Hate crime definition causes inconsistencies
Some are concerned incidents in the United States are undercounted
Days after a mass shooting in the Atlanta area last March killed eight people, including six women of Asian descent, New Jersey leaders raised alarms about rising hate in their state. In 2020, they said in a Facebook forum, state police recorded 1,441 bias incidents — an alltime high and up 164 percent from two years earlier.
Rep. Andy Kim, a Democrat, who is Korean American, described his 5-year-old son being called “China boy” at day care. Then-state Attorney General Gurbir Grewal, a Sikh American once dubbed “turban man” by a conservative radio host, said, “It’s a hate problem we have in this country, and it’s manifesting in this state.”
But the Justice Department took a more circumspect view. FBI analysts compiling an annual hate crimes report combed through New Jersey’s incident reports and determined that 389 hate crimes were committed in 2020 — a significant drop from the previous year and about 27 percent of what local law enforcement had recorded.
The rest “did not meet the definition of hate crime as used by the FBI,” the agency said in a statement to the Washington Post. Some harassment didn’t rise to the level of intimidation, and some suspected bias incidents lacked evidence. In some cases, local investigations found no offense had occurred.
The discrepancy highlights the difficulties of tracking public levels of hate in the United States amid rising threats of white supremacy and a national reckoning over racial justice. It also points to sharp divides over what should constitute a hate crime and whether incidents that are not considered criminal should still be catalogued.
“We need to be very careful to clearly define what we’re talking about,” Kim said. “Whether that’s a two out of 10 or a nine out of 10, in terms of danger to an individual, we can parse through that. But just the fact that so many people in our communities in 2021 and 2022 are experiencing that hate — it’s alarming.”
The FBI reported 8,263 hate crimes across the United States in 2020, the most in two decades, with 2021 numbers still being analyzed. But Democrats and civil rights advocates have long argued the federal tally represents a major undercount because of lax reporting and inconsistent standards among local jurisdictions. Compounding the problem, they say: Victims of hate crimes tend to be among society’s most marginalized, and many are reticent about coming forward.
New Jersey officials and other proponents of carefully tracking all types of hate incidents say the data can foreshadow dangerous trends, even if many incidents do not result in arrests. Critics of expansive hate crime legislation, in contrast, counter that broadening data collection risks government overreach and focusing law enforcement resources on behavior that is not against the law.
Examples of problematic behavior are everywhere: nooses displayed at construction sites across the country, online harassment of Asians throughout the coronavirus pandemic, antisemitic fliers left at homes in Miami Beach, racial slurs at a middle school basketball game in New Jersey. San Francisco police recorded 60 reports of hate crimes against people of Asian descent in 2021, compared with nine in 2020 and eight in 2019. Although some incidents are clearly criminal — like the recent hostage-taking of a rabbi and three congregants at a Texas synagogue — others do not meet that bar.
“The problem comes when some folks want to start prosecuting not just hate crimes but what they consider to be hate speech,” said Hans von Spakovsky, a legal analyst at the conservative Heritage Foundation. “People should be very suspect of any statistics based on claimed incidents that have not been investigated and when we don’t know the credibility of the claims.”
Among the New Jersey bias incidents the FBI did not include in the 2020 count were traffic disputes that led to accusations of racism, according to a review of New Jersey incident reports, and “Zoom bombing” incidents in which students disrupted online classes by spewing racist language.
And it’s not just the federal government that is having to delineate between hate crimes and bias incidents. Local prosecutors also have made difficult judgment calls.
Last summer, Ritu Chandra, an Indian American comedian in Berkeley Heights, N.J., posted a video on social media of a verbal altercation at a dog park in which another woman called her a racist slur against people of Chinese descent and an obscene insult. Police charged the woman, Leslie A. Mugford, with harassment and bias intimidation. But the county prosecutor’s office downgraded the charges to disorderly conduct, leaving Chandra fuming.
“On paper, there are very academic efforts being made to get more numbers and get more reporting,” said Ehsan Chowdhry, Chandra’s lawyer. “But the fact remains that you can bean-count all you want, but without prosecution and punishment, who the hell cares?”
Municipal prosecutor Jon-Henry Barr, who ultimately handled Chandra’s case, said prosecutors are sympathetic to victims of bias offenses. But he added: “There’s a fine line between one’s free-speech rights involving hateful language and an actual crime. The reality is that calling someone the n-word or something similar is really horrible, offensive, disgusting, despicable conduct. But it’s not necessarily criminal. The question we have to ask ourselves is: Should it be?”
To Grewal, who served as New Jersey’s top prosecutor from 2018-21, cases such as Chandra’s are important to investigate even if they do not result in bias convictions. In 2019, Grewal told the state’s 36,000 police officers to more thoroughly report on bias incidents. He said his views were sharpened by his experience overseeing a domestic terrorism case as prosecutor in Bergen County, in which two men burned synagogues and firebombed a rabbi’s home. They were sentenced to 35 years in prison.
Grewal’s memo sparked a rapid rise in bias reporting in New Jersey. By the end of 2019, New Jersey police had tallied 996 offenses, up from 545 a year earlier. Among them was a mass shooting at a kosher supermarket that killed four people, including a police detective — a crime officials said was motivated by antisemitism. In 2021, the number of bias incidents jumped to 1,825, according to state police data.