by Madison Bader & Christina Miller
Legal Analysis
Incidents of hate crimes in the United States surged to the highest level in twelve years in 2020.[1] With 7,759 hate-based incidents and 10,532 related offenses reported to the Federal Bureau of Investigation (“FBI”), there are many hate crimes that remain unreported.[2] The fact remains that, notwithstanding federal efforts to capture all hate-based incidents, such as under the Hate Crime Statistics Act of 1990, 28 U.S.C. § 534 (“HCSA”), and the Uniform Crime Reporting (“UCR”) Program which includes data from more than 18,000 city, university and college, state, tribal and federal law enforcement agencies covering 92% – 97% of the population, victim under-reporting and law enforcement under-identification and under-investigation of hate crimes leads to the underestimation of the actual number of incidents.[3]
State-based efforts–such as under the Massachusetts Hate Crimes Reporting Act, G.L. c. 22C, §§ 32–35 (the “Massachusetts Act” or “Act”) –also underestimate the number of hate crimes because they do not mandate that cities and towns report hate-based incidents. Lack of reliable information on the volume and type of hate crimes occurring in Massachusetts may cause certain communities to perceive that they are being targeted but ignored or inadequately protected by law enforcement agencies. Furthermore, without accurate data, it is difficult to allocate appropriate resources and create effective prevention and intervention efforts to address hate-based incidents. Notwithstanding efforts, addressing hate-based criminal conduct in Massachusetts continues to present challenges, including inadequate reporting and data collection and limited resources targeted to effective investigation, prosecution, and prevention. This article summarizes current barriers and recommendations where Massachusetts can do better.
Citizen Reports of Hate Crimes
Reporting is the first and most important step to holding perpetrators accountable and ensuring the deployment of appropriate resources for the victim, impacted communities, investigation, and prosecution of hate crimes. Hate crimes impact not only the targeted victim; the entire community is harmed by the hate motivating the perpetrator.[4] While hotlines and other avenues for witnesses to report hate crimes are a good start, increasing public knowledge of what constitutes a hate crime and community trust to overcome barriers that discourage reporting are needed.
There are numerous reasons why hate crimes are underreported. Some victims do not report hate crimes because they do not know that the act they suffered is legally recognized as a hate crime.[5] Hate crime recognition may be particularly difficult among immigrant communities where their countries of origin do not criminalize or prosecute similar hate-based acts. Other reasons for non-reporting include the “normalization” of hate crimes.[6] For example, a victim who experienced repeated hate-based incidents before being targeted for a hate crime may “normalize” the crime as a common incident not worth reporting. Additionally, cultural and religious influences may cause incidents to be characterized as shameful and deter reporting. For example, identifying as a victim may translate into labeling oneself as “weak” or “shameful.” Distrust of government and law enforcement within a community can also reduce reporting. For example, Muslim and transgender communities may underreport due to perceived or actual negative experiences with law enforcement,[7] including fear of abusive or disrespectful treatment.[8] Others, such as undocumented individuals, may avoid involvement with law enforcement for fear of being reported to Immigration and Customs Enforcement. Language barriers also frustrate reporting.
Government Reporting of Hate Crimes
As with civilians, law enforcement officers may not recognize many incidents as hate crimes because they define hate crimes too narrowly. Officers may see only blatant violations of two of the Massachusetts hate crime statutes–violation of constitutional rights (G.L. c. 265, § 37) and assault or battery for purposes of intimidation (G.L. c. 265, § 39)–as hate crimes. However, the Massachusetts Act which provides for the collection, analysis, and public dissemination of hate crime data, defines “hate crimes” broadly as:
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, gender 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[9] (emphasis added).
The Act also expressly provides that hate crimes include the crimes of violation of civil rights (G.L. c. 265, § 37), assault or battery for purposes of intimidation (G.L. c. 265, § 39), the destruction of place of worship (G.L. c. 266, § 127A), and crimes against morality and good order (G.L. c. 272).[10] Yet, Massachusetts officials reported only 351 hate crimes to the FBI in 2020,[11] which likely underestimates the actual number of hate-based incidents in the state.
Furthermore, when a civilian does not expressly identify an incident as motivated at least in part by hate, investigating officers may discover a hateful intent only upon asking specific, tailored questions. However, the likelihood of asking tailored questions is reduced without specialized training on interview techniques and the identification of key features of hate crimes. Without training on the expansive definition of hate crimes, effective interviewing techniques, and the ability to recognize key features of hates crime, the under-investigation and under-reporting of hate crimes will continue in Massachusetts.
Allocating appropriate resources for the investigation and prosecution of hate crimes depends on knowing the scope and nature of hate crimes committed in Massachusetts. However, the Act is silent on whether law enforcement must report the hate-based incidents they investigate to the FBI or state data repositories, making reporting of hate-based incidents voluntary for police organizations and their city or town employers.[12] This permits cities and towns to avoid reporting and publicizing hate crimes out of concern their community will be labeled as biased and discriminatory, as recently highlighted by Town of Danvers’ initial decision not to publicize certain hate-based incidents in their community, which was quickly reversed.[13] Mandatory reporting under the Act would improve public transparency, appropriate police and government responses, allocation of targeted resources, and community trust.
Hate-based incidents that avoid reporting may ultimately lead impacted communities to believe that they are devalued or their government will not protect them or their members. The fact that law enforcement agencies across Massachusetts may rely on inconsistent or narrower definitions of “hate crimes” than specified under the Act, or lack the appropriate resources, motivation, policies, or training to accurately report, investigate, and prosecute hate crimes must be remedied.[14]
Addressing Hate Based Incidents
Since 1996, any person convicted of assault or battery for purposes of intimidation is statutorily required to complete a “diversity awareness program” designed by the Executive Office of Public Safety.[15] Twenty-five years later, no such program has ever been created in Massachusetts, leaving courts with no standardized educational, reformative program to address recidivism and the underlying cause of hate crimes. Some judges impose no educational program requirement or resort to a patchwork of available resources, such as individualized counseling or public service hours. This prolonged failure to implement an important statutory requirement must be remedied.
Recommendations to Improve Reporting and Ensure Effective Investigation and Prosecution
Reporting by law enforcement agencies should be made mandatory under the Act for accurate statistics for enhancing training, education, transparency of police and government responses, community trust, and the efficient allocation of resources all directed at eliminating hate crimes. Another crucial step lies with educating both the public and law enforcement about the broad, legal definition of hate crimes under the Massachusetts Act.
State and local governments need more resources, thoughtful policies, and specialized training to improve reporting and effective investigation and prosecution of hate crimes. Police academies and investigative organizations should increase programs for cadet and continuing training opportunities on how to identify hate crimes, the special handling of investigations in this area, and reporting of hate crimes to superiors and government data repositories. At a recent law enforcement roundtable on the subject, panelists stated that “[n]ot every agency may be able to support a specialized unit, but all should be able to develop procedures and collaborations that will ensure cases are handled with the appropriate expertise.”[16] The roundtable members also recommended:
- Establishing policies that specify how hate incidents are identified and investigated, and who within the agency should be notified when a suspected hate crime occurs.
- Employing community liaison officers and bias crime coordinators to manage agency responses to reported hate crimes.[17]
- Establishing bias crime detective positions or assigning someone to these specific responsibilities, allowing for a more thorough investigation and offering a check against hate crimes that may be misclassified by patrol officers.
- Exploring the possibility of sharing a regional bias crime position among multiple smaller or rural law enforcement agencies where resources do not permit establishment at individual agencies.
Furthermore, establishing a “diversity awareness program,” as mandated in G.L. c. 265, § 39, to address the hateful intents harbored by those adjudicated responsible for hate crimes will prevent future hateful acts and show victims and their communities that Massachusetts is serious about addressing hate in our communities. While such a program is mandated for those convicted of assaulting or battering another for purpose of intimidation, the program can be used for all those convicted of hate crimes as defined in the Act. Just as workplaces have unconscious bias and religious respect training, so should perpetrators of hate crimes.
We can do better to ensure hate has no home in Massachusetts.
[1] Carrega, Christina and Krishnakumar, Priya. “Hate crime reports in US surge to the highest level in 12 years, FBI says.” CNN, 26 October 2021, https://www.cnn.com/2021/08/30/us/fbi-report-hate-crimes-rose-2020/index.html.
[2] 2020 FBI Hate Crime Statistics, https://crime-data-explorer.fr.cloud.gov/pages/explorer/crime/hate-crime.
[3] Id.
[4] Davis, Ronald. “The Hate Crimes Reporting Gap: Low Numbers Keep Tensions High.” Police Chief Magazine, International Association of Chiefs of Police, May 2016, https://www.policechiefmagazine.org/the-hate-crimes/.
[5] Shively, Michael (et al). “Understanding Trends in Hate Crimes Against Immigrants and Hispanic-Americans.” Office of Justice Programs, United States Department of Justice, January 2014, https://www.ojp.gov/ncjrs/virtual-library/abstracts/understanding-trends-hate-crimes-against-immigrants-and-hispanic.
[6] Malik, Sanam. “When Public Figures Normalize Hate.” CAP, Center for American Progress, 25 March 2016, https://www.americanprogress.org/article/when-public-figures-normalize-hate/.
[7] Massachusetts Advisory Committee to the U.S. Commission on Civil Rights, “Advisory Memorandum on Hate Crimes in Massachusetts.” USCCR.gov, 13 June 2019, https://www.usccr.gov/files/pubs/2019/Advisory-Memo-on-Hate-Crimes-in-Massachusetts.pdf.
[8] Schwencke, Ken. “Confusion, Fear, Cynicism: Why People Don’t Report Hate Incidents.” ProPublica, Publica Inc., 31 July 2017, https://www.propublica.org/article/confusion-fear-cynicism-why-people-dont-report-hate-incidents.
[9] Pursuant to regulations promulgated by the colonel of the State police in accordance with G.L. c. 22C, § 33, enumerated bias indicators “can assist law enforcement officers in determining whether a particular crime should be classified as a hate crime.” 501 Code Mass. Regs. § 4.04(1) (1993).
[ix] G.L. c. 22C, § 32.
[10] Id.
[11] US Department of Justice, “2020 Hate Crimes Statistics for Massachusetts”, Justice.gov, DOJ, 2020, https://www.justice.gov/hatecrimes/state-specific-information/massachusetts.
[12] Referred to in the statute as “crime reporting unit.” G.L. c. 22C, § 33 (1991); see also G.L. c. 22C, § 32.
[13] In a three-day span, the Town of Danvers went from announcing that not all hate- based incidents would be reported to the public to stating that all hate-based incidents would be made public, including a publicly available database. See Town of Danvers, Press Releases, Statement from Town of Danvers on Recent Incident (Dec. 20, 2021) & Update to the Statement from Town Officials (Dec. 23, 2021). See also Danvers reports another hate incident; future incidents won’t be made public (wcvb.com).
[14] Bureau of Justice Assistance, A Policymaker’s Guide to Hate Crimes, March 1997, https://www.ojp.gov/pdffiles1/bja/162304.pdf.
[15] See G.L. c. 265, § 39. The programing requirement to section 39 was added by St.1996, c. 163, § 2.
[16] U.S. Department of Justice Hate Crimes Enforcement and Prevention Initiative, “Improving the Identification, Investigation and Reporting of Hate Crimes – A Summary Report of the Law Enforcement Roundtable.” Cops.USDOJ.gov, 2020, https://cops.usdoj.gov/RIC/Publications/cops-w0895-pub.pdf.
[17] “State hate crime statutes vary significantly, and the elements required for UCR reporting do not mirror state statutes. The coordinator can help code hate crimes and reinforce training during roll call or in-service. Based on agency size, certain responsibilities could be assumed by civilians, reserve personnel, or volunteers. Bias crime coordinators can also maintain statistical data and produce statistical reports monthly as well as comprehensive reports twice yearly for law enforcement and other leaders.” Id.
Madison F. Bader is a Litigation Associate at Lawson & Weitzen LLP specializing in criminal defense. Madison previously worked as an Assistant District Attorney as well as at Proskauer Rose LLP and the United States Attorney’s Offices in Boston. She currently serves as a member of the Criminal Law Steering Committee of the Boston Bar Association as well as the liaison for the New Lawyers Forum to the Criminal Law Section.
Before Assistant Professor of Law Christina Miller joined Suffolk University Law School to run the Prosecutors Clinic and teach in the area of criminal law and effective advocacy, she supervised all hate crime prosecutions and prosecuted several hate crime cases for the Suffolk County District Attorney’s Office during her eleven years as the Chief of District Courts and Community Prosecutions.
