To improve hate crime statistics, Congress should amend existing legislation, not impose hate crime reporting mandates.

A new bipartisan bill in Congress would require police in major American cities to prioritize hate crime reporting as a condition of receiving grants under a popular federal program. That bill, the Improving Reporting to Prevent Hate Act, is the latest proposal to reform the national hate crime reporting system. This piece provides substantive and procedural context underlying the Improving Reporting Act. It begins with a discussion of calls to make hate crime reporting mandatory under federal law, which are misguided for at least three reasons. From there, the piece considers the Khalid Jabara and Heather Heyer No Hate Act, which Congress passed in 2021, and recommends that Congress strengthen the act with a simple, albeit consequential, amendment. (This latter part is adapted from a 2022 law-review note.) It concludes with a brief overview of the Improving Reporting Act, which was introduced as this piece went to publication.

Hate crimes against Arab Americans, American Muslims, and American Jews appear to have surged in the wake of the war between Israel and Hamas. Some of these crimes have captured national media attention, like the fatal stabbing of a Palestinian American Muslim child in a Chicago suburb, the shooting of three U.S. college students of Palestinian descent in Burlington, Vermont, and countless acts of vandalism against synagogues across the United States. Still others will be captured in nationwide hate crime statistics, which the Federal Bureau of Investigation collects from state, local, federal, and tribal law enforcement agencies. But many, if not most, of the hate crimes happening in our communities will go unreported.

Readers will be familiar with the oft–repeated claim that police-reported hate crime statistics are unreliable. According to the FBI, between 2004 and 2015, U.S. law enforcement agencies reported just under 7,000 hate crimes per year on average. Estimates from the Bureau of Justice Statistics, however, put the average annual total for the same period at 250,000. Adjusting for discrepancies between the data sets, and assuming these estimates are relatively accurate, police-reported hate crime statistics might therefore account for little more than 1 percent of the actual number of hate crimes that occur in the United States each year.

What’s more, even the most clear-cut hate crimes can go unreported. For example, the man who in August 2017 drove his car into a crowd of counterprotestors at the Charlottesville “Unite the Right” rally, killing Heather Heyer and wounding many others, was convicted on federal hate crime charges. But the Charlottesville Police Department reported the incident as a hate crime only after its omission from official statistics garnered national attention.

In part because hate crime statistics are so unreliable, and partly because public concern about hate crime (especially white supremacist violence) has increased in recent years, we have seen calls to reform the national hate crime reporting system. But some of the most popular ideas would be ineffective, and what’s been achieved so far—while a step in the right direction—does not go far enough.

Among the most common refrains is that hate crime reporting should be mandatory. Although most states have laws requiring the collection of police-reported hate crime statistics, state and local police are not obligated under federal law to report the hate crimes that come to their attention. To improve hate crime statistics, then, some suggest that Congress should impose that obligation. This sounds pretty good in theory. In practice, however, the idea of federally mandated hate crime reporting runs into a few problems.

The first problem is that a federal mandatory-reporting law would not add much. For one, some form of mandatory hate crime reporting is already the law in most states. And then there are the underlying features of the reporting system. Law enforcement agencies across the United States have been sharing their crime data with the FBI since 1930, back when it was called the Bureau of Investigation. In 1990, the same year that Congress passed a law—the Hate Crime Statistics Act (HCSA)—requiring the attorney general to collect hate crime statistics, about 16,000 law enforcement agencies submitted crime data to the FBI. The attorney general delegated his responsibilities under the law to the FBI director. And ever since, the FBI has fulfilled its obligations under the HCSA by asking law enforcement agencies to indicate which of the crimes reported in their jurisdictions—to borrow the statutory language—“manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity.”

Apart from adding gender, gender identity, and disability to the list of reporting categories, Congress has done little to change the HCSA. In the meantime, however, there have been a few key changes in the world of crime statistics. The change perhaps most relevant to hate crime reporting is that the FBI has modernized its data collection program. Agencies once had to file a supplemental report for each individual hate crime on top of their regular crime-data submissions to the FBI. This was back when agencies had the option to submit crime data using one of two reporting systems. But the FBI no longer accepts submissions from the older system, and the newer one includes bias motivation as a “mandatory data element.” That means police no longer have to file supplemental reports to submit hate crime data; indeed, police cannot report any type of crime to the FBI without affirmatively indicating whether there was reason to believe the crime was motivated by race, religion, or another characteristic listed in the HCSA.

To put this in perspective, U.S. law enforcement agencies reported more than five million incidents of crime to the FBI in 2022. According to the data, almost 12,000 of those incidents, or less than a quarter of 1 percent, qualified as hate crimes. But for the remaining 99.75 percent, the agencies reporting those crimes nevertheless had to indicate whether a suspected bias motivation was present.

The upshot is that every U.S. law enforcement agency that shares crime data with the FBI—and all but a few of them do—is reporting whether hate crimes are occurring in their jurisdictions. Further, these agencies have ample reason to share their crime data with the FBI, absent a federal mandate, because grants from the largest stream of federal funding for state and local law enforcement are based in part on the reported rate of violent crime in the recipients’ jurisdictions. Not all hate crimes are violent, but if these funding incentives affect crime reporting generally, which is a reasonable assumption, there will be effects on hate crime reporting as well—given the mechanisms of reporting explained above. In short, if Congress decides to impose a hate crime reporting mandate on state and local agencies, that alone will add little to the equation.

The second problem with mandatory hate crime reporting relates to enforcement. It is hard to prove that any one of the millions of crimes reported in the United States each year should have been classified as a hate crime. Often when we think about hate crimes, we think about major acts of white supremacist violence, like what happened in Charlottesville, Pittsburgh, El Paso, or Buffalo. But the overwhelming majority of bias-motivated crimes are not covered in the media, do not result in hate crime prosecutions, and are not as obviously hate inspired. In other words, the only somewhat comprehensive public source of information about these crimes is in the data shared with the FBI, which, however granular, does not provide the kinds of narrative details required for determining whether a crime was bias motivated.  

The third problem with a congressionally imposed hate crime reporting mandate is federalism. State and local officials are not agents of the federal government, and Congress cannot call them into service with a flick of the wrist. State legislatures can order their governments to collect data on hate crimes and require state and local police to report them. The same underlying principle allows Congress to order the federal government to collect data on hate crimes, which it did with the HCSA, and require federal law enforcement agencies to report them, which it has also done. Congress cannot, however, conscript state legislatures into passing state laws to implement the HCSA. Nor can it order state and local police into collecting and reporting hate crime data under the HCSA. The anti-commandeering doctrine precludes it. 

But what Congress can do is attach conditions to the receipt of federal funds under what is known as the “spending power.” Since 2005, for example, Congress has appropriated almost $500 million per year on average for the Edward Byrne Memorial Justice Assistance Grant (JAG) program, which is “the leading source of federal justice funding to state and local jurisdictions.” In that time, Congress has passed multiple laws that require JAG recipients to assist in federal data collection efforts and even adopt certain policies. But the spending power is not without limits, and the Supreme Court has deemed unduly coercive certain conditions imposed on state recipients of federal funding.  

In sum, there is good reason to think that a federal law requiring state and local police to report hate crimes would be ineffective, difficult to enforce, and hard to square with principles of federalism. But if not through a reporting mandate, what options does Congress have for improving hate crime statistics?

One option lies hidden in plain sight, laid out like a road map in the text of a law Congress has already passed. In 2021, Congress enacted legislation named after Heather Heyer and Khalid Jabara, another person whose murder was prosecuted as a hate crime but not reported in hate crime statistics. (I participated in the development of and assisted with the passage of the Jabara-Heyer Act.) Passed as part of the COVID-19 Hate Crimes Act, the law creates a federal grant program designed to encourage certain state and local law enforcement agencies to adopt a set of practices that are ostensibly conducive to better hate crime reporting. As a condition of receiving awards under this grant program, agencies must collect information about their hate crime prevention and reporting practices and submit reports detailing those practices to the Department of Justice, which, in turn, must submit reports to Congress based on the information it receives from grant recipients. Among other requirements, the latter reports must analyze the relationship between grant recipients’ hate crime reporting rates and their adoption of the law’s recommended practices. The law also requires grant recipients to report hate crimes. (The first awards under the act were granted in 2022. If any of the required reports have been submitted since then, it seems they are not publicly available.)

The basic logic of the Jabara-Heyer Act can be explained in two parts. First, Congress must work within the confines of federalism to increase the state-level data that is transmitted to the federal government. And second, to facilitate the collection of more accurate data, instead of simply asking these agencies to report hate crimes and for nothing more, Congress is better off encouraging them to adopt practices that are synonymous with more accurate reporting.

These interrelated premises are responsive to the above critiques of mandatory hate crime reporting. To begin with the first critique (that a federal mandatory reporting law would not add much), baked into the Jabara-Heyer Act is a recognition that a mandate—standing alone—would have little effect. For each crime reported to the FBI, the reporting official must indicate whether it was a suspected hate crime; that is a feature of the extant federal data collection program, to say nothing of state mandatory hate crime reporting laws. This gives us reason to assume that the problem with hate crime data is less that law enforcement agencies are not being asked, or required, to report hate crimes (they are), and more that law enforcement agencies have not prioritized hate crime reporting. Accordingly, the law not only uses grants as an incentive for more diligent hate crime reporting, but it also encourages recipients to standardize their data collection procedures, establish specialized hate crime units, conduct hate crime trainings, and adopt other practices that are likely to promote more accurate reporting.

As for the enforcement critique, the Jabara-Heyer Act creates a separate stream of information that serves to put hate crime statistics in context. Existing data suggest a correlation between a jurisdiction’s hate crime reporting rate and its adoption of the practices identified in the Jabara-Heyer Act. It would be extremely onerous, and almost certainly impractical, to require reporting agencies to share the rich, narrative details about each reported incident that would enable federal officials to make an independent determination of whether it was a hate crime. But if federal officials had a fuller picture of which law enforcement agencies prioritized hate crime reporting, and to what extent, at least federal officials would have another lens through which to analyze hate crime data. If, for example, it turns out that a jurisdiction with comparatively low hate crime rates has adopted none of the act’s identified practices, then federal officials would have reason to view those rates with suspicion. That would not only encourage a more informed reading of hate crime statistics but also help federal officials focus their attention on jurisdictions most in need of additional resources and oversight.

And finally, the federalism critique. Instead of commanding state and local law enforcement agencies to report hate crimes and adopt specific policies, which would be unconstitutional, the act harnesses the congressional spending power to incentivize those agencies to do the same. While this approach complies with principles of federalism, however, Congress could do much more without raising constitutional concerns. Currently, the new grant program is limited to state law enforcement agencies and two categories of local agencies: (a) those representing 100,000 residents or more, and (b) those representing 50,000 residents or more that have reported no hate crimes during the preceding three-year period. Not only does this coverage formula exclude about 95 percent of the nation’s law enforcement agencies from a new source of federal funding, but also, for the remaining 5 percent that are eligible, there is no guarantee those agencies will opt into the grant program. The act therefore appears unfair to small jurisdictions and, if not toothless, then a modest use of congressional power at best.

Luckily for Congress, strengthening the act would be a simple task. Instead of creating a new, exclusionary grant program with conditions attached, Congress could attach those same conditions to an existing grant program, preferably one like the JAG program, which, as noted above, is the principal source of federal funding for state and local law enforcement. In this scenario, the coverage formula would still have a purpose, only now it would serve not to exclude smaller jurisdictions from a new source of federal funding but, rather, to excuse those jurisdictions from the burdens of complying with new conditions on an existing, and likely important, source of federal support. Smaller jurisdictions would still be written out of the law. But now, instead of missing out on a potential benefit, they would be avoiding a potential sanction. (On that point, with the money it saves from making this switch, Congress could fund a new grant program available only to small jurisdictions. The new funding, of course, would come with conditions attached, but only those jurisdictions that opt into the program would be subject to the conditions.)

At the same time, the coverage formula would not excessively limit the act’s potential reach. Jurisdictions with 100,000 residents or more make up less than 2 percent of U.S. law enforcement agencies, but they represent almost one-third of the national population and, in 2020, reported almost 40 percent of the nation’s hate crimes. By imposing new JAG conditions on only these jurisdictions, not to mention state agencies and midsize jurisdictions with consistent nonreporting, Congress can maximize the act’s effects on hate crime statistics while minimizing the share of jurisdictions that would be subject to new conditions on existing federal funding. In other words, the coverage formula would act as a tailoring mechanism to ensure an effective use of congressional power that nonetheless conforms to federalism principles.

When it comes to improving hate crime statistics, the Jabara-Heyer Act is a promising first step and one responsive to the three critiques of a federal hate crime reporting mandate discussed above. But Congress can do more to improve hate crime statistics without overstepping its constitutional bounds. It can start by amending the act to place new conditions on select recipients of existing federal funds, namely, the JAG program, instead of placing those conditions on new funds for which the vast majority of jurisdictions are not even eligible.

Reps. Donald Beyer (D-Va.) and Don Bacon (R-Neb.) introduced the Improving Reporting Act on March 13. Notably, Beyer was the original sponsor of the Jabara-Heyer Act, and the Improving Reporting Act appears to build on that legislation. The act proposes to amend the section of federal law that delineates the JAG program’s grant-allocation formulas with several subsections specific to hate crime reporting. The new provisions would require the attorney general to evaluate whether certain “covered jurisdictions” are “credibly reporting hate crimes.” According to the legislative text, that evaluation should be based, at least in part, on whether a covered jurisdiction has reported no hate crimes during the most recent calendar year. Rather than adopting the same coverage formula that appears in the Jabara-Heyer Act, the Improving Reporting Act defines a covered jurisdiction as a unit of local government that has requested a grant under the JAG program and that has a population of over 100,000 people. Therefore, compared to the amendment proposed above, the act subjects fewer jurisdictions to new JAG conditions.

If the attorney general determines that a covered jurisdiction has not credibly reported hate crimes, then it is ineligible for JAG funding unless it can show that it has “conducted significant community hate crime public education and awareness initiatives,” which include some of the same practices that are ostensibly conducive to better hate crime reporting and enumerated in the Jabara-Heyer Act.

In some respects, the Improving Reporting Act improves on the Jabara-Heyer Act because it represents a more aggressive use of congressional power to incentivize better hate crime reporting practices in certain key jurisdictions. In other respects, however, the act might be a step too far. Other federal laws that have attached new conditions on JAG funding authorize only minor reductions as a penalty for noncompliance. Jurisdictions that do not comply with the Death in Custody Reporting Act, for instance, are subject to a 10 percent reduction in their annual JAG awards. In contrast, the Improving Reporting Act contemplates the elimination of funding for noncompliant jurisdictions. To be sure, covered jurisdictions can preserve their funding by showing they have taken steps to prioritize hate crime reporting. But the threat of eliminating funding is a powerful inducement and one Congress should consider in the context of the Supreme Court’s jurisprudence on the scope of the spending power. That concern aside, the act is a promising development, and though it would not amend the Jabara-Heyer Act in the manner proposed above, it would largely have that effect. Additional analysis is needed. But for now, we should rest assured that the Improving Reporting Act is a step in the right direction.

– Kai Wiggins holds a J.D. from Stanford Law School and a B.A. in Religion from Middlebury College. He is a former policy analyst at the Arab American Institute. Published courtesy of Lawfare.