Most states and the federal government have hate crime laws on the books. But those laws can differ widely – as can definitions, investigations and prosecutions of hate crimes.
Vandalizing a synagogue with swastikas. Assaulting a person while yelling racist epithets. Burning a cross in front of a Black family's home. Targeting specific groups of people in a killing rampage.
All of those acts are clear-cut examples of possible hate crimes – crimes defined by state and federal laws as being motivated by bias or targeting someone based on characteristics like race, ethnicity or religion.
Forty-seven states and the federal government have passed hate crime laws. Only Arkansas, South Carolina and Wyoming don't have such laws on the books.
Hate crimes have been in the spotlight recently amid a spike in incidents targeting Asian Americans during the coronavirus pandemic, including a number of high-profile assaults in the last couple months and a shooting rampage outside of Atlanta in March that killed eight people, including six women of Asian descent. Lawmakers recently approved legislation aimed at boosting efforts to combat coronavirus-related hate incidents and crimes.
Differences in Hate Crime Laws
Laws vary widely from state to state, and some are more expansive than others. Most hate crime laws include acts committed on the basis of race, ethnicity or religion. A fewer but still significant number cover crimes motivated by gender, sexual orientation or disability. And some also include political affiliation, gender identity or age.
California's law, for example, covers crimes motivated by all of those characteristics. Montana's law, on the other hand, includes only acts committed on the basis of race, ethnicity or religion, according to analysis from the NAACP.
Unlike most other laws, hate crime statutes address motivation, and hate crime charges enhance the penalty for an underlying crime, meaning that someone convicted of a hate crime for committing a certain act will face more jail time than another person who committed the same crime but without hate or bias as a motivation.
The federal government has a series of overlapping statues that are used to prosecute hate crimes, including the Civil Rights Act of 1969 and the Shepard Byrd Act, passed in 2009, that allow the federal criminal prosecution of hate crimes motivated by the victim's sexual orientation or gender identity.
Why Pass Hate Crime Laws?
Proponents say hate crimes laws exist because the acts have a lasting effect not only on the victims but on their communities – they can intimidate entire groups of people and affect someone's ability to feel as if they belong and can participate in society.
"The concept is that these are more serious crimes because they have a broader impact – an impact that extends beyond the individual victim and traumatizes, threatens, makes vulnerable larger communities," says Steven Freeman, the vice president of civil rights and director of legal affairs at the Anti-Defamation League.
The ADL drafted model state hate crime legislation in 1981, and the Supreme Court in 1993 upheld a Wisconsin hate crime statute based on the ADL's model, ruling that hate crime laws did not violate defendants' First Amendment free speech rights.
Hate crimes laws reflect how we as a society view the incidents, experts say.
"Hate crimes have an additional effect on individuals targeted by bias, so it's important for law to recognize that," says Jeannine Bell, a law professor at Indiana University who studies policing and hate crime. "We recognize that and appreciate that in society. So the law should do so as well."
And though hate crime laws – like most criminal laws – likely don't do much to deter crime, they can send a message to society writ large that hate-motivated acts are unacceptable, Freeman says.
Identifying Hate Crimes
Hate crimes laws, however, are narrow and have limitations, so identifying, investigating, charging and reporting hate incidents pose significant issues.
An enormous gap exists between the number of hate crimes experienced by victims and the number of hate crimes reported by law enforcement. More than 200,000 people on average report being victims of hate crimes each year, according to estimates based on the National Crime Victimization Survey. Only about half are reported to police, and police in turn investigate or report only a fraction of those: Local and state law enforcement reported that 8,552 people were the victims of more than 7,000 hate crimes in 2019, according to FBI statistics.
There are a couple of reasons for that gap, experts say. Hate crimes can go unreported, particularly by members of communities that have a deep-seated mistrust of police.
Police themselves also fail to recognize when a crime is a hate incident. Hate crimes are sometimes not obvious. Police may lack training or resources, and departments can lack motivation to provide officers with both. And that failure to investigate crimes as hate incidents can feed existing distrust with certain communities.
It's not even clear how many hate crimes are investigated or charged each year. The FBI relies on local jurisdictions to voluntarily report hate crimes, and some police departments either don't report or report zero incidents. Nearly 90% of police departments that reported hate crime statistics to the FBI in 2017 reported zero crimes, according to an analysis by ProPublica, and an investigation by BuzzFeed News found 15 assaults that appeared to be bias-related in 10 of the largest jurisdictions that reported zero hate crimes.
"Part of it is police who aren't trained to identify bias indicators – to look at a crime scene and say, 'This could be a bias crime, we should look into that,'" Freeman says. "I think it's a problem with training. I think it's a problem with data collection. I think it's a problem with how serious police and law enforcement agencies are at reporting it."
Counterintuitively, the jurisdictions that report the most hate crimes are often the most adept at dealing with them, experts say, because more crimes are being both reported by victims and investigated as hate incidents by police.
Charging Hate Crimes
Even when a victim or a police officer identifies a crime as a hate incident, prosecutors may not charge a defendant with a hate crime or may not be successful in doing so. Proving motivation for a crime beyond a reasonable doubt is far more difficult than proving simply that the crime occurred.
Prosecutors are risk averse, Bell says.
"They want cases that are sure wins. And they have to make additional arguments in hate crime cases. So they look less like sure wins," Bell says.
Some people oppose hate crime legislation because they say it infringes on free speech – though that question was at least legally settled when the Supreme Court upheld Wisconsin hate crime statute in the 1990s.
Others who generally support the idea of hate crime laws argue that they're an insufficient tool to combat hate, not only because of inadequate police investigations or underreporting but also because laws rarely deter crime.