Hate Crime Legislation
Prepared for Members and Committees of Congress
Current law defines hate crime as any crime against either person or property in which the
offender intentionally selects the victim because of the victim’s actual or perceived race, color,
religion, national origin, ethnicity, gender, disability, or sexual orientation. Hate crimes are not
separate and distinct offenses under current federal law. Rather, hate crimes are traditional crimes,
during which the offender is motivated by one or more biases that are considered to be
particularly reprehensible and damaging to society as a whole. Furthermore, federal jurisdiction
over hate crime is limited to certain civil rights offenses, which are considered to be “hate crimes”
when it is determined that the offender was motivated by a bias against race, color, religion,
national origin, and, in limited instances, disability.
Determining the definitive federal role in addressing hate crime has proven elusive, as reflected in
the legislative history and ongoing congressional debate. Legislation to widen federal jurisdiction thth
over hate crime was passed by the Senate in the 106 and 108 Congresses and in the House in th
the 109 Congress. Opponents of hate crime legislation view creating separate federal offenses
for hate crime as redundant and largely symbolic, arguing that separate hate crime offenses would
be in addition to the legal prohibitions for traditional crime that already exist under either federal
or state law. They also contend that in most cases the federal nexus is tenuous, and that such
offenses are best handled at the state and local level. Proponents of creating a separate and
distinct federal offense for hate crime maintain that there is a fundamental difference between
ordinary crime and hate crime. They believe that hate crimes are often perpetrated to send a
message of threat and intimidation to a wider group, that the effects of hate crime extend beyond
the particular victim and reflect more pervasive patterns of discrimination on the basis of race,
color, religion, national origin, and other characteristics.
In the 110th Congress, Representative John Conyers, chair of the House Judiciary Committee,
introduced the Local Law Enforcement Hate Crimes Prevention Act (H.R. 1592). Passed by the
House on May 3, 2007, H.R. 1592 would widen federal jurisdiction over hate crimes and expand
the categories of protected persons to include sexual orientation and gender identity. Senator
Edward Kennedy, a key sponsor and leading supporter of such legislation in previous Congresses,
introduced a similar bill (S. 1105), the language of which was successfully amended to the
Senate-passed FY2008 Defense Authorization bill (H.R. 1585) on September 27, 2007. That
language, however, had been a point of contention in pre-conference negotiations on H.R. 1585
and was reportedly dropped from the conference agreement. In addition, Representative Sheila
Jackson-Lee introduced the David Ray Hate Crimes Prevention Act of 2007 (H.R. 254), and
Representative Carolyn Maloney, the Hate Crime Statistics Improvement Act (H.R. 1164).
At issue for Congress is whether the prevalence and harmfulness of hate crime warrants greater
federal intervention to ensure that such crimes are systematically addressed at all levels of
government. Another related issue Congress may choose to consider is the completeness and
comprehensiveness of national hate crime data. This report will be updated to reflect future
Most Recent Developments.............................................................................................................1
Introduc tion ..................................................................................................................................... 2
Overview of the Hate Crime Debate...............................................................................................3
Historical Evolution of Hate Crime Policy and Legislation............................................................4
Early Civil Rights Movement...................................................................................................4
Second Wave of Civil Rights Movements.................................................................................5
Anti-Hate Crime Movement......................................................................................................5
ADL Model Legislation......................................................................................................6
Establishing Baseline Hate Crime Statistics.......................................................................6
Gender ................................................................................................................................. 6
Sexual Orientation and Gender Identity..............................................................................7
Hate Crime and Current Law..........................................................................................................8
Federal Civil Rights Statutes and Hate Crime...........................................................................9
Hate Crime Statistics Act..........................................................................................................9
Hate Crime Sentencing Enhancements...................................................................................10
Violence Against Women Act..................................................................................................10
Church Arson Prevention Act...................................................................................................11
U.S. Armed Forces and Hate Crime Prevention.......................................................................11
Federal Hate Crime Funding....................................................................................................11
Federal Grants for Hate Crime Prevention Education.......................................................11
VAWA Domestic and Sexual Abuse Programs.................................................................12
State and Local Law Enforcement Assistance..................................................................12
Federal Hate Crime Statistics........................................................................................................12
FBI Uniform Crime Reports (UCR) and Hate Crime.............................................................13
BJS Hate Crime Victimization Statistics.................................................................................14
Reporting Hate Crime: Complications and Shortcomings......................................................16
NBIRS Hate Crime Statistics and Juveniles............................................................................17
Hate Crime Legislative Action in Recent Congresses...................................................................18
Hate Crime Bills in the 110th Congress.........................................................................................20
Local Law Enforcement Hate Crimes Prevention Act of 2007 (H.R. 1592)...........................20
David Ray Hate Crimes Prevention Act of 2007 (H.R. 254)..................................................21
Hate Crimes Statistics Improvement Act of 2007 (H.R. 1164)...............................................21
Local Law Enforcement Enhancement Act 2007 (S. 1105)....................................................22
FY2008 Defense Authorization Act (H.R. 1585)....................................................................22
Hatch Amendment to H.R. 1585.............................................................................................22
Possible Options and Issues for Congress.....................................................................................22
Should Federal Jurisdiction Be Broadened?...........................................................................22
Should Baseline Statistics Be Improved?................................................................................23
Should Gender Be Included in Hate Crime Statistics?............................................................23
Should Breakouts for Juveniles Be Included?.........................................................................24
Should Federal Training for Law Enforcement Be Improved and Increased?........................24
Table 1. Eleven-Year Hate Crime Summary Table........................................................................13
Author Contact Information..........................................................................................................24
Current federal jurisdiction over hate crimes is limited to investigating and prosecuting certain
civil rights offenses that are considered “hate crimes,” when it is determined that the offender was
motivated by a bias against race, color, religion, national origin, and, in limited instances, 1
disability. Legislation to wide federal jurisdiction over hate crime was passed in the Senate ththth
during the 106 and 108 Congresses and in the House during the 109 Congress.
On March 20, 2007, Representative John Conyers, chair of the House Judiciary Committee,
introduced the Local Law Enforcement Hate Crimes Prevention Act (H.R. 1592). As described
below, similar legislation sponsored by Representative Conyers was passed by the House in the th
109 Congress. On April 17, the Judiciary Subcommittee on Crime, Terrorism, and Homeland
Security held a hearing on H.R. 1592. While the subcommittee approved of H.R. 1592 with little
opposition on April 24, the full Judiciary Committee considered the bill for a contentious 10 2
hours at markup on the next day. Representative Lamar Smith, the ranking minority member, 3
reportedly led much of the opposition against H.R. 1592, contending that:
In my view, all victims should have equal worth in the eyes of the law.... If someone
intended to harm a person, no motive makes them more or less culpable for that conduct.
Despite vigorous opposition, the full Judiciary Committee approved H.R. 1592 with amendments 4
by a “party-line” vote of 20-14. Several Republican amendments were considered, but most were 56
defeated. In a press release, Chairman Conyers stated that:
H.R. 1592 offers federal protection, in conjunction with state and local officials, for victims
of hate crimes targeted because of their race, religion, sexual orientation, gender, gender
identity, or disability. These crimes constitute an assault not against the victim, but against 7
our communities and against the very foundation of Democracy.
The House passed H.R. 1592 on May 3, 2007, by a vote of 237-180. In a Statement of
Administration Policy, however, the Office of Management and Budget (OMB) underscored that
“if H.R. 1592 were presented to the President, his senior advisors would recommend that he veto 8
1 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, A Policymaker’s Guide to Hate
Crimes, NCJ 162304, March 1997, p. 8.
2 Elaine S. Povich, “Hate Crimes Bill Wrangles Through House Judiciary,” Congress Daily, April 25, 2007.
3 Colby Itkowitz, “Panel Approved Bill Broadening Hate Crimes to Cover Gender, Sexual Orientation,” CQ Today—
Legal Affairs, April 25, 2007, 10:37 p.m.
4 Elaine S. Povich, “Hate Crimes Bill Wrangles Through House Judiciary,” Congress Daily, April 25, 2007.
6 U.S. House of Representatives, Committee on the Judiciary, “House Judiciary Committee Passes Federal Hate Crimes
Bill,” April 25, 2007, available at http://judiciary.house.gov/newscenter.aspx?A=807.
8 Executive Office of the President, Office of Management and Budget, “Statement of Administration Policy: H.R.
1592—Local Law Enforcement Hate Crimes Prevention Act of 2007,” May 3, 2007, available at
Senator Edward Kennedy, a key sponsor and leading supporter of hate crimes legislation in
previous Congresses, introduced a bill (S. 1105) that is nearly identical to H.R. 1592. Senator
Kennedy successfully amended the FY2008 Defense Authorization bill (H.R. 1585) with
language that is nearly identical to S. 1105 and H.R. 1592, following a vote of 60-39 invoking
cloture on September 27, 2007. The Senate passed H.R. 1585 on October 3, 2007. The inclusion
of the hate crimes language in H.R. 1585, however, had been a point of contention during pre-9
conference negotiations on the FY2008 Defense Authorization bill. Some Republicans 10
maintained that the President might veto H.R. 1585 if it included such language. Later, when
House Democratic leaders determined that they did not have the votes to pass H.R. 1585 with the
hate crimes language, House and Senate conferees reportedly agreed to drop that language from 11
the conference agreement on December 6, 2007.
In addition, Representative Sheila Jackson-Lee has introduced the David Ray Hate Crimes
Prevention Act of 2007 (H.R. 254), and Representative Carolyn Maloney, the Hate Crime
Statistics Improvement Act (H.R. 1164).
Current law defines hate crime to include any crime against either person or property, in which
the offender intentionally selects the victim because of the victim’s actual or perceived race, 12
color, religion, national origin, ethnicity, gender, disability, or sexual orientation. Hate crimes
are not separate and distinct offenses under current federal law; rather, they are traditional crimes
that are committed by individuals who are motivated by one or more biases that are considered to 13
be damaging to society as a whole. Hate crime is also known as bias crime.
Federal jurisdiction over hate crime, however, is limited to investigating and prosecuting certain
civil rights offenses. Those civil rights violations are considered “hate crimes” when it is
determined that the offender was motivated by a bias against race, color, religion, national origin, 14
and, in limited instances, disability. For bias-motivated offenses, there are enhanced penalties
under federal law.
At issue for Congress is whether the prevalence and harmfulness of hate crime rises warrants
greater federal intervention. Although there is a consensus that hate crime is deplorable,
9 John M. Donnelly, “Hate Crimes Language Puts Defense Authorization Conference in Jeopardy,” CQ Today—
Defense, November 14, 2007.
11 Paul Kane, “Hill Negotiators Drop Hate-Crime Provision; Measure Sought to Extend Protections Based on Gender,
Sexual Orientation, Disability,” Washington Post, December 7, 2007, p. A13.
12 28 U.S.C. §994 note.
13 Many traditional crimes involve hate perhaps in the traditional sense, yet they are not classified as “hate crime.” The
distinguishing feature of a hate crime is that the offender is motivated to move against the victim, because of an
ascribed characteristic that marks the victim as a justifiable target in the mind of the offender. Nevertheless,
determining an offender’s motivation is difficult in many cases. Moreover, the definition of hate crimes varies among
states. Some states, for example, do not include sexual orientation as a victim characteristic in their definitions of hate
crime. Consequently, such states would likely not report a crime committed against an individual because of their
sexual orientation as a hate crime.
14 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, A Policymaker’s Guide to Hate
Crimes, NCJ 162304, March 1997, p. 8.
determining the definitive federal role in addressing hate crime appears to be elusive, as reflected
in the legislative history and ongoing congressional debate.
This report provides an overview of the hate crime debate, with background on current law, hate
crime statistics, a legislative history of hate crime prevention bills in recent Congresses, and
discussion of possible options and issues for Congress. This report is not intended to be an
analysis of the constitutional or other legal issues that often arise as part of the hate crime debate.
For such an analysis, see CRS Report RL32850, Hate Crimes: Legal Issues, by Paul Starett
More recently, a number of incidents have been reported in the national press where hangman’s
nooses were displayed in an apparent attempt to intimidate students, faculty, and a police 15
officer. While it is not explicitly a federal crime to display such symbols of intimidation, it is a
crime in some states to do so. For further information, see CRS Report RL34200, Burning
Crosses, Hangman’s Nooses, and the Like: State Statutes That Proscribe the Use of Symbols of
Fear and Violence with the Intent to Threaten, by Kathleen Ann Ruane and Charles Doyle.
Proponents of creating a separate and distinct federal offense for hate crime maintain that there is
a fundamental difference between ordinary crime and hate crime. They contend that hate crime is
often perpetrated to send a message of threat and intimidation to a wider group. Furthermore, they
argue that the effects of hate crime extend beyond the particular victim and reflect more pervasive
patterns of discrimination on the basis of race, color, religion, national origin, and other
characteristics. In addition, proponents argue that those characteristics, whether real or perceived,
identify an individual as belonging to a group that has been marked for persecution and
discrimination in the past, and to tolerate any further persecution and discrimination on such
counts, as manifested in either crimes against persons or property, is no longer acceptable.
Opponents of creating a separate and distinct federal offense for hate crime often counter that the
victim of any crime suffers regardless of the offender’s motive. They claim that the perpetrator of
an assault in the course of an armed robbery should be punished no less vigorously, no matter
what his motivation might have been. They maintain that the public interest would be better
served if law enforcement efforts addressed crime across-the-board, rather than focusing on the
offender’s motive. Opponents also view a separate federal offense for hate crime as redundant
and largely symbolic, asserting that a separate hate crime offense would be in addition to the legal
prohibitions for traditional crime that already exist under either federal or state law. In addition,
they argue that the federal nexus is tenuous, and that such offenses should be handled at the state 16
and local level.
15 Darryl Fears, “In Jena and Beyond, Nooses Return as a Symbol of Hate,” Washington Post, October 20, 2007, p.
16 The federal nexus hinges upon powers given to the federal government under the U.S. Constitution. For analysis of
federal police powers and hate crime, see CRS Report RL32850, Hate Crimes: Legal Issues, by Paul Starett Wallace,
Social scientists view modern hate crime policy in the United States as having evolved, in part, 18
out of the civil rights movement that began in the mid-1950s. Although the initial focus of the
civil rights movement was on promoting the legal, social, and economic status of African-19
Americans, it soon expanded to include other racial and ethnic minorities in the 1960s. Through
nonviolent protest and other forms of political activism, these “rights-based movements” 20
coalesced to expand civil rights and reduce violence directed at minorities.
By the 1970s, the contemporary women’s rights movement and the gay and lesbian rights
movement constituted what some experts have termed the “second-wave civil rights 21
movements.” In addition, the crime victims’ movement emerged as part of the women’s rights 22
movement. According to social scientists, by the 1980s, support from both the wider civil rights
movement and the crime victims’ movement provided the broad constituent base that proved 23
critical to the formation of the early anti-hate-crime movement. Even within the anti-hate crime
movement, however, defining what constituted a hate crime and who would be protected against 24
such crimes proved a matter of controversy.
In the not so distant past, some types of bias-motivated violence were in whole or part sanctioned
by governments. Federal and state statutes that once legalized slavery loom large as examples of
state-sanctioned violence in the United States. Under these laws, Africans and their descendants
were subject to acts that resulted in millions of deaths and abuses, including beatings, rape, 25
torture, branding, forced separation of families, trafficking in human beings, and exploitation.
Although slavery was ended, following Reconstruction, southern states adopted comprehensive
segregation laws known as “Jim Crow” laws. These laws, which were upheld by the Supreme
Court, effectively institutionalized post-slavery forms of violence and hate against African-26
Americans from the 1870s to the 1960s.
17 Janice Cheryl Beaver contributed to portions of this section.
18 Valerie Jenness and Kendal Broad, Hate Crimes: New Social Movements and the Politics of Violence (New York:
Aldine De Gruyter, 1997), p. 23. (Hereafter cited as Jenness and Broad, Hate Crimes.)
19 Ibid., p. 24.
20 Valerie Jenness and Ryken Grattet, Making Hate Crime a Crime: From Social Movement to Law Enforcement (New
York: American Sociological Association, Rose Series in Sociology, 2001), p. 26. (Hereafter cited as Jenness and
Grattet, Making Hate Crime a Crime.)
21 See Ryken Grattet and Valerie Jenness, “The Birth and Maturation of Hate Crime Policy in the United States,” in
Barbara Perry ed., Hate and Bias Crime: A Reader (New York: Routledge, 2003), p. 392.
22 Terry A. Maroney, “The Struggle Against Hate Crime Movement at a Crossroads,” New York University Law
Review, vol 73 (May 1998), pp. 574-575. (Hereafter cited as Maroney, “The Struggle Against Hate Crime.”)
23 Jenness and Grattet, Making Hate Crime a Crime, p. 27.
24 James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics (Oxford University Press,
1998), p. 72. (Hereafter cited as Jacobs and Potter, Hate Crimes.)
25 See David Eltis, The Rise of African Slavery in the Americas (Cambridge: Cambridge University Press, 2000).
26 Richard Wormser, The Rise and Fall of Jim Crow: The African-American Struggle Against Discrimination, 1865-
With the civil rights movement in the 1950s and 1960s, the struggle to address Jim Crow laws
and other forms of discrimination was pioneered by the National Association for the
Advancement of Colored People (NAACP) and Southern Christian Leadership Conference 27
(SCLC). Under the leadership of Dr. Martin Luther King, Jr. and others, the United States made
great strides in addressing social injustices associated with the residual effects of slavery and
other forms of institutionalized discrimination that were contrary to the principle of “equal justice 28
for all” as set out in the U.S. Constitution. Other disadvantaged groups were influenced by the 29
early civil rights movement, particularly the success of the NAACP and SCLC. Based on those
models, in part, and the principle of nonviolent protest, minority groups mobilized by organizing 30
themselves into nongovernmental organizations and advocacy groups.
As part of the “second wave of civil rights movements,” the women’s rights movement and the 31
gay and lesbian rights movement emerged in the 1970s out of the wider civil rights movement.
Particularly in the women’s rights movement, the issue of the rights of victims of violent crime
became an important issue, as crime victims and their advocates voiced concern about the 32
“secondary victimization” of victims of rape and domestic abuse. Secondary victimization is a
term used to refer to the psychological trauma suffered by crime victims at the hands of the 33
criminal justice system. In particular, the crime victims’ movement was critical of the Warren 34
Supreme Court for expanding defendants’ rights in criminal cases. Advocates for greater crime
victims’ rights asserted that in many cases the perpetrators of crime were inadequately punished 35
and victims were inadequately protected. According to social scientists who have studied the
hate crime movement the crime victims’ rights movement lent impetus and considerable support 36
to the anti-hate crime movement.
The convergence of the civil rights movement, the women’s movement, the gay and lesbian
movements, and the crime victims’ movement created an environment that was open to a wider
public discourse about how violence manifests itself as discrimination brought on by deep-seated
1954 (New York: Franklin Watts, 1999).
27 Gilbert Jonas, Freedom’s Sword: the NAACP and the Struggle Against Racism in America, 1909-1969 (New York,
NY: Routledge, 2005). Also, see Harvard Sitkoff, The Struggle for Black Equality, 1954-1992 (New York: Hill and
28 Taylor Branch, Parting the Waters: America in the King Years, 1954-63 (New York: Simon and Schuster, 1988).
29 Jenness and Grattet, Making Hate Crime a Crime, p. 24.
30 Ibid., p. 26.
31 Ryken Grattet and Valerie Jenness. “The Birth and Maturation of Hate Crime Policy in the United States,” in Barbara
Perry ed., Hate and Bias Crime: A Reader (New York: Routledge, 2003), p. 392.
32 Jenness and Grattet, Making Hate Crime a Crime, p. 27.
34 Maroney, “The Struggle Against Hate Crime,” pp. 574-575.
35 Jenness and Grattet, Making Hate Crime a Crime, p. 27.
36 Ibid., p. 28.
social biases.37 Out of this wider public discourse, the anti-hate crime movement emerged, calling
attention to “hate crime” as a societal problem, which—in the view of the movement—warranted 38
greater legislative intervention at either the state or federal level, or both.
By 1981, the Anti-Defamation League of B’nai B’rith (ADL) had developed proposed model hate
crime legislation, and advocates for tougher laws targeting “hate crime” began lobbying state and 39
federal legislators. This model legislation consisted of five proposals that addressed vandalism
directed at religious institutions, intimidation, a civil action for both types of crime, data 40
collection, and police training. Based on one or more elements of this model legislation, more 41
than half the states had enacted hate crime legislation by 1994.
Since 1981, civil rights advocacy groups, including the Southern Poverty Law Center (SPLC), the
ADL, the Coalition on Hate Crimes Prevention, and the Klanwatch Project, called for the 42
collection of national hate crime statistics. At that time, there was no national source or
mechanism for collecting hate crime data. Although some states collected such data,
characterizing hate crimes accurately, or determining the extent of hate crimes nationally, was
difficult, if not impossible. Nonetheless, civil rights advocates maintained that such data would
(1) provide an empirical basis from which to shape public policy, (2) raise the consciousness of
reporting law enforcement agencies, and (3) stimulate local prevention strategies, more effective 43
responses, and greater sensitivity to the specific needs of hate crime victims. Although hate
crime proposals initially included categories of protected classes that were limited to race,
religion, and ethnicity, the scope of those provisions were later expanded to include sexual
orientation and gender.
Within the ranks of hate crime legislation supporters, the inclusion of gender under the hate crime
statistics legislation proved contentious. For example, anti-gender bias-motivated crime was not
included as a hate crime by the Coalition on Hate Crimes Prevention, one of the leading advocacy 44
groups. The coalition noted that statistics on domestic violence and rape were already being 45
collected. In many of these crimes, they pointed out the offenders were acquaintances of the 46
victims. They maintained that hate crime involved attacks on victims because of their
37 Ibid., p. 30.
38 Maroney, “The Struggle Against Hate Crime,” p. 580.
39 Jenness and Broad, Hate Crimes, p. 32.
40 See discussion of model legislation at http://www.adl.org/99hatecrime/text_legis.asp.
41 Jenness and Broad, Hate Crimes, p. 40.
42 Ibid., p. 38.
43 Ibid., p. 38.
44 Jacobs and Potter, Hate Crimes, p. 72.
45 Ibid., p. 72.
membership in a group, not because of their individual identities.47 Women’s advocates countered
that many crimes against women are committed by persons other than acquaintances, and that 48
such crimes are often motivated by the offender’s irrational fear and hatred of women. And,
even if the offender was an acquaintance, violent crimes against women often involve an element 49
Some observers have noted that the coalition’s opposition to inclusion of anti-gender bias under
the definition of “hate crime” was likely based upon the notion that, if it were included, other
types of hate crime would be washed out by the prevalence and sheer volume of anti-gender bias 50
motivated crime (misogynistic violence) against women.
Legislative proposals have also included “sexual orientation” and “gender identity” as
characteristics, for which certain violent crimes would be considered a “hate crime” if it could be
shown that the perpetrators were motivated by an animus for their victims for reasons related to
those characteristics. Issues related to sexual orientation and gender identity often overlap, but the
characteristics are conceptually distinct. While sexual orientation speaks to an individual’s sexual 51
desire, gender identity speaks to an individual’s gender expression. “Gender identity” has been
defined as a person’s internal, deeply felt sense of being male or female that is not always 52
congruous with their biological sex. Nevertheless, gender identity was largely subsumed under 53
the debate over sexual orientation and hate crime during the 1980s.
The inclusion of sexual orientation as a characteristic under proposed legislation generated
considerable debate during the 1980s in congressional hearings on anti-gay and -lesbian violence 54
and during legislative debates leading to the Hate Crime Statistics Act. Those debates often
focused upon the question of whether sexual orientation should be considered an ascribed and
immutable characteristic like race or ethnicity, or a matter of individual choice. In some cases,
those favoring the inclusion of sexual orientation as a category for which hate crime statistics
should be gathered held the former view, whereas those opposing such proposals often held the
It has been argued that “transgender” persons—those who do not meet gender-based expectations
or engage in gender variant behavior—are inordinately victimized by violent criminals for their
48 Ibid., p. 73.
51 Paisley Currah and Shannon Minter, Transgender Equality—A Policy Handbook for Activists and Policy Makers,
(National Center for Lesbian Rights and National Lesbian and Gay Task Force, June 2000), as cited in Samantha J.
Levy, “Trans-forming Notions of Equal Protection: The Gender Identity Class,” Temple Political & Civil Rights Law
Review, Fall 2002.
53 Carey Goldberg, “Shunning ‘He’ and ‘She,’ They Fight for Respect,” New York Times, September 8, 1996.
54 See U.S. Congress, House Committee on the Judiciary, Subcommittee on Criminal Justice, Anti-gay Violence,
hearings, 99th Cong., 2nd sess., October 9, 1986; U.S. Congress, House Committee on the Judiciary, Hate Crimes thnd
Statistics Act, report, 100 Cong., 2 sess., April 20, 1988; Congressional Record, vol. 134 no. 70 (May 18, 1988), p.
H 3373; Congressional Record, vol. 135 no 87 (June 27, 1989), p. H 3179.
nonconformity.55 As described below, Congress passed hate crime statistics legislation in 1990
and an amendment thereto in 1994. While sexual orientation was included as a
category/characteristic for which federal hate crime data would be gathered, gender identity was
not. In addition, neither characteristic is currently included as a protected category under federal
civil rights statutes. Federal authorities, consequently, have no jurisdiction over bias-motivated
crimes directed against individuals because of their sexual orientation or gender identity.
The term “hate crime” became prevalent during the 1980s, when there appeared to be an upward
trend in violent crimes committed against persons for reasons related to their race, religion, sexual 56
orientation, ethnicity, and other characteristics. As hate crime statistics were not collected
nationally, however, it was unknown whether hate crime was increasing, remaining the same, or
decreasing. Nevertheless, the perception that bias crime was on the rise was reflected in the 57
effectiveness of the anti-hate crime movement, and many states were prompted to enact 58
legislation against hate crimes.
Congress responded by considering several proposals that addressed hate crime, and it passed
legislation that (1) required the Attorney General to capture hate crime statistics annually; (2)
increased penalties for certain civil rights offenses that were determined to be bias-motivated; and
(3) expanded federal jurisdiction over the arson, destruction, or vandalism of religious property as
well as violent interference with an individual’s right to exercise religious freedom. Also,
Congress attached hate crime-related provisions to other pieces of legislation, such as the FY1997
Defense Authorization Act and the No Child Left Behind Act of 2001. Furthermore, Congress
appropriated funding for anti-hate crime training.
55 One such case was dramatized in the 1999 movie entitled “Boys Don’t Cry,” which was based upon the murder of
Brandon Teena. Born a female physiologically, Teena was living as a man in the early 1990s. Upon discovering this,
two acquaintances assaulted and raped Teena on December 24-25, 1993. Teena reported the crimes to a Nebraska
sheriff’s department and the assailants were interviewed, but no arrest warrants were issued. Teena was subsequently
murdered by one or both of his assailants on December 30, 1993.
56 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, A Policymaker’s Guide to Hate
Crimes, NCJ 162304 (March 1997), p. 1.
57 See generally James B. Jacobs and Kimberly Potter. Hate Crimes: Criminal Law & Identity Politics (Oxford
University Press: 1998). Also Maroney, p. 580.
58 High-profile incidents raised national consciousness about hate crime. Two of those crimes included the 1984
shooting death of Alan Berg, a Denver radio talk show host, and the 1986 beating of three African-American youth that
resulted in the death of one of those youth, in the Howard Beach neighborhood of Queens in New York City. Similar
crimes preceded enactment of the Hate Crimes Statistics Act (P.L. 101-275). Later in the mid-1990s, the racially
motivated 1995 murder of an African-American couple by three soldiers from Fort Bragg in Fayetteville, North
Carolina, as well as church burnings in Louisiana and Alabama, prompted congressional action, which led in part to the
Hate Crime Sentencing Enhancements Act (P.L. 103-322) and the Church Arson Prevention Act (P.L. 104-455). The
brutal 1998 murders of James Byrd, because he was an African-American in Jasper, Texas and of Matthew Shepherd,
because he was gay, outside of Laramie, Wyoming have appeared to increase the momentum of legislative proposals to
create a separate and distinct hate crime offense under federal law, even though suspects in both cases were tried for
murder under state law.
Enacted as part of the Civil Rights Act of 1968, section 245 of Title 18 of the United States Code
(U.S.C.) prohibits interference with certain “federally protected activities.” Specifically, it
prohibits the use of force, or threat of force, to injure, intimidate, or interfere with any person for
reasons related to their race, color, religion, or national origin, while they are engaged in one of
six listed protected activities. Those federally protected activities include
• enrolling in or attending a public school or college;
• participating in or enjoying a service, program, facility, or activity provided or
administered by any state or local government;
• applying for or enjoying employment;
• serving in a state court as a grand or petit juror;
• traveling in or using a facility of interstate commerce; and
• enjoying the goods and services of certain places of public accommodation.
Other civil rights statutes provide protection as well. According to the Federal Bureau of
Investigation (FBI), its jurisdiction over hate crimes is primarily predicated on section 245, and
the following three statutes:
• 18 U.S.C. §241, Conspiracy Against Rights;
• 18 U.S.C. §247, Church Arson Prevention Act of 1996; and
• 42 U.S.C. §3631, Criminal Interference with Right to Fair Housing.59
The FBI notes that there is no federal jurisdiction over any crimes (civil rights-related or
otherwise), in which the offender is motivated by a bias against the victim’s sexual orientation. 60
Also, there is only limited federal jurisdiction over crimes motivated by a disability bias. In the
latter case, federal jurisdiction is limited to offenses under 42 U.S.C. §3631, pertaining to 61
interfering with a person’s right to fair housing.
Following several years of debate, Congress passed the Hate Crime Statistics Act (HCSA) in 62
1990. The act requires the Attorney General to acquire data
about crimes that manifest evidence of prejudice based on race, religion, sexual orientation,
or ethnicity, including, where appropriate, crimes of murder, non-negligent manslaughter;
forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction,
damage, or vandalism of property.
59 See FBI, Investigative Programs, Civil Rights, Hate Crime, at http://www.fbi.gov/hq/cid/civilrights/hate.htm.
62 P.L. 101-275, 104 Stat. 140, codified at 28 U.S.C. 534 note.
In 1994, Congress amended this definition to include prejudice based on “disability” as well.63
The HCSA further requires the Attorney General to publish that data on an annual basis. The
Attorney General has delegated the duty for compiling hate crime statistics to the FBI as part of
the Uniform Crime Reporting (UCR) program.
As required by the HCSA, the FBI first reported hate crime statistics in 1993 for 1991.64 Although
the statistics for 1991 are considered to be preliminary and were not published in a stand-alone 65
report, the FBI has issued a separate hate crime report for the years 1992 through 2004. As
enacted, HCSA originally required that the data be collected annually for five years. Congress
amended the HCSA in 1996 (with the “Church Arson Prevention Act,” described below) and
made the data collection authorization permanent, requiring the collection of these data “for each 66
calender year.” As discussed in greater detail below, however, collecting such data has proved
In 1994, as part of the Violent Crime Control and Law Enforcement Act, Congress included a
provision that defined “hate crime” and directed the U.S. Sentencing Commission to promulgate
guidelines or amend existing guidelines to provide sentencing enhancements of not less than three 67
offense levels for hate crimes. The provision defines “hate crime” as
a crime in which the defendant intentionally selects a victim, or in the case of a property
crime, the property that is the object of the crime, because of the actual or perceived race,
color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any 68
Under this provision, such offenses must be found to be hate crimes beyond a reasonable doubt as
determined by “the finder of fact at trial.” The U.S. Sentencing Commission must ensure that
sentencing enhancements for hate crimes are reasonably consistent with other guidelines, avoid
duplicative punishments for substantially the same offense, and take into account mitigating 69
circumstances that might justify exceptions.
Some observers, including the ADL, view the Violence Against Women Act (VAWA) as “hate 70
crime” legislation. As described above, gender is included in the definition of “hate crime”
under the Hate Crime Sentencing Act, but it is not included in the definition of “hate crime” under
63 P.L. 103-322 (Sec. 320926), 108 Stat. 2131.
64 “ADL Welcomes Release of FBI Statistics on Hate Crimes,” U.S. Newswire, January 4, 1993.
65 The hate crime statistics reports for 1995 through 2004 are available at http://www.fbi.gov/ucr/ucr.htm#hate. Copies
of the hate crime statistics reports for 1992 through 1994 can be obtained by contacting the FBI Criminal Justice
Information Services (CJIS) division.
66 P.L. 104-155, 110 Stat. 1392.
67 P.L. 103-322 (Sec. 280003), 108 Stat. 2096, codified at 28 U.S.C. §994 note.
69 See United States Sentencing Guidelines §3A1.1.
70 P.L. 103-322, Title IV (Sec. 40001), 108 Stat. 1902.
the Hate Crime Statistics Act. Among other things, many VAWA provisions provide
authorizations and appropriations for law enforcement assistance programs aimed at combating
domestic and sexual abuse. In addition, Congress included a provision in this statute that would
have given victims a “private right of action” against offenders in cases of gender-related 71
violence. The Supreme Court, however, ruled that this provision was unconstitutional, as it
exceeded congressional power under both the Commerce Clause and the Fourteenth Amendment
(United States v. Morrison, 529 U.S. 588, 608-10 (2000)). The issues related to this case,
however, are beyond the scope of this report. For further information, see CRS Report RL32850,
Hate Crimes: Legal Issues, by Paul Starett Wallace, Jr.
In response to an increase in church arson incidents, Congress passed the Church Arson 72
Prevention Act of 1996. This act expands federal jurisdiction over property crime related to
incidents of arson, destruction, or vandalism of places of religious worship, and crime against
persons related to violent interference with any individual’s exercise of religious freedom.
In the National Defense Authorization Act for Fiscal Year 1997, Congress included a provision
requiring the Secretary of Defense to provide ongoing human relations training for armed forces
personnel that would cover “race relations, equal opportunity, opposition to gender 73
discrimination, and sensitivity to ‘hate group’ activity.” It also requires the Secretary to conduct
annual surveys on the “state of racial, ethnic, and gender issues and discrimination among 74
members of the Armed Forces,” and to report survey results annually to Congress.
In the No Child Left Behind Act of 2001, Congress included a provision authorizing the 75
Department of Education (ED) to issue grants designed to prevent hate crime. According to ED,
while no monies have been appropriated under this authorization, the Secretary of Education
allocated $1.8 million in FY1996 funding for hate crime prevention education grants under the 76
Safe and Drug-Free Schools and Communities Activities Grants Program.
71 42 U.S.C. §13981.
72 P.L. 104-155, 110 Stat. 1392, codified at 18 U.S.C. §247.
73 Section 571 of P.L. 104-201, 110 Stat. 2532, codified at 10 U.S.C. §113 note.
74 Section 571 of P.L. 104-201, 110 Stat. 2532, codified at 10 U.S.C. §451.
75 Section 4123 of P.L. 107-110, 115 Stat. 1752, codified at 20 U.S.C. §7133.
76 U.S. Department of Education, “Safe and Drug-Free Schools and Communities Federal Activities Grants Program
(Hate Crimes Prevention); Final Priority and Inviting Applications for New Awards for Fiscal Year 1996; Notice,” 61
Federal Register 34669, July 2, 1996.
As described above, VAWA provides authorizations for programs and appropriations to assist
state, tribal, city, and county law enforcement agencies with assistance in dealing with domestic
and sexual abuse, and other violence directed against women and children. VAWA programs also th
provide for victim services in cases involving such violence. The 109 Congress has considered
legislation to reauthorize and modify existing VAWA programs, as well as establish additional
programs. For further information on VAWA, see CRS Report RL30871, Violence Against Women
Act: History and Federal Funding, and CRS Report RS21259, Violence Against Women Office:
Background and Current Issues, both by Garrine P. Laney.
For FY2004 and FY2005, Congress appropriated funding to provide anti-hate crime training to
state and local law enforcement agencies. This hate crime grant program is administered by 77
DOJ’s Office of Justice Assistance. For FY2004, Congress appropriated $989,000. For FY2005, 78
Congress appropriated $987,000. For FY2006, Congress provided no funding for this grant
program. For FY2007, the Administration requested no funding for hate crimes training for law
As discussed above, the FBI is responsible for collecting hate crime statistics as part of its UCR 79
program. In November 2005, the FBI released its thirteenth annual report, Hate Crime Statistics 80
Crime Reported by Victims and Police, which is primarily based upon data gathered as part of 82
the National Crime Victimization Survey (NCVS).
Although the BJS findings confirm many observations made by the FBI about hate crime on a
percentage basis, there is a considerable difference (nine fold) in the overall number of hate crime
victimizations according to the BJS, as compared to the hate crimes reported to the FBI. In
77 P.L. 108-199, 118 Stat. 56. The total amount appropriated was $1 million, however, the amount given above reflects
certain across-the-board rescissions.
78 P.L. 108-447, 118 Stat. 2864. The total amount appropriated was $1 million, however, the amount given above
reflects certain across-the-board rescissions.
79 In 1930, the Attorney General made the FBI responsible for collecting, publishing, and archiving national uniform
crime statistics for the United States. Today, the UCR program falls under the FBI’s Criminal Justice Information
Services Division. The UCR program publishes crime data in three different volumes, which cover crime in the United
States generally, hate crime specifically, and law enforcement officers killed and assaulted in the line of duty.
80 U.S. Department of Justice, Federal Bureau of Investigation, Hate Crime Statistics 2004, November 2005, 157 pp,
available at http://www.fbi.gov/ucr/hc2004/openpage.htm. (Hereafter cited as DOJ, Hate Crime Statistics 2004.)
81 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Hate Crime Reported by Victims
and Police, by Caroline Wolf Harlow, NCJ 209911, November 2005, 12 pp, available at http://www.ojp.usdoj.gov/bjs/
pub/pdf/hcrvp.pdf. (Hereafter cited as BJS, Hate Crime Reported by Victims and Police.)
82 The NCVS is the principal source of national crime victimization data. Conducted annually by the BJS, the survey
includes a nationally representative sample of 42,000 households comprising 76,000 persons and yields statistically
significant data on the frequency, characteristics, and consequences of criminal victimizations in the United States. For
further information, go to http://www.ojp.usdoj.gov/bjs/cvict.htm.
addition, a BJS-sponsored report suggested that hate crime as reflected in the UCR statistics may 83
be “seriously under-reported.” Other shortcomings also limit the usefulness of the UCR hate
crime statistics. Policymakers, for example, have been concerned about juveniles and hate crime
from the beginning of the wider public discourse on hate crime, but even today UCR data tell us
little about the prevalence of juvenile involvement in hate crime. Nevertheless, the UCR program
remains the primary source of hate crime data, providing the only national statistical “baseline.”
As part of its regular compilation of crime statistics under the UCR program, the FBI has
collected hate crime data on crime motivated by a bias against a person’s race, religion, sexual
orientation, or ethnicity/national origin since 1992 (with preliminary data for 1991), and against a
person’s disability since 1994.
As shown in Table 1, the number of law enforcement agencies reporting on hate crimes to the
FBI has fluctuated somewhat during the 11 years covered, 1995 through 2005. Nevertheless, the
trend has generally been upward. In 2004, of the more than 17,000 law enforcement agencies 84
participating in the UCR, 12,711 (72.5%) responded to the FBI about hate crime. In 2005,
however, the number of agencies reporting on hate crime decreased to 12,417, a 2% decrease. In
addition, Table 1 shows that the number of reported hate crime incidents has fluctuated between a
low of 7,163 in 2005 and a high of 9,730 in 2001. The annual average across the 11 years for
reported hate crime incidents is 7,995. Table 1 also shows the number of offenses, victims, and
Of the 7,163 hate crime incidents reported to the FBI for 2005, 3,919 (55%) were motivated by a
racial bias; 1,227 (17%), by a religious bias; 1,017 (14%) by a sexual-orientation bias; 944 (13%),
by an ethnicity/national origin bias; 53 (less than 1%), by a disability bias; and three, by multiple
biases. Of the 8,380 offenses reported for 2005, intimidations accounted for 2,539 (30%)
offenses; and destruction, damage, or vandalism of property combined for 2,528 (30%) offenses.
Simple assault accounted for 1,566 (19%) offenses, and aggravated assault accounted for 1,062
(13%). Other forms of violent crime (murder, nonnegligent manslaughter, forcible rape, and
other) accounted for 23 offenses. Of the six bias-motivated murders reported for 2005, three
stemmed from a racial bias (two anti-black and one anti-white) and three stemmed from a
ethnic/national origin bias (two were anti-hispanic).
Table 1. Eleven-Year Hate Crime Summary Table
Year Agencies Participating Population covereda (%) Agencies Reporting Incidentsb Offensesc Victims Known Offenders
1995 9,584 74% 1,560 7,947 9,895 10,469 8,433
1996 11,354 83% 1,834 8,759 10,706 11,039 8,935
1997 11,211 82% 1,732 8,049 9,861 10,255 8,474
83 Jack McDevitt, et al., Bridging the Information Disconnect in National Bias Crime Reporting, Final Report,
Northeastern University, Institute on Race and Justice, February 2003, p. 18. (Hereafter cited as McDevitt, Bridging the
84 DOJ, Hate Crime Statistics 2004, p. 1.
Year Agencies Participating Population covereda (%) Agencies Reporting Incidentsb Offensesc Victims Known Offenders
1998 10,730 78% 1,810 7,755 9,235 9,722 7,489
1999 12,122 83% 1,815 7,876 9,301 9,802 7,271
2000 11,690 84% 1,892 8,063 9,430 9,924 7,530
2001 11,987 85% 2,106 9,730 11,451 12,020 9,239
2002 12,073 86% 1,868 7,462 8,832 9,222 7,314
2003 11,909 83% 1,967 7,489 8,715 9,100 6,934
2004 12,711 87% 2,046 7,649 9,035 9,528 7,145
2005 12,417 83% 2,037 7,163 8,380 8,804 6,804
Source: CRS presentation of FBI data taken from the annual Hate Crime Statistics reports for 1995-2005.
a. CRS based these percentages upon the estimated U.S. population covered, as reported by the FBI, over the
estimated U.S. resident population.
b. Incidents often include multiple offenses.
c. Offenses include the number of violations for which charges were filed.
Of the 8,804 victimizations reported for 2005, 4,895 (56%) were race-based. An anti-Black bias
accounted for 3,322 (38%) of all victims, and an anti-White bias for 975 (11%) offenses. An anti-
religion bias accounted for 1,405 (16%) victims, with an anti-Jewish bias accounting for 977
(11%) victims. An anti-sexual orientation bias accounted for 1,213 (14%) victims, with an anti-
male homosexual bias accounting for 743 (8%) victims. An anti-ethnicity/national origin bias
accounted for about 1,228 (14%) victims. And an anti-disability bias accounted for 54 victims
(less than 1%).
Although many of the findings in the FBI and BJS reports are similar, the number of
victimizations reported in each report stand in stark contrast. For example, for a 3½-year period
(July 2000 through December 2003), BJS reported an annual average of 210,000 hate crime
victimizations. Of these victimizations, survey results indicated that victims only reported them to
the police on 92,000 occasions. For a comparable time period, 2000 through 2003, the FBI 85
reported 40,266 victimizations, or about 10,000 annually. Hence, BJS reported over nine times
the number of hate crime victimizations than were reported by state and local police to the FBI
for about the same time period. This variance, on the one hand, suggests that some state and local
police agencies may be resistant to classifying crimes as hate crimes, despite the perceptions of
victims. On the other hand, it also suggests that the FBI and BJS’s methodologies for determining
whether a crime should be considered a hate crime are very different.
For example, under the NCVS definition of hate crime there must be corroborating evidence of a
bias motivation, which could include (1) the offender using derogatory language, (2) the offender 86
leaving hate symbols, or (3) the police confirming that a hate crime had taken place. The FBI
protocol for determining a hate crime appears to be more rigorous. For such determinations, the
85 For 2000 through 2003, the FBI reported over 40,266 hate crime victimizations, or an annual average of 10,067.
86 BJS, Hate Crime Reported by Victims and Police, p. 2.
FBI directs law enforcement agencies to consider whether several factors support a finding of 87
bias. Those factors include the following:
• Were the offender and victim of different race, religion, disability, sexual
orientation, and/or ethnicity/national origin?
• Did the offender make oral comments, written statements, or gestures, which
indicated his bias?
• Were bias-related drawings, markings, symbols, or graffiti left at the crime
• Were other objects, items, or things used that would indicate a bias?
• Is the victim a member of a racial, religious, disability, sexual orientation or
ethnic/national origin group, which is overwhelmingly outnumbered by other
residents in the neighborhood where the victim lives and the incident took place?
• Was the victim visiting a neighborhood where previous hate crimes were
committed against other members of his racial, religious, disability, sexual-
orientation, or ethnic/national origin and where tensions remain high against his
• Had several incidents occurred in the same locality, at or about the same time,
and the victims were all of the same race, religion, disability, sexual orientation,
or ethnicity/national origin?
• Did a substantial portion of the community where the crime occurred perceive
the incident as bias-motivated?
• Was the victim engaged in activities promoting his race, religion, disability,
sexual orientation, or ethnicity/national origin at the time of the incident?
• Did the incident coincide with a holiday or a date of particular significance
related to a race, religion, disability, sexual orientation, or ethnicity/national
• Was the offender previously involved in a similar hate crime or a hate group
• Were there indicators that a hate group was involved?
• Did a historically established animosity exist between the victim’s and the
• Was the victim, although not a member of a targeted racial, religious, disability,
sexual orientation, or ethnic/national origin group, supporting the precepts of a 88
87 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, Hate
Crime Data Collection Guidelines: Uniform Crime Reporting, Revised October 1999, p. 4, available at
88 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, A Policymaker’s Guide to Hate
Crimes, NCJ 162304, March 1997, pp. 5-6.
Despite improvements in collection and coverage, observers of the FBI data have long suspected
that hate crime could be under-reported.
Regarding under-reporting hate crime, DOJ has made some general observations. For example,
some small and rural law enforcement agencies do not have the manpower, inclination, or 89
expertise to report such crimes. Victims are often reluctant to report such crime for fear of 90
reprisals in some cases. For example, studies have cited the prevalence of nonreporting by
victims of crimes based on sexual orientation for fear of secondary victimization and concerns 91
about public disclosure of one’s homosexuality. In other cases, some agencies are reluctant to
report such crimes for fear of the cultural, political, and economic repercussions that could result 92
from admitting that such problems exist in their communities. Differences in state hate crime
statutes have also led to differences in collection that make it difficult to compare such data from
one jurisdiction to another and weaken the overall national assessment of hate crime trends and 93
To address some of those shortcomings, the FBI has developed an anti-hate crime training 94
curriculum for state, tribal, and local law enforcement. In addition, the FBI continues to advance
its latest generation crime statistics program, the National Incident Based Reporting System
(NIBRS). Under this more comprehensive crime reporting system, the FBI endeavors to capture
additional data, including demographic characteristics for both victim and offender, that will
improve determinations as to whether a crime is bias-motivated.
As of November 2005, 29 states were certified participants in NIBRS.95 Those states were
Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Iowa, Kansas, Kentucky, Louisiana,
Maine, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, North Dakota, Ohio,
Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, 96
West Virginia, and Wisconsin. Of these states, however, only eight submit all their data through
NIBRS; these were Delaware, Idaho, Iowa, South Carolina, Tennessee, Virginia, West Virginia, 97
and Vermont. As full state participation in NIBRS is far from complete, the FBI continues to
maintain the pre-existing UCR summary reporting system.
In addition, in one DOJ-sponsored study published in July 2000, Northeastern University
researchers reported that UCR hate crime statistics may not be comprehensive. Among other
89 Ibid., pp. 9-10.
90 Ibid., pp. 10-11.
91 Gregory M. Herek, Jeanine C. Cogan, and J. Roy Gillis. “Victim Experiences in Hate Crimes Based on Sexual
Orientation,” in Barbara Perry ed., Hate and Bias Crime: A Reader (New York: Routledge, 2003), pp. 243-259.
92 DOJ, Hate Crime Statistics 2004, p. 10.
93 Rory McVeigh, et al., “Hate Crime Reporting as a Successful Social Movement Outcome,” American Sociological
Review, vol. 68, iss. 6 (December 2003), p. 3.
94 See http://www.fbi.gov/hq/cid/civilrights/hate.htm.
95 U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States 2004, Uniform Crime
Reports, November 2005, p. 5.
things, the researchers pointed to “false zeroes” as evidence that hate crime is under-reported.98
Based on a national mail survey of law enforcement investigators in several agencies, the study’s
researchers reported that 31% of respondents (n=58) indicated that they believed their
departments had investigated hate crimes in 1997, yet their departments had reported “zero” hate 99
crimes to the FBI as participants in the UCR program. Consequently, the researchers concluded
that there was a disconnect between what line officers believed and what was reported to the FBI.
The Northeastern researchers concluded that, because of problems with under-reporting, UCR
statistics do not capture an accurate enough picture of hate crime nationally to allow for “cross-100
jurisdictional comparisons or national estimates.”
In a followup study published in February 2003, the Northeastern University researchers
reiterated the previous report’s finding that there was evidence that hate crime was “seriously 101
under-reported” in the UCR statistics. Based on examining the hate crime reporting procedures
at several police departments across the United States, the researchers concluded that the FBI-
recommended two-tier reporting process was the best procedure for ensuring greater accuracy and 102
consistency in hate crime reporting. This process removes the responsibility for making the
final bias motivation determination from the responding patrol officers and gives it to a criminal
intelligence analyst or a hate crime specialist. Although the Northeastern University researchers
made other recommendations, which are beyond the scope of this report, they concluded that
because of problems with under-reporting, UCR statistics do not capture an accurate picture of 103
hate crime nationally.
The involvement of juveniles in hate crime has been a concern for policymakers. Nevertheless, 104
data on juvenile victims and offenders is limited. For example, researchers at West Virginia
University (WVU) have provided analysis of selected NIBRS data, which could suggest that
juveniles represent a disproportionately high percentage of victims and offenders in hate 105
crimes. The WVU researchers culled through 5,855 bias crime incidents reported through 106
NIBRS for the years 1995 through 2000. Of the 5,855 incidents, there were 7,070 victims and
98 Jack McDevitt, et al., Improving the Quality of and Accuracy of Bias Crime Statistics Nationally: An Assessment of
the First Ten Years of Bias Crime Data Collection, Northeastern University, Center for Criminal Justice Policy
Research, Executive Summary, July 2000, p. 3. (Hereafter cited as McDevitt, Improving the Quality and Accuracy of
Bias Crime Statistics Nationally.)
99 Ibid., p. 61.
100 Ibid., p. 3.
101 Jack McDevitt, et al., Bridging the Information Disconnect in National Bias Crime Reporting, Final Report,
Northeastern University, Institute on Race and Justice, February 2003, p. 18.
102 Ibid., p. 91.
103 Ibid., p. 3.
104 Under the UCR program, reporting agencies record the age, sex, and race for both adult and juvenile arrestees. The
UCR program, as described above, consists of the older summary reporting system and NIBRS. Under NIBRS, more
comprehensive data is collected about crimes. For example, under NIBRS, data are collected for victims under 12 years
of age, whereas similar data are not collected under the summary reporting system.
105 James J. Nolan, III, et al., NIBRS Hate Crimes 1995-2000, Juvenile Victims and Offenders, available at
106 It is notable, however, that during these years, 48,449 hate crime incidents in total were reported to the FBI.
Consequently, only 12% of hate crimes were reported through NIBRS.
against persons. The offender’s age was recorded in 3,330 of these incidents in crimes against 108
both persons and property. For hate crime incidents, in which the victims and offenders’ ages 109
were recorded, juveniles accounted for 26.7% (1,305) of victims and 29.1% (969) of offenders.
However, these hate crime cases, as selected from NIBRS, do not represent a random or
representative sample. Hence, it would not be valid to make any generalizations from those data
about hate crime nationally regarding juvenile victims or offenders.
In the past four Congresses, the Senate has acted upon hate crime legislation. In the 107th
Congress, the Senate Judiciary Committee reported hate crime legislation, but cloture motions to thth
bring this bill to the Senate floor for further consideration were defeated. In the 106 and 108
Congresses, the Senate passed similar legislation as amendments to other bills on three other th
occasions. In the 109 Congress, House passed hate crime legislation. The hate crime provisions,
however, were not included in the final bills following conference committee negotiations. On
one of these occasions, the hate crime provisions were omitted in conference, despite a House-
passed resolution instructing the conferees to keep this legislation in the final bill.
In the 108th Congress, on June 15, 2004, the Senate passed hate crimes legislation as an
amendment offered by Senator Gordon H. Smith to the FY2005 Defense Authorization Act (S.
2400). This amendment would have broadened federal jurisdiction over hate crime by, among
other things, creating hate crime offenses under federal law. The language was nearly identical to
the Local Law Enforcement Enhancement Act of 2003 (S. 966), which was introduced by Senator
Edward Kennedy. The amendment passed by a recorded vote, 65-33.
In the 107th Congress, on May 9, 2002, the Senate Judiciary Committee successfully reported out
the Local Law Enforcement Enhancement Act of 2001 (S. 625; S.Rept. 107-147), which was
introduced by Senator Kennedy. Senator Tom Daschle, the Majority Leader, attempted to invoke
cloture and bring this bill to floor consideration, but the cloture bid was defeated.
In the 106th Congress, second session, on June 24, 2000, the Senate passed two hate crime-related
amendments to the FY2001 Defense Authorization Act (S. 2549). Senator Kennedy offered
language that would have broadened federal jurisdiction over hate crime. The language of this
amendment was similar to the Hate Crimes Prevention Act (S. 622), which was also sponsored by
Senator Kennedy. Senator Orrin Hatch offered an alternative amendment that would have
required the Department of Justice and the then General Accounting Office to conduct studies on
hate crime activity. The language of this amendment was similar to a bill to combat hate crimes
(S. 1406), which was introduced by Senator Hatch. The Hatch amendment passed by a recorded
vote, 50-49. The Kennedy amendment passed by recorded vote, 57-42. On September 13, 2000,
the House passed a non-binding motion to instruct the conferees to accept the hate crime
legislation as part of the final bill by recorded vote, 232-192.
107 James J. Nolan, III, et al., NIBRS Hate Crimes 1995-2000, Juvenile Victims and Offenders, available at
In the 106th Congress, first session, on July 22, 1999, the Senate passed two hate crime-related
amendments to the FY2000 Commerce-Justice-State Appropriations Act (S. 1217). Senator
Kennedy offered language that was similar to his and Senator Craig’s amendments described
above. This amendment passed by voice vote, as did an amendment offered by Senator Hatch as
an alternative. The Hatch amendment would have provided $5 million for a federal grant program
to assist state, local, and tribal governments in prosecuting hate crimes.
In the 109th Congress, Representative John Conyers, who was then the ranking minority member
on the Judiciary Committee, successfully offered an amendment to the Children’s Safety Act
(H.R. 3132) on September 14, 2005, which included the language of the Local Law Enforcement 110
Hate Crimes Prevention Act of 2005 (H.R. 2662). The Conyers’ amendment would have
broadened federal jurisdiction over hate crime by, among other things, establishing two partially 111
overlapping categories of hate crime offenses under federal law. First, it would have prohibited
the attempted or otherwise willful bodily injury to any person through the use of fire, a firearm,
explosive, or incendiary device, if such criminal conduct were motivated on the basis of actual or
perceived race, color, religion, or national origin of any individual. Second, it would have
prohibited the same criminal conduct, if such conduct were motivated on the basis of an
individual’s gender, sexual orientation, gender identity, or disability, in addition to the other four
characteristics listed above.
As asserted in the amendment’s findings, both provisions were arguably founded upon Congress’s
legislative authority under the Commerce Clause of, as well as provisions of the Thirteenth,
Fourteenth, and Fifteenth amendments to the U.S. Constitution. The reach of the second offense,
however, would have been limited to specific jurisdictional ties to the Commerce Clause, which
were outlined in the amendment. In the past, opponents of expanding federal jurisdiction over
hate crime have argued that such an expansion would be an overreach of congressional power,
which could possibly be challenged in the Supreme Court. Opponents pointed to Supreme Court 112
cases in which rulings were made based upon tighter interpretations of the Commerce Clause.
In addition to the language of H.R. 2662, Representative Conyers also offered another hate crime-
related amendment that would have required additional hate crime statistics be collected for 113
gender-biased crime and that breakouts be reported for juvenile victims and offenders. With
little debate, the House adopted this amendment by a voice vote.
The language of the Local Law Enforcement Hate Crimes Prevention Act of 2005 (H.R. 2662)
proved more divisive, however. Representative F. James Sensenbrenner, Jr., chairman of the
Judiciary Committee, argued that the amendment would be a “poison pill,” and would possibly 114
erode the bill’s bipartisan support. The House nevertheless passed the amendment by a
recorded vote of 223-199, on September 14, 2005. On the same day, the House passed H.R. 3132
by a recorded vote, 371-52. The Senate did not acted upon this measure, however.
On March 8, 2006, the House passed the Children’s Safety and Violent Crime Reduction Act of
2006 (H.R. 4472). Although this bill included many of the provisions that were in H.R. 3132, it
110 House Amendment 544.
111 Proposed 18 U.S.C. §249.
112 For further information, see CRS Report RL32850, Hate Crimes: Legal Issues, by Paul Starett Wallace, Jr.
113 House Amendment 528.
114 Congressional Record, September 14, 2005, p. H7920.
did not include the hate crime language. As the bill was brought up under suspension of the rules,
amendments were not considered and the hate crime issue was not addressed during consideration
of H.R. 4472.
On May 25, 2005, Senator Edward Kennedy introduced the Local Law Enforcement
Enhancement Act of 2005 (S. 1145). This bill was similar to H.R. 2662 and the Conyers
amendment to the House-passed version of H.R. 3132.
Several bills have been introduced that would address hate crime issues in the 110th Congress, th
which are nearly identical to measures introduced in the 109 Congress.
On March 20, 2007, Representative Conyers introduced H.R. 1592. This bill that is nearly th
identical to H.R. 2662, a version of which was passed in the 109 Congress (described above).
On April 17, the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a
hearing on H.R. 1592. On April 24, the Subcommittee approved this bill. On April 25, the
Judiciary Committee amended and approved H.R. 1592 in a markup that lasted a contentious 10
hours. The House passed this bill on May 3, 2007, by a vote of 237-180.
H.R. 1592, as introduced, sets out congressional findings regarding the harmfulness posed to
society by hate crimes, that is, crime motivated by the victim’s actual or perceived race, color,
religion, national origin, gender, sexual orientation, gender identity, or disability. The bill also
includes findings regarding the constitutionality of federal intervention into such matters under
the Commerce Clause of the U.S. Constitution, as well as sections of the Thirteenth, Fourteenth, 115
and Fifteenth Amendments.
The bill would authorize the Attorney General to provide assistance (technical, forensic,
prosecutorial, or other), when requested by a state, local, or tribal official, for crimes that (1)
would constitute a violent crime under federal law or a felony under state or tribal law; and (2)
are motivated by the victim’s actual or perceived race, color, religion, national origin, gender,
sexual orientation, gender identity, or disability. It would also direct the Attorney General to give
priority to crimes committed in more than one state, and to rural jurisdictions that would have
difficulty covering the extraordinary investigatory or prosecutorial expenses.
To further assist state, local, or tribal officials with the expenses related to hate crime cases, the
bill would authorize the Attorney General to establish a grant program. In implementing this grant
program, the bill would direct the Office of Justice Programs to (1) work closely with funded
jurisdictions to ensure that the needs of all interested parties were met; and (2) award grants to
programs aimed at combating hate crime committed by juvenile offenders. The bill would also set
forth certain parameters for the grant application process and would authorize appropriations of
115 For discussion of constitutional issues, see CRS Report RL32850, Hate Crimes: Legal Issues, by Paul Starett
$5 million for FY2006 and FY2007. It would also authorize appropriations for DOJ to hire
additional staff to respond to alleged violations of the hate crime provisions described below.
The bill would also broaden federal coverage of hate crimes under two scenarios. First, under any
circumstance, it would prohibit willfully inflicting bodily injury to any person, attempted or
otherwise, through the use of fire, a firearm, explosive, or incendiary device, if such conduct were
motivated on the basis of actual or perceived race, color, religion, or national origin of any
person. Second, it would prohibit the same conduct, if such conduct were motivated on the basis
of the victim’s gender, sexual orientation, gender identity, or disability, in addition to the four
characteristics enumerated under the first scenario. The reach of the second offense would be
limited to specific jurisdictional ties to the interstate Commerce Clause of the U.S. Constitution,
which were outlined in the bill.
Under either scenario, offenders could be sentenced to 10 years’ imprisonment and a fine, or for
any term up to life imprisonment if the crime resulted in the victim’s death, or involved attempted
murder, kidnaping, attempted kidnaping, rape, or attempted rape.
For hate crime cases prosecuted federally under these provisions, it would require the Attorney
General, or his subordinate, to certify that pertinent state or local officials (1) were unable or
unwilling to prosecute; (2) favored federal prosecution; or (3) prosecuted, but the investigation or
trial’s results did not satisfy the federal interest to combat hate crimes.
Finally, the bill would amend the HCSA to require that the FBI collect statistics on gender-and
gender identity-related bias crimes, as well as juvenile victims and offenders. Under current law,
such statistics are collected on the basis of race, religion, sexual orientation, ethnicity, and
H.R. 1592 is nearly identical to language that was included in the Senate-passed FY2008 Defense
Authorization bill (H.R. 1585) and a measure (S. 1105) introduced by Senator Kennedy
Introduced by Representative Sheila Jackson-Lee on January 5, 2007, H.R. 254 includes criminal
provisions that are similar to those described above under H.R. 1592. It also includes similar
findings and would authorize a grant program to assist state, local, and tribal governments with
hate crime cases, as well as authorize DOJ to hire additional staff to enforce hate crime statutes.
In addition, it includes a provision that would direct the U.S. Sentencing Committee to conduct a
study to determine whether it would be appropriate to adjust the sentencing guidelines for hate th
crimes that involve the adult recruitment of minors to commit such offenses. In the 109
Congress, Representative Jackson-Lee introduced a similar bill (H.R. 259), which was referred to
the House Judiciary Committee, but no further action was taken on that bill.
Introduced by Representative Carolyn Maloney on February 16, 2007, H.R. 1164 would amend
the Hate Crimes Statistics Act to require that the FBI collect statistics on gender-based hate crime.
Under current law, such statistics are collected on the basis of race, religion, sexual orientation, th
ethnicity, and disability. In the 109 Congress, Representative Maloney introduced a similar bill
(H.R. 1193), which was referred to the House Judiciary Committee, but no further action was
taken on that bill.
Introduced by Senator Edward Kennedy on April 12, 2007, S. 1105 is similar to H.R. 1592,
except that it also includes a provision that is similar to one in H.R. 259, which would have
directed the U.S. Sentencing Committee to conduct a study to determine whether it would be
appropriate to adjust the sentencing guidelines for hate crimes that involve the adult recruitment
of minors to commit such offenses. Senator Kennedy introduced a similar measure (S. 1145) in th
the 109 Congress, which was referred to the Senate Judiciary Committee, but no further action
was taken on that bill.
On September 27, 2007, Senator Kennedy successfully amended the FY2008 Defense
Authorization bill (H.R. 1585) with language that is nearly identical to S. 1105 and H.R. 1592
(described above), following a vote of 60-39 to invoke cloture. The Senate passed H.R. 1585 on
October 3, 2007.
On September 27, 2007, Senator Orrin Hatch also successfully amended H.R. 1585 by a vote of
96 to 3. The Hatch amendment would require the Government Accountability Office, in
consultation with the National Governors’ Association, to submit a report to Congress within 18
months of enactment that analyzes certain violent crimes in twenty jurisdictions that manifest
evidence of prejudice based upon race, religion, disability, sexual orientation, or ethnicity. The
amendment requires further that half of those selected jurisdictions would be those with hate
crime statutes, and the other half, those without such statutes. It would also authorize the Attorney
General, acting through the FBI Director, to make grants of up to $100,000 to state and local
governments to assist in the investigation and prosecution of crimes motivated by an animus
towards a victim because of his membership in a particular class or group.
As noted in the introduction, at issue for Congress is whether the prevalence and harmfulness of
hate crime warrants greater federal intervention to ensure that such crimes are systematically
addressed at all levels of government (federal, state, tribal, city, and county). Although many
believe that hate crime is deplorable, determining the federal role in combating hate crime has
proven complicated and divisive.
As described above, Congress has and may in the future consider legislation to broaden federal
jurisdiction over hate crime by creating a separate offense for such crimes under federal law.
Although FBI hate crime statistics document that hate crimes continue to be perpetrated, it is
questionable whether the statistics are robust enough to capture an accurate picture that allows for 116
cross-jurisdictional comparisons or national estimates. Nor is it definitively known whether
state and local authorities are unable or unwilling to investigate and prosecute such crimes.
Consequently, opponents of creating a separate hate crime offense are likely to argue on the side
of caution until better data are available and that Congress should not intervene into matters that
may be best handled at the state and local level.
Proponents counter that state and local authorities are often not in a position to pursue such cases
because of their complexity and cost. Moreover, they point out that under the Conyers/Kennedy
proposal, federal intervention would be the course of last resort. Under their proposal, the
Attorney General would have to certify that the local authorities had been unable or unwilling to
prosecute a hate crime under existing state laws, among other conditions, before the federal
authorities would take up the case. Finally, proponents argue that it is the federal government’s
duty to ensure that such cases are adequately addressed to combat vestiges of biases that as a civil
society the United States has collectively found to be intolerable.
In light of the finding that the data collected under the HCSA are arguably not complete and
comprehensive enough to yield valid hate crime trends and patterns at the national level,
Congress could choose to require the collection of additional data. As described above, Senator 117
Hatch has made past proposals to assess UCR hate crime data. As a result of such an
assessment, new reporting requirements might address the “false zero” phenomenon, regional
trends, types of crime, trial outcomes, as well as sentences imposed.
As a corollary issue, Congress could address the slow pace with which states are participating in
the next-generation FBI crime statistics program, NIBRS. Congress could call upon the Bureau of
Justice Statistics or the Government Accountability Office to assess the status of the NIBRS
program, as a first step towards establishing a timetable for the program’s full implementation
with an eye on dovetailing such efforts with a more complete and comprehensive hate crime
If Congress should consider legislation to broaden federal jurisdiction over hate crime, it is likely
that proposals to expand the federal collection of hate crime statistics to include gender would be
offered. Proponents assert that crimes that are motivated by a gender-bias ought to be singled out
for special consideration as a hate crime. They point out that, like other forms of hate crime,
violence against women in the United States has reached levels that require greater monitoring,
and federal intervention is necessary.
Opponents counter that the consideration of gender as a protected class suggests that every
domestic abuse, battery, rape, and murder case, in which the victim was of the opposite gender,
116 Jack McDevitt et al., Bridging the Information Disconnect in National Bias Crime Reporting, Final Report,
Northeastern University, Institute on Race and Justice, February 2003, p. 3.
117 See amendment number 3474 in the Congressional Record, June 24, 2000, p. S5340. In addition, see S. 1406, a bill
introduced in the 106th Congress.
could plausibly be considered a hate crime. Opponents contend that the inclusion of gender would
increase the scope of what constitutes a hate crime to the point that hate crime statistics would
largely become meaningless.
Proposals have been considered to require hate crime statistics be expanded to include breakouts
for juvenile victims and offenders. Selected data arguably suggest that juveniles could represent a
disproportionately high percentage of victims and offenders in hate crimes. Yet those data are not
robust enough to draw valid statistical conclusions. Although few would argue that better data
would not be useful, opponents argue that an objective assessment of the current hate crime
statistics should be made before placing additional data collection requirements on the FBI.
Congress could examine DOJ’s efforts to assist state, tribal, city, and county law enforcement
authorities in not only investigating and prosecuting hate crimes, but in categorizing and reporting
hate crimes. Future efforts could be built upon the past and current efforts of the Bureau of Justice
Assistance, the Community Relations Service, and the FBI. A comprehensively designed program
might be one way to address the hate crime issue at the federal, state, tribal, city, and county
levels. Congress could also call upon the Attorney General to report on DOJ’s efforts to promote
comprehensive, department-wide hate crime policies.
William J. Krouse
Specialist in Domestic Security and Crime Policy