NEXT STEPS FOR CONGRESS ON HATE CRIME REPORTING.

• Author: Wiggins, Kai

Kai Wiggins (*)

(*) J.D. Candidate, Stanford Law School, 2023. The Author assisted in the development of the Jabara-Heyer Act and efforts to pass the legislation through Congress.

INTRODUCTION 393 I. CHALLENGES OF HATE CRIME REPORTING 396 A. Data Collection Under the Hate Crime Statistics Act 396 B. Cracks in the Reporting System 398 II. STRENGTHENING THE JABARA-HEYER ACT 402 A. Consequences of the Act's Incentive Structure 404 B. The Path Forward in Congress 405 III. THE FUTURE OF HATE CRIME STATISTICS 411 CONCLUSION 413 INTRODUCTION

Reading hate crime statistics has become less about what's in the data and more about what's left out. In 2017, for example, U.S. law enforcement agencies reported 7,175 hate crimes to the Federal Bureau of Investigation, but the white supremacist car attack that killed Heather Heyer and wounded at least thirty-five other people in Charlottesville, Virginia, was not one of them. (1) Nor was the 2016 murder of Khalid Jabara, an Arab American shot dead on his doorstep in Tulsa, Oklahoma, recorded in that year's federal hate crime statistics. (2)

The list goes on. In jurisdictions across the United States, hate crimes are misclassified, overlooked, and underreported. (3) Most never come to the attention of law enforcement. (4) And many that do nevertheless go unrecorded in official data, even when prosecuted under state or federal hate crime statutes. (5) Indeed, some estimates suggest that federal statistics capture just one percent of all hate crimes. (6) And even though Congress passed legislation in 1990 requiring the Department of Justice to collect annual hate crime statistics, (7) as a former DOJ official said in 2019, "we do not have the slightest idea how many hate crimes there are in America. And we have never known." (8)

Some would argue that is about to change. In May 2021, amid a reported surge of hate crimes targeting Asian Americans and Pacific Islanders during the coronavirus pandemic, President Biden signed into law the COVID-19 Hate Crimes Act. (9) That legislation includes the Khalid Jabara and Heather Heyer No Hate Act, which, among other things, aims to improve hate crime reporting by incentivizing law enforcement agencies to adopt a set of enumerated data collection procedures and related policies, such as establishing bias units and community liaisons. (10) According to the president, the Act will "make sure that hate crimes are more accurately counted and reported." (11)

But will it? At best, the Jabara-Heyer Act will have a modest impact on hate crime reporting. And that is assuming the Act's substantive provisions are conducive to better data collection. The problem lies in the Act's incentive structure. Rather than imposing new conditions on existing funds, Congress authorized new funding with conditions attached. In other words, the Jabara-Heyer Act is more carrot than stick, as jurisdictions that do not opt into the funding mechanism are exempt from the Act's substantive provisions. This not only limits the Act's reach, but also has the effect of providing more federal funding to law enforcement agencies, which is the exact opposite of what some progressives and community activists want from legislation to address bias-motivated violence. (12)

In three parts, this essay argues that Congress can strengthen the Jabara-Heyer Act, and assuage its progressive critics, by changing the Act's incentive structure to require, rather than encourage, the adoption of its substantive provisions. Part I outlines the challenges of hate crime reporting. Part II examines the Jabara-Heyer Act and explains how imposing tailored conditions on federal assistance for law enforcement will expand the Act's scope without overburdening state and local jurisdictions. Finally, Part III considers the future of hate crime statistics. A strengthened Jabara-Heyer Act will enable Congress to assess the performance of the hate crime reporting system. What it finds could prompt additional reform or spur efforts to abandon the reporting system altogether. If nothing else, the Act will challenge us to think about what hate crime statistics are for.

1. CHALLENGES OF HATE CRIME REPORTING

   Where do hate crime statistics come from? And why are they so unreliable? For three decades, the FBI has published annual hate crime statistics based on data collected from U.S. law enforcement agencies--representing state, local, and tribal jurisdictions--through a national program known as the Uniform Crime Reports (UCR). (13) The FBI collects this information under the Hate Crime Statistics Act (HCSA), which, as amended, requires the attorney general to "acquire data... about crimes that manifest evidence of prejudice based on race, gender and gender identity, religion, disability, sexual orientation, or ethnicity." (14)

   Since 2018, the FBI has also published hate crime statistics based on data from federal law enforcement agencies. (15) But while these agencies are required to submit HCSA data, others are not. For state, local, and tribal jurisdictions, hate crime reporting is voluntary, at least under federal law. (16) And each year, thousands, indeed most, of the nation's law enforcement agencies report zero hate crimes to the FBI. (17)

   Encouraging agencies to report is a major challenge of hate crime data collection. But it is not the only one. Several cracks in the reporting system are to blame for bad data, some of which are considered in the following sections. The first step, however, is understanding how we got here.

   1. Data Collection Under the Hate Crime Statistics Act

      The HCSA neither established nor designated a specific reporting program, but the UCR is what Congress had in mind. In fact, when the HCSA was first introduced in 1985, it specifically required the attorney general to collect information about hate crime through the UCR. (18) This made sense. The modern UCR had been around since 1930, when Congress first authorized the attorney general to "acquire, collect [...] and preserve" crime records from the nation's law enforcement agencies. (19) By 1985, nearly sixteen thousand agencies were voluntarily submitting crime data through the UCR each year, enabling the FBI to produce comprehensive statistics on the nature and extent of crime in the United States. (20)

      If Congress wanted information about hate crimes, i.e., criminal offenses like assault, homicide, or vandalism that "manifest evidence of prejudice," (21) then amending the UCR to capture information about the offender's bias motivation was the logical solution. Why reinvent the wheel when you can just add another spoke?

      The problem, as any good bike mechanic knows, (22) is that it could throw the entire wheel out of true. And that is exactly what UCR administrators feared in the HCSA. Testifying before Congress in 1985, a senior FBI official advised against collecting data about an offender's motivation through the UCR, explaining that the resulting statistics would likely be "incomplete, relying too much on the judgment of the reporting officer." (23) And if the statistics were "questionable," the official warned, it "could diminish the reputation and credibility of the UCR as a whole." (24) Steven Schlesinger of the Bureau of Justice Statistics, which conducts national surveys on crime victimization, shared similar concerns:

      Given the difficulties and complexities of accurately ascertaining criminal motivation even in one specific case, one cannot underestimate the complications of setting out and enforcing uniform rules or standards for interviewers or police officers to apply throughout the Nation in the thousands of violent or property crimes in which... prejudice might possibly be a motive. (25) Speaking at another congressional hearing in 1988, Schlesinger warned that, as drafted, the HCSA would not produce "the kind of reliable statistics that Congress and the American public have a right to expect." (26)

      Undeterred, Congress passed the HCSA two years later with strong bipartisan support. (27) Although the enacted version did not specifically require collection through the UCR, the offenses listed in the bill corresponded to preexisting UCR reporting categories, which would "expedite implementation of the bill" even if the UCR was not "the vehicle to report hate crimes." (28)

      But the vehicle it was. After the HCSA became law, the attorney general delegated the responsibilities of developing a national hate crime reporting system to the FBI, which in turn assigned them to the UCR Program. (29) According to the FBI, "the developers agreed hate crime data could be derived by capturing the additional element of bias in those offenses already being reported to the UCR Program," thereby satisfying the directives of the HCSA "without placing an undue additional reporting burden on law enforcement." (30)

      "In time," wrote the FBI, "a substantial body of data would develop about the nature and frequency of bias crimes throughout the nation." (31) After three decades, however, that arguably has not happened yet.

   2. Cracks in the Reporting System

      The HCSA has not fulfilled its promise because of multiple systemic problems that continue to frustrate the data collection process. Apart from some technological developments, (32) the system remains unchanged: a crime happens; police arrive; and while collecting evidence, the responding officer looks for a potential bias motivation. If the evidence suggests the crime was bias motivated, the officer files that information into an incident report. (33) Back at the station, investigators review the evidence and determine whether the incident should be reported as a hate crime, (34) and if so, the associated bias type, e.g., Anti-Black or African American, Anti-Transgender. (35) Based on that determination, records personnel designate the incident as a hate crime in the agency's records management system and submit the data to the relevant state UCR program, which then forwards...