Selected Testimony before the U.S. House of Representatives Committee on Oversight and Reform Subcommittee on Civil Rights and Civil Liberties in the hearing Confronting White Supremacy (Part I): The Consequences of Inaction
On May 15, 2019 Roy L. Austin, Jr. (A partner at the law firm Harris, Wiltshire & Grannis, LLP in Washington, DC. He is the former Deputy Assistant to the President for Urban Affairs, Justice & Opportunity, a former Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice and a former hate crimes’ prosecutor.) testified in the hearing Confronting White Supremacy (Part I): The Consequences of Inaction.
Among many points he asserted that disappointingly, we do not have the slightest idea how many hate crimes there are in America. And we have never known. The numbers currently kept by the FBI are largely useless. While a small handful of states and law enforcement agencies seem to take the collection of hate crime numbers seriously, the majority of states and vast majority of law enforcement agencies either do not bother to report or do not bother to report accurate numbers. The best inference that can be drawn from the current data is that in the environment created by the current presidential administration, things have gotten worse/hate crimes have increased.
What is particularly shocking about this is that law enforcement agencies regularly speak about the importance of using data to perform better and keep the country safer. Increasingly, law enforcement agencies want to use artificial intelligence to engage in what they call predictive policing. But artificial intelligence with bad data is nothing more than junk science – also described as garbage in, garbage out. If we as a country were serious about using science and data to stop crime and particularly hate crimes. We would fix our data tomorrow. It’s not that hard.
The importance of collecting good data could hardly be overstated. While every crime is significant, the harm can be exponential when the subject targeted the victim based on his or her actual or perceived race, ethnicity, religion, national origin, gender, sexual orientation, gender identity or disability. The pain or fear from hate crime reaches a broader community; the act is anathema to who we are as a nation built on diversity. While we and every Black church in America mourned the murder of nine Black people in Emanuel AME in Charleston, S.C., the congregation of every Black church asked whether they might be next. While we and every Synagogue in America mourned the murder of eleven Jewish people at the Tree of Life Synagogue in Pittsburgh, P.A., the parishioners of every synagogue in America asked whether they might be next. And sadly, the parishioners of the Chabad of Poway Synagogue in San Diego, C.A. know that the fear is justified.
Basically, the Federal Government seems happy to get whatever it gets from jurisdictions and put those numbers out publicly. But what do these numbers mean? What policy decisions can be made based on these numbers? What enforcement decisions can be made based on these numbers? Sadly, the answers to all of these questions is close to “nothing” or “none.”
My criticism of the numbers is not meant to criticize the individuals who work for the FBI’s Criminal Justice Information Services Division (CJIS). As someone who worked with this team both when I was at the Department of Justice and the White House, I know it to be a team of smart and hard-working individuals who care deeply about their work collecting crime data. This team is willing to provide individualized training to any agency that needs help reporting hate crime numbers—but few take them up on this offer. The problems are structural. The team is under-resourced for work this important and where there are no incentives for providing this data, their task is largely impossible. This problem would be relatively easy to fix – make federal government funding contingent on providing accurate hate crime data. But, where we do not even mandate that law enforcement agencies provide general crime statistics, it will require serious leadership to move the ball in this direction on hate crime statistics.
What exacerbates the problem is the fact that the federal government does not even publish its own hate crimes numbers. The FBI works on hate crimes cases around the country with the Civil Rights Division and U.S. Attorney’s Offices and none of those DOJ components regularly publishes in an easily accessible location any data about those cases. How can the federal government expect state and local law enforcement to publish data when it does not do so itself?
It only requires a quick look at the FBI Hate Crimes statistics to realize how unhelpful they are. The first thing one might notice is that the most up to date statistics are from 2017. We are now almost halfway through 2019 and we still do not have national statistics for 2018. Second, there are approximately 18,000 law enforcement agencies in the United States and around 2,000 agencies did not respond to the FBI request for hate crime information – and they suffered no consequences for not doing so. From the 16,149 agencies that at least responded, there were only 7,175 reported hate crime incidents – Of course this is more than 1,000 more than there were in 2016, which had almost 300 more than there were in 2015.
Of the reported incidents in 2017, California reported 1,094 incidents; New York reported 552; but Alabama reported just 9 incidents; and Mississippi reported just 1 incident. (UCR Table 12). For unclear reasons, the State of Hawaii does not participate at all. What also stands out are the number of large and good sized cities that report that they did not have a single hate crime in 2017 (Table 14): Mobile, Al; Tempe, AZ; Chula Vista, CA; Glendale, CA; Miami, FL; St. Petersburg, FL; Savannah-Chatham Metropolitan, GA; Cedar Rapids, IA; Des Moines, IA; Overland Park, KS; Baton Rouge, LA; Springfield, MO; Las Vegas, NV; Newark, NJ; Winston-Salem, NC; Oklahoma City, OK; Tulsa, OK; Columbia, SC; Brownsville, TX; Corpus Christi, TX; Garland, TX; Grand Prairie, TX; Irving, TX; Provo, UT; Roanoke, VA; and Cheyenne, WY.
How else do I know that these numbers are laughable bad. The same Department of Justice that publishes the Uniform Crime Report (UCR) also publishes the National Crime Victimization Survey (NCVS). According to the NCVS there were over 200,000 hate crimes in 2017. Of those, the victims said that they reported over 100,000 to the police and of those, in more than 15,000 victimizations, the victim said that the police acknowledged that it was a hate crime. How do we get from 200,000 to 7,175 – only through intentional irresponsibility? Here are some suggestions for how the federal government could improve the current system:
1. Stop vilifying Muslims, LGBTQ individuals and immigrants and stop calling white supremacists fine people. This should be obvious, but sadly it needs to be said.
2. Treat all hate crimes the same – It should not matter who the perpetrator is or who the victim is. If a crime is motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity, it is a hate crime and call it one.
3. Stop using bad data to make law enforcement policy and decisions – Until our data is better, do not rely on that data or lack of data to infringe on people’s First Amendment rights. We do not need new legislation to help us prosecute hate crimes. Until proven otherwise, we have the laws we need.
4. Encourage people to report – The government could sponsor a public service campaign to encourage victims and witnesses to report hate crimes.
5. Instruct students in school about hate crimes and teach kids how yesterday’s hate-filled vandalism or Facebook rant, becomes today’s cross burning, becomes tomorrow’s murder.
6. Make reporting mandatory – Congress should pass a law that makes law enforcement agencies that fail to provide accurate hate crimes’ data ineligible for federal law enforcement grants and equipment from the Department of Justice or any other federal agency.
7. Audit reports – The FBI should have a team that audits the reports provided by law enforcement agencies to ensure accuracy.
8. Publish the data quarterly – The FBI’s hate crime statistics are collected quarterly. If the FBI actually published quarterly, it would not only provide data in a more timely fashion, but it would give more transparency to the effort. By publishing quarterly, individuals who are aware of hate crimes would be better equipped to force their jurisdiction to correct mistakes.
9. Work with affinity groups to encourage reporting – Hate crime collection can be challenging because it requires work with communities who are often distrustful of law enforcement because of bad prior experiences or lack of language access. Affinity groups may be better positioned to collect the information and report it to law enforcement even in situations where the victim does not want to participate in a prosecution.
10. Get federal agencies to report – The FBI, Civil Rights Division and the U.S. Attorneys’ Offices should be required to report at least quarterly and those reports should be prominently displayed.
11. Better reports – Considering all of the improvements in how data can be displayed, the FBI’s UCR website is woefully outdated. The data should be displayed in a way that is easily navigable with maps and charts to help make the information more digestible.
We cannot fully understand hate crimes without good data. We will also not be able to determine what works and does not work to end hate crimes if we do not improve the data. There is no good reason not to address this problem immediately.
Also on May 15, 2019 Ms. Susan Bro Co-Founder, President and Board Chair, Heather Heyer Foundation testified before the House Committee on Oversight and Reform Subcommittee on Civil Rights and Civil Liberties
Chairman Raskin, Ranking Member Roy, Members of the Committee, thank you for the opportunity to appear before you today. My name is Susan Bro and I am the mother of Heather Heyer. I am the co-founder and president of the Heather Heyer Foundation, which was created to honor the memory of Heather, a young civil rights activist who dedicated her life to promoting equal rights for all people. The foundation has established a scholarship program to provide financial assistance to individuals passionate about positive social change.
Allow me to tell the story of why I am testifying before you today. Several years ago, as a black student in Charlottesville City Schools studied Civil War history, she questioned why there were statues celebrating Confederate war heroes in the city parks. She began a petition to have them removed. She gathered enough signatures to bring to the city council. In February 2017, the Charlottesville City Council voted to remove the statues.
A local self-proclaimed white supremacist organized a protest to the statue’s removal. He was joined by national leaders from a variety of white supremacist movements, including the KKK, The Traditionalist Worker Party, the Alt Right, and neo-Nazis from 35 states. The call was sent out under the pretense of protecting freedom of speech and white rights.
They opened the weekend with a tiki torch march on the University of Virginia lawn on the evening of Friday, August 11, 2017, clashing violently with students and faculty. The night rang with chants of “Blood and Soil” and “Jews will not replace us!” They also chanted, “You will not replace us,” and “Into the ovens!”
Saturday’s protest was to begin at noon on August 12, 2017. As early as 8:30 in the morning, hate-filled protestors began to arrive and converge on the downtown park by the statue. Some arrived with knuckles taped for fighting, carrying shields, bats, wooden poles, and wearing helmets. Some arrived with semi-automatic weapons. Some carried knives. Violent clashes with counter-protestors erupted throughout the day.
My daughter, Heather, was part of a group of peaceful counter-protestors who stayed away from the areas of violence. They gathered along the opposite side of the downtown mall from the areas of fighting while chanting and singing songs of solidarity. As Virginia Governor Terry McAuliffe declared a state of emergency, the Virginia State Police declared the assembly unlawful and the park by the statue began to clear out.
My daughter was caught on film talking to one of the helmeted girls as they were packing up their cars and leaving. Heather asked her why she was there and if she could talk about why she felt hate for others. The girl simply answered, “No comment,” to every question.
Heather’s group was joined by other counter protestors who were relieved it was all over and the haters were leaving. The group decided to head up Fourth Street to meet up at the downtown mall for celebrating. What they did not know was a young man from Ohio was sitting at the top of the hill of that street watching them.
Earlier in the day, he was filmed chanting Nazi slogans and marching with a Nazi shield, while wearing the white polo and khakis requested by organizers. He had started down the street in his car a few minutes before and then backed up to sit a moment. Seeing a diverse crowd, he perceived to be in support of black and brown people, he hit the accelerator, and drove his car into the people gathered.
Bodies flew into the air or were smashed into the ground. My daughter spun through the air, smashing his front windshield, leaving behind blood and skin. Her body then fell to the ground. As he began to shift into reverse, people raced up to smash his rear windshield trying to stop him. He raced back up the street, running over some people coming and going. He ran over others who had raced down the street to help. Between 30 to 40 people were injured that day. My daughter died almost immediately as she bled out internally and externally.
Hate crimes are on the rise in this country. According to the FBI’s released statistics for 2017, there was a 17% increase in hate crime from 2016 to 2017. This is the third consecutive increase in reported hate crime. In Virginia, there was an almost 50% increase in hate crime reported for 2017.
Yet we have major loopholes in the hate crime reporting system that result in local agencies failing to accurately report hate crimes. None of the victims of the car attack in Charlottesville are included in the FBI’s 2017 Uniform Crime Reporting data, despite being some of the most high profile hate crimes of 2017. In fact, Charlottesville Police only reported one hate crime for 2017, and it occurred a few months after the car attack. I was saddened to learn that Heather’s murder was not the only hate crime to go unreported. Exactly one year to the day prior, the hate crime murder of Khalid Jabara in Tulsa, Oklahoma also went unreported.
We do not have accurate information about the actual number of hate crimes that occur. To offer an accurate diagnosis, a doctor must have a full understanding of the symptoms. To adequately address the crisis of hate crimes, we need an accurate picture of how many hate crimes occur. That is why it is imperative that congress take up legislation that would address the issue of underreporting. I understand there is currently draft legislation in circulation, the focus of which is the improved hate crime data collection and reporting. The proposed title of this legislation is the “Khalid Jabara and Heather Heyer Hate Crime Reporting Act.”
Accurate reporting of hate crime data will allow us to better combat this scourge of hate, provide for increased law enforcement training, and determine how to best allocate resources. Addressing hate crimes is not a partisan issue. I am confident that Members of Congress can work together to address this crisis. Coming together to improve hate crime reporting can serve as a unifying first step.
It is my hope that the work we do here today can prevent other mothers and fathers from feeling the pain of losing a child to hate.
Michael German, Fellow Brennan Center for Justice at New York University Law School also testified at the hearing: Confronting White Supremacy on May 15, 2019. He stated that organized white supremacist violence has posed an enduring threat in the United States since its founding. The debate over what to call this violence, however, is relatively new, as are current and former Justice Department officials’ claims that they need new laws to properly address it. This argument came as a surprise to me, because when my fellow FBI agents asked me to go undercover against violent neo-Nazis in Los Angeles in 1992, no one at the Justice Department questioned our legal authority to do so, or hesitated to call the violent acts that white supremacists committed “terrorism.” That operation was opened as a domestic terrorism investigation supported by the Joint Terrorism Task Force. We solved several bombings, seized dozens of illegal weapons, and prevented other planned acts of violence. Using traditional law enforcement tactics, we obtained criminal convictions under a variety of federal statutes.
Today, when white supremacists commit deadly attacks such as the recent mass shooting at a San Diego synagogue, their crimes often fit the federal definitions of both domestic terrorism and hate crimes, as well as state statutes like murder. Though the laws governing these crimes all carry substantial penalties, the designation as either “domestic terrorism” or “hate crimes” is important chiefly because Justice Department policies de-prioritize hate crimes investigations. The Justice Department often arbitrarily categorizes white supremacist violence that targets people based on their race, religion, national origin, gender, sexual orientation, gender identity, or disability. But this has significant consequences for how federal officials frame these crimes in public statements, how they prioritize and track them, and whether they will investigate and prosecute them.
Terrorism investigations are the FBI’s number one priority and are well-resourced. They tend to look broadly to determine if an ongoing criminal organization may have supported the terrorist attack or are planning new ones. Civil rights violations like hate crimes rank fifth out of eight investigative priorities and investigations tend to focus narrowly on an individual attack or attacker. To make matters worse, the Justice Department, as a matter of policy and practice, defers the vast majority of hate crimes investigations to state and local law enforcement, without any federal evaluation to determine if the perpetrators are part of a larger violent far-right group. State and local law enforcement are often ill-equipped or unwilling to properly respond to these crimes. As a result, the Justice Department doesn’t know how many people militant white supremacists attack, injure, or kill each year in the United States, which leaves intelligence analysts and policy makers in the dark about the impact this violence inflicts on our society, or how to best address it. More importantly, the failure to properly label and respond to far-right violence deprives victimized communities of basic human dignity and equal protection of the law.
Though white supremacist attacks represent just a tiny proportion of the violence that takes place in the U.S. each year, they require specific attention because they pose a persistent threat to vulnerable communities, particularly communities of color, immigrants, LGBTQ people, women, the disabled and religious minorities. These communities are already disproportionately victimized by other forms of violent crime, including police violence, many of which are never prosecuted. Additionally, the organized nature of the white supremacist groups that often commit this type of violence allows them to quickly replace any member who is arrested and incarcerated, and to continue threatening further acts of violence after any individual crime is successfully prosecuted. Finally, hate crimes are intended to inflict injuries beyond their direct victims, threatening and intimidating entire communities of people who share similar attributes and inflicting a greater social harm. These crimes demand a more comprehensive and strategic government response that recognizes and more effectively redresses this broader injury rather than simply increasing criminal penalties. Developing more effective federal policies to address far-right violence requires a new approach that better protects vulnerable communities from all forms of deadly violence, and remediates the communal injuries these crimes inflict through restorative justice practices.
Recent evidence suggests the Justice Department is continuing to treat protests as terrorism, particularly in its monitoring of minority-led movements like Native American water protectors and Black Lives Matter activists, falsely framed as “black identity extremists.” Its failed attempt to prosecute more than 200 anti-Trump activists who were near where some windows were broken and a limousine was lit on fire during the #J20 post-inauguration protests stands in sharp contrast to the relative handful of federal arrests arising from more than two years of far-right rioting across the country where journalists and counter-protesters were beaten, stabbed, shot, and killed. The Intercept published an analysis of 752 cases the Justice Department classified as domestic terrorism since 9/11, and found only 268 involved far-right defendants who were charged with crimes that met the federal definition of terrorism.
Federal law defines domestic terrorism as illegal acts occurring in the U.S. that are “dangerous to human life” and appear to be “intended to intimidate or coerce a civilian population.” Though this statutory definition does not itself impose any criminal liability, Congress identified 51 “federal crimes of terrorism” targeting the types of violent acts domestic far-right militants commonly commit, and passed a 52nd law that further prohibits material support toward the commission of these crimes.
The Justice Department recognizes an overlap between organized white supremacist violence that meets the definition of domestic terrorism and hate crimes. FBI policy instructs agents conducting a federal hate crime investigation to open a parallel domestic terrorism investigation whenever the suspect has “a nexus to any kind of white supremacist group.” It appears, however, that the FBI does not always follow this policy. Despite the Attorney General calling the Charlottesville vehicle attack an act of terrorism, the FBI and U.S. Attorney’s office labeled the investigation of Alex Fields’ murder of Heather Heyer during the 2017 “Unite the Right” rally in Charlottesville a “civil rights investigation,” seemingly ignoring that it took place during a pre-planned white supremacist riot. To be clear, the decision to ultimately charge Fields under federal hate crimes statutes exposes him to severe punishment, including the death penalty, so no new laws are necessary to fully address his crime even if none of the 51 “federal crimes of terrorism” could have been charged. But labeling a case as a hate crime investigation at the onset narrows the scope of these inquiries to the individual act, rather than examining it as a part of a potentially larger and ongoing domestic terrorism conspiracy.
The Justice Department’s failure to prioritize the white supremacist terrorism, hate violence, and police violence affecting these communities undermines the rule of law and threatens social cohesion, which ultimately undermines the nation’s security. Rethinking this problem requires that we reorient our security efforts and resources to reduce and protect all Americans from all forms of violence.
Mr. George Selim, Senior Vice President, Programs, ADL also testified Before the Civil Rights and Civil Liberties Subcommittee of the House Oversight and Government Reform Committee at a hearing on Confronting White Supremacy. He pointed out that On October 27, 2018, America witnessed the deadliest attack on Jews in its history when Robert Bowers allegedly stormed a Pittsburgh synagogue armed with an assault rifle and three handguns, shouting “All Jews must die,” and killed eleven people in their place of worship. Less than five months later, Brenton Tarrant allegedly perpetrated the deadliest attack against Muslims in New Zealand’s history, slaughtering 50 people who had gathered for prayer at two mosques. On April 27, 2019, alleged assailant John Earnest opened fire in a synagogue in Poway, California, killing one congregant and wounding several others. These were not the first tragedies at the hands of white supremacist terrorists, and, unfortunately, they will not be the last.
He also reported that according to ADL’s latest report on extremist-related murders, “Murder and Extremism in the United States in 2018,” 78% of the 50 murders committed by extremists in 2018 were tied specifically to white supremacy.3 The ten-year overview tells a similar story: Of the 313 people killed by right-wing extremists between 2009 to 2018, 76% were killed by white supremacists, making white supremacists the deadliest extremist movement in the United States over the past decade.
Since 1979, we have compiled an annual Audit of Anti-Semitic Incidents (“the Audit”) throughout the United States, including both criminal and non-criminal acts of harassment and intimidation, including distribution of hate propaganda, threats, and slurs. The data we have compiled from the last three years shows that anti-Semitism in America is far more pervasive than in previous years. Our recently-released 2018 Audit recorded 1,879 anti-Semitic incidents in the United States. Last year was the third-highest year on record since we began tracking incidents in 1979, it was the deadliest year on record for the U.S. Jewish community, and it saw a doubling of anti-Semitic assaults compared to 2017. The data is clear: threats against Jews, Muslims, and other minorities in the United States are at disturbingly high levels, and a key reason for that is the embrace of white supremacist ideologies.
Like other forms of extremism, white supremacy is an ideology that its adherents seek to spread. The ADL defines white supremacy as the belief system with one or more of the following key tenets: 1) white people should have dominance over people of other ethnic and racial backgrounds, especially in places where they may co-exist; 2) white people should live by themselves in a whites-only society; 3) white people have their own "culture" that is superior to other cultures; 4) white people are genetically superior to other people. Most white supremacists feel the pull to this ideology because they believe the white race is in danger of extinction due to a rising “flood” of non-whites, who are controlled and manipulated by Jews, and that imminent action is needed to “save” the white race. White supremacists themselves typically do not label themselves as such, but instead tend to prefer euphemisms ranging from “white nationalist” to “white separatist” to “race realist” or “identitarian.”
He said that in our 2018 report, “New Hate and Old: The Changing Face of White Supremacy in the U.S.” we found that the white supremacist “Unite the Right” rally in Charlottesville, Virginia, in August 2017 that tragically killed Heather Heyer – whose mother I am honored to share a panel with today – attracted some 600 extremists from around the country. The movement is not as obvious about its true objectives as it was in the 1980s and early 1990s, when racist skinheads dominated white supremacists’ ranks. Today, many of white supremacists seek to dress non-descriptly and use coded language. Within the white supremacist community, there is some disagreement on strategy. Some factions feel the need to adhere to “optics” and purposefully obfuscate their views in order to infiltrate mainstream politics (an approach decried by Bowers immediately before his alleged attack), whereas others seek “accelerationism,” hoping to purposefully spark a race war. With one approach involving secrecy and coded language, and the other sometimes including seemingly random acts of violence, both approaches are alarming in their potential to shift from seemingly innocuous to tragedy.
Our 2018 data show a 182% increase of white supremacist propaganda incidents, with 1,187 cases reported, compared to 421 in 2017.8 While hate on campuses is still at a relatively high point, on-campus incidents increased only modestly (9%) compared to 2017. However, off-campus incidents spiked – a 572% increase, year-on-year. The propaganda, which includes everything from veiled white supremacist language to explicitly racist images and words, often features a recruitment element, and frequently targets minority groups, including Jews, Blacks, Muslims, non-white immigrants, and the LGBTQ community. These trends are troubling, and we urge your committee to regularly consult our Hate, Extremism, Anti-Semitism, and Terrorism (HEAT) Map, which provides the public with an ongoing opportunity to observe incident and propaganda data from throughout the country, updated regularly.
While many white supremacists do not belong to one specific group, much of this propaganda is pushed by a several organized groups. For example, in 2018, the ADL recorded 319 incidents of white supremacist propaganda on 212 college and university campuses in 37 states and the District of Columbia. Much of that propaganda came from active alt right groups, such as Identity Evropa, (which in early 2019 rebranded i