue, or temple. Given the low incidence and, more importantly, given that these incidents represent a tiny fraction of all hate crimes that actually occur, it is unlikely that the profile of offenders, victims, and crimes presented in this report is representative of hate crime in America. However, the detail about the people and contextual factors involved in each incident allows for very rich descriptions and opportunities for in-depth analyses that are not possible with any other data set. If law enforcement participation in NIBRS continues to grow, this data set would represent the state of the art and provide excellent opportunities to develop detailed offender and victim profiles, to examine interactions among individuals, and to examine the impact of contextual variables on hate crime. While it will take time to pursue these questions nationally, it may already be possible to do so in Study of Literature and Legislation on Hate Crime in America 64 enforcement officers, college staff may consider them “local police” and not campus security. Figure 3.4: College Hate Crime Reported to Uniform Crime Report Program and to the Department of Education, 2002 Hate Crimes in 2002 Reported to College or University Uniform Crime Report Department of Education University of Arizona 5 0 University of California – San Diego 2 0 University of California – Santa Cruz 1 1 University of Delaware 5 0 University of Georgia 3 1 Illinois State University 1 2 University of Southern Maine 1 2 University of Maryland - College Park 11 0 Northeastern University 23 0 University of Massachusetts– Amherst 7 2 Mississippi State University 1 0 SUNY College - Geneseo 9 0 West Chester University (PA) 9 0 University of South Carolina – Columbia 2 2 Middle Tennessee State University 1 4 University of Utah 2 0 University of Washington 1 0 Total 75 14 Windemeyer (2003) argues that hate crimes and bias-motivated incidents on college campuses can only be addressed if campus communities become knowledgeable about the scope and seriousness of the problem. Consistent and accurate reporting of hate crimes on campus is an essential tool for hate crime prevention. Inconsistencies such as those noted here appear to add confusion rather than clarification about the scope of campus hate crime nationally. Victimization Surveys Crime victimization surveys are the standard alternative to law enforcement data. Although surveys have problems of their own as sources of crime data (e.g., respondent recollection of events and their willingness to disclose them), they do avoid the serious problem of dependence upon public willingness to report to the police. As discussed earlier, most studies find that between 70% and 95% of hate crime victims choose not to Study of Literature and Legislation on Hate Crime in America 65 report these incidents to police (e.g., Goldberg and Hanson, 1994; Herek et al., 1997; Shively et al., 2001). These and other studies question the validity of current UCR statistics on hate crimes, suggesting UCR data are of limited use for accurately estimating prevalence, incidence, or trends. Among the significant barriers to determining the prevalence of hate crime and trends over time has been the failure, until recently, to use random or other forms of representative sampling on a national level in a longitudinal or repeated cross-sectional design. Fortunately, this situation is currently being remedied. In 2001, the National Crime Victimization Survey (NCVS) began asking respondents who have been the victims of vandalism and various interpersonal crimes whether they believe that hate was a factor in the offenses committed against them. This survey involves random sampling of many thousands of households in a rotating panel design. The NCVS has been invaluable, in combination with the UCR, in helping to determine the prevalence and other characteristics of other types of crime. This proved to be particularly true in crime types known or expected to be severely underreported to police, with sexual assault being the best example (e.g., Kilpatrick et al., 1987; Tjaden and Thoennes, 2000). Given the best available current information, it appears that the ongoing addition of NCVS data on hate crime may allow sound estimation of the extent of underreporting, and examination of whether current cross-state variations in hate crime rates seen in UCR data are functions of different levels of hate crime or of different reporting practices. At this point in time, research based on NCVS hate crime data is not available. School Hate Crime Victimization The School Crime Supplement of the 1999 National Crime Victimization Survey included (for the first time) questions on hate language and graffiti. As reported in the 2000 Annual Report on School Safety (U.S. Department of Education and U.S. Department of Justice, 2000), the NCVS survey found that 13% of students had been called a hate-related word or name, and that 36% had seen hate-related graffiti at school. These data have been relatively stable in subsequent years (National Center for Education Statistics, 2004)25. Independent Surveys Aside from the recent inclusion of hate crime in the NCVS and in school surveys, most victimization surveys have been cross-sectional studies conducted by researchers (e.g., 25 It is inherently important to study and respond to school crime and disorder, and we do not want to imply that the kind of hate motivated bullying and harassment addressed by these survey questions are not serious. But our review is focused on hate crime rising to the level of criminal violations, so we will elaborate on these surveys no further. Study of Literature and Legislation on Hate Crime in America 66 Barnes and Ephross, 1994; Ehrlich, 1994; Gay and Lesbian Community Action Council, 1990; Herek et al., 2002; Herek et al., 1999; Jay and Young, 1977; McDevitt et al., 2001; Peebles et al., 1985; Rayburn et al., 2003; Shively et al., 2001), rather than ongoing and/or national data collection projects. This body of research been reviewed elsewhere (e.g., Boeckmann and Turpin-Petrosino, 2002; Herek and Berrill, 1992; Herek et al., 1999; McDevitt, et al., 2001), and the major conclusions are that: (1) hate crimes are more prevalent than is suggested by reported crime data; (2) victims seldom report hate crime to law enforcement; and (3) compared to the predicate crime alone, hate crimes have more serious negative consequences for victims (e.g., Herek et al., 1999; Levin, 1999; McDevitt et al., 2001). Since it is seldom the intent of these studies to provide a national prevalence estimate, the surveys stand up well to criticism that they are usually geographically constrained to one state (e.g., Shively et al., 2001), region (e.g., Franklin, 1997); community (e.g., McDevitt et al., 2001), or location within a community such as a university (e.g., Rayburn et al., 2003). While the surveys do not attempt national coverage, the variation across surveys presents difficulties for those trying to develop a larger picture or to compare results across studies. For example, independent surveys have attempted to measure the prevalence of hate crime for selected types of victims (e.g., for gays and lesbians; or among high school students), but their estimates have varied widely depending on sampling and how hate crime was operationally defined (e.g., Herek et al., 1999; Schulthess, 1992; Shively et al., 2001). Also, there have been no replications of any of these surveys to validate results. While resource constraints are generally responsible for the use of convenience samples that are often small and local, all hate crime surveys face challenges in questionnaire design regardless of the resources available. As we have discussed elsewhere, a major factor in design is how hate crimes are defined. While state and federal statutes drive data about crime reported to police, researchers are free to define hate crime conceptually and operationally as they so choose in independent surveys. Surveys intended to address the prevalence of hate crime face a hurdle in addition to those encountered in most other kinds of crime victimization surveys. Not only do respondents have to recall and be willing to divulge information about offenses committed against them, but they also are asked to determine that the offenses were motivated by hate or bias. For example, to assess the prevalence and characteristics of hate crime, Shively et al. (2001) asked several questions modeled after those used to measure conventional crime in the NCVS. Respondents were asked whether the individuals had experienced a certain type of crime in the prior six months and, if they responded affirmatively, they were asked several follow-up questions about the offense. For each of the offense types, respondents indicating that they had been victimized were then asked a series of questions about why they thought they were targeted. Respondents were to indicate the three most important reasons that the offender(s) chose to commit the offense committed against them. Those surveyed were presented with a list of 16 different kinds of reasons, including several outside the boundaries of bias crime: class year, income, friends, bad luck, the offender not liking or being angry with the victim, the Study of Literature and Legislation on Hate Crime in America 69 • The Human Rights Campaign (HRC)27 has compiled a list and short descriptions of 651 separate hate crimes, including 181 murders, and presented them in the report, A Chronology of Hate Crimes 1998-2002. The incidents were gathered “primarily from media sources and initial police reports by the SPLC’s Intelligence Report, the National Coalition of Anti-Violence Programs and the Human Rights Campaign.” This report is not intended to be a comprehensive accounting of all hate-related violence, and not all of the incidents have been verified. The HRC report documents only incidents resulting in death or bodily injury, or those perpetrated with an explosive device or firearm. • The National Coalition of Anti-Violence Programs (NCAVP), a network of over 20 anti-violence organizations that monitor and respond to incidents of bias motivated crime and related issues (the separate programs are listed in Appendix A), produces an annual report based on incidents known to its participating regional offices (some of these offices cover metropolitan areas, other entire states). In the most recent report, Anti-Lesbian Gay, Bisexual, and Transgender Violence in 2003 (NCAVP, 2004), 2,051 incidents were reported within the coverage area of these 11 regional offices: Chicago, IL; Cleveland, OH; Colorado; Columbus, OH; Connecticut; Los Angeles, CA; Massachusetts; Minnesota; New York, NY; Pennsylvania; and San Francisco, CA. These data sources have several limitations, such as the eclectic processes by which the incidents come to the attention of the organizations, the unknown level of consistency in definitions used across sites, and (in the case of the NCAVP) less than full geographic coverage across the nation (see critique by Jacobs and Henry, 1996). However, the cases are in some ways superior to the those gathered in the larger government sponsored efforts, in that some of the incidents are captured in narrative detail (e.g., HRC, 2003) and that some victims who are willing to disclose incidents to advocacy organizations may be those who are unwilling to approach police. Despite the lack of uniform collection methods, advocacy group and human rights group data are valuable in providing insight into the victim experience, and why so many hate crime victims fail to reach out to law enforcement (McDevitt et al., 2000). Summary Regarding Hate Crime Data National efforts to collect and compile data from law enforcement efforts continue to be uneven across jurisdictions and collectively to underrepresent the prevalence of hate crime. Apparent gaps and inconsistencies in national reporting can be seen when comparing hate crime reporting across states and across data sets. Reasons for cross-state variation in rates of hate crime reported to law enforcement (UCR, NIBRS, and state data bases) include: (1) dissimilar hate crime laws from state to state, including different hate crime statistical reporting provisions; (2) variations in the quality of data collection 27 www.hrc.org Study of Literature and Legislation on Hate Crime in America 70 procedures; (3) differences in law enforcement training on hate crime reporting; and (4) a lack of consensus about the legitimacy of treating hate crimes as separate kinds of offenses. Reporting on hate crime occurring on college campuses is also uneven, across colleges and across data collection programs. The addition of hate crime questions to the NCVS is promising, given that the strengths and weakness of law enforcement and survey data complement one another, and a combination of the two allows a more fully developed empirical understanding to emerge. In addition to these government- sponsored efforts, independent NGOs such as the ADL, NCAVP, the SPLC, and HRC have conducted impressive programs collecting narrative accounts and data that provide an alternative to police reports that can be used in combination with UCR and/or survey data to provide descriptive profiles of victims, offenders, and incidents. Though there have been areas of tangible progress, the current “state of the art” data are not sufficient to establish the true national scope of the problem or to track trends over time. Unfortunately, hate crime data gathered through large national collection efforts lag behind data on other types of crime. However, continued intense public and government focus on hate crime is driving efforts to improve data coverage and quality. Explaining Hate Crime As we discussed above, most of the literature explicitly examining hate crime has been generated in the past 20 years. As in the social science literature on other types of crime, the research attempting to explain hate crime can be placed into a few major categories: descriptive studies and typologies, and studies proposing and testing formal theories. Typologies One of the common means of explaining criminal behavior is the creation of typologies of offenders. While typologies are not formal theories, they help to organize empirical observations, and the types of offenders or offenses often are aligned with different types of theoretical explanations. The most widely discussed and accepted typology of hate crimes was proposed by Levin and McDevitt in 1993 and expanded upon in 2002. The typology emerged from a primary analysis of 169 cases handled by the Community Disorders Unit of the Boston Police Department in 1991-1992. Their typology proceeds from the assumption that bigotry is the underlying foundation of hate crimes, but that each of their proposed categories of offenses differs with respect to the psychological and environmental conditions that ultimately lead to hate crimes (Levin and McDevitt, 2002:306). They describe four major categories of offender motivation. • Thrill-seeking offenders are motivated by the desire for excitement and power, and often go outside their "turf" and spontaneously vandalize property or attack members of groups they consider to be inferior to them (as well as vulnerable). In Study of Literature and Legislation on Hate Crime in America 71 Levin and McDevitt’s study of hate crimes in Boston, this was found to be the most common type of motivation (66%). • Defensive offenders are motivated by feeling a need to protect their turf or resources under conditions they consider to be threatening. Levin and McDevitt found 25% of the cases studied fit this category of motivation. • Retaliatory offenders are inspired by a desire to avenge a perceived insult or assault on their group. Just eight percent of the cases studied fell within this category. • Mission offenders see themselves as “crusaders” on a mission to eliminate groups they perceive to be inferior or evil. Only one of the 169 cases studied was classified as a mission hate crime. Levin and McDevitt state that their primary purpose in this typology is assisting law enforcement in the investigation and identification of hate crime, but the typology also provides a framework for research. On one level, the typology is built primarily upon a psychological foundation, given its reliance on motivation as a primary organizing and explanatory principle. However, other levels of explanation are evident. For example, an economic motivation is implied in the “defensive offenders” category. To date, there have been no replications or other tests of the validity of Levin and McDevitt’s typology. Other typologies have been formulated. For example, Franklin (1997) examined self-reported anti-gay aggression among approximately 500 young adults in the greater San Francisco Bay Area. Through a factor analysis of assailant motivations, she identified four distinct offender types: • Self-Defense assailants typically claim they were responding to aggressive sexual propositions. Rather than fabricating these accounts of homosexual aggression, these assailants appear to interpret their victims' words and actions based on their belief that homosexuals are sexual predators. • Ideology assailants report that they assaulted gay men and lesbians because of their negative beliefs and attitudes about homosexuality. These assailants view themselves as social norm enforcers who are punishing moral transgressions. They object not so much to homosexuality itself, but to visible challenges to gender norms, such as male effeminacy or public flaunting of sexual deviance. The other two motivations, Thrill Seeking and Peer Dynamics, both stem from adolescent developmental needs. • Thrill Seekers commit assaults to alleviate boredom, to have fun and excitement, and to feel strong. Study of Literature and Legislation on Hate Crime in America 74 We offer a brief overview of the numerous criminal justice and related responses to hate and bias crime. Figure 3.5 presents a list of reports describing some of the initiatives and programs, as well as documents serving as resources designed to support effective prevention and response efforts. NGOs and public agencies supporting hate crime prevention and response programs and initiatives are listed in Appendix A. Figure 3.5: Select Resources for Practitioners Addressing Hate Crime Prevention and Response Report/Resource Title Sponsor / Author Publication Date Law Enforcement FY 2002 Annual Report • Community Relations Service, U.S. DOJ 2003 Twenty Plus Things Law Enforcement Agencies Can Do to Prevent or Respond to Hate Incidents Against Arab-Americans, Muslims, and Sikhs • Community Relations Service, U.S. DOJ 2001 Promising Practices Against Hate Crime: Five State and Local Demonstration Projects • Bureau of Justice Assistance 2000 Addressing Hate Crimes: Six Initiatives That Are Enhancing the Efforts of Criminal Justice Practitioners • Bureau of Justice Assistance 2000 Responding to Hate Crime: A Multidisciplinary Curriculum for Law Enforcement and Victim Assistance Professionals • National Center for Hate Crime Prevention Educational Development Center • U.S. Department of Justice, Office for Victims of Crime 2000 Reporting Hate Crime: The California Attorney General’s Civil Rights Commission on Hate Crimes Final Report • California Attorney General 2000 Hate Crime in America Summit Recommendations • International Association of Chiefs of Police 1998 Hate Crime Training: Core Curriculum for Patrol Officers, Detectives, and Command Officers • U.S. Department of Justice • U.S. Department of Treasury • National Association of Attorneys General • International Association of Directors of Law Enforcement Standards and Training 1998 A Policymaker’s Guide to Hate Crime • Bureau of Justice Assistance 1997 Study of Literature and Legislation on Hate Crime in America 75 Report/Resource Title Sponsor / Author Publication Date Community and Educational Settings Ten Ways to Fight Hate On Campus: A Response Guide for College Activists • Southern Poverty Law Center 2004 School Safety and Security Toolkit: A guide for Parents, Schools, and Communities • National Crime Prevention Council 2003 How to Combat Bias and Hate Crimes: An ADL Blueprint for Action • Anti-Defamation League 2003 Responding to Hate: Rights, Remedies, Prevention Strategies • State of California, Department of Fair Employment and Housing 2003 Stop the Hate: Hate Crime Prevention Train the Trainer Manual • Association of College Unions International • Anti-Defamation League • Center for the Prevention of Hate Violence • National Gay & Lesbian Task Force • National Center for Hate Crime Prevention 2003 Hate Crimes on Campus: The Problem and Efforts to Confront It • Bureau of Justice Assistance 2001 Responding to Bigotry and Intergroup Strife on Campus: Guide for College and University Presidents and Senior Administrators • Anti-Defamation League 2001 Protecting Students from Harassment and Hate Crime: A Guide for Schools • Office for Civil Rights, U.S. Department of Education • National Association of Attorney’s General 1999 Responding to Hate at School: A Guide for Teachers, Counselors, and Administrators • Teaching Tolerance 1999 Hate Motivated Crime and Violence: Information for Schools, Communities, and Families • National Education Association 1998 Healing the Hate: A National Bias Crime Prevention Curriculum for Middle Schools • Educational Development Center, Inc. • Office of Juvenile Justice and Delinquency Prevention 1997 Preventing Youth Hate Crime: A Manual for Schools and Communities • U.S. Department of Education • U.S. DOJ, Community Relations Service 1997 Study of Literature and Legislation on Hate Crime in America 76 Municipal Responses While municipal police departments are usually involved as members of state or regional task forces or other form of partnerships, some cities have hate crime units within their departments and/or serve as the base of operation for multiagency tasks forces. For example, the Houston Police Department (HPD) developed a Hate Crime Program involving the appointment of a full-time Hate Crime Coordinator (a Criminal Intelligence Division Lieutenant) and HPD’s Hate Crime Hotline. The Department views all hate crimes as major, and possibly organized, acts and charges the Criminal Intelligence Division (CID) with the ultimate responsibility for determining whether a crime is reported to federal or state record-keeping agencies as a hate crime. Additional responsibilities of the CID include education of both the public and police officers on the definition of hate crime, prevention techniques, reporting procedures, organized hate crime groups, and the development of strategic initiatives in dealing with hate crime issues (HPD, 2004). In response to a series of hate motivated arsons beginning in 1993, the city of Sacramento began a series of responses that began informally and led to the establishment of permanent initiatives. An informal team of investigators was formed following the first incidents in 1993 (BJA, 1997; Wagner, 2001). The team included detectives and patrol officers from the Sacramento Police Department (SPD), an FBI agent, lab technicians from the Bureau of Alcohol, Tobacco and Firearms (ATF), and arson investigators from the Sacramento Fire Department. As the seriousness of the crimes became clear in the second wave of arsons, additional local, state, and federal officials were brought to bear on the investigation. However, conflicting demands on local police investigators were problematic, and a decision was made to focus the array of resources through an official task force on hate crime directed locally by the operations unit of SPD (BJA, 1997; Wagner, 2001). The resulting Greater Sacramento Area Hate Crimes Task Force began in 1994 and is still operating 10 years later. State-Level Responses Many states have highly organized, government sponsored task forces or other cross- discipline efforts. For example, California has the Attorney General's Commission on Hate Crimes that provides oversight and direction for a number of initiatives meant to prevent and better respond to hate crime (SafeState.org31). Among the initiatives are: 31 These organizations and their various initiatives are described in a series of documents provided at a website sponsored by the CVPC: safestate.org/index.cfm?navID=13 Study of Literature and Legislation on Hate Crime in America 79 Two other reports in this series describe a number of other initiatives within communities and college campus settings: Promising Practices Against Hate Crimes: Five State and Local Demonstration Projects (BJA, 2000), and Hate Crimes on Campus: The Problem and Efforts to Confront It (BJA, 2001). Many other programs that appear well-conceived are described in the professional literature. For example, ED has supported initiatives in response to hate/bias crimes. For example, in 1996, under the Department of Education's Safe and Drug-Free Schools and Communities Federal Activities Grants Program, $2 million was made available to public agencies and private nonprofit organizations for developing and implementing innovative strategies designed to prevent and reduce the incidence of hate crimes in communities. Also in 1996, the Office for Victims of Crime (OVC) and BJA supported the development of a national training and technical project that produced A Training Curriculum to Improve the Treatment of Victims of Bias Crimes by the Educational Development Center in Boston, Massachusetts. The project offers training for law enforcement and victim assistance professionals. Project materials emphasize that while hate crimes are similar to other crimes, they present unique challenges to professionals because of the deep negative psychological impact on the victim and the victim's community. In addition, the U.S. Department of Justice Community Relations Service (CRS) is tasked with assisting communities that are addressing inter-group disputes. Among its duties are mediation, coordination of response efforts, publishing information bulletins, and assisting states in hate crime data collection processes (CRS, 2001). Finally, the ATF assists state and local law enforcement in the investigation of arson that is potentially hate-motivated at places of worship. Evaluations of Criminal Justice Responses Aside from the previously discussed assessments of the Federal Hate Crime Statistics Program (Nolan and Akiyama, 1999; McDevitt et al., 2000), there are very few published evaluations of programs or other responses to hate crime. The response of the criminal justice system to hate crime in Sacramento was the subject of a case study. A BJA (1997) report provides a summary of how initial responses to a series of hate crimes by the SPD led to an ad hoc collaboration between local, state, and federal agencies, which in turn evolved into a permanent multijurisdictional hate crime task force. The task force designed a response plan and a suspect profile of the arsonist from locations targeted, witness statements, and voice recordings. Using the profile to conduct a computer search of white supremacists in the Sacramento area and information gleaned from an incarcerated juvenile offender, Sacramento police located and arrested a young white male fitting the profile. From this successful experience, a set of lessons learned and recommendations was put forth for the benefit of other communities faced with hate crime. For example: Study of Literature and Legislation on Hate Crime in America 80 • Train every patrol officer in the department to recognize hate crime. Patrol officers must understand and support a department's policies on hate crime and know how to respond when hate crime occurs • Establish a multi-agency task force in areas where hate crime occurs and give it full support of elected officials and law enforcement agencies involved in the investigation and prosecution of hate crime. A task force’s more experienced personnel and dedicated equipment enable a task force to investigate incidents and leads more quickly than an ad hoc team. It can deploy more tactical units to protect potential targets of attacks and implement strategies to stop perpetrators of hate crime before they strike again. • Seek out state and federal law enforcement assistance in your community and make it available to the task force. For example, the Sacramento Police Department used a $100,000 grant from the Bureau of Justice Assistance to deploy a sophisticated vehicle that permits close yet covert surveillance of hate crime suspects. The department also purchased a geographical information system with BJA grant money that became an indispensable visual aid for tactical commanders and their personnel. Task force investigators use the system to target locations and select areas of responsibility. In addition, the ATF contributed expert arson investigators to the task force, who examined arson scenes, collected evidence, and conducted state-of-the-art laboratory analysis. • Encourage the participation of the community in the investigation. Used constructively, the desire of community- and neighborhood-based groups to apprehend the perpetrators of hate crime can be a powerful asset assisting law enforcement. From the scant evaluation literature and the voluminous descriptive and best practices literature, there are many recommendations for how the criminal justice system can more effectively address, prevent, and respond to hate crime (CRS, 2001; DOJ, 1998; IACP, 1998). While these recommendations are built upon practical experience and expert opinion, and appear well-conceived and pass the “common sense” test of validity, no evaluations of various law enforcement practices have been conducted. These would determine whether or not any particular initiative, program, or set of practices has, for example (1) increased arrest and/or prosecution rates, (2) prevented hate crime, or (3) provided more effective support for victims (i.e., aiding their recovery, improving cooperation in prosecutions, preventing subsequent victimization). Study of Literature and Legislation on Hate Crime in America 81 CHAPTER 4: CONCLUSIONS This report presents a summary and analysis of literature and legislation addressing hate crime in the United States. The main purpose of the review was the identification of significant current issues, effective practices, innovative responses, and gaps in the law and in the research literature regarding hate and bias crime. Recognizing inadequacies in statistical reporting on hate crime and limited research on relevant criminal justice policies and practices, this review was intended to provide the DOJ with information to aid in the development of a program of research and evaluation. A systematic review of hundreds of documents and web sites was conducted, including sources describing: (1) federal and state hate crime data collection efforts; (2) research produced by federal and state agencies, advocacy groups and other independent organizations, and scholars; (3) crime prevention and response efforts; (4) law enforcement training; and (5) descriptions and analyses of hate crime law. Given the breadth and the volume of documentation on hate crime law, research, and practice, we have focused our discussion on state and federal statutes and major sources of data, since these are at the core of the scope of this review. We provide brief overviews and references, however, for source materials regarding a number of other topics. Over the past 25 years, the federal government and all but one state have passed pieces of legislation addressing hate crime in some way. Still, there remains no national consensus about whether hate crime should be a separate class of crime, and among those supporting hate crime statutes, there is disagreement about how these statutes should be constructed and focused. The keys issues in the debate include: • (1) the necessity of considering hate or bias motivation when the core offenses (e.g., assault, vandalism) are already covered by criminal law; • (2) whether there is a danger in basing additional penalties for crimes upon the thoughts motivating offenders, rather than keeping the focus of criminal law on the behavior itself; • (3) whether it is possible to determine with legally-acceptable levels of certainty the motive behind a person’s criminal acts; • (4) whether, in practice, hate crime laws result in crimes against certain groups of people being punished more severely than equivalent crimes committed against other groups, and if so, whether that is fair and legally defensible; • (5) whether having hate crime statutes deters potential offenders; and • (6) whether having these statutes hinders law enforcement’s ability to investigate and prosecute crime. Hate crime statutes vary widely state to state in several ways, including the specification of “protected groups,” whether and how they address criminal penalties and civil remedies, the range of crimes covered, how they address hate crime reporting, and whether they require training of law enforcement personnel to support improved Study of Literature and Legislation on Hate Crime in America 84 trends over time. Hate crime data gathered through large national collection efforts lag behind data on most other types of crime. While UCR, NIBRS, and ED data are uneven nationally, and NCVS has only recently been collected, there are many localized, longstanding data collection efforts (e.g., Alaska, Hawaii). For example, Minnesota passed a law in 1988, requiring peace officers to report incidents that were motivated by bias, and annual statewide statistics have been compiled since 1989. Similarly, California has collected statewide data on hate crime since 1995, compiled according to statutory guidelines and broader in scope than the UCR hate crime data collection. In addition to government-sponsored law enforcement data and survey efforts, NGOs such as the ADL, NCAVP, the SPLC, and HRC collect narrative accounts and other types of data on hate crime. These sources provide an alternative to police reports and surveys, and can be used in combination with police and/or survey data to provide more stable estimates of prevalence and descriptive profiles of victims, offenders, and incidents. Many of the incident descriptions are gathered through direct reporting to the organizations, while some are gleaned from media accounts. These data sources have several obvious limitations, such as the less systematic ways in which the incidents come to the attention of the organizations, the unknown level of consistency in definitions used across sites, and in the case of the NCAVP, less than full geographic coverage across the nation. However, the data can be in some ways superior to those gathered via the larger government sponsored efforts, in that some of the incidents are captured in narrative detail (e.g., HRC, 2003) and some victims unwilling to approach police may be willing to disclose to these advocacy organizations. As part of an effort to expand and improve data on hate crime, we recommend examining the availability and quality of information on hate crime collected by independent organizations. For example, the ADL and other advocacy groups and most of the Anti- Violence Projects have hotlines or places on their web sites for reporting hate crime, and it is possible that these might collectively or locally serve as valuable data sources in a multifaceted ongoing data program. We believe it would be valuable to examine systematically: (1) how NGOs document reported incidents; (2) how records of incidents are kept; (3) with whom the data are shared; and (4) whether such NGOs serve to encourage victims to report hate crimes to the police and offer support for them as they cooperate in criminal justice processing of their cases. Given that they are the most comprehensive and valuable extant national data sources, flaws notwithstanding, we recommend continued investment in trying to expand and improve collection of hate crime data via UCR, NIBRS, NCVS, and ED. We also recommend an update and extension of the BJS examination of the UCR/NIBRS statistical reporting process (McDevitt et al., 2000), assessing how well agencies follow guidelines and statutes. The BJS study examined data collection practices and quality using UCR data through 1998, as well as mailed surveys, and a small number of interviews with practitioners specializing in hate crime data. A useful extension of this work could include evaluators working on-site in a sample of law enforcement agencies to observe and document data collection procedures, from the point of fielding reported incidents to sending statistical reports to the FBI and, where applicable, to other state or Study of Literature and Legislation on Hate Crime in America 85 federal agencies. In addition, where data quality and the number of incidents are sufficient, among the questions that might be addressed is whether fluctuations in UCR numbers represent true variations in the occurrence of hate crime, versus fluctuations in reporting to police and/or police responses and record keeping practices. In states with gender listed as a trait targeted by hate or bias, a study might examine how law enforcement and prosecution is reconciling the potential confusion between sexual assault and harassment of women, and crimes motivated by gender bias. For example, using NIBRS data, one could examine crimes reported to police (involving adult female victims and male offenders) over time, and assess whether the addition of gender as a trait protected by hate crime statutes has resulted in cases previously categorized as sexual assault being classified as hate crimes. Our review found detailed descriptions of dozens of criminal justice responses to hate crime, and reports summarizing or presenting as best practices a sampling of criminal justice programs and initiatives. Nearly every state or major metropolitan area within a state was found to have some form of government-sponsored hate crime initiative involving criminal justice agencies. Many of these law enforcement initiatives are collaborative endeavors involving large national NGOs (such as the SPLC and the ADL) or local state and community organizations. The fragmentation of information across locales and across data sets may serve as an impediment to the many public and private efforts to understand and respond to hate crime. To support research, criminal justice practice, law, and policy, it might be beneficial for a federal agency to develop and maintain a central repository of hate crime information. Currently, excellent information is available online, but it is dispersed across many different sources. Compiled and maintained by a collection of government agencies, professional associations, advocacy groups, and researchers, these sources vary in levels of thoroughness and timeliness, and real or perceived objectivity. A government-sponsored site could alleviate many of these problems, particularly if it were developed as part of (or parallel to) a repository on research and evaluation. Federal and state data sets could be made more easily accessible to researchers, and independent research teams and advocacy groups whose data meet certain quality thresholds could be encouraged to post data sets and documentation on the repository website. The original sources or links could be provided for all state and federal statutes, as well as for government sponsored research reports. Links could be provided to good sources of information provided by independent advocacy groups and professional associations. In addition, criminal justice practitioners could benefit from easy access to descriptions of best practices in training, prevention, response, prosecution, and victim assistance resources. The site could also incorporate a blog for timely dissemination of experiences and ideas to help combat hate crime and support those affected by it. The literature produced by researchers, practitioners, and advocacy groups makes a compelling case for the unique character and increased seriousness of hate crime. To respond to this problem, the past 20 years have witnessed enormous efforts in law reform, data collection, research, and advocacy. However, at this point in time few of the efforts Study of Literature and Legislation on Hate Crime in America 86 (aside from the national law enforcement hate crime statistics program) have been evaluated. 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