Statement of Vanita Gupta: Responses to the Increase in Religious Hate Crimes – Senate Committee on the Judiciary

Categories: Testimony

Location: Senate Committee on the Judiciary

Click here for a PDF of this testimony (with citations).

Chairman Grassley, Ranking Member Feinstein, and Members of the Committee: I am Vanita Gupta, incoming president & CEO of The Leadership Conference on Civil and Human Rights. And from October 2014 to January 2017, I served as Acting Assistant Attorney General and Principal Deputy Assistant Attorney General overseeing the U.S. Department of Justice’s Civil Rights Division. In that role, I was the nation’s chief civil rights prosecutor overseeing federal hate crimes prosecutions. Thank you for the opportunity to submit testimony for the record regarding hate crimes in the United States today.

The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership to promote and protect the civil and human rights of all persons in the United States. Founded in 1950 by A. Philip Randolph, Arnold Aronson, and Roy Wilkins, The Leadership Conference works in support of policies that further the goal of equality under law through legislative advocacy and public education. The Leadership Conference’s more than 210 national organizations represent persons of color, women, children, organized labor, persons with disabilities, seniors, LGBTQ people, and major religious groups.

Today’s hearing comes at a crucial time, when too many people in this country feel unwelcome, unsafe, and marginalized. Divisive rhetoric during the recent presidential election, comments and policies targeting or casting wide aspersions on Muslim, immigrant, and other marginalized communities have heightened concerns that our country is increasingly legitimizing or normalizing hate. From the tragic shooting of two South Asian men in Kansas told to “get out of my country” to mosque arsons and synagogue vandalism to the defacing of a Maryland church with graffiti stating, “Trump Nation, Whites Only,” an alarming number of gut-wrenching incidents of hate-motivated violence have shaken the public in recent months.

It is incumbent upon all of us to reduce hate violence and bias-motivated incidents. Hate crimes have been referred to as this country’s original form of domestic terrorism. They have a reverberating effect striking fear not only in the individual victim, but also in the broader community. These incidents further splinter and segregate our communities by eroding the diverse fabric of American life. The Senate’s investigation into the rise of religious-based hate crimes today sends a powerful message that America will not normalize hate and hate-based violence in any form.

There is little question that violence committed against individuals because of their race, religion, ethnicity, national origin, gender, gender identity, disability, or sexual orientation remains a serious problem in America. It has been nearly 30 years since the 1990 enactment of the Hate Crime Statistics Act (HCSA), and since 2009 the number of hate crimes reported has consistently ranged around 7,000 annually, or nearly one every hour of the day.[1]These data almost certainly understate the true numbers of hate crimes committed. Victims may be fearful of authorities and thus may not report these crimes. Or local authorities do not accurately characterize these violent incidents as hate crimes and thus fail to report them to the federal government.

Over the last 30 years, The Leadership Conference has been at the forefront of the fight against hate incidents and crimes. Our work against all forms of discrimination and bigotry is stronger because, as a coalition, we can make the powerful case that such hatred destroys the very fabric of our democracy and negatively affects everyone in the United States.

The Leadership Conference, in partnership with the Anti-Defamation League and Human Rights Campaign, led a diverse coalition that included civil rights, professional, civic, educational, major religious groups, and law enforcement, which advocated tirelessly for passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, an historic piece of legislation signed into law in October of 2009 that expanded the definition of federal hate crimes to include sexual orientation, gender, gender identity and disability and removed unnecessary obstacles to federal prosecution.

Passage of the Matthew Shepard and James Byrd, Jr. Act, formerly the Local Law Enforcement Hate Crimes Prevention Act, was one of several, key recommendations in The Leadership Conference’s comprehensive report, “Confronting the New Faces of Hate: Hate Crimes in America 2009,” highlighting the need for a coordinated response by every sector of society to eradicate the problem of hate incidents and crimes in the United States. That need continues today, and The Leadership Conference, through the work of our hate crimes taskforce, led by the Anti-Defamation League (ADL), Human Rights Campaign (HRC), and Muslim Advocates, will remain steadfast in our advocacy to prevent hate crimes and seek stronger protections on both the federal and state level. We also commend the leadership and commitment of the International Association of Chiefs of Police to combat hate crimes through prevention, training, and enforcement – efforts that have been crucial to our advocacy.

Our sister organization, The Leadership Conference Education Fund, has also long worked to raise public awareness around religious and racial intolerance and hate, developing informational and strategic resources to help community leaders, fair housing advocates, and others prevent and respond effectively to housing-related hate crimes and tensions and creating new, innovative offline and online resources to support youth hate crime awareness, education, prevention, and intervention.

More recently, in response to the recent uptick in hate incidents, hate crimes, and harassment across the country, The Education Fund, the Lawyers’ Committee for Civil Rights Under Law, and partner organizations representing diverse communities that reflect the fabric of America, including: Arab Community Center for Economic and Social Services (ACCESS); Asian Americans Advancing Justice; Center for Community Change; Color of Change; Genders & Sexualities Alliance Network (GSA Network); Hollaback Inc.; Muslim Advocates; National Council of La Raza; New York City Anti-Violence Project; South Asian Americans Leading Together; and the Transgender Law Center, launched “Communities Against Hate,” a national initiative to document stories and respond to incidents of violence, threats, and property damage motivated by hate around the United States.

Communities Against Hate is our response to the growing fear and hate violence sweeping our nation. It provides a safe place for survivors and witnesses to share stories of hate incidents through our online database and telephone hotline (1-844-9-NO-HATE). Through the hotline, we connect local organizations combating hate in their communities, as well as hate survivors and witnesses, to legal resources and social services to meet their needs. And we come together to advocate for a better America. We aim to not only provide a way to document hate incidents to complement police data, but to have information to make their reporting more accurate and accountable. And through the hotline, we aim to support the organizations, individuals, government, and law enforcement leaders in communities across the country to work together to improve the prevention of and response to hate incidents and hate crimes. It is our hope that this coordinated effort will contribute to and build upon longstanding work by organizations like the Southern Poverty Law Center to raise awareness, and educate the public on the prevalence of hate and empower local communities and community based organizations to respond effectively to hate – including wherever possible, to report these crimes to police, cooperate in investigations, and assist in prosecution through the justice system.

We have seen communities confronted with hate and discrimination come together across perceived differences to support each other and try to prevent future hate incidents. Recognizing a shared commitment to public safety, equality, and respect for human dignity, leaders from religious, civil rights, and community organizations, as well as from law enforcement agencies across this country, have worked together effectively to combat hate. Yet we know that they need more help.

Through “Communities Against Hate,” we can better respond to efforts within our country to pit different communities against one another and demand action to address hate-based incidents and hate crimes in America. This coalition stands as an exemplar of what we want the United States to be – a multiracial, multiethnic, multireligious country stronger for its diversity – with a government that works for the good of all.

Background on Legislative Responses to Hate Crimes

While our country continues to contend with issues of racial and religious intolerance, racism, discrimination, and bigotry, policy makers have consistently taken steps to address hate in the United States with the passage of important pieces of legislation. At present, 45 states and the District of Columbia have enacted hate crime penalty enhancement laws, many based on a model statute drafted by the Anti-Defamation League in 1981.[2]Under these laws, a perpetrator can face more severe penalties if the prosecutor can demonstrate, beyond a reasonable doubt, that the victim was intentionally targeted by the perpetrator based on his or her personal characteristics.

In 1968, Congress passed the first federal hate crimes law, codified as 18 U.S.C. §245. Since then, federal lawmakers have passed several other, critical pieces of legislation strengthening our capacity to protect our citizens from violence motivated by such blind and vicious hate. For example, in 1990, Congress enacted the Hate Crime Statistics Act (HCSA) requiring the FBI to collect hate crime data from law enforcement agencies across America.[3]Although the FBI’s annual HCSA report clearly undercounts hate crimes, the report remains an important snapshot of the magnitude of the hate violence problem in America.

As mentioned earlier, in 2009, Congress passed the historic Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, conferring power to the Department of Justice to prosecute hate crimes in states where the current law is inadequate or when local authorities are unwilling or do not have the resources to do so themselves. Providing additional resources to local authorities to combat hate crimes, the Act removed unnecessary obstacles to the federal prosecution of hate crimes and expanded the coverage of existing hate crime laws to include crimes not only based on race, color, religion, and national origin, but also bias-motivated crimes based on the victim’s actual or perceived sexual orientation, gender, gender identity, or disability.

It’s important to note that when we talk about hate crimes, we talk about whether someone is perceived to be from a protected class (e.g. Muslim, Jewish, gay, transgender, for example). We do this because the bias motivation that must be proven in a hate crimes case is from the perspective of the perpetrator.

This is particularly true in the context of hate crimes targeting people who are Muslim or are perceived to be Muslim. There is no question that many South Asians, Sikhs, and people of other faiths are targeted because people believe they are Muslim. However, we cannot lose sight of the fact that many people are also targeted because of their actual identity. Sikhs, for example, may be mistaken as Muslims, but they also have a long history in this country and in others of facing persecution and discrimination. Arab Americans are often targeted based on their national origin, and have experienced discrimination in this country based on their national origin, not because they are perceived to be Muslim. As a result of tremendous advocacy from the Sikh Coalition, ADL, and other organizations, the FBI recently recognized the ways in which all of these communities may be targeted for discrimination by adding additional categories to capture hate crimes targeting Sikhs, Hindus, and Arab Americans that reflects this understanding.

Rigorous enforcement of these laws is critically important, not only for the communities specifically protected, but also for the type of country we would like to create for our children – an America as good as its ideals. Hate crimes laws demonstrate to all citizens that violence against anyone because of blind and vicious hatred will never be tolerated in this country. Broad coalitions of individuals – including law enforcement – agree that these laws serve important deterrent effects. Without them, and without congressional oversight and rigorous enforcement of these federal and state hate crimes statutes, isolated incidents of hate, bigotry, and prejudice could spread into an epidemic. For the communities specifically protected, enforcement of these laws is often a matter of life and death and represents the government’s commitment to protecting all its citizens. Every individual in this country – no matter their color, creed, gender, disability status, nationality, sexuality, or gender identity – deserves to feel safe, welcome, and protected by their government.

The Rise in Hate Based Incidents & Crimes Targeted at Muslims and Others

Equal protection under the law is one of the most fundamental principles of our founding, irrespective of a person’s race, color, sex, national origin, disability status, gender, sexuality, gender identity, or religion. The ability to live, work, and worship free from bias and discrimination is also a hallmark of democracy. It is our commitment to and respect for diversity that has made the United States a beacon of hope and place of sanctuary for people from around the world.

Unfortunately, we have consistently struggled to live up to these important ideals. Too many people continue to face bias, discrimination, violence, and harassment because of how they look, who they love, or how they choose to worship. Since 9/11, there has been a disturbing, growing trend of anti-Muslim rhetoric, including irresponsible and dangerous statements by government officials, and a rampant increase in anti-Muslim harassment, discrimination, opposition to mosques, and hate crimes targeting Muslims, Arabs, Sikhs, and South Asians.

The 2016 election cycle was especially toxic, with some candidates repeatedly uttering hateful rhetoric and demonizing historically marginalized and vulnerable communities, further deepening existing divisions within our country along racial, religious, and ethnic lines. In addition to official comments, policies singling out protected groups can normalize hate and legitimize hate-motivated violence directed at Muslims or people perceived to be Muslim, Jews, people of color, immigrants, refugees, the LGBTQ community, and people with disabilities across the United States.

Against that backdrop, the annual report released by the FBI suggests that hate crimes have been increasing for a few years. The most recent data released in November 2016 revealed hate crime incidents increased from 5,479 in 2014 to 5,850 in 2015 – a 7 percent increase.[4]When disaggregated by race, gender identity, sexual orientation, and religion, the data reveals an acute problem. For example, American Indians have been 136 percent more likely to become the victim of a hate crime since 9/11;[5]bias-motivated incidents based on gender identity have increased from 33 reported to the FBI in 2013 to 118 in 2015.[6]FBI Hate Crime Statistics for 2015 reveal a 3.5 percent increase in bias-motivated incidents due to sexual orientation – 1,053 incidents in 2015; [7]2016 has now overtaken 2015 as the deadliest year on record for transgender people in the United States;[8]hate crimes against Muslims rose 14 percent between 2013 and 2014,[9]and by an extraordinarily troubling 67 percent between 2014 and 2015.[10]While growing, the number likely only represents a fraction of such cases given that thousands of law enforcement agencies throughout the country did not submit any data [to the FBI].[11]Furthermore, while the FBI statistics suggest a general trend of increasing violence towards Muslims, the number of hate crimes reported by the FBI each year are likely an underrepresentation given that many crimes go unreported. In 2013, the Bureau of Justice Statistics noted that nearly two-thirds of all hate crimes were unreported to the police.[12]

More recent data collected by the Southern Poverty Law Center from news reports and individuals found 867 bias-related incidents in the 10 days following the presidential election.[13]That number has since increased to 1,372 documented bias related-incidents.[14]Among them: multiple reports of Black children being told to ride in the back of school buses; the words “Trump Nation” and “Whites Only” being painted on a church with a large immigrant population; and a gay man being pulled from his car and beaten by an assailant who said the “president says we can kill all you faggots now.”[15]

Over the last year, religious-based hate incidents and crimes have spiked, especially in the wake of the 2016 election. Per the Anti-Defamation League (ADL), anti-Semitic incidents in the U.S. surged more than one-third in 2016 and have jumped 86 percent in the first quarter of 2017.[16]In its annual Audit of Anti-Semitic Incidents, ADL reports that there has been a massive increase in the amount of harassment of American Jews, particularly since November, and a doubling in the amount of anti-Semitic bullying and vandalism at non-denominational K-12 grade schools.[17]And in 2017 alone, Jewish Community Centers have received over 150 bomb threats.[18]

Just as concerning is the recent stream of hate incidents around the country directed at Muslims or people perceived to be Muslim. South Asian and Sikh Americans continue to experience a high volume of hate crimes. A 2013 report by the Sikh Coalition and the Asian American Legal Defense and Education Fund (AALDEF) revealed 50 percent of Asian American youth surveyed have experience bias-based bullying and harassment.[19]Additionally, the Sikh Coalition has documented over 175 anti-Sikh hate crimes since 2001, and Sikhs are 1000 times more likely to be victims of a hate crime.[20]Earlier this year, in a short span of ten days, there were multiples shootings of South Asian men across the country. One particularly appalling incident was the shooting of Srinivas Kuchibhotla and Alok Madasani, who were patrons at a bar in Olathe, Kansas, when a man told them to “get out of my country” before opening fire at them, shooting them both, and killing one of them. After the incident, the perpetrator told police that he thought the two men were Middle Eastern.[21]

The experiences of Muslims, Muslim Americans, and those perceived to be Muslim are particularly troubling. Since January of this year, Muslim Advocates has tracked more than 80 incidents of violence and threats of violence targeting American Muslims and those that people confuse for Muslim[22]– including the assault of an airport worker by a traveler in New York[23]and the attempted removal of an Atlanta teen’s hijab.[24]In addition to a series of threatening letters sent to mosques around the country starting late last year and continuing into 2017, there have also been an alarming number of mosque arsons and incidents of vandalism since the beginning of this year. The Islamic Center of Eastside in Bellevue, Washington, was set on fire intentionally;[25]arson intentionally destroyed the Victoria Islamic Center in Victoria, Texas;[26]the Islamic Society of New Tampa in Thonotosassa, Florida, was intentionally set on fire just months after a mosque in Fort Pierce, Florida, was set on fire;[27]and a 44-year-old man vandalized a mosque in Columbus, Ohio, writing a number of Islamophobic and politically charged messages, including “Allah is a fraud” and “Oppose Trump You Are Doomed!”[28]

This is a disturbing trend that requires urgent action. We know that acts of hate not only devastate individuals, but can also target entire communities, undermining the most basic tenets of our democracy. As such, every sector of society has an important role to play in helping to ensure that no person is targeted for violence based on his or her personal characteristics. We must speak out against hate and bigotry when we see it and document incidents of hate whenever they arise.

Responses to Hate Based Incidents & Crimes

Between 2009 and January 2016, the Department of Justice investigated and prosecuted a record number of hate crimes. The Department organized dozens of informational webinars and hate crimes identification trainings for law enforcement officers and members of the public to help them better identify and respond to hate crimes in their communities. To further improve their efforts to combat hate violence, along with U.S. attorney partners and the FBI, the Civil Rights Division of the Department of Justice launched a special initiative in 2015 with law enforcement in five target states – Mississippi, California, Oregon, Kansas and Florida. These regional sessions involved intensive trainings designed to enhance law enforcement’s ability to recognize, investigate, prove, and encourage better reporting and the collection of accurate data on hate crimes, as well as to help them educate and engage the public in combatting hate crimes.

That same year, the FBI released a new and improved hate crimes training manual that included particularized attention to identifying and combatting hate crimes directed against Arabs, Sikhs and Hindus.[29]The department also prioritized the enforcement of civil rights statutes that promote religious freedom and combat religious discrimination in education and protect the rights of religious communities to build places of worship. Addressing discrimination wherever it may arise is critical to creating the kinds of communities that can effectively prevent and combat hate crimes.

In 2016, against the backdrop of a divisive election and an uptick in reports of hate crimes to DOJ, the Civil Rights Division under my watch launched “Combating Religious Discrimination Today,” an interagency initiative “designed to promote religious freedom, challenge religious discrimination and enhance enforcement of religion-based hate crimes.”[30]The initiative involved six large interfaith gatherings in cities across the country to ensure that the Division was hearing about the problem of religious discrimination in various communities. The initiative culminated in a final report of findings and recommendations derived from the many months of discussions at community roundtables with diverse stakeholders affected by hate crimes.[31]

Most recently, the Department of Justice under Attorney General Jeff Sessions announced the formation of a Hate Crimes Subcommittee within the newly formed Task Force on Crime Reduction and Public Safety, to study ways to more effectively address hate incidents and crimes.[32]It is our hope that the department maintains vigorous investigation and enforcement of potential hate crimes in federal court, and uses its formidable bully pulpit to speak out against hate violence for prevention’s sake.[33]

As mentioned above, the FBI has been tracking and documenting hate crimes reported from federal, state, and local law enforcement officials since 1991 under the Hate Crime Statistics Act of 1990 (HCSA). Though clearly incomplete, the Act has also proven to be a powerful mechanism to confront violent bigotry, increase public awareness of the problem, and spark improvements in the local response of the justice system to hate violence. However, to be able to effectively report hate crimes, police officials must be trained to identify and respond to them.

Recommendations for Addressing Hate Based Incidents & Crimes in the Future

The Department of Justice, as well as local law enforcement agencies, must continue to identify, investigate, report, and vigorously prosecute violence and harassment based upon hatred for protected categories.

However, federal lawmakers have an important role to play in combatting hate crimes. If we are ever going to fully and effectively eliminate hate violence in this country and keep all our communities safe and free from violence and harassment, Congress must take additional action, including:

  • Passing legislation amending 18 U.S.C. §247 to cover threats to religious property. Currently, 18 U.S.C. §247 only covers “attempts.”
  • Passing the National Opposition to Hate, Assault, and Threats to Equality Act, the NO HATE Act (S. 662 and H.R. 1566), which would provide funding for states to establish hotlines for reporting and addressing hate crimes, establish a private right of action for victims of hate crimes, support training on hate crime data collection and reporting for law enforcement officers, and authorize effective rehabilitative services for those convicted of hate crimes.
  • Passing legislation mandating that some Justice Department funds should be made available only to those agencies that are demonstrating credible participation in the Hate Crime Statistics Act (HCSA) program. Furthermore, data collection and reporting would need to include more granular information on specific populations that are being targeted and attacked. Currently, state and local law enforcement agencies are encouraged – but not required by law – to provide information on hate crimes to federal authorities. As Jonathan A. Greenblatt, the CEO of the Anti-Defamation League, recently described, “it is disturbing that at least 85 police agencies in cities over 100,000 in population did not participate in this report – or affirmatively reported that they had zero hate crimes.”[34]
  • Encouraging the Department of Justice to continue anti-bias trainings started under the Obama administration and supporting additional trainings in more jurisdictions through additional funding.
  • Exercising its oversight authority over the Department of Justice to monitor and ensure that the department, including the FBI, continues to vigorously and aggressively investigate and prosecute hate violence across the country.
  • Publicly condemning scapegoating, bias crimes, racism, and other hate speech and hate crimes. Senior federal officials across government are in a unique position to use their “bully pulpits,” their power of persuasion, and their clout to promote better intergroup relations in this country. They serve as role models and must therefore lead by example, by swiftly condemning any efforts to demonize immigrants, religious minorities, and other groups that have been historically targeted by hate crimes.
  • Passing legislation clarifying that enforcement of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) does not require a “but-for” causation standard, as erroneously interpreted by the Sixth Circuit.[35]
  • Supporting budget authority to fund, for the first time, grants authorized under Sec. 4704 of the HCPA, which are intended to promote federal coordination and support for bias-motivated criminal investigations and prosecutions by state, local, and tribal law enforcement officials.
  • Promoting the enactment of comprehensive legislation focusing on inclusive anti-bias education, hate crime prevention, and bullying, cyberbullying, and harassment education, policies, and training initiatives. Funding is desperately needed for anti-bias education and hate crime prevention initiatives, as well as promoting awareness of effective anti-bias education initiatives. The Department of Justice, the Department of Education, and other involved federal agencies should institutionalize and coordinate their response to prejudice-motivated violence and fund programs and initiatives developed for schools and for youth violence prevention programs. The federal government should make information available regarding effective hate crime prevention programs and resources, successful anti-bias training initiatives, and best practices. The FBI should receive funding to update and expand training and outreach to ensure the most comprehensive implementation of the Hate Crime Statistics Act.

Conclusion

Ultimately, eliminating prejudice in the United States will require that Americans develop respect for cultural differences and establish dialogue across racial, ethnic, cultural, and religious boundaries. Education, awareness, and acceptance of group differences are the cornerstones of a long-term solution to prejudice, discrimination, and bigotry in this country.

Meanwhile, hate crime laws and other effective responses to hate violence by public officials and law enforcement authorities can play an essential role in deterring and preventing some of the most heinous crimes against individuals from marginalized communities.

Our government must do everything in its power to ensure that people in this country live free from physical harm or intimidation that is based on their race, gender, religion, sexual orientation, gender identity, or disability status. We must continue working to build an America as good as its ideals.

Thank you for your leadership on this critical issue and for the opportunity to speak before you today.