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Closing Argument

What’s a Hate Crime? Depends on Where You Live

A hodgepodge of state and local laws makes some violence a hate crime in some places, but not in others.

People in Brattleboro, Vermont held a vigil on Nov. 27 for three college students of Palestinian descent who were shot on Nov. 25 while walking to a gathering in Burlington.
People in Brattleboro, Vermont held a vigil on Nov. 27 for three college students of Palestinian descent who were shot on Nov. 25 while walking to a gathering in Burlington.

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Hate crimes have been on my mind lately as the Israel-Hamas conflict and resulting siege on Gaza have sparked fears and anxieties across the U.S. — where hate crimes against Muslims spiked post-9/11 and during Donald Trump’s presidency.

Data compiled by the FBI shows that the number of hate crimes police reported rose in 2022, with attacks against Black people comprising nearly a third of all cases. Crimes against Jewish and transgender people also saw significant increases, with anti-Jewish incidents being the second most common.

It takes months to collect data from police departments, so it will be awhile before federal officials can confirm what some criminologists suspect to be true: hate-based attacks appear to have increased in recent months.

Earlier this week, police in Illinois began investigating an incident of vandalism at a kosher pizzeria after an employee noticed a swastika tagged on the storefront’s window. (Police later said the vandalism was considered gang-related graffiti.) And over Thanksgiving weekend, three university students of Palestinian descent were shot while walking to a gathering in Vermont.

Days earlier, a man on a New York City subway train was caught on video calling a Muslim woman carrying a Palestinian flag a “terrorist” and hitting her. He faces several hate crime-related charges.

In the flurry of news, some crimes that initially seem to be motivated by ethnic or religious hate turn out to be unrelated.

In October, a synagogue leader was fatally stabbed outside of her home in Detroit. The Detroit Police chief has repeatedly said her murder was not motivated by antisemitism, and cautioned against jumping to conclusions.

A hate crime — which might seem self-explanatory at face value — is a bit of a misnomer.

Phyllis Gerstenfeld, a professor at California State University Stanislaus, told The 19th in 2021 that “the offender doesn’t need to actually hate the victim. They just need to select them based on a group affiliation — and only certain groups are protected depending on the state.”

There are also jurisdictional differences about what is and is not considered a hate crime in the U.S. While federal hate crimes include violent and property crimes against people in protected classes — such as race or religion — the type of offenses that are considered hate crimes vary by state, as do the severity of the consequences for people convicted. Some states and localities, like California and Washington, D.C., have robust and detailed protections, while other states leave entire groups out.

Prosecutors in Vermont noted this week that they can’t bring a hate crime charge unless they believe it can be proven beyond a reasonable doubt. That presents a challenge in cases like the shooting of the university students. While two students were wearing keffiyehs and all three were speaking English and Arabic when they were shot, the alleged assailant fired without saying a word.

Chittenden County State’s Attorney Sarah George said that “although we do not yet have evidence to support a hate crime enhancement, I do want to be clear that there is no question this was a hateful act.”

The bar to convict in Vermont isn’t as high as it once was, though. Lawmakers amended the state law in 2021 to remove requirements that the defendant be “maliciously” motivated by the victim’s identity or that the crime be solely motivated by prejudice.

Meanwhile, in Oregon, the laws are so narrow that making non-specific racist threats likely wouldn’t be considered a hate crime, compared to more serious threats of immediate acts of violence that might seriously injure a victim. Federal officials are now campaigning in the state in the hopes of increasing the number of people who report their experiences.

Two states — South Carolina and Wyoming — have no hate crime law on the books.

Arkansas remained a holdout until 2021, when lawmakers passed “a stripped-down” version of legislation that excluded written protections for race, sexual orientation and gender identity. For example, whereas California’s law explicitly includes the latter two categories, Arkansas’ law has much more vague language regarding a victim’s “biology.”

But strong laws aren’t enough. Victims and their families also have to contend with a complex legal system.

Gerstenfeld compares it to a funnel: The victim has to describe the offense as a hate crime, and then police have to record it as a hate crime and send that data to the FBI voluntarily. “Then, assuming an arrest is made, a prosecutor has to decide it is a hate crime — which they rarely do. And then the ultimate decision maker is usually the jury, who has to decide without a doubt that there was a motive,” Gerstenfeld said.

That’s at least part of the reason why most hate crimes are not reported to police. Skepticism of the legal system and fear of retaliation also suppress hate crime reporting. Thousands of police departments across the country don’t report a single hate crime in a given year. Experts say this all leads to a massive undercount of hate-based incidents.

“We have vast data collection and prosecution deserts when it comes to hate crimes,” Brian Levin, a criminologist and former director of the Center for the Study of Hate and Extremism, told me recently. “All of this really is reliant on not only what part of the country you were in, but what jurisdiction you're in.”

He says it’s important for government leaders to help set the tone during tense times like what we’re seeing recently amid the Israel-Hamas conflict, by establishing that violence and bigotry have no justification.

“We're at a time now when there are people doing somersaults to justify various positions,” Levin said, “and what that does is make people who are vulnerable in the United States potential victims.”

Lakeidra Chavis Twitter Email is a staff writer for The Marshall Project. She has written extensively on gun violence and gun enforcement in Chicago, as well as Black suicides, gang structures and the opioid crisis. Her work currently focuses on juvenile justice. She previously reported at ProPublica Illinois and for NPR stations in Chicago and Alaska. Lakeidra was a 2021 Livingston Award finalist. She lives in Chicago, Illinois.