By most metrics, hate crimes are becoming an increasingly prominent part of American life. Reported instances of such crimes — defined by the FBI as “criminal offense[s] against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity” — have become more frequent in recent years.
Interestingly, despite its long, well-documented history of racial tension, Alabama is not a state that has shown an increase in reported hate crimes. In fact, the deep South as a whole features the lowest number of reported hate incidents in the country, as reported by Fox News.
What is the reason behind that? Does Alabama really have a lower rate of hate crimes, or is there another explanation for these numbers?
A Spike in Hate
According to the statistics aggregator FiveThirtyEight, roughly 36,000 hate crimes were reported to the FBI between 2010 and 2015, an average of 16 per day. In the span between November 9 and December 12, 2016 — roughly the month following the presidential election — the Southern Poverty Law Center catalogued 1,064 hate incidents (13 of which were later debunked). That’s an average of 90 per day.
What data we have for 2017 shows that such instances are continuing to rise. For instance, a report published by the New York Post in May showed that 140 hate crimes have been committed in New York City since January; double the amount for the same period in 2016.
Before his sudden ouster last month, then-FBI Director James Comey gave a speech to the Anti-Defamation League in which he speculated that hate crime perpetrators had either been “emboldened by divisive rhetoric” or that there were “simply more opportunities to instill fear and intimidation today than ever before.”
That “divisive rhetoric” — which many contend was exacerbated by Donald Trump’s presidential campaign — is one of the reasons for this increase in hate incidents, according to Southern Poverty Law Center Intelligence Project Director Heidi Beirich. “We have seen since the latter parts of the Obama administration an incredible rise in the frequency of attacks like this, hate crime attacks, and domestic terrorism attacks,” Beirich told NPR last week. “And the targets of those hate crimes have tended to be those populations demonized by the Trump campaign and now Trump administration.”
Beirich pointed to that post-election spike in reported incidents as an example: “Those are numbers that are quite extraordinary for such a short period of time,” she said.
In a November 2016 interview with 60 Minutes, Trump said that he was “saddened” to hear of such incidents, and urged supporters who may have been behind them to “stop it.”
“I think it’s horrible if that’s happening,” he said. “I think it’s built up by the press, because frankly they’ll take every single little incident that they can find in this country, which could be there if I weren’t even around doing this, and they’ll make it into an event because that’s the way the press is.”
Whether or not one agrees with Trump’s assessment that the news media is blowing these events out of proportion, his statements do highlight the highly flawed system through which hate crimes are reported and analyzed.
There are two main obstacles to developing a clear picture of hate crimes in the United States. The first comes from the fact that gathering such statistics on a national level requires self-reporting, a method that’s vulnerable to many inherent biases. The way the FBI gathers data on such incidents requires local police departments to opt in to reporting them, which many do not. Only 27 states and the District of Columbia have statutes requiring the state to collect hate crime statistics. In 2015, according to The New York Times, approximately 88 percent of law enforcement agencies reported that no hate crimes happened in their jurisdiction. In 2015, the entire state of Mississippi reported to the FBI that no hate crimes had occurred in the state at all that year.
While the FBI tracks between 5,000 and 10,000 hate crimes a year, a Bureau of Justice Statistics survey suggested that the real number of hate crimes per year could be as high as 250,000.
Beirich, who lives in Alabama, told CNN that this uneven self-reporting skews perceptions of which states have more hate crimes. “States that are good at reporting, like California and New Jersey, look like they have a lot of hate crimes, while most states in the Deep South don’t report hate crimes,” she said.
Other analyses of hate crime rates, such as those put together by the SPLC, rely on self-reporting by victims, a method that can include its own set of inherent biases and can rely on difficult-to-verify anecdotes.
“Documenting Hate,” an initiative by the nonprofit news organization ProPublica, is seeking to create a database of hate crimes and bias incidents that avoids some of those drawbacks. Incidents reported to the over 50 member organizations of the “Documenting Hate” project — including The New York Times, The Boston Globe, PBS Newshour, and Weld: Birmingham’s Newspaper — are verified after they are entered into the database, which will be made available with privacy restrictions to media organizations and civil rights groups.
Hate Across the State
But perhaps the biggest barrier to painting a comprehensive picture of hate crimes in America is that there is no uniformity in how hate crimes are defined. While federal laws address race, color, religion, national origin, gender, gender identity, disability, and sexual orientation, enforcement is generally left to the states, with the Department of Justice only stepping in by the order of the U.S. attorney general. From 2009 to 2016, the department stepped in to charge 258 defendants with hate crimes.
Hate crime laws can shift drastically from state to state. Of the 45 states that have statutes increasing penalties for specific types of hate crimes — Arkansas, Georgia, Indiana, South Carolina, and Wyoming are the five that do not — 32 of them cover sexual orientation, 28 cover gender, and 11 cover gender identity.
Alabama’s state laws cover none of those. Instead, they apply to two categories: race, religion, and ethnicity; and disability. The state’s current hate crime laws were enacted in 1994.
“It is the right of every person, regardless of race, color, religion, national origin, ethnicity, or physical or mental disability, to be secure and protected from threats of reasonable fear, intimidation, harassment, and physical harm caused by groups and individuals,” begins Section 13A-5-13 of the Alabama Code, which imposes additional penalties to crimes “where it is shown that a perpetrator committing the underlying offense was motivated by the victim’s actual or perceived” status as a member of those protected classes.
There have been recent efforts to update those laws, though not by adding protections for sexual orientation or gender identity — instead, legislation sponsored by state Rep. John Rogers (D-Birmingham) would designate attacks on police officers and firefighters as hate crimes.
“If you kill somebody just because they are of a certain race, it’s a hate crime, so if you kill a police officer because he is a police officer or fireman, it should be a hate crime also,” Rogers told the local Fox affiliate, WBRC, in March.
Following the wave of bomb threats against Jewish Community Centers across the nation earlier this year, which ultimately led to the arrest of a former journalist in St. Louis and an Israeli teen, Alabama state Sen. Rodger Smitherman (D-Birmingham) in March introduced a bill that would classify threats against religious institutions and schools as hate crimes.
Jefferson County District Attorney Pro tem, Danny Carr said situations like the recent influx of threats against the local Jewish Community Centers present their own set of problems for prosecutors and law enforcement. “ I think some of the hardest parts of dealing with that is number one, finding out who those people are because a person can make a threat to an area here from Washington D.C. or Florida or anywhere,” Carr said over the phone. “Finding out who those people are who are making threats is tough.”
Carr, who has been a prosecutor in Jefferson County for 15 years, said there have been a number of cases where he believed the crime was committed out of hate, but proving that beyond reasonable doubt in a courtroom is often complicated. “To be honest I haven’t in my 15 years of prosecuting can recall how many instances we’ve seen of cases that were motivated by hate, or at least ones we could prove it and substantiate it in court. I will say that’s tough because obviously a lot of people throw a rock and hide their hands. Unless you have collateral information that supports someone’s actions being based on race or religion or what have you, then it’s tough to prove it.”
Often when a case gets to a district attorney, most of the investigation has already been completed, which can also make it more difficult for prosecutors to prove hate was a driving force behind a crime.
“I think a lot of it, in all honesty, is predicated on the type of investigation that is done on the front end by the police,” Carr explained. “When it gets to us it’s basically on the back end and everything with the investigation has basically been done and our job becomes prosecuting what we have. Of course things can flush out later on and you can talk to people on the back end and they’ll say something like, ‘This guy had some emails on his computer where he talked about how he hated a certain religion.’ Things like that which you find out later on can lead you to conclude this act was based on hate. But again, for a class A felony, if it’s shown that was based on hate that person’s sentence shouldn’t be less than 15 years.”
Even in states where hate crime laws are nonexistent or do not cover certain groups, the federal government can in some cases prosecute actions that violate federal hate crime laws. In one example, on May 16, a federal judge in Mississippi sentenced Joshua Vallum to 49 years in prison for killing Mercedes Williamson, a transgender woman from Alabama. Vallum had previously pleaded guilty to a state-level murder charge in the summer of 2016 and received a life sentence.
Mississippi’s hate crime laws do not cover sexual orientation or gender identity, but the 2009 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act allows the federal government to prosecute hate crimes when a locality is unwilling or unable to prosecute. The Justice Department charged Vallum for violating that act, to which he also pleaded guilty in December. Vallum’s sentence represents the first time an individual has been sentenced under federal law for hate crimes against a transgender individual, the Justice Department announced after the verdict.
The Matthew Shepard Act also added new federal protections against crimes motivated primarily by gender, disability, gender identity, and sexual orientation. However, it only allows the federal government to intervene if one of four conditions are met, according to the Justice Department’s website: if the state does not have jurisdiction; if the state requests that the federal government assume jurisdiction; if a “prosecution by the United States is in the public interest and necessary to secure substantial justice”; or if the verdict or sentence obtained by the state’s charges “did not demonstratively vindicate the federal interest in eradicating bias-motivated violence.”
With reporting by Sam Prickett, Ryan Scott, Cody Owens, and Rebecca Sheehan Caine.