| 8.17.22

Should the DOJ Have an Employee Responsible for Expedited Review of Hate Crimes, Including Those Against Asians? (S. 937)

Do you support or oppose this bill?

What is S. 937?

(Updated July 16, 2021)

This bill was enacted on May 20, 2021

The Senate adopted a substitute amendment to this bill before its final passage, so the Senate-passed version of the legislation is summarized here. Known as the COVID-19 Hate Crimes Act, this bill would seek to address the rise of hate crimes and violence, including those against Asian-Americans and Pacific Islanders (AAPIs), by designating a Dept. of Justice (DOJ) employee to help with expedited review of hate crimes that have been reported to federal, state, local, or tribal law enforcement. The Attorney General would be required to designate a person for this role within a week of this bill’s passage. A breakdown of its other provisions can be found below.

Additionally, this legislation would instruct the Attorney General to issue guidance for state, local, and tribal law enforcement agencies s to better address hate crimes against AAPIs by:

Establishing online reporting of hate crimes or incidents in multiple languages that is accessible to those with disabilities;
Collecting data disaggregated by protected characteristics described in U.S. Code relating to hate crime acts;
Expanding public education campaigns, which should be equally accessible to those with and without disabilities, aimed at raising awareness of hate crimes and reaching victims.
Expanding culturally competent and linguistically appropriate public education campaigns on the topic of hate crimes;
Expanding culturally competent data collection on and public reporting of hate crimes.

To improve reporting of hate crimes, this legislation would support the implementation of and training for NIBRS (the latest crime reporting standard) in law enforcement agencies without it. It would also direct the Attorney General to make grants giving law enforcement agencies support for: 1) establishing policies on identifying, investigating, and reporting hate crimes, 2) developing a system for collecting hate crimes data, 3) establishing hate crimes units, 4) engaging in community relations to address hate crimes in their jurisdictions, and 5) providing hate crime trainings for agency personnel.

At the state level, this legislation would provide grants to states to:

Establish and run hate crime hotlines;
Record information about hate crimes; and
Redirect victims and witnesses of hate crimes to law enforcement and local support services.

Beginning three years after this bill’s implementation, states or local governments receiving funding under this bill would be required to provide information about hate crimes committed in their jurisdictions. Failure to meet this requirement would trigger a repayment requirement, such that the receiving organization would need to repay the amount of money it received, plus interest, to the federal government. They would also have to provide semiannual reports summarizing the law enforcement activities or crime reduction programs aimed at preventing, addressing, or responding to hate crimes which it conducted during the reporting period.

Using data submitted by states and local government units, the Attorney General would be responsible for collecting and analyzing data on hate crimes for the purpose of developing policies which effectively respond to this issue. They would also be responsible for submitting a report to Congress summarizing the nature and extent of hate crimes in the U.S. and reporting on the number and activities of recipients of federal funding to address hate crimes.

With regard to perpetrators of hate crimes, this legislation would allow judges to require individuals convicted under federal hate crime laws to undergo community service or education centered on the community (or communities) that their crimes targeted.

Furthermore, this legislation would require the issuance of guidance detailing best practices to mitigate racially discriminatory language used to describe the COVID-19 pandemic. This guidance would be issued by the Attorney General and the Secretary of Health and Human Services, in coordination with the COVID-19 Health Equity Task Force and community-based organizations.

Finally, this legislation would express condemnation and denunciation of any and all anti-Asian and Pacific Islander sentiments. It specifically remembers the eight victims of the Atlanta, Georgia shooting, six of whom were women of Asian descent.

This legislation would define COVID-19 hate crimes as violent offenses motivated by the relationship, whether real or perceived, between the spread of COVID-19 and a person’s background, including their ethnicity and national origin.

If enacted into law, this bill’s provisions would apply until one year after the end of the COVID-19 emergency period. Its provisions could thereafter be extended by the Attorney General if they believe an extension is appropriate.

Argument in favor

Hate crimes and other discrimination against Asian-Americans and Pacific Islanders (AAPIs) have increased significantly during the COVID-19 pandemic. It’s important to ensure that the Dept. of Justice and law enforcement organizations across the country work actively to understand and respond to this issue. Additionally, in light of the impact of language blaming Chinese people and Asians for the pandemic, it’s important for the federal government to issue guidance on mitigating the effects of this inflammatory language.

Argument opposed

Existing hate crime laws already take current events and discrimination into account, punishing perpetrators who commit crimes against specific groups of people due to their identities appropriately, so there no need for this legislation. President Joe Biden already signed a Presidential Memorandum condemning racism, xenophobia, and intolerance against Asian-Americans and Pacific Islanders (AAPIs) and directing federal agencies to lead nationwide efforts to stop anti-Asian bias, xenophobia, and harassment. Alternatively, there is not enough data to be sure that hate crimes against Asians have risen during the pandemic, and Congress shouldn’t act on this issue until the Dept. of Justice conducts an appropriate review to verify that Asian-Americans are in fact being discriminated against during the pandemic.

Impact

Law enforcement; Asian-Americans and Pacific Islanders (AAPIs); COVID-19-related hate crimes against Asian-Americans and Pacific Islanders (AAPIs); the Dept. of Justice (DOJ); the Secretary of Health and Human Services (HHS Secretary); the COVID-19 Health Equity Task Force; and community-based organizations addressing hate crimes against AAPIs.

Cost of S. 937

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Mazie Hirono (D-HI) introduced this legislation to address the rise of hate crimes and violence against Asian-Americans and Pacific Islanders (AAPIs):

“We’ve seen the horrifying consequences of racist language as AAPI communities across our country experience hate crimes and violence related to the pandemic. The COVID-19 Hate Crimes Act addresses the surge in violence against AAPI communities by dedicating an official at the Department of Justice to expeditiously review hate crimes reported to law enforcement. The bill also provides resources for communities to come together and fight intolerance and hate. This is no less than victims deserve.”

Rep. Grace Meng (D-NY), sponsor of this bill’s House companion, adds:

“The ongoing anti-Asian hate crimes and incidents, especially against our elderly Asian Americans, is absolutely horrific. I am honored to introduce the COVID-19 Hate Crimes Act with Senator Hirono to address this disgusting pattern of hate. Before this pandemic started, I urged everyone—including elected officials—to not blame Asian Americans for the virus. My words were not heeded. The former president and his Congressional Republican enablers trafficked racist, bigoted terms to describe COVID-19. In doing so, their language stoked people’s fears and created an atmosphere of intolerance and violence, which persists even today. Since the beginning of the pandemic there has been nearly 3,000 reported incidents of physical, verbal, and online attacks against Asian Americans. Even in my own district in Queens, New York, Asian Americans have been attacked. To combat those acts, we need DOJ to prioritize addressing these heinous acts by designating a point person for these COVID-19 related hate crimes; make it easier for victims to report crimes committed against them; and expand public education campaigns to address COVID-19 hate crimes and incidents. This must end and it is why we are working to ensure our justice system has the people and resources to effectively account for and mitigate anti-Asian hate crimes.”

Sen. Susan Collins (R-ME) worked with Sen. Hirono to adjust this bill’s language to strike language related to “COVID-19 hate crimes” in favor of “hate crimes” in general without a specific tie to COVID-19. On April 20, 2021, Sen. Collins said that removing previous language requiring proof that a hate crime was motivated by COVID-19 strengthened this legislation in its current form:

“There were some drafting issues with the bill that would have made it a requirement of proving that the hate crime — that it somehow be related to COVID and that didn't make sense to me.”

Sen. Jerry Moran (R-KS), who collaborated with Sen. Richard Blumenthal (D-CT) to draft an amendment to this legislation supporting NIBRS implementation, bolstering law enforcement training on hate crimes, establishing hate crime hotlines, and rehabilitating perpetrators of hate crimes through education and community service, says:

“Violence is never acceptable, especially when targeted towards a specific community. Hate crimes have no place in our society and this bill to improve reporting on the incidences in which they do occur is a step forward in better understanding how to address them. This legislation also provides support and training to law enforcement and, as the lead Republican on the Appropriations subcommittee with jurisdiction over the Department of Justice, I want to make certain our law enforcement have the tools they need to keep our communities safe for all Americans.”

President Joe Biden expressed support for this legislation in a March 19, 2021 White House statement after the Atlanta spa shootings:

“I urge Congress to swiftly pass the COVID-19 Hate Crimes Act, which would expedite the federal government’s response to the rise of hate crimes exacerbated during the pandemic, support state and local governments to improve hate crimes reporting, and ensure that hate crimes information is more accessible to Asian American communities.”

The National American Pacific American Bar Association (NAPABA) supports this legislation. Its president, A.B. Cruz, III, says:

“NAPABA applauds Senator Hirono and Congresswoman Meng for their decisive action to introduce legislation responding to the rise in anti-Asian hate incidents during the COVID-19 pandemic. NAPABA is committed to ensuring that hate crimes against the Asian American community are properly investigated and prosecuted. The expedited review of hate crimes reported to federal, state, and local law enforcement by the Department of Justice will increase accountability in addressing hate against our community, and establishing a platform for online reporting of hate crimes and incidents in multiple languages will allow more victims to come forward.”

Anthony Michael Kreis, a law professor at Georgia State University College of Law, says it is unclear how adding a COVID-19 distinction to a federal hate crime would benefit existing law. In practice, the law already draws connections between current events and discrimination. As an example, the law already allows the prosecution of hate crimes against LGBTQ people whose attackers express anti-HIV/AIDS sentiments.

To date, no Republicans have endorsed legislation addressing hate crimes against Asian-Americans. Sen. Lindsey Graham (R-SC) expresses skepticism about the need for hate crimes legislation specific to Asian-Americans:

“We’ve already got a hate crimes bill. Just go after people who hurt folks because of their race. Pound them. We’ve already got the law.”

Critics of hate crime laws in general argue that they’re unconstitutional because they attempt to punish the perpetrators’ motive in addition to their underlying crime, which violates Supreme Court case law recognizing freedom of thought.

The Senate cast a bipartisan 92-6 vote to start initial debate on this legislation with all Democrats voting in favor, six Republicans voting against, and two Republicans not voting.

One of the Republican “no” voters, Sen. Tom Cotton (R-AR), took issue with the process by which this bill advanced, saying, ““The ‘COVID-19 Hate Crimes Act’ has been moved to the Senate floor with little commentary, factfinding, or Committee consideration.”

Cotton and Sen. Chuck Grassley (R-IA), who also voted against opening initial debate on this bill, argued for either a Senate committee or subcommittee hearing to consider the issue of hate crimes against Asians before this bill’s consideration. They argued for a completed 30-day Dept. of Justice review of the uptick in hate crimes against Asian-Americans so that the Senate can “have the benefit of hearing from the Department of Justice before blindly acting on this issue.”

Sen. Tommy Tuberville (R-AL), another of the six Republican holdouts, accused this legislation of “creating a political narrative” not based in facts:

“The Senator has serious concerns with any bill that bypasses the committee process and emphasizes creating a political narrative rather than careful consideration of real issues facing our country. In fact, the bill doesn’t create any new criminal provisions, since current law provides tools to prosecute all forms of hate crimes. Most disturbing, the bill would facilitate the creation of a database where anyone could report a citizen for hate ‘incidents’ with no fear of punishment if they do so out of spite.”

In response to Tuberville’s statement, the Alabama Democratic Party’s Asian American & Pacific Islander Caucus Chairman, Hanu Kalapalem, said, “That ridiculous, that he thinks this is a hoax.”

Sen. Ted Cruz (R-TX), who also voted against advancing this bill, called it a Democratic “messaging tactic.” He added:

“[This bill] is not designed to do anything to prevent or punish actual crimes. It is instead a Democratic messaging vehicle designed to push the demonstrably false idea that it is somehow racist to acknowledge that Covid-19 originated in Wuhan, China and that the Chinese Communist Party actively lied and suppressed information about the outbreak, allowing it to become a global pandemic.”

Sen. Cruz also accused Democrats of not taking racism seriously because they didn’t call out the Dept. of Justice’s decision to withdraw an affirmative action lawsuit against Yale University alleging that the school discriminated against Asian and white applicants through race-based admission quotas. The lawsuit, which was filed during the Trump administration, was withdrawn in February by the Biden administration. Sen. Cruz said, “When Democrats decide to take hate and racism seriously that means they will address this and not ignore it because it doesn’t fit neatly into their messaging tactics.”

A number of Asian-American advocacy organizations, including the National American Pacific American Bar Association (NAPABA), Asian Pacific Islander American Public Affairs (APAPA), and Asian Americans Advancing Justice | AAJC, support this legislation. The American College of Physicians (ACP) also supports this legislation.

Of Note: Fewer than two weeks after introducing this legislation, Sen. Hirono introduced a Senate resolution condemning anti-Asian hatred after the Atlanta shooting where eight people, including six Asian women, were killed.

Sen. Hirono’s resolution also followed the publication of a report by Stop AAPI Hate in which the organization reported 3,795 incidents of anti-Asian hate from March 19, 2020 to February 28, 2021. In its report, Stop AAPI Hate reported incidents of verbal harassment (68.1% of incidents), shunning (20.5% of incidents), physical assault (11.1% of incidents), civil rights violations (85.% of incidents) such as workplace discrimination and refusal of service, and online harassment (6.8% of incidents).

According to another report by the Center for the Study of Hate and Extremism at California State University, San Bernardino, hate crimes against Asian people rose by 149% in the16 largest U.S. cities. The sharpest increase was in New York City, where there were 28 hate crimes in 2020 versus three hate crimes in 2019. The initial spike in anti-Asian crimes occurred in March and April 2020, coinciding with a rise in COVID-19 cases and ongoing negative associations of Asian-Americans with the COVID-19 virus.

When she introduced the resolution, Sen. Hirono said:

“Our country’s AAPI community has experienced escalating verbal attacks and physical violence since the coronavirus pandemic began, including the devastating killings last week in Atlanta. We must reject all forms of xenophobia and address the harm to our AAPI communities. Passing this resolution would send a clear message, that hate, bigotry, and anti-Asian sentiment have no place in our country.”

In his first week in office, President Joe Biden signed a Presidential Memorandum condemning racism, xenophobia, and intolerance against Asian-Americans and Pacific Islanders. The memorandum directed the Depts. Of Justice (DOJ) and Health and Human Services (HHS) to lead the United States’ efforts to stop anti-Asian bias, xenophobia, and harassment.

Although the Federal Bureau of Investigation (FBI) began collecting national hate crime data from police agencies in the 1990s, underreporting is a significant issue. According to Brian Levin, a professor of criminal justice and director of the Center for the Study of Hate & Extremism at California State University, San Bernardino, some of this is due to lack of police training on how to identify and report hate crimes. Andrew Leong, a professor of philosophy at the University of Massachusetts Boston, who specializes in law, justice and equality in Asian American communities adds that limited languages resources are also a barrier.

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