The Massachusetts Hate Crime Reporting Act of 1990: Great Expectations Yet Unfulfilled?

Sally J. Greenberg^*

  Introduction

Crimes motivated by bias or bigotry are not a new phenomena.⁽¹⁾ Only in the last fifteen years, however, have those acts now known as "hate crimes" been recognized by states as worthy of documentation.⁽²⁾ Maryland was the first state to enact legislation that calls for documentation of these hate-motivated crimes.⁽³⁾ Many states followed the lead⁽⁴⁾ and the federal government joined the movement when Congress passed its own reporting act, the Hate Crime Statistics Act of 1990.⁽⁵⁾ Despite legislative efforts, we still do not yet have an adequate system or systems in place to determine accurately how many hate crimes have been committed in recent years or whether they are truly increasing in frequency.⁽⁶⁾ This is the result of uneven participation by law enforcement agencies in the reporting of hate crimes and a lack of enforcement of hate-crime reporting laws in the various states or by the federal government.

The Justice Department is charged with implementing the federal Hate Crime Statistics Act through the Federal Bureau of Investigation.⁽⁷⁾ "According to the latest FBI survey of hate crimes, 5932 incidents involving 7498 victims were reported in forty-three states and the District of Columbia."⁽⁸⁾ Compared to the previous year this represents an increase. There were 7356 participating agencies in the United States, covering approximately 152 million people (about 58% of the population).⁽⁹⁾ Though incomplete, national hate-crime statistics do provide an increasingly important measure of the problem, most significantly by allowing for trend analyses and an overview of the religious and racial groups affected.⁽¹⁰⁾

Numbers alone, however, fail to truly describe the crudeness and brutality of hate crimes. Laying out a few examples of recent hate crime offers a sharper picture of the problem:

within a span of hours, a Jewish family discovered its car windshield smashed, its mailbox ripped out of the ground, and the word "JEW" burned into the lawn in letters two feet big.⁽¹¹⁾ -- August 1994.

white male screamed racial epithets at, chased, and finally stabbed a black man in the stomach after seeing the black man sitting with a white woman on a pier.⁽¹²⁾ --February 1995.

a group of ten people attacked a man whom the group believed was gay, breaking the victim's teeth, dislodging an eye from its socket, and impaling the back of his head on a rock.⁽¹³⁾ --March 1995.

three skinheads fired six shots into a car occupied by four African-Americans, for no other reason than the occupants' race.⁽¹⁴⁾ --March 1995.

two women in a Marshfield, Massachusetts, bar were taunted with anti-lesbian comments; one of the assailants, an off-duty Duxbury police officer, taunted and attacked the women and used a beer bottle to inflict serious injury on one of them. The victim's sexual preference was never revealed; nevertheless, the perpetrator assumed she was gay because she rejected his advances.⁽¹⁵⁾ --September 1994.

a white supremacist murdered a Jewish businessman during a robbery in 1984; the same white supremacist murdered a black Arkansas state trooper in 1985 when he stopped him for a traffic violation; convicted and sentenced to death, among the convict's last words: "Governor Tucker, look over your shoulder, justice is coming."⁽¹⁶⁾ --April 1995.

The United States Supreme Court's unanimous decision in Wisconsin v. Mitchell⁽¹⁷⁾ removed any doubt that hate-crime statutes are constitutional when a victim is targeted because of race, religion, sexual orientation or ethnicity.⁽¹⁸⁾ As the gathered statistics and examples illustrate, hate and bigotry motivate not an insubstantial number of criminal acts in America. And these examples demonstrate that hate crime is indeed a reality of American life, contrary to the arguments of some critics of hate-crime reporting.⁽¹⁹⁾ Moreover, FBI statistics suggest an increasing number of such crimes, which raises a perennial question: is the problem of hate-motivated violence growing steadily worse or is the reporting of hate crimes becoming more accurate?⁽²⁰⁾ At this point in the infancy of hate-crime reporting, the question cannot be answered satisfactorily because, despite increased reporting on the state and federal level, there continues to be incomplete statistical information on hate crimes.

Even in light of greater compliance with hate-crime reporting laws over the past six years, serious problems with non-compliance continues, plaguing hate-crime reporting at both the state and national level. According to the FBI, law enforcement authorities on behalf of forty percent of the American population did not participate in HCSA in 1994.⁽²¹⁾

While some may dismiss hate-crime reporting as a useless exercise,⁽²²⁾ the value of these data has become evident in light of the burning of black churches in the Southern United States in 1995-96. The absence of reliable information on church burnings has raised many questions. While intense media coverage has presented the issue as though it was an epidemic of arson with hints of conspiracy, some critics argue that there, in fact, is no widespread increase in arsons. The critics say that the numbers of church arsons are not atypical for this time of the year, and object to recent "hype" that makes it appear that the arsons are an entirely recent phenomenon based on racial conspiracies.⁽²³⁾ The naysayers do not dispute the numbers of churches that have been burned, but rather the theory that the burnings are part of an "epidemic of hatred."⁽²⁴⁾ They attribute the increase in the first six months of 1996 to increased media coverage that has sparked copycat crimes.⁽²⁵⁾ In the absence of concrete data from local officials regarding the burnings, disagreement over whether some of the fires were indeed arson and whether they were motivated by racial hatred has raged. Reliable data on the arsons of churches, the racial makeup of the churches burned, and the motivations (including hate, if any can be proved) would allow authorities to determine whether there is indeed a new epidemic of hate motivated church arsons. In other words, reliable hate-crime reporting would have answered many of these questions. Thus, the reporting statutes serve to officially recognize the existence and severity of hate-motivated crime and are designed to measure the level and kinds of hate crime being perpetrated within the states and nationally.

While there is resistance among some law enforcement officials against hate-crime reporting, most Americans support prosecution of hate crimes. Even those groups who oppose homosexuality, for example, support the right of homosexuals to be free from physical violence. At a meeting of the United States National Conference of Bishops, for example, the Bishops reaffirmed their opposition to same-sex marriage while insisting that homosexuals "`have a right to and deserve . . . defense against bigotry, attacks and abuse.'"⁽²⁶⁾ The Catholic Church's position suggests an awareness that the lesbian and gay community is, indeed, vulnerable to bigotry, attacks, and abuse, and deserve the protections of the law.

Hate-crime reporting is a tool available to law enforcement agencies in their efforts to respond to these violent manifestations of prejudice.⁽²⁷⁾ But the effort to get jurisdictions to report hate crimes to date has enjoyed less success than originally hoped, an issue this Article explores by examining Massachusetts law and comparing Massachusetts law with that of other jurisdictions. I argue that the many positive benefits accruing from accurate reporting should make such reporting a public policy priority. Part II of this Article reviews the Massachusetts Hate Crimes Reporting Act (HCRA),⁽²⁸⁾ its development, and its objectives. Part II will also explore the regulations promulgated pursuant to that law.⁽²⁹⁾ Part III considers the implementation of the HCRA, concentrating on its strengths and weaknesses.⁽³⁰⁾ Part IV offers comparisons of other states hate-crime reporting mechanisms, and assesses their effectiveness against that of Massachusetts.⁽³¹⁾ This Article concludes that state mandatory hate-crime reporting has great potential for developing a valuable stable of information over the long term about hate crimes committed in communities in Massachusetts and other states; such hate- crime data also creates the foundation on which to devise and implement effective legal and nonlegal countermeasures.⁽³²⁾ The enforcement of and compliance with hate-crime reporting statutes, however, has fallen short in many jurisdictions, including Massachusetts. This results in limited information about the level of hate crime in America.

  Massachusetts Hate Crime Reporting Act

A. Structure and Objectives of the HCRA

Hate crimes, as defined by the Massachusetts HCRA, include "any criminal act . . . with overt actions motivated[,] . . . at least in part by racial, religious, ethnic, handicap, gender or sexual orientation prejudice."⁽³³⁾ Deprivation of or interference with another's "constitutional rights by threats, intimidation . . . [,] coercion, or . . . harassment[,]" that is, violation of the Massachusetts Civil Rights Recording Act of 1980 also constitutes commission of a hate crime.⁽³⁴⁾ Not included in this classification are incidents in which similar motivations are apparent but which do not constitute criminal activity.⁽³⁵⁾

The HCRA operates by adding a category of "hate crime" to the list of other crimes⁽³⁶⁾ that police jurisdictions are expected to report to a central crime data unit in the state of Massachusetts. The Crime Reporting Unit (CRU) has the "responsibility of collecting [hate crime] incident reports submitted by state, local, and campus police departments."⁽³⁷⁾ Further, under the HCRA, the CRU "shall summarize and analyze reports of hate crime data" received from law enforcement agencies across the state.⁽³⁸⁾ The HCRA also mandates that police officers and recruits receive training "in identifying, responding to and reporting all incidents of hate crime."⁽³⁹⁾

The Massachusetts hate-crime reporting legislation serves several purposes. First, the collection of hate-crime data alerts the police and the community to the degree and severity of the hate-crime problem. Advocacy groups have long asserted that this category of crime is more prevalent than generally understood by the police and larger community. The Anti-Defamation League (ADL), for instance, has argued that states and police departments must formally recognize hate crime as a distinct--and often violent--offense. However, "[t]he lack of accurate recording systems in the overwhelming majority of police departments around the country has been a source of continual frustration for civil rights groups who maintain that the level of bias-motivated crime cannot be fairly gauged without police [access to] statistics."⁽⁴⁰⁾ As the advocacy groups have understood from the outset, and police departments increasingly accept, "`[i]n the absence of data, you simply cannot discern the scope of the problem.'"⁽⁴¹⁾ The church arsons issue is a good example.⁽⁴²⁾

In 1990, in Massachusetts, crimes motivated by race, ethnicity, and national origin formed the largest category of hate crime. The "average" victim of a hate crime was 29, was white in 45% of the cases and male in 65% of the cases. The "average" perpetrator was 22 and in 64% of the cases was white. In over 92% of the cases where the perpetrator was identified, the person was male.⁽⁴³⁾ This kind of hate-crime information is a critical tool for law enforcement, yet law enforcement in many cities and towns still resist compliance.

Second, as a reactive measure by virtue of its post-hoc reporting system, the HCRA will assist in the prosecution of hate-crime perpetrators. The Federal Bureau of Investigation recognizes that "valid information is central to developing effective measures to deal with hate crime."⁽⁴⁴⁾ With this in mind, the Massachusetts hate-crime reporting statute provides for tracking hate crimes, which in turn measures the number and severity of bias motives that drive these activities. Viewed as another component of an investigation, the information obtained--such as characteristics of the criminal conduct as well as profiles of the victim and offender--may lead to discovery of motive and activity patterns, thereby assisting the police in ferreting out perpetrators and prosecuting them.⁽⁴⁵⁾ Acquiring these data may prove critical in designing and directing law enforcement resources to stem the tide of bias-related violence. Captain Donald Bromberg of the New York Police Department, a former commander of the city's bias incident unit, has noted that "`[a] problem in a particular part of the city can be determined if there are patterns, . . . and you can't determine that without reporting. . . . [Such reporting helps] direct appropriate resources of both kind and amount to the places they are needed.'"⁽⁴⁶⁾

Third, data collection is an important element of successful victim recovery programs. Rape, though not necessarily a hate crime,⁽⁴⁷⁾ produces trauma typically experienced by victims of violence. Although the victims suffer a wide range of emotional and psychological turmoil, fear of people and places often are the "first issues expressed by victims."⁽⁴⁸⁾ The victim also may no longer feel safe because any person, at any time, may be another assailant. Similar to victims of violent acts motivated by prejudice (such as acts in which the perpetrator singles out a person because of his or her racial, or other immutable characteristics) rape victims are singled out because of their gender, and often fear for their safety. The victims, having been targeted once simply for a characteristic they possess and over which they have no control, may be targeted again. However, knowing that a mechanism exists for reporting hate crimes not only may increase a victim's willingness to report such crimes,⁽⁴⁹⁾ but it may also provide the support that victims need to recover from the trauma they have experienced.

Establishing a mechanism through which the police can take reports from victims about hate crime sends a message to victims and their communities that the police are committed to identifying the problem of hate crime and are actively seeking to investigate and prosecute the perpetrators,⁽⁵⁰⁾ thus encouraging victims to report crimes.⁽⁵¹⁾ Often this can be a crucial first step in dealing with the trauma of hate-crime victimization. Additionally, allowing advocacy groups to report hate incidents received from members of the community, as the statute allows in Massachusetts, provides an alternative for victims reluctant to go to the police.

Community groups like the Anti-Defamation League (ADL or "the League"), mandated to fight anti-Semitism as its first priority, or the Fenway Community Health Center (Fenway), a gay, bisexual, and lesbian health agency in Boston with a program designed to fight hate crime, also offer victims a place to register a grievance. There the victim can learn that she is not alone and not the cause of the crime against her, as some victims may believe. The ADL, for example, has a long history of collecting reports from victims of anti-Semitic hate crimes⁽⁵²⁾ and offering emotional and legal support for members of the Jewish community. Fenway now collects reports of anti-gay, -lesbian, and -bisexual incidents. Without these organizations, or the police-reporting mechanism, victims of these crimes would have no place to seek help.

Fourth, reporting hate crimes provides a stimulus for education that addresses the issue of violent prejudice and bigotry. Simply by enacting the law, the Legislature has brought the issue to public attention. Moreover, the documentation process, when fully implemented, will reveal the scope of violent, prejudiced, and illegal conduct in our communities. Collecting these data has led to "increase[d] public awareness about of [sic] the nature and characteristics of Hate Crimes/Hate Incidents."⁽⁵³⁾ Hate-crime legislation "sends a message to the community that [hate crimes] will not be tolerated. . . ."⁽⁵⁴⁾ This, in turn, promotes greater sensitivity to the problem, both on the part of law enforcement officials who must enforce the hate-crime laws, and within the larger community.⁽⁵⁵⁾ It also fosters a sense of responsibility in the community to "be a part of the solution, not a part of the problem" in an effort to counter hate crime.

Finally, the accumulation of hate-crime data may serve as a guide to preventing of hate crimes in the future. Analysis of the accumulated data informs the police about the patterns and similarities among crimes motivated by bias.⁽⁵⁶⁾ This body of knowledge will help develop and tailor law enforcement programs to more effectively counter the organized elements involved in perpetrating hate crimes.⁽⁵⁷⁾ If "unorganized" elements are responsible for hate crime, as is often the case, then the data collected may help police develop alternative strategies for preventing the hate crime. For example, police could meet with community groups that may be targeted for hate crimes, and discuss potential preventive measures that such groups might take.⁽⁵⁸⁾

The New England Region of the ADL has instituted programs designed to provide activities and entertainment to youths who might otherwise be engaged in bias-motivated hooliganism or violence. The State of New Jersey, based on the data it has collected, instituted a program in 1992 to reduce hate crimes in the future by "working with disaffected youngsters who commit many of the hate-inspired attacks and vandalism"--the group of people identified most as perpetrators of hate crime.⁽⁵⁹⁾

B. Initial Efforts in Gaining Passage of the HCRA

Reviewing the development of the Massachusetts HCRA sheds light on the goals and objectives of the statute. One group whose example of tracking hate crimes provided the initial impetus for hate-crime legislation, nationally and statewide, was the ADL. In 1960, the League began keeping an unofficial tally of the total number of anti-Semitic vandalism incidents reported to the organization from throughout the nation.⁽⁶⁰⁾ In 1979, the ADL expanded and formalized its tracking efforts, including in its tabulation all acts of anti-Semitism reported to its network of regional offices.⁽⁶¹⁾ The League then published its collected figures in its first annual Audit of Anti-Semitic Incidents.⁽⁶²⁾

Anti-Defamation League officials recognized a disturbingly dramatic increase in the number of anti-Semitic events documented by the organization over the 1979-81 period.⁽⁶³⁾ In response, the League developed affirmative countermeasures to complement its reporting system. Primary among these was a set of model laws, drafted in 1981. The League called upon states to enact these model statutes to combat anti-Semitism and other crimes motivated by hate. Originally the model legislation consisted of two components: prohibition of vandalism against institutions (such as schools, places of worship, and cemeteries) and enhanced penalty provisions for crimes motivated by hatred directed against a particular characteristic of the victim (such as race, religion, and ethnicity).⁽⁶⁴⁾ A subsequent modification of the model legislation included a third component that called upon states to mandate systematic recording of hate crimes to be performed by law enforcement agencies.⁽⁶⁵⁾

Other organizations also urged law enforcement agencies to begin reporting hate crimes. The United States Commission on Civil Rights recommended that "federal and state authorities should develop workable reporting systems that will produce an accurate and comprehensive measurement of the extent of criminal activity that is clearly based on racial and/or religious motivations."⁽⁶⁶⁾ The National Institute Against Prejudice & Violence published a manual⁽⁶⁷⁾ in 1986, devoted to cataloguing the available "avenues of recourse for victims of racial, religious, and ethnic violence [as well as promoting] the development of more, and more effective, penalties and remedies" for such victims.⁽⁶⁸⁾ In Massachusetts, the Greater Boston Civil Rights Coalition (GBCRC), a group of more than 120 public and private entities, joined the Anti-Defamation League and other groups in lobbying the Massachusetts Legislature for passage of the HCRA.⁽⁶⁹⁾

C. Lobbying for Passage: The Massachusetts Experience

Like most legislative battles, the enactment of a law in Massachusetts to facilitate the collection of what are referred to as "hate crime statistics" required a variety of political maneuvering. In the mid 1980s, the New England office of the Anti-Defamation League and the GBCRC began working in earnest to gain the passage of a bias-crime-data-collection law. Using ADL's Hate Crime Reporting Act model statute,⁽⁷⁰⁾ the two organizations pursued the goal of enacting a data-collection statute. Through 1988 and into 1989, the ADL and the GBCRC enlisted the assistance of other civil rights groups and continued to seek the Governor's help in passing the legislation.

The police, as the first point of reference in the investigation and reporting of hate crimes, had to be persuaded to support the measure because the objectives of the bill could not be achieved without their cooperation. Wary and reluctant to support this novel legislation, chiefs of police represented the principal obstacle to passing it. Police chiefs resisted any new mandates that would result in increased paperwork or reporting obligations for their officers. Rejection by the police of hate- crime-data collection and opposition to the bill, however, meant that there was little hope of convincing the Legislature to pass it.

Throughout 1989, the head of the CRU, the ADL, and the GBCRC (collectively, the "Group") worked closely together to address this formidable barrier. The Group focused its attention on the Executive Board of the Chiefs of Police, a group of police chiefs (ExecBoard) who represented the interests of all Massachusetts police chiefs. The Group learned that prior to 1989, the ExecBoard had preliminarily endorsed the general concept of adding the category of hate crime to the list of other crime categories for which data was collected.

On October 5, 1989, the Group formally met with the Executive Board of the Chiefs of Police to describe the bill and ask for their support. Fearing that a voluntary procedure would be ineffective, the Group outlined the legislation and emphasized its desire for mandatory reporting. The chiefs' receptivity to the proposal was decidedly unfriendly. Although a number of the chiefs listened politely, others were unwilling to control their responses. One chief slammed his materials on his desk and marched out, muttering, "this is bull--."

Several chiefs urged that the bill allow for a voluntary reporting mechanism, informing the Group that their support would follow. The chiefs assured the Group that the police in Massachusetts could be counted on to comply with voluntary reporting "requirements." The chiefs added that if compliance levels were unacceptable, the Group could then seek to amend the legislation to provide for mandatory reporting. In an effort to avoid engaging in a lobbying battle against the police--a prospect that presented slim chances for passing any version of the legislation--the Group decided to draft the bill with the voluntary reporting language.

A legislative hearing on the Hate Crime Reporting Act occurred on October 16, 1989. Contrary to prior indications to the Group, the police, through the ExecBoard, refused to support the bill. However, the ExecBoard did not oppose the legislation either. Indeed, when the Group realized that the chiefs' primary lobbyist was happily sleeping during the legislative hearing, the Group knew they had scored a victory. Several weeks later, on October 30, a press conference was called by the sponsors of the bill. Senator William Golden and Representative Augusto Grace (a Jewish and an African-American legislator, respectively), and Governor Michael Dukakis, announced a push for the new hate-crime-data-collection law. Organizational supporters included the Anti-Defamation League, the Greater Boston Civil Rights Coalition, several district attorneys, the Massachusetts Lesbian and Gay Alliance, the NAACP, and the Asian-American Resource Workshop. In the weeks following the press conference, these organizations, particularly the ADL and the GBCRC, lobbied members of the Legislature. Although the groups found no organized opposition to the bill, the legislative session was drawing to a close and hopes for passage of the bill were dimming. Governor Dukakis offered to issue an executive order for the mandatory collection of hate-crime data.⁽⁷¹⁾ The Group, though grateful, declined the offer. Believing that legislation carried greater weight for long-term enforcement of the data collection within the ranks of the police chiefs and their officers, the Group redoubled its efforts to secure legislative action. Finally, by early 1990, the legislation passed both houses of the Legislature with little or no opposition.⁽⁷²⁾ Immediately prior to leaving office in early 1990, Governor Michael Dukakis signed the state's first hate-crime-data-collection law. The battle against hate crimes in Massachusetts and throughout the nation is a bipartisan effort. Governor Dukakis, a Democrat, handed over the governorship to William Weld, a Republican. Like his predecessor, Governor William Weld has been a strong proponent of hate-crime prosecution, as well as hate-crime reporting.

D. The Regulations

Regulations to accompany the legislation were promulgated in 1991 for the "collection and periodic reporting of hate crimes data" pursuant to the HCRA.⁽⁷³⁾ The core of these regulations centers upon "bias indicators," --facts or circumstances that objectively suggest that the crime was motivated by an impermissible bias specified in the regulations.⁽⁷⁴⁾ Section 4.04 of the Code of Massachusetts Regulations includes a lengthy, though not exhaustive, list of bias indicators by which the police may consider whether a crime may be classified as motivated by hate or bias. Some examples of the bias indicators include:

(a) The offender and the victim were of different racial, religious, ethnic/national origin, handicap, gender or sexual orientation groups.

. . . .

(c) Bias-related drawings, markings, symbols, or graffiti were left at the crime scene.

. . . .

(h) Victims or witnesses perceive that the incident was motivated by bias.

. . . .

(n) The victim, although not a member of the targeted . . . group, is a member of an advocacy group supporting the precepts of the victim group, or is friendly with members of a victim group.

. . . .

(p) There was no clear economic motive for an assault and battery.⁽⁷⁵⁾

Any one or more of these facts or circumstances⁽⁷⁶⁾ applicable to the crime indicate to investigating officers that an impermissible bias motive⁽⁷⁷⁾ might have contributed to the crime. When a bias motive "contributes" to the commission of a crime, the statute calls for the event to be reported as a hate crime.⁽⁷⁸⁾ Importantly, the motivation for the hate crime need not be exclusively the impermissible bias. Rather, "[i]t is sufficient for classification of an incident as a hate crime that a perpetrator was acting out of hatred or bias, together with other motives."⁽⁷⁹⁾

Law enforcement agencies are to file a specific form⁽⁸⁰⁾ with the CRU for "each criminal act that appears to be motivated [at least in part] by bias because of the presence of one or more bias indicators."⁽⁸¹⁾ This standardized form, created by the CRU for administrative ease and uniformity in reporting such events, documents (when completed) the bias indicator(s), the kind of bias, suspicion of organized or individual criminal activity, victim information, perpetrator information if available, and other generally relevant information about the crime.⁽⁸²⁾

In addition to receiving reports of hate crimes from law enforcement agencies, the CRU may be provided reports of hate incidents⁽⁸³⁾ from advocacy groups acting independently from police channels. The Anti-Defamation League and the Fenway Community Health Center are two such groups in Massachusetts that regularly submit Incident Reports--the former generally concerning anti-Semitic incidents and the latter concerning anti-gay, -lesbian, or -bisexual incidents.

Finally, the HCRA regulations state that the data obtained by the CRU shall be provided to the Massachusetts Attorney General regularly.⁽⁸⁴⁾ Moreover, the CRU is responsible for placing its summary and analysis of the data in an Annual Report, which is distributed and made available to local governments, state agencies, and the general public.

  Implementation of the HCRA: Strengths and Weaknesses

Governor William Weld established a Task Force on Hate Crimes in 1991. The Task Force assembled representatives of state and local law enforcement agencies, as well as advocates of community organizations, to coordinate and promote compliance with the HCRA. Specifically, Governor Weld directed the Task Force to address four areas: develop regulations for implementing the HCRA, coordinate hate-crime training for police agencies, build participation in the reporting program, and engage in community outreach to allow private groups to participate.⁽⁸⁵⁾

At first glance, the HCRA seems solid--a practical, common-sense statute designed to identify and categorize crimes motivated by hatred or bias. On closer examination, however, one discovers that the statute does not work as effectively as its drafters had hoped. Several difficulties, alluded to earlier, operate to weaken or circumvent this legislation.

A. Voluntary or Mandatory

First, and most critical, the legislation does not make reporting of either hate incidents or hate crimes mandatory.⁽⁸⁶⁾ The absence of a mandate on the state level requiring law enforcement agencies to identify and report hate crimes presents problems for achieving the objectives of the HCRA.⁽⁸⁷⁾ Originally proposed as an affirmative requirement by the drafters of the legislation, a subsequent political decision reversed this position.⁽⁸⁸⁾ As a result, the Massachusetts statute now contains normative phrasing in its reporting provisions: "hate crimes should be reported by state local and campus police;"⁽⁸⁹⁾ and "law enforcement agencies should complete and submit a hate crime report."⁽⁹⁰⁾ Moreover, the HCRA states that the Secretary of Public Safety "shall solicit hate crime reports from . . . police."⁽⁹¹⁾ Solicitation, in its ordinary sense, includes the notion that the group being solicited may refuse or decline to do that which is being solicited.

Despite the good intentions of the legislation's drafters, compliance among police agencies has been far from uniform. The Executive Board of the Chiefs of Police of Massachusetts, when consulted during the legislative process, pledged to cooperate in a voluntary hate-crime reporting system. Cooperation, however, has ranged from very compliant to reluctant to nonexistent. For example, the Boston Police Department represents the high mark of hate-crime reporting; the department has developed, tested, and currently employs a three-tier review system lauded for its ambition and success.⁽⁹²⁾ The results of that department's commitment enabled it to report 343 hate crimes to the CRU in 1993.⁽⁹³⁾

In contrast to the commitment demonstrated by the Boston Police Department, ninety-six police agencies across the state, representing population sizes ranging from 2000 to nearly 40,000, filed official forms with the CRU stating that zero hate crimes were reported to them during 1993.⁽⁹⁴⁾ Although it is possible that many of the smaller towns and communities did not have hate crimes to report, it is likely that some did. Records on file with the Boston Anti-Defamation League office indicate that some police departments received complaints of anti-Semitic vandalism, but filed a report with the CRU stating that "zero hate crimes were reported to them."⁽⁹⁵⁾

Finally, demonstrating the lowest level of compliance (indeed, noncompliance), many police departments, 208 in fact, completely failed to participate in the hate-crime-reporting system.⁽⁹⁶⁾ In 1991, the first year of HCRA implementation, only forty-two agencies from around the state participated in the reporting program.⁽⁹⁷⁾ Although that number jumped dramatically to 165 in 1992, and 169 in 1993,⁽⁹⁸⁾ it still constituted only forty-six percent of all Massachusetts police agencies.⁽⁹⁹⁾ A total of 226 agencies out of 371 participated in 1994, marking the highest level of participation since the Reporting Act took effect (though far short of the over 350 police agencies in the state that are asked to report under the HCRA).⁽¹⁰⁰⁾

Requests for compliance at the national level pursuant to the federal HCRA fared no better. The 1994 FBI Report reveals that only 7298 of 16,000 possible police departments across the country, less than fifty percent, voluntarily submitted hate-crime data to the Justice Department.⁽¹⁰¹⁾ Of the 100 largest United States cities, thirty-seven did not participate in the recording of hate crime at all, and fourteen of the fifty largest cities did not participate.⁽¹⁰²⁾ Of those 7400 agencies, sixteen percent reported hate-crime occurrences, while the rest "reported that no hate crimes were brought to their attention."⁽¹⁰³⁾

During 1993, 7587 bias-motivated criminal incidents were reported to the FBI⁽¹⁰⁴⁾ compared to 5932 reported in 1994.⁽¹⁰⁵⁾ But this dramatic decrease is deceiving.⁽¹⁰⁶⁾ In 1994, three states (Alabama, Kansas, and Massachusetts) that reported incidents in 1993,⁽¹⁰⁷⁾ failed to report hate-crime statistics to the FBI in 1994, dropping the number of participating states from forty-six to forty-three.⁽¹⁰⁸⁾ Despite an increase in participation since the implementation of the HCRA, the number of agencies participating at the national level still fell short of sixty percent.⁽¹⁰⁹⁾

Once again, numbers fail to reveal the impact of hate crimes. Two examples, culled from Anti-Defamation League files for Massachusetts, demonstrate the gaps in reporting among non-participating police agencies. First, in the city of Everett, three teenagers pled guilty to vandalism charges stemming from the massive desecration of a Jewish cemetery in 1993. The juveniles had spray-painted swastikas on, or knocked over, more than one-hundred headstones, in an apparent tribute to Adolf Hitler's birthday.⁽¹¹⁰⁾ The Everett Police Department did not report the crime as a hate crime to the CRU. In the second case, a knife-wielding man attacked two of his neighbors --a Jewish couple. Accompanying this attack, and indicating bias motive, were these alleged statements: "You killed Him 2000 years ago. That's right--Jesus Christ. Now I'm going to kill you!"⁽¹¹¹⁾ This case was never reported either, yet both cases clearly suggest hateful motivations; further, records of both cases might prove useful in future investigations of hate crimes.

Some sources argue that the primary explanation for lack of compliance is police hostility or indifference to hate crime.⁽¹¹²⁾ An absence of sanctions for failing to report hate crimes compounds this problem. Police departments may view reporting as "`one more [administrative] headache'" because data collection involves filling out more forms and reports; all the extra paperwork and focus on yet another crime category is just "`one more pressure, one more problem . . . to respond to.'"⁽¹¹³⁾

Scarce resources may also contribute to lack of compliance with the reporting statute. California's statute languished for several years because the state's Attorney General refused to operate the reporting system unless $300,000 was allocated to it for proper implementation. Subsequently, he agreed to voluntarily comply with the reporting requirement.⁽¹¹⁴⁾ Training has since begun, but it is too early to determine either the effectiveness of the program or the compliance level.⁽¹¹⁵⁾

Faced with difficulties in achieving compliance, the Massachusetts Hate Crimes Task Force has consistently been met with an uphill battle to increase participation in the reporting program. Limited powers further constrain the Task Force in its goal of promoting compliance. The Task Force outlined a plan for encouraging police departments to identify and report hate crimes. Using information provided by the Crime Reporting Unit, the Task Force identified a number of departments statewide that report no hate crimes. The Task Force invited officers or representatives of these high-priority departments to attend a meeting with the Secretary of Public Safety. Most police chiefs, whose access to the Secretary may mean the difference between a funded or nonfunded special project in their department, attended or sent representatives to this meeting.

Once at the meeting, the law enforcement participants discussed the problems or barriers to reporting hate crimes, while the Task Force urged participation for the many reasons noted above, emphasizing the need for all departments to work as a team in a wide-ranging effort to identify and respond to hate crimes in Massachusetts.

The representatives appeared interested. The Task Force provided a vehicle for achieving better compliance. Toward this end, the Task Force has considered asking the Secretary of Public Safety to withhold funding for police departments' special projects if noncompliance continues.⁽¹¹⁶⁾ If cajoling or moderate pressure fail to stimulate increased participation, proponents of hate-crime reporting may have to resort to amending the HCRA or seek an executive order requiring compliance with the reporting system.⁽¹¹⁷⁾

B. Hate Incidents: Successes and Failures in Reporting

Hate incident reporting, undertaken by community advocacy groups, would appear to be less problematic in this voluntary reporting scheme, because these groups are interested in publicizing the problem of hate violence and working to eliminate it. Indeed, as discussed above, the Anti-Defamation League played an instrumental role in drafting the HCRA and legislation like it in other states around the nation, thus demonstrating its desire to conduct such reporting.

For all intents and purposes, however, only two advocacy groups (ADL and Fenway) in Massachusetts regularly provide hate incident reports to the CRU.⁽¹¹⁸⁾ Of the reporting groups in 1992, the Anti-Defamation League and Fenway Community Health Center, which specializes in gay and lesbian health concerns "accounted for over 95% of all reported bias incidents."⁽¹¹⁹⁾ Individuals not associated with these groups often have no support group that actively strives to address the hate-incident problem through reporting such incidents. African-American and Latino advocacy groups report few, if any, hate incidents.⁽¹²⁰⁾ The reasons for this are complex, but one fact remains true--in their struggle to secure funding for basic services to their communities, they have not made hate-incident reporting a priority.⁽¹²¹⁾ Unfortunately, however, unless these and other groups actively participate in reporting bias incidents, this provision of the legislation falls short of the desired community cooperation originally envisioned by the drafters.

C. Training Police Officers Under the HCRA

The HCRA training provision⁽¹²²⁾ embodies another significant facet of the statute's implementation scheme. Law enforcement officers are often unskilled and unschooled in the identification of hate crimes.⁽¹²³⁾ Despite what might appear to be a straightforward analysis of a crime scene and an explicit listing of bias indicators, hate crimes are easily overlooked, even though the statute allows for--indeed, it relies upon--a "common sense approach" in making a determination about whether a hate crime might have occurred.⁽¹²⁴⁾ It is essential that all officers understand the characteristics of a hate crime and how to respond to potential and actual hate crimes. Thus, the statute requires integration of hate-crime-response training into the curricula of the police academies, and continuing educational seminars for current officers. The Massachusetts Criminal Justice Training Council currently provides eight hours of instruction to recruits in the area of civil rights laws and enforcement.⁽¹²⁵⁾ Additionally, week-long "in-service" programs are conducted throughout the year for current officers;⁽¹²⁶⁾ these training events often include a hate-crimes segment.

Obtaining funds for these training programs remains difficult. Limited and decreasing funds have constrained efforts to provide adequate training for hate-crime law-enforcement duties. The Council suffered a forty percent budget cut in 1989 and 1990.⁽¹²⁷⁾ When seeking to cut the budget, areas most easily hit are those that include discretionary spending. Thus, the hate-crime training provisions may be an easy target for budget cutting. Indeed, lack of resources has translated into few advanced training programs in civil rights enforcement.⁽¹²⁸⁾ The responsibility for training Massachusetts law enforcement in civil rights and hate crimes for law enforcement has been picked up by the State Attorney General's (AG) Office. The Civil Rights Division has conducted training for police departments, including police recruits, and in-service training for current officers and commanding officers.

These programs are designed to alert officers to the signs that hate crimes have occurred, as well as to inform them how to identify, classify, and respond to the crimes. Speakers from a range of backgrounds present lectures on a variety of topics; district attorneys, internal police specialists on hate crimes, and representatives of advocacy groups like the ADL, NAACP, the Asian-American Resource Workshop, or the Fenway Community Health Center, offer perspectives on the responses of victims to hate crimes and the need for collecting data. Major themes of these seminars address cultural awareness, discrimination, police philosophy and practice, and the effects of bias crime on the victim and her or his community.

Guest speakers, such as victim advocates or a victim of hate crime, sensitize the police to the perspectives of victims and the trauma they experience in the aftermath of such crimes. Cultural differences and anti-police sentiments are discussed. For example, recent Asian immigrants may view all police officers as corrupt and dangerous based upon the role played by police in their country of origin.⁽¹²⁹⁾ Gay, lesbian, and bisexual individuals may fear having their sexual orientation revealed to the public, police, family, employer, or fellow employees.⁽¹³⁰⁾ Minorities may distrust the police based on prior, discriminatory encounters with law enforcement officers.⁽¹³¹⁾ Understanding these and other differences helps combat what may be the culture of indifference in law enforcement agencies toward hate crimes,⁽¹³²⁾ thereby producing a more appropriate and effective police response to the problem. The training is also aimed at reducing tensions that arise between police departments and diverse segments of the community.⁽¹³³⁾

The ADL has contributed to the creation and development of these training programs and others across the country. League members lead training sessions and have acquired national recognition for their expertise in the field.⁽¹³⁴⁾ Additionally, the ADL has produced videos and other tools for these programs.⁽¹³⁵⁾

The Office for Victims of Crime (OVC) and the United States Department of Justice have funded the development of a curriculum on bias crimes for law enforcement and victim assistance professionals.⁽¹³⁶⁾ The two-and-a-half day program resulted from an effort to identify the best policies, procedures, practices, and materials that are currently being used to address bias crimes, including research on bias crimes and offenders, and the effects that these crimes have on their victims and the community.⁽¹³⁷⁾ This comprehensive program addresses everything from deterrence and prevention to prosecution of bias crimes.⁽¹³⁸⁾

Expanding these educational activities can help alleviate the financial strain on individual police departments in funding training programs, but the work cannot substitute for official, systematic leadership in responding to hate crime. Only this, ultimately, can produce long-term success within police departments.

D. Gender as a Hate Crime Category

A continuing area of contention lies in the inclusion of "gender bias" within the scope of the HCRA. Neither the ADL's model act nor the Massachusetts statute originally included this category of bias. At the time the Massachusetts Legislature considered the hate-crimes reporting bill, there was no consensus on the issue.

In 1992, however, the Massachusetts Legislature reconsidered the original legislation and added gender.⁽¹³⁹⁾ On February 10, 1996, the National Executive Committee of the ADL officially modified its hate- crime statute to include gender.

Some scholars argue that crimes of violence against women are very much hate crimes; they simply represent hate directed at a very large, but distinct, group. For example, violent crimes against women may often be the product of a generalized belief that women are inferior to men, and that women, as a group, deserve to be dominated, controlled, or abused.⁽¹⁴⁰⁾ This is not so different than a perpetrator's feelings in a race-based hate crime. A classic hate-motivated gender crime occurred in December 1989, when a man entered the engineering school at the University of Montreal with a hunting rifle.⁽¹⁴¹⁾ He separated the men from the women and proceeded to murder fourteen women, shooting them at point-blank range, as he shouted, "You're all a bunch of feminists."⁽¹⁴²⁾ The man committed suicide, and police later found a note in his pocket stating that women had ruined his life.⁽¹⁴³⁾ This incident clearly fits the definition of a hate crime. These victims were strangers to the assailant and were targeted because of their gender. Additionally, rape of a woman by a stranger, if understood correctly to be an act of power and violence, suggests that the male perpetrator acts out a desire to subjugate women as a group. This seems to satisfy the standard criteria for identifying hate-motivated crimes.

Acquaintance rape, on the other hand, others have argued, may not be motivated by a desire to control or subjugate all women.⁽¹⁴⁴⁾ The key to the analysis may center upon the notion that hate-crime victims are interchangeable⁽¹⁴⁵⁾--any person possessing the characteristics of the despised group, not just the one actually attacked, would be satisfactory for the perpetrator. This interchangeability may be a good indicator that bias motivated the crime. California, for example, explicitly uses this criterion as a necessary characteristic of classifying a crime against a woman as a hate crime.⁽¹⁴⁶⁾

But writers on the topic of hate crime, Steven Bennett Weisburd and Brian Levin,⁽¹⁴⁷⁾ argue that women who are attacked by people they know should not be excluded from coverage under hate-crime law because most women are attacked by people they know.⁽¹⁴⁸⁾ Weisburd & Levin note that while "85% of bias crimes are committed by strangers," 15% are not.⁽¹⁴⁹⁾ Levin states that if we argue that gender should not be included as a hate crime because most women are raped by people they know, then we are creating a "gender-biased double-standard" for women.⁽¹⁵⁰⁾ In the Massachusetts regulations, in contrast to the California law, the interchangeability of victims is not a criterion used to determine whether a hate crime against a woman has been committed. Instead, Massachusetts wants to know that the perpetrator has a history of attacking women before charging him with a gender-based hate crime.

Advocates have drawn parallels from rape in general⁽¹⁵¹⁾ to other clear examples of hate crimes. For example, lynching may be viewed as the quintessential hate crime. Emmett Till, a young black man, was lynched and his body mutilated in August 1955.⁽¹⁵²⁾ Till, however, was not chosen at random, but was specifically selected because he violated the social norms of the time by whistling at or speaking in a "fresh" manner to a white woman.⁽¹⁵³⁾ Till, from the North, was visiting relatives in the South. He did not understand the depth of prejudice in the South nor the consequences of his actions. Law professor Catherine MacKinnon, of the University of Michigan, and a feminist legal scholar, notes the parallels between the crimes of rape and the lynching of Emmett Till. MacKinnon states that they both involve rituals of humiliation and violence that tend to make the target population not only "cring," but stay quiet.⁽¹⁵⁴⁾ Based on the Levin and MacKinnon arguments discussed here, it seems reasonable to conclude that the concept of victim interchangeablility should be an inclusive, not a preclusive factor. That is, if the crime was committed against a non-random victim, it should not preclude the crime from being classified as a hate crime, as the Emmett Till case demonstrates. Till's murder was motivated undeniably by race, though he was known to the perpetrators.⁽¹⁵⁵⁾

Perhaps the most controversial aspect of gender as a bias category exists within the context of domestic violence. In these situations, a host of motivations may underlie the violence. However, domestic violence is group-based by nature. Both rape and habitual domestic abuse are committed against women as women.⁽¹⁵⁶⁾ While there is a definite individual component, there is also undeniably the group component.

Bias-crime statutes do not require that group bias be the sole motivation for a crime. They typically require that an offender's bias "`be a substantial factor'" or rather "that the offender be motivated `in whole or in part' by bias against a protected status group."⁽¹⁵⁷⁾ Therefore, "[a] status-based deprivation of civil rights is a group-related violation even if the offender is motivated by personal animus as well."⁽¹⁵⁸⁾

Some argue that adequate laws already exist to deal with the problem of domestic violence and that adding gender to hate-crime statutes could harm domestic violence victims. Indeed, when the possibility of adding the category of gender in a pending Connecticut hate-crime statute arose, Connecticut NOW and Connecticut Coalition Against Domestic Violence did not advocate inclusion.⁽¹⁵⁹⁾ These groups feared that police would become confused by the laws and would therefore be less effective.⁽¹⁶⁰⁾ However, adding a gender category to statutes specifically designed to deal with domestic violence does not preclude providing guidance to law enforcement agencies.⁽¹⁶¹⁾

The addition of gender to hate-crime statutes is more than a symbolic gesture. Hate-crime statutes allow for penalty-enhancement provisions and civil remedies. "Victims [of sexual assault] collect damages in less than 1% of cases."⁽¹⁶²⁾ The collection of such damages becomes more difficult if the victim is or was married to the offender.⁽¹⁶³⁾ The hate-crime statute allows the system to focus on the hate that prompted the crime, and de-emphasizes the relationship of the victim and the offender.⁽¹⁶⁴⁾ In a New Hampshire case, a judge used that state's bias- crime law, which includes gender, to double the sentence of thirty-two-year-old Richard Towne, who had a ten-year history of physically and mentally abusing women. "Towne received a two-to-five year sentence for a March 1991 `misdemeanor' assault of a woman whom he had . . . [assaulted] on five other occasions."⁽¹⁶⁵⁾

All of this is not to say that defining gender-based hate crime is a simple matter. As noted above, in 1992, Massachusetts amended the HCRA to include gender bias as a reportable hate crime.⁽¹⁶⁶⁾ The Federal HCSA does not include gender as a category of hate crime. The Massachusetts experience with gender-bias crimes, though limited by its only recent inclusion as a hate crime, demonstrates the difficulty that has been expressed in this brief summary of the academic debate on the issue: these gender-based hate crimes are hard to define and thus hard to report.⁽¹⁶⁷⁾ In 1994, only 0.4% of the hate crimes reported in Massachusetts were identified as "anti-female" and another 0.4% were reported as "anti-male."⁽¹⁶⁸⁾ Only time will tell whether tracking gender as a category of hate crime is effective public policy. The difficulty of identifying gender-based hate crimes promises to be the controversial issue anticipated when gender was originally excluded from the scope of the HCRA.

  Comparing Other States With Massachusetts

A comparison with other reporting systems offers insights into the relative success of Massachusetts' experiment with reporting. This part reviews the hate-crime reporting provisions of Maryland, New Jersey, and Pennsylvania--all states with strong reporting mandates--as well as several smaller New England states, and compares them to Massachusetts.

A. New Jersey

New Jersey has required hate-crime reporting since 1988 by order of its Attorney General. Executive Directive No. 1987-3 directs "[a]ll law enforcement agencies . . . to fully cooperate with the Division of State Police, Uniform Crime Reporting Unit, in properly completing and promptly forwarding" that state's hate-crime reporting form.⁽¹⁶⁹⁾ This provision mandates compliance with the reporting system.⁽¹⁷⁰⁾ All state and county police departments, approximately 560 agencies in all, must report all bias or suspected bias crimes.⁽¹⁷¹⁾ The mandatory reporting provision allows New Jersey to track relatively complete and comprehensive data in an attempt to identify the problem, evaluate progress, prevent further bias crime, and aid in future planning.⁽¹⁷²⁾

New Jersey is one of the most diverse states in the nation, having undergone major demographic changes in recent years. Perhaps not unrelated is the steady increase in the number of bias crimes reported. While the numbers are high, New Jersey's mandatory reporting and extensive officer training requirements probably results in many crimes being reported that would go unreported in other states. New Jersey is at the forefront of trying to establish stricter laws, as well as tracking the problem, and increasing public awareness of hate crime.

The Uniform Crime Reporting Unit of the New Jersey Division of State Police is responsible for collecting data on bias crimes and compiling the Annual Bias Crime Report as a means of determining the scope of the state's bias-crime problem. The compilation of comprehensive statistics allows New Jersey to make a serious effort to track and address the types of bias that are prevalent. The state is recognized as a national leader in developing bias-crime prevention programs and is a remarkable example of cooperation among agencies.⁽¹⁷³⁾ New Jersey has strong crime laws on bias incidents, police training on bias crimes, a statewide bias-incident reporting system through the UCR, and county-by-county bias-incident investigation seminars, which are held in conjunction with county prosecutors and community interest groups.⁽¹⁷⁴⁾

The New Jersey Office of Bias Crime and Community Relations is the first of its kind in the country.⁽¹⁷⁵⁾ This office conducts statewide investigations and monitors all bias incidents.⁽¹⁷⁶⁾ The agency recognizes that actions taken by the police in the aftermath of a bias crime are "visible signs of concern and commitment to the community."⁽¹⁷⁷⁾

The statistics also reveal that a large portion of New Jersey's hate-crimes involve an alarmingly high number of juveniles, both as perpetrators and as victims.⁽¹⁷⁸⁾ This information allows the state agencies to focus their efforts on the educational system as a vehicle for prevention. As a result, New Jersey has been one of the nation's leaders in establishing cooperative programs between law enforcement and the educational community. In 1994, 214 of the 445 hate-crime offenders were under the age of twenty-one.⁽¹⁷⁹⁾ Such numbers emphasize the need for educational programs in understanding and respecting cultural differences, needs for which New Jersey has responded. Some examples of these initiatives are the Positive Impact Ensemble (PIE) and the "Stamp Out Hate" campaign.⁽¹⁸⁰⁾

While New Jersey has had many successes in hate-crime recording, it is not without its problems. The Commission on Racism, Racial Violence, and Religious Violence was created by a Joint Resolution of the New Jersey Legislature in 1991.⁽¹⁸¹⁾ The Commission was mandated to study the problems of bias-based violence, and to determine effective methods to prevent such violence. The Commission's report reaffirmed the state's many excellent model programs, but indicated that there was room for improvement in several areas.⁽¹⁸²⁾

The areas of greatest concern to the Commission were "law enforcement, education and community affairs."⁽¹⁸³⁾ Since 1988, every police recruit has undergone training on both the Bias Incident Investigation Standards and community/police relations.⁽¹⁸⁴⁾ The state has also recognized the need for supplemental instructions for, and the training of, veteran police officers in cultural diversity.⁽¹⁸⁵⁾ In an effort to reach those officers, the Department of Law and Public Safety has developed a cultural diversity training experience for the State Police. The Attorney General has contacted each county police academy, requesting that a cadre of cadets from each county be selected to receive this training, which will in turn be used more broadly in every county.⁽¹⁸⁶⁾ Additionally, the Commission cautions that law enforcement must address a perception among New Jersey citizens that police officers treat members of minority groups in an unfair and biased manner.⁽¹⁸⁷⁾ The Bias Incident Investigation Standards reminds officers of the extra sensitivity needed to properly help victims of bias crimes: the victim has experienced a traumatic personal violation.⁽¹⁸⁸⁾ "Law enforcement officers must recognize that a single bias incident may initially appear as less serious when viewed in the larger context of all crime. Nonetheless, [the New Jersey Commission notes that] any suspected or confirmed bias incident is serious by its very nature."⁽¹⁸⁹⁾ Such incidents generate fear and concern among victims and the community, and "have the potential of recurring, escalating and possibly causing counter violence."⁽¹⁹⁰⁾ The aftermath of a bias crime is potentially so far reaching that it demands "a thorough and comprehensive law enforcement response."⁽¹⁹¹⁾ New Jersey's comprehensive program of both tracking, preventing, and when necessary, punishing hate crimes makes it a national leader and model among states.

B. Maryland

Maryland, in 1981, was the first state to enact legislation requiring the collection of data on hate crimes.⁽¹⁹²⁾ The state's system collects data on bias incidents, which may or may not be crimes.⁽¹⁹³⁾ According to the law, an incident is a "reported act which appears to be motivated or is perceived by the victim to be motivated in all or in part by race, religion, ethnic background, or sexual orientation."⁽¹⁹⁴⁾ These incidents "are then investigated and "are classified on the basis of their status as either verified, inconclusive, or unfounded."⁽¹⁹⁵⁾ In compliance with the requirements of Maryland's Hate/Bias Incident Reporting law, the state produces an annual Hate Bias Assessment. With the passage of the HCSA, Maryland officials used the incident reporting system already in place. They extracted those cases that were criminal, and reported that information to the FBI.⁽¹⁹⁶⁾

The 1994 Hate/Bias Report marked an expansion in Maryland's data collection effort. For the first time, the state added a section that addresses the category of bias motivation--race, religion, ethnic or sexual orientation.⁽¹⁹⁷⁾ In previous reports, incidents were categorized primarily by race, with little information about motivations related to religion, ethnicity or sexual orientation.⁽¹⁹⁸⁾

Maryland's reported number of hate/bias incidents and crimes have been declining.⁽¹⁹⁹⁾ But, as the state's own report points out, there are many factors and structural limitations involved in hate-crime reporting, and caution must be taken when interpreting the results.⁽²⁰⁰⁾ For example, according to the ADL's national audit, anti-Semitic incidents in Maryland soared in 1994, up 78% from forty incidents in 1993 to seventy-one incidents in 1994.⁽²⁰¹⁾ By contrast the state's report indicates that there were fifty-nine verified religious-based bias incidents, not all anti-Semitic, representing a 7.1% decline from the previous year.⁽²⁰²⁾ While both the ADL and the state of Maryland record bias incidents, the disparity in their numbers illustrates a fundamental problem in the field of hate-crime reporting.

C. Pennsylvania

In 1995, Pennsylvania published a five-year study on hate crimes. It's introduction observes that "[s]ince 1982, Pennsylvania has had an Ethnic Intimidation law which enhances the punishment for committing certain criminal offenses if motivated by malicious intent toward the race, color, religion or national origin of the victim or victim group."⁽²⁰³⁾ Moreover, "[d]ata concerning hate crime in Pennsylvania is collected pursuant to two statutes."⁽²⁰⁴⁾ The first statute includes the Crimes Code provision creating the crime of ethnic intimidation . . . . which raises the grading of specified crimes if committed with `malicious intention towards' certain characteristics of the victim."⁽²⁰⁵⁾ The second statute is the "Ethnic Intimidation Statistics Collection Act . . . which requires local law enforcement agencies to report [crimes] to the Pennsylvania State Police . . . related to certain characteristics of the victim."⁽²⁰⁶⁾

Although both of these statutes cover the same four categories--race, color, religion and national origin--"[t]hey differ slightly in the crimes covered."⁽²⁰⁷⁾ In order to be charged with the crime of ethnic intimidation, "an offender must first be charged with [an] underlying crime[]."⁽²⁰⁸⁾ Such underlying crimes include any "offenses involving danger to the person, criminal mischief, harassment by communication, arson and certain other property crimes--expressly excluding institutional vandalism," which is covered by a separate statute.⁽²⁰⁹⁾ By contrast, "the Ethnic Intimidation Statistics Collection Act is broader."⁽²¹⁰⁾ This act "includes all `crimes and incidents' related to the race, color, religion, or national origin of the victim."⁽²¹¹⁾

To further complicate matters, the passage of the federal HCSA expands the data-collection requirements beyond the parameters of Pennsylvania's Ethnic Intimidation Act. The federal statute includes sexual orientation as a bias-motivation category, a category not included in the substantive Pennsylvania hate-crime law (as contrasted with its hate-crime reporting law). Paradoxically, "crimes motivated by sexual orientation are not covered by any Pennsylvania statute, [but] are included in the Commonwealth's data collection system . . . [and] are collected as part of the Pennsylvania Uniform Crime Reporting System."⁽²¹²⁾ This likely means that a large number of hate crimes against gays and lesbians are not reported because the substantive law does not consider crimes against this members of this group as hate crimes. Yet another barrier to accurate hate-crime reporting has been raised.

There have been several attempts to amend the state's hate-crime legislation, which would bring the criminal bias law in concert with the Data Collection System. But in June 1996, the Pennsylvania Senate scrapped a planned vote to expand the Ethnic Intimidation Act to include sexual orientation.⁽²¹³⁾ The bill, sponsored by Sen. David Heckler, a Republican, was defeated as were three similar bills in the last five years.⁽²¹⁴⁾ This issue is not expected to resurface until after the November 1996 elections. This raises the perennial issue of lack of uniformity in hate-crime reporting systems. Though the United States Congress mandated in the HCSA that hate crimes against lesbians and gays be counted, many states (such as Pennsylvania) will not mandate punishing such crimes.

Pennsylvania, however, did pass legislation designed to ease the way toward obtaining convictions for hate crimes. A new law, signed on October 27, 1995, creates the crime of "simple trespass."⁽²¹⁵⁾ The old trespass law required that a property owner post signs, have fences, or give specific verbal instructions not to trespass before a person could be convicted of violating the law.⁽²¹⁶⁾

The new law does not require such steps. Rather, the new law makes it illegal to enter someone's property with the intent to threaten or cause damage. The law is designed to close a legal loophole for cross burners who were escaping prosecution.⁽²¹⁷⁾ The law makes it easier to invoke the Ethnic Intimidation Law, which grants stiffer penalties when there is a conviction for the underlying crime.

The State of Pennsylvania has witnessed a 130% increase in hate crimes from 1988 to 1993.⁽²¹⁸⁾ Hate crime has been noted to be the fastest growing category of crime in the state. While the increase in reported hate crimes may be due to a greater awareness and more complete reporting by victims, independent monitoring by the Pennsylvania Human Relations Commission,⁽²¹⁹⁾ and groups like the Anti-Defamation League⁽²²⁰⁾ also confirm an increase in such incidents during a five-year period.⁽²²¹⁾ By contrast, FBI statistics for 1992-94 have shown the number of hate crimes in the state decreasing.⁽²²²⁾ Clearly, the FBI is not getting accurate reports from Pennsylvania. This example demonstrates the obvious problem with the FBI's hate-crime-data-collection system. If the state's own numbers are higher, and the ADL and Human Relations Commission report the numbers as being higher, why are the FBI's numbers for Pennsylvania down? Who can answer this question? Who is tracking such discrepancies within the FBI?

In Pennsylvania, as in other states, hate-crime statistics provide valuable information. Analysis of these statistics is perhaps the best tool to determine how to prevent future hate crimes. A study of Pennsylvania's data from 1988-93 reveals that its hate-crime problem is very similar to that of other states.⁽²²³⁾ African-Americans are the most frequently targeted racial group (46%),⁽²²⁴⁾ Latinos, the most victimized ethnic group (8%),⁽²²⁵⁾ and Jews, the most targeted religious group, (6%).⁽²²⁶⁾ These numbers far exceed the victim groups' proportion of the population, which are 9%, 2%, and 3% respectively.⁽²²⁷⁾

Pennsylvania is also not unusual in that the majority (56%) of reported hate-crime offenders were between the ages of eleven and twenty.⁽²²⁸⁾ Juveniles ages eleven to fifteen constitute 8% of the Pennsylvania Commonwealth's population⁽²²⁹⁾ but made up between 13% and 20% of the known offenders during the time studied, an average of 18%.⁽²³⁰⁾ The largest number, however, of hate-crime offenders fall between the ages of sixteen and twenty.⁽²³¹⁾ These individuals made up 7% of the 1990 population, yet represented 38% of the identified offenders.⁽²³²⁾

Pennsylvania has recently begun to show additional interest in hate- crime training. Recently, staff from the Federal Law Enforcement Training Center, based in Georgia, traveled to the State Police Academy in Hershey to provide training in hate and bias crimes.⁽²³³⁾ Classes included recognizing, prosecuting, and tracking hate crimes, as well as dealing with hate- crime victims. The seminar was designed to let federal officials "train the trainers"⁽²³⁴⁾ and allow these individuals to go back and brief their local agencies. The federal officials noted that the biggest mistake the police community makes is not taking bias-crimes seriously.⁽²³⁵⁾ Programs such as these are essential to effective hate-crime recording. Until police are trained to recognize what constitutes a bias crime and understand its impact on the community, the incidents continue to be under-recorded. While under-recording is a concern for those who monitor such statistics, it also has a profound impact on the community. When officers are not trained to be culturally sensitive to the community they serve, antagonism quickly develops between law enforcement and a community that feels that they are neglected or misunderstood.⁽²³⁶⁾

During 1993, the Pennsylvania Municipal Police Officers Education and Training Commission mandated that all police officers be required to complete three hours of training on the ethnic intimidation law.⁽²³⁷⁾ This training was only available for that year, but the Attorney General and the Human Relations Commission have suggested that the program be re-implemented.⁽²³⁸⁾ The State does, however, have one of the few statutes⁽²³⁹⁾ specifically stating that law enforcement officers should receive training in bias incidents.⁽²⁴⁰⁾

Pennsylvania is trying to determine the best path for dealing with hate crimes. Governor Tom Ridge has recently commissioned the Alliance for Community and Law Enforcement Relations. This is a twenty-member alliance of leaders of the minority community, law enforcement officers, state and local government officials, as well as community and religious leaders.⁽²⁴¹⁾ The Alliance is chaired by Pennsylvania Attorney General Tom Corbett.⁽²⁴²⁾ This Commission was created as an effort to reduce tensions between minorities and the law enforcement community. During 1996, the Alliance will examine state programs, identify those programs that are working well, and attempt to implement them elsewhere. The group will issue a report to Governor Ridge in the Spring of 1997.⁽²⁴³⁾ One of the topics that the group will investigate for that report is whether Pennsylvania should require police officers to have more comprehensive diversity training.

D. The New England Experience

1. Maine

Several of the smaller New England states have less long-standing, but nonetheless well-developed (though not always efficient or effective) hate-crime reporting procedures. The State of Maine follows the Uniform Crime Reporting System (UCR). All the individual police departments in Maine report crimes to the UCR center in Augusta.⁽²⁴⁴⁾ The UCR processes these police reports; and hate-crime reports are reviewed to ensure that they meet the FBI's definition of a hate crime.

The Maine Attorney General's Office collects data on hate crimes and incidents that come to them as violations of the state's civil rights act. In another anomaly of hate-crime reporting, this data collection is completely independent of that compiled by the state UCR. The Attorney General's numbers are not directly reported to the FBI. The Attorney General's office, however, is experimenting with sharing these statistics with the state police, who then report the hate crimes to the FBI. Negotiations are also underway between the Maine UCR and Attorney General for the agencies to begin working together in sharing statistics. They are also working to ensure that they do not double report their respective hate-crime data.⁽²⁴⁵⁾ The system would seem to be more effective if these agencies came together on hate-crime-data collection. Only crimes, however, meeting the FBI's definition can be reported to the FBI.

The Maine Attorney General's Office sends a representative to the police departments to discuss hate crimes. New officers are trained at the Maine Criminal Justice Academy. Hate-crime reporting in the state has dropped between the years of 1992 and 1994.⁽²⁴⁶⁾ In 1992, Maine had nine participating agencies that submitted reports of nineteen hate crimes.⁽²⁴⁷⁾ In 1993, the number of participating agencies dropped to six,⁽²⁴⁸⁾ however, the total number of hate crimes rose to thirty-two.⁽²⁴⁹⁾ The number of participating agencies dropped from six to five in 1994, and the number of total hate crimes dropped to seven.⁽²⁵⁰⁾ Clearly, Maine officials and the FBI should be talking about this decline in reporting.

2. Vermont

The State of Vermont has an automated information collection system called the Vermont Incident-Based Reporting System (VIBRS) Network. This network does not, however, yet serve all law enforcement agencies in Vermont. The computer-assisted dispatch system is now used by sixty percent of the Vermont law enforcement agencies, including all state police stations and six municipal police departments.⁽²⁵¹⁾ The system automatically records all police reports, hate crimes and otherwise. The reporting officer simply indicates in the "circumstance code" whether the crime was motivated by bias. The VIBRS Network is continually expanding; the Department of Public Safety expects that eighty-five percent of the state will be on-line by 1997.⁽²⁵²⁾ Since the implementation of this system, Vermont's participation in the HCSA has increased. In 1992, Vermont did not submit any hate-crime statistics to the FBI.⁽²⁵³⁾ In 1993, the state police submitted one incident.⁽²⁵⁴⁾ In 1994, however, eighteen of Vermont's law enforcement agencies participated, nine of which reported twelve hate crimes.⁽²⁵⁵⁾ That is progress, albeit modest progress.

Part of the basic training for officers in Vermont is hate-crime training. The police are taught to categorize a hate crime according to the Vermont statute.⁽²⁵⁶⁾ Cultural diversity training material from the patrol procedures curriculum, provides procedures for the identification of hate crimes, the Vermont statute on hate crimes, and the investigation of hate crimes.

3. Rhode Island

Rhode Island police are required to submit their reports every month to be processed.⁽²⁵⁷⁾ This mandatory requirement has meant that Rhode Island submits among the some of the most complete hate-crime data in New England. There are special provisions for hate crimes on the standard forms filed by the Rhode Island police. Similar to Maine, Rhode Island collects data according to the FBI definition of a hate crime. The state police keep a permanent record of these crimes categorized by the community of occurrence, type of offense, target of the crime, and any other information that they deem relevant. The law also mandates that the police establish a plan for collection, analysis, and dissemination of data. Rhode Island police have had special training sessions in which hate-crime expert and Deputy Superintendent of the Boston Police Department, Bill Johnston, and the FBI shared their expertise.

For the past three years, Rhode Island has had forty-four or forty-five (forty-five agencies report general UCR data in Rhode Island) law enforcement agencies participating in federal hate-crime data collection.⁽²⁵⁸⁾ The reported number of hate crimes do not indicate any trend, but fluctuate, as hate-crime statistics often do.⁽²⁵⁹⁾ These numbers have gone from forty-eight in 1992,⁽²⁶⁰⁾ to sixty-two in 1993,⁽²⁶¹⁾ plummeting to thirty-seven in 1994.⁽²⁶²⁾ Statistics such as these help to illustrate why interpretation of the hate-crime statistics is a difficult task.

4. New Hampshire

The experience with hate-crime reporting in this northern New England state is a classic example of why the FBI needs to be more aggressive in obtaining compliance with the HCSA. It is also a wonderful illustration of the importance of advocacy groups in making hate-crime reporting nationwide a reality.

Since the HCSA was enacted in 1990, New Hampshire reported no hate crime to the FBI until 1994, and then reported only two participating agencies with a total of three hate crimes for the entire state.⁽²⁶³⁾ This author knows from working with officials in New Hampshire that there was no mechanism, until 1996, for gathering hate-crime data statewide. In fact, a lawyer in the Attorney General's office argued in a phone conversation with this author in 1994 that New Hampshire was unable to gather hate-crime information because it had only a penalty-enhancement hate-crime statute, and the police do not know whether the crime is a hate crime until sentencing. This is a silly argument because many states with penalty-enhancement statutes routinely report hate crimes.⁽²⁶⁴⁾

Indeed, this excuse turned out to be unsupported by the state's current Attorney General, Jeffrey Arnold. The Jewish community of Manchester, New Hampshire, with prodding by the New England Anti-Defamation League, gathered legislators and political activists in the spring of 1996 to ask why virtually no hate crimes are reported in New Hampshire. These legislators and aides to legislators and politicians, including the chief of staff for Governor Steven Merrill, took quick action, informing the Attorney General of the problem. He, in turn, then vowed to resolve it. By the end of 1996, New Hampshire would begin, under the auspices of his office and with the state police and local police departments, to include "hate crime" as a category in their reports to the state. New Hampshire would then provide this information to the FBI.

The Attorney General and the New Hampshire Association of Chiefs of Police invited the Anti-Defamation League to address its summer gathering in 1996 about the importance and value of hate-crime reporting. Over ninety chiefs of police from across the state attended. The ADL invited the FBI to address the group as well. The response from the police chiefs was cool, though not rising to the level of hostility experienced by "the Group" that met in 1990 with the executive board of chiefs of police association in Massachusetts.⁽²⁶⁵⁾ The ADL invited the FBI, not vice versa. In other words, the agency with the mandate to collect hate-crime data nation wide had taken no initiative in prompting New Hampshire to report hate-crime data, though there was clearly the will and ability to gather these data, albeit with some prodding by an outside group.

Whether New Hampshire will report hate crimes effectively and efficiently remains to be seen. One thing, however, is clear. When the State Attorney General, New Hampshire's top law enforcement figure gathers the chiefs of states police departments and demonstrates leadership in gathering hate-crime data, the chances of compliance increase greatly.

E.  What We Learn from Hate Crime Statistics

Upon examination of both federal statistics and those of the states discussed here and in spite of the less than full participation by law enforcement agencies, very important trends are revealed and certain overarching themes emerge. The most common bias crime is committed against people because of their race. The most frequent targets are African Americans. Anti-religious incidents are the second most common type of hate crime and they are most often anti-Semitic. As attacks based on sexual orientation become more widely recognized for the bias crimes that they are, the numbers in that category are growing; they presently account for twelve percent of the total number of recorded bias crimes nationally.⁽²⁶⁶⁾ This number is particularly alarming because as of 1994, only fifteen states had statutory provisions recognizing hate crimes against sexual orientation.⁽²⁶⁷⁾

While all of the statistics offer cause for concern, there are several areas that are particularly troublesome. The majority of hate-crime offenders are white. Disturbingly, they are also young. While federal hate- crime statistics do not provide information about the ages of offenders and victims, many states do.⁽²⁶⁸⁾ These reports indicate that individuals below the age of twenty-five commit an alarming number of reported hate crimes. This information suggests the need for strong alliances between law enforcement and educators to attempt to better educate children and young adults, in hopes of curtailing the misinformation and prejudices. Several of the profiled states, such as New Jersey, along with groups like the Anti-Defamation League, have created excellent programs for young hate-crime perpetrators, as well as for first-time bias offenders.⁽²⁶⁹⁾

Additionally, crimes against persons are more than twice as common as attacks on property. Eighty-two percent of reported hate-crime victims in 1994 were individuals.⁽²⁷⁰⁾ Sixty-nine percent of the total were crimes against persons.⁽²⁷¹⁾ Only crimes motivated by religious bias showed a higher percentage of crimes against property than persons.⁽²⁷²⁾

The benefits of data from hate-crime reports are clear, but these data can also be misinterpreted. A comparison between the 1993 and 1994 FBI Hate Crime Statistics for Maryland, New Jersey, and Pennsylvania show an inconsistent percentage of agencies submitting incident reports. In Maryland, twenty-seven percent of participating agencies submitted reports in 1993,⁽²⁷³⁾ but only twenty-three percent submitted reports in 1994.⁽²⁷⁴⁾ Prior to 1993, New Jersey state police only received reports from agencies with hate crimes. In 1994, New Jersey began collecting reports from every agency, whether a hate crime occurred in that jurisdiction or not, resulting in 559 participating agencies with 278 (fifty percent) reporting incidents.⁽²⁷⁵⁾ In contrast, the State of Pennsylvania has over 1000 participating agencies but only five percent of them reported any hate crimes within their jurisdictions in 1993 or 1994.⁽²⁷⁶⁾ Pennsylvania's population, relative to the number of hate crimes reported, suggests a problem in accurate reporting with such a large population. It is hard to believe that so few hate crimes occurred in a state with so many people and several large cities.

The numbers of hate crimes reported in each of these states lack uniformity, even six years after the enactment of a federal law calling for the reporting of hate-crime statistics in all fifty states.

F. Solutions

Since implementation of hate-crime recording statutes at both the state and national level seem to have a number of problems that are yet unresolved, the question remains, how should these problems be solved in order to achieve accurate and comprehensive hate-crime reporting? What follows are suggestions that might lead to better compliance with the law.

First, and most critical, there needs to be one agency that is "in charge" of the data-collection process. This means that one agency would be responsible for ensuring that the data arrived as required and when they do not, affirmatively seeking out these data. On a state level this means interpreting the data and getting them to the FBI. An example of how the process breaks down occurred in 1994 in Kentucky, when the state police (the designated repository of statistics for the state) gathered information on at least fifty hate crimes in Kentucky.⁽²⁷⁷⁾ But none of these crimes was reported to the FBI.⁽²⁷⁸⁾ The 1994 FBI Hate Crime Statistics show four hate crimes in Kentucky, and these were reported directly to the FBI.⁽²⁷⁹⁾ 1994 was the first year that Kentucky had attempted to collect detailed hate-crime data by sending a hate-crime information form to all agencies. The state police blame their failure to report this data on a miscommunication between agencies, and resistance to sending incomplete data to the FBI.⁽²⁸⁰⁾ The FBI, for its part, passively collects information sent to it, but seems to take no affirmative steps to ensure that states report hate crime or that those reports are truly representative of hate-crime activity in the various states. As the ADL testimony before the Senate Judiciary Committee notes:

In January, 1993, the Bureau released its first report on hate crime data collected by law enforcement agencies around the country. The FBI report documented a total of 4558 hate crimes in 1991, reported from almost 2800 police department in 32 states. The Bureau's 1992 data, released in March, 1994, documented 7442 hate crime incidents reported from more than twice as many agencies, 6181--representing 41 states and the District of Columbia. For 1993, the FBI reported 7587 hate crimes from 6865 agencies in 46 states and the District of Columbia. The FBI's 1994 statistics, released in November, 1995, documented 5852 hate crimes, reported by 7298 law enforcement agencies across the country.⁽²⁸¹⁾

While this suggests that, indeed, a growing number of agencies participated in HCSA data-collection efforts in 1994, the number of participating agencies still represents less than half of the 16,000 agencies that regularly report other crime data to the FBI under the Bureau's Uniform Crime Reporting program.⁽²⁸²⁾ Furthermore, there was a dramatic decrease--by almost twenty-four percent--of hate-crimes reported to the FBI from 1993 to 1994.⁽²⁸³⁾ While hate crime is likely to ebb and flow in cycles--like other categories of crime--there is good reason to believe that the large decrease in hate crimes reported in 1994 is attributable to law enforcement's failing to report hate crime.⁽²⁸⁴⁾

Examples include the reports from Illinois in 1993: 224 law enforcement agencies reported 724 hate crimes.⁽²⁸⁵⁾ In 1994, only nineteen agencies in Illinois participated, reporting only 239 hate crimes to the FBI, almost 500 crimes fewer than in the previous year.⁽²⁸⁶⁾ This discrepancy cannot be reasonably attributed to fewer hate crimes occurring in the state of Illinois from one year to the next. The FBI should be asking questions of Illinois officials and helping them to determine how to avoid this kind of problem next year.

In the meantime, the Kentucky problem has since been resolved; the Kentucky State Police have created a new form that is sent to all local agencies requiring them to give more detailed information about hate crimes as well as initial reports. Under the new system, the state police collected and reported information on seventy-eight hate crimes to the FBI in 1995.⁽²⁸⁷⁾ It is essential that a state agency charged with reporting incidents to the FBI have the cooperation of the local agencies that gather the initial hate-crime data. In order to have a truly effective system these agencies should be required to report information to the state agency, and the FBI in turn, needs to aggressively pursue state hate-crime reports. Massachusetts voluntary system may add to the problems of effectively gathering statistics.

Second, there needs to be a fully operational uniform national system for data collection. The FBI hopes that all agencies will convert to the National Incident Based Reporting System (NIBRS), though this process has a lengthy start-up time.⁽²⁸⁸⁾ NIBRS is an "incident based reporting system" that requires police to report each crime that occurs during an incident. Under the older Uniform Crime Reporting System, police reported only one crime per incident--the most serious one. NIBRS provides detailed accounts of crime and victims, offenders and property involved including the race, gender, ethnicity, and age of the victim and perpetrator. NIBRS is designed to track crimes, including hate crimes, and to help researchers and analysts study crime trends. The FBI believes that the tremendous amount of detailed and reliable information that is supplied by NIBRS will be well worth the initial delay.⁽²⁸⁹⁾

A need that will be possibly fulfilled under the NIBRS system analysis of the statistics are statistical analyses that can be returned to local law enforcement agencies as meaningful information for use in fighting crimes. Data collection requires additional staff within police departments; it stands to reason that departments are more inclined to participate in voluntary collection procedures if they get something in return. Information regarding trend analysis about victims, perpetrators, and areas where crimes occur would give law enforcement solid information that could be used to prevent further hate crimes.

Third, the FBI needs to build upon and expand its initial, and very useful set of two booklets providing guidelines to states and local agencies regarding data collection.⁽²⁹⁰⁾ Law enforcement officials, from chiefs of police down to the line officer, must be trained and retrained to recognize and respond to hate crime.⁽²⁹¹⁾ The FBI is the only agency in a position to lead the campaign for hate-crime training on a federal level.

Initially, upon passage of the HCSA, the FBI conducted training for law enforcement officers in all fifty states. Indeed, the FBI will respond when asked to conduct training, but this is not sufficient. The FBI must be more aggressive, affirmatively insisting on training in states with little or no hate-crime reporting. All law enforcement agencies must make the enforcement of bias-crime statutes a top priority. This can be done by educating law enforcement about the law and the reasons for it. New Jersey's Commission on Racism, Racial Violence, and Religious Violence has concluded that "required training, retraining, and reemphasis . . . for every police force is essential."⁽²⁹²⁾ To this end, the Educational and Training Services of the Criminal Justice Information Services Division of the FBI has been reorganized to increase their ability to offer more hate-crime training throughout the country.⁽²⁹³⁾ From the passage of the HCSA in 1991, through 1994, the FBI had trained over 3,000 law enforcement officials from almost 1,200 agencies including every city with a population over 100,000.⁽²⁹⁴⁾ This program should be expanded. In those jurisdictions where officers may have been trained, a quid pro quo should be implemented that requires that they report hate crimes regularly.

In conjunction with federal initiatives, states with reporting laws should begin working toward comprehensive local implementation of the law. As this Article demonstrates, even with the efforts of the Massachusetts Hate Crime Task Force, there are cities and towns that do not bother to participate in reporting hate crimes to the tune of thirty-nine percent of the total number of Massachusetts towns and cities.⁽²⁹⁵⁾ The Task Force has reached out to the communities that do not report hate crimes to encourage participation, to urge them to seek civil rights training, and provide technical assistance,⁽²⁹⁶⁾ with some success.

Even when states like Maryland and New Jersey do require local agencies to report hate crimes, there is no assurance that all such crimes are identified and reported, though mandated reporting seems to achieve better compliance than its voluntary counterpart. In New Jersey in 1994, all 559 agencies participated in the FBI's hate-crime statistics collection and of those, 278 (fifty percent) submitted hate-crime reports. Indeed, New Jersey's 980 reported hate crimes is the largest and likely most accurate number of hate crimes reported of any state in the United States.⁽²⁹⁷⁾ In Maryland, out of 150 participating agencies, thirty-five (twenty-three percent) submitted hate-crime reports,⁽²⁹⁸⁾ while in contrast, Pennsylvania, without a mandatory reporting system and 1044 agencies participating, only five percent submitted reports.⁽²⁹⁹⁾

State and local law enforcement should make use of the resources of community leaders and victim advocacy organizations like the Fenway Community Health Center or the ADL in the investigation of hate crimes.⁽³⁰⁰⁾ These groups can and do encourage hate-crime victims to go to the police, and serve as a liaison for bias-incident reporting.⁽³⁰¹⁾ In addition, when police are aggressive in documenting and prosecuting hate crimes, resulting in higher numbers, these groups help support those agencies who are making a serious effort to confront bias-motivated violence⁽³⁰²⁾ in the face of "bad publicity" because of high hate-crime numbers.

Fourth, in order to achieve full compliance, federal law enforcement should give awards and grants to states that attempt to comply with the HCSA.⁽³⁰³⁾ Such grants would support those agencies who report and help them enhance their training and record-keeping on hate crime. Some law enforcement officials may see data collection as an additional burden on an already strapped agency and may therefore dismiss it as a non-priority. Many recognize the importance of data collection, but argue that they cannot afford an additional mandate. In his testimony before Congress on a permanent mandate for the HCSA, Bobby Moody of the International Association of the Chiefs of Police expressed his support for the bill, but added, "While some will tell you that the cost associated with hate crime statistics is minimal, as a chief, I can tell you that the costs [of] training one or more persons within a department or anything--to include statistics collection--and then to take the time for them to train the rest of the force, can indeed be a daunting task."⁽³⁰⁴⁾ Tying federal and state grants to compliance with hate-crime laws would demonstrate a commitment to tracking and recording all hate crimes. Using those statistics would help create effective ways of dealing with hate crimes in the future.

Lastly, law enforcement officials and educators must work to inform the public about hate crimes. Because juveniles and young adults are the most likely hate-crime offenders, educational programs should be established that teach young people about the history of prejudice and discrimination against nearly ethnic group in America, and about hate- crime laws and where violations of those laws can lead. Some states and organizations have developed such programs in an attempt to deter bias-motivated criminal activity. These agencies are likely to be receptive to sharing and discussing hate-crime strategies. The FBI should collect and disseminate information on successful programs across the country.

Additionally, data have shown that victims continue to underreport hate crimes. These victims must be reassured that when they report a hate crime, the appropriate steps will be taken and their complaint will be treated seriously. Establishing specially-focused departmental policies and procedures⁽³⁰⁵⁾ designed to address hate violence sends a strong message to victims and likely perpetrators that law enforcement intends to take hate crimes seriously.⁽³⁰⁶⁾ As the Baltimore County Police Department reports, "[t]reating such incidents seriously sends a message to the community that members of the . . . [p]olice [d]epartment will strive to protect them."⁽³⁰⁷⁾ These actions serve as visible signs of the police department's concern and commitment to the community.

Conclusion

Whether full and complete hate-crime reporting will occur in the future is difficult to know. Many issues must be resolved before a truly accurate and conclusive national hate-crime report can evolve. In fact, it may be that complete accuracy is not practically possible or necessary. Joseph Fernandez, in his 1991 article analyzing the federal HCSA, argues that truly comprehensive statistics will never be realized, but adds that this does not mean that the HCSA and similar state statutes are not effective.⁽³⁰⁸⁾ Hate-crime reporting statutes force an official acknowledgment of, and a response to, every reported hate crime motivated by bigotry and bias.⁽³⁰⁹⁾ Such laws can help to shape and implement law enforcement response and build on the growing societal awareness of the problem.

* Civil Rights Counsel for the Eastern States of the Anti-Defamation League from 1985-96. I wish to thank Kevin Banasik, at Harvard Law School and Alison Fee, at Boston University Law School, for their substantial contributions to this Article. Thanks to Michael Lieberman for his years of work on this issue and his editorial assistance on this Article; thanks also to Dan Bibel and Sherry Leibowitz for being comrades on the issue of improved hate-crime reporting, and finally, to Don Gorton, whose able leadership of the Hate Crime Task Force has made a real impact on the effectiveness of the Massachusetts Hate Crime Reporting Act.

1. See infra Part II.B.

2. Definitions of "hate crime" vary, but generally they refer to criminal activity that is directed against individuals or groups based upon actual or perceived identification with race, color, religion, national origin or sexual orientation.

3. See Md. Ann. Code of 1957 art. 88B, §§ 9-10 (1995 & Supp. 1996). Though Maryland adopted its data collection statute for hate crimes in 1981, effective collection of data did not begin until several years later. Comprehensive statistics are available for 1990-1994.

4. Eighteen states currently have a data collection law for hate crimes. They are as follows: Arizona (Ariz. Rev. Stat. Ann. § 41-1750 (West 1995 & Supp. 1996)); California (Cal. Penal Code § 13023 (West 1992 & Supp. 1996)); Connecticut (Conn. Gen. Stat. Ann. § 29-7m (West 1990 & Supp. 1996)); District of Columbia (D.C. Code Ann. §§ 22-4001 to 4002 (1996)); Florida (Fla. Stat. Ann. § 877.19 (West 1994 & Supp. 1996)); Idaho (Idaho Code § 67-2905 (1995 & Supp. 1996)); Illinois (20 Ill. Comp. Stat. Ann. 2605/55a (West 1993 & Supp. 1996)); Iowa (Iowa Code Ann. § 692.15 (West 1993 & Supp. 1996)); Maryland (Md. Ann. Code of 1957 art. 88B, §§ 9-10 (1995 & Supp. 1996)); Massachusetts (Mass. Gen. Laws ch. 22C, §§ 32-35 (1994 & Supp. 1996)); Minnesota (Minn. Stat. Ann. § 626.5531 (West Supp. 1996)); Oklahoma (Okla. Stat. Ann. tit. 21, § 850 (West Supp. 1996)); Oregon (Or. Rev. Stat. § 181.550 (1995)); Pennsylvania (Pa. Stat. Ann. tit. 71, § 250(i) (West 1990 & Supp. 1996)); Rhode Island (R.I. Gen. Laws § 42-28-46 (1993 & Supp. 1996)); Texas (Tex. Gov't Code Ann. § 411.046 (West 1990 & Supp. 1996)); Virginia (Va. Code Ann. § 52-8.5 (Michie 1994)); and Washington (Wash. Rev. Code Ann. § 36.28A.030 (West Supp. 1996)); see also Anti-Defamation League, Hate Crimes Laws: A Comprehensive Guide 8-9 (1994) (on file with the New England Law Review) [hereinafter ADL Guide] (referencing hate crimes legislation nationwide).

California's provision, notably, was unfunded and not operative until the State Attorney General, who previously had been hostile to the notion of hate-crime data collection, finally issued a directive in late 1994 requiring all law enforcement agencies to report hate crimes to the California Department of Justice. See Memorandum from Division of Law Enforcement, California Department of Justice to All California Law Enforcement Agencies 1 (Sept. 30, 1994) (on file with the New England Law Review). New Jersey also has data collection for hate crimes, but it is authorized by executive, rather than legislative authority. See Div. of State Police Uniform Crime Reporting Unit, State of New Jersey, Uniform Crime Reports State of New Jersey 1994, at 205 (on file with the New England Law Review) [hereinafter 1994 New Jersey Crime Report] (citing Executive Directive issued by New Jersey's Attorney General, N.J. Exec. Dir. No. 1987-3 (1987), at 3).

5. See Hate Crime Statistics Act, 28 U.S.C. § 534 (1994).

6. See Counting Hate Crimes Proves to Be Difficult Task, CQ Researcher, Jan. 8, 1993, at 6 (on file with the New England Law Review).

7. See 28 U.S.C. § 534 (1994).

8. Jonathan S. Landay, Rise in Hate Crimes Looms Behind Church Burnings, Christian Science Monitor, June 28, 1996, at 4; see also Federal Bureau of Investigation, U.S. Dep't of Justice, Uniform Crime Reports, Hate Crime Statistics 1994, at 5 [hereinafter 1994 FBI Hate Crime Statistics]. In 1994, 5932 incidents involving 7498 victims "were reported . . . in 43 states and the District of Columbia." 1994 FBI Hate Crime Statistics, supra, at 5. Sixty percent were motivated by racial bias, 18% by religious bias, and 12% by sexual orientation. See id.

9. See Landay, supra note 8, at 4; see also 1994 FBI Hate Crime Statistics, supra note 8, at 3. Of these 7356 participating agencies, the vast majority, 6182, affirmatively reported to the FBI that no hate crimes occurred in their jurisdiction. See 1994 FBI Hate Crime Statistics, supra note 8, at 20. Ten of the participating states reported 10 or fewer incidents: Alaska, Arkansas, Kentucky, Mississippi, New Hampshire, New Mexico, North Carolina, North Dakota, South Dakota, and Wyoming. See id. at 14-15.

10. See Landay, supra note 8, at 4.

11. See Louis Aguilar, Neighbors Buoy Family After Anti-Semitic Attack, Wash. Post, Aug. 8, 1994, at D1; see also Leef Smith, An Anti-Semitic Attack In a Sea of Tolerance, Wash. Post, Aug. 12, 1994, at B1.

12. See Dwayne Bray, Youth Faces Trial as Adult in Stabbing, L.A. Times, Feb. 28, 1995, at B1.

13. See Anna Cekola, Hate Crime Victim's Suit Seeks $2 Million, L.A. Times, Mar. 1, 1995, at B1; see also Susan Marquez Owen, Jury Awards $1.1 Million to Man Beaten in Hate Crime, L.A. Times, Mar. 15, 1995, at B1.

14. See Errol A. Cockfield Jr., Blacks Fear Growth of Hate in a New Antelope Valley, L.A. Times, Mar. 27, 1995, at A1.

15. See Serine Steakley, Trial for Duxbury Police Officer Continues, Bay Windows, Sept. 15, 1994, at 1.

16. White Supremacist Executed For Murdering Two in Arkansas, N.Y. Times, Apr. 21, 1995, at A16.

17. 508 U.S. 476 (1993).

18. See Michael J. Lieberman, Hate Crimes, in The Encyclopedia of Police Science 349-56 (2d ed. 1995) for a thoughtful discussion of the constitutionality of hate-crime-penalty enhancement statutes like the one at issue in Wisconsin v. Mitchell, 508 U.S. 476 (1993).

19. James Jacobs & Jessica Henry, The Social Construction of a Hate Crime Epidemic, 86 Nw. J. Crim. L. & Criminology 366, 370 (1996).

20. See Michael Lieberman, Federal Action to Confront Hate Crimes: Preventing Violence and Improving Police Response, in Report of Citizens Comm'n on Civil Rights, New Challenges: the Civil Rights Record of the Clinton Administration Mid-term 217-28 (Corrine M. Yu & William L. Taylor eds., 1995) for a survey of the federal government's response to hate violence.

21. See FBI Hate Crime Statistics 1994, supra note 8, at 19.

22. See Jacobs & Henry, supra note 19, at 381.

23. See Fred Bayles, Stats Say Racist Arson Unlikely: Insurers Say Rate of Fires Falls Within Normal Range, Boston Herald, July 5, 1996, at 3 (reporting that arsons are up at black and white churches, but only 20% demonstrate racism as a clear motive). Insurance industry officials say this year's total number of arsons is "well within the range of what they normally expect." Id.; see also Michael Fumento, A Church Arson Epidemic? It's Smoke and Mirrors, Wall St. J., July 8, 1996, at A8 (charging that the Center for Democratic Renewal, a group who has compiled the number of church burnings on a state-by state-basis, "regularly ignored fires set by blacks and those that occurred in the early part of the decade, and labeled fires as arsons that were not--all in an apparent effort to make black church torchings appear to be escalating").

24. Fumento, supra note 23, at A8.

25. See Bayles, supra, note 23, at 3.

26. Bishops Oppose Same-Sex Nuptials, Boston Globe, July 27, 1996, at B3.

27. See generally Joseph M. Fernandez, Bringing Hate Crime Into Focus--The Hate Crime Statistics Act of 1990, Pub. L. No. 101-275, 26 Harv. C.R.-C.L. L. Rev. 261 (1991) (providing an overview of the Hate Crime Statistics Act).

28. See Mass. Gen. Laws ch. 6, § 116B (1994 & Supp. 1996); Mass. Gen. Laws ch. 22C, §§ 32-35 (1994 & Supp. 1996). In 1990, the following sections were enacted:

Section 1. Chapter 6 of the General Laws is hereby amended by inserting after section 116A the following section:

Section 116B. The criminal justice training council shall provide instruction for police officers in identifying, responding to and reporting all incidents of hate crime, as defined in section sixteen of chapter twenty-two. The criminal justice training council shall include such instruction in all curricula for recruits and in-service trainees and in all police academies operated or certified by said council.

Section 2. Chapter 22 of the General Laws is hereby amended by adding the following four sections:

Section 16. For the purposes of sections 16 to 19, inclusive, the following words shall have the following meanings:

"Crime reporting unit", a joint project of the department of public safety and the criminal history systems board charged with the responsibility of collecting incident reports submitted by state, local and campus police departments and other law enforcement authorities and disseminating periodic reports analyzing and interpreting crime rates and trends in the commonwealth.

"Hate crime", any criminal act coupled with overt actions motivated by bigotry and bias including, but not limited to, a threatened, attempted or completed overt act motivated at least in part, by racial, religious, ethnic, handicap or sexual orientation prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person's exercise of constitutional rights through harassment or intimidation. Hate crime shall also include, but not be limited to, acts that constitute violations of sections thirty-seven and thirty-nine of chapter two hundred and sixty-five, section one hundred and twenty seven A of chapter two hundred and sixty-six and chapter two hundred and seventy-two.

"Hate crime data", information, incident reports, records and statistics relating to hate crimes, collected by the crime reporting unit.

"Incident report", an account of occurrence of a hate crime received or collected by the crime reporting unit.

Section 17. The commissioner of public safety shall promulgate regulations relating to the collection of hate crime data.

Said regulations shall include, but not be limited to, the following:

(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 the central repository.

(2) Procedures necessary to ensure effective data-gathering and preservation and protection of confidential information, and the disclosures of information in accordance with section nineteen.

(3) Procedures for the solicitation and acceptance of reports regarding hate crime 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.

Section 18. The crime reporting unit shall summarize and analyze reports of hate crime data it receives. Said unit shall transmit copies of all such reports to the attorney general. The crime reporting unit shall also file an annual report regarding hate crime data with the governor, the attorney general, the joint committees on public safety, criminal justice and the judiciary, and the senate and house committees on ways and means. Such annual reports shall be public records.

Section 19. The crime reporting unit shall cause any hate crime data collected to be made available for use by any law enforcement agency and shall also be made available to any unit of local government, to any state agency and to the general public in a manner consistent with the requirements of sections one hundred and sixty-seven and one hundred and sixty-eight of chapter six. Dissemination of such information shall be subject to all confidentiality requirements otherwise imposed by law.

1990 Mass. Acts 924-26; see also infra notes 33-84 for a discussion of the HCRA.

29. See infra notes 73-84 and accompanying text.

30. See infra notes 85-168 and accompanying text.

31. See infra notes 169-307 and accompanying text.

32. See infra notes 308-09 and accompanying text.

33. Mass. Gen. Laws ch. 22C, § 32 (1994 & Supp. 1996). A hate crime requires, by definition, an underlying offense such as assault and battery, arson, vandalism, or murder; with the predicate offense being motivated by hatred or bias. A hate incident, as defined by the statute, refers to conduct motivated by bias, but without a criminal component. See supra note 28 and accompanying text. The regulations promulgated under the HCRA also define the distinction between a hate crime and a hate incident. See infra note 83.

34. Mass. Gen. Laws ch. 22C, § 32 (1994 & Supp. 1996).

35. For example, although certain statements may be characterized as racially inflammatory or bigoted, such statements do not rise to the level of criminal activity. The First Amendment of the United States Constitution protects the freedom of speech, even when the content is hate-filled, bigoted, or morally offensive. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992) (holding that a burning cross planted in a neighbor's yard was protected speech to the extent that other types of "fighting words" were not similarly prohibited by the local ordinance).

36. Rape, robbery, breaking and entering are just three examples of crimes currently tracked by law enforcement agencies across the country.

37. Mass. Gen. Laws ch. 22C, § 32 (1994 & Supp. 1996). The HCRA actually is a package of amendments, see supra note 28, to the existing statutory framework; however, the provisions shall be cited as they appear in the General Laws rather than as an independent piece of legislation.

38. Id. § 34.

39. Mass. Gen. Laws ch. 6, § 116B (1994 & Supp. 1996); see also infra Part III.C for a discussion of the training provided pursuant to the Massachusetts statute.

40. Jennifer Nislow, Bias Crime: Who's Got the Numbers?, Law Enforcement News, Apr. 14, 1987, at 1 (on file with the New England Law Review).

41. Id. (quoting Hubert Williams, president of the Police Foundation).

42. See supra notes 23-26 and accompanying text.

43. Executive Office of Public Safety Criminal History Systems Board Crime Reporting Unit, Hate Crime in Massachusetts Preliminary Annual Report January-December, 1990, at 3-4 (1991) (on file with the New England Law Review) [hereinafter 1990 Massachusetts Preliminary Report].

44. Federal Bureau of Investigations, U.S. Dep't of Justice, Uniform Crime Reports, Hate Crime Statistics 1992, at Foreword (1993) [hereinafter 1992 FBI Hate Crime Statistics]. The delay in release of the report presumably results from the logistical requirements of processing crime reports submitted from across the country.

45. See Elsie L. Scott & Arlene E. Williams, National Organization of Black Law Enforcement Executives, Racial and Religious Violence: A Model Law Enforcement Response 35 (1985) (stating that a "reporting system may lead to more apprehensions and arrests of perpetrators of such crimes").

46. Nislow, supra note 40, at 1 (quoting Captain Bromberg, New York Police Department).

47. Classification of rape (and, more generally, violence against women) as a hate crime has been and still is a topic of debate. The center of the debate focuses on the difficulty in determining whether these incidents are motivated by the same kind of hatred or bias that one sees in other categories of hate crimes, which are typically perpetrated by people unknown to the victim. See infra Part III.D for a discussion of gender bias as a category of hate crime.

48. See Julie Blyth & Claire Vernon, Victim to Survivor: Counseling for Recovery from Rape, in Crimes Of Violence 131 (Jan Breckenridge & Moira Carmody eds., 1992).

49. See Scott & Williams, supra note 45, at 32-35.

50. See Michael Lieberman, The Hate Crimes Statistics Act: Helping Law Enforcement Confront A Growing Problem, Nat'l FOP J., Spring 1991, at 9-10 (on file with the New England Law Review).

51. See Bureau of Justice Statistics, U.S. Dep't of Justice, Report to the Nation on Crime and Justice 35 (2d ed. 1988). Howard Erlich, Research Director at Towson State University's Center for the Applied Study of Ethnoviolence notes that "`most ethnoviolent incidents are not reported.'" Landay, supra note 8, at 1. According to a survey he has conducted, "as many as 90% of people who confirm being victims of hate crimes did not inform local authorities." Id.

52. See generally Civil Rights Div., Anti-Defamation League of B'nai B'rith, 1988 ADL Audit of Anti-Semitic Incidents 14-28 (1989) (on file with the New England Law Review) [hereinafter 1988 ADL Audit]. This publication has been produced annually by the ADL since 1979.

53. Executive Office of Public Safety, Criminal History Systems Board, Department of Public Safety, Crime Reporting Unit, Hate Crime/Hate Incidents in Massachusetts 1991 Annual Report, at Foreword (1992) (on file with the New England Law Review) [hereinafter 1991 Massachusetts Annual Report].

54. Jennifer Nislow, Bias-Related Crime--The Police Response, Law Enforcement News, Apr. 28, 1987, at 13.

55. Telephone Interview with Major John Cook of the Criminal Intelligence Div., Maryland State Police (1996). Major Cook commented that departments which continue to resist calls for collecting hate-crime data are increasingly viewed as being "behind the times," particularly, as other departments begin or expand such collection efforts.

56. See Nislow, supra note 40, at 1. Nislow observes that "[w]here available, statistics on bias-crime incidents can be used to map potential trouble spots." Id. at 7.

57. One could argue that this benefit may be of limited value because a majority of hate crimes are committed by "informal associations" rather than by truly organized elements. Two points, however, respond to this concern. First, organized groups do perpetrate a percentage of hate crimes, and data collection can advise police departments of any increase in violent activity by these groups. See, e.g., Anti-Defamation League, 1995 ADL Audit of Anti-Semitic Incidents 19 (1996) (on file with the New England Law Review) [hereinafter 1995 ADL Audit]. Second, the data helps to describe even the "informal associations" that are so common among the ranks of hate-crime perpetrators.

58. Although this may not help in all instances, police could, for example, help establish community watches to keep an eye on property that may be targeted for vandalism. For protection from personal attacks, the police could encourage behavior that does not fit the pattern for hate-crime strikes. For example, if a series of hate crimes is being perpetrated against gay men walking alone in a particular area, the police could engage in a community outreach effort to inform that segment of the community and encourage gay men to avoid walking in that area, o