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7,341 Incidents and Counting: Analyzing the Evolution of American
Hate Crime Legislation and How it Varies by State

Jessica Daniel78

This article will explore what hate crimes are, and explore why they have 
been on the rise in recent years. I will track the evolution of hate crime 
legislation on both a federal and state level and argue that while rises in 
hate are consistent throughout time, they are also episodic. I will justify the 
need for hate crime legislation and demonstrate how state hate crime laws 
vastly differ, using a case study as support. I will make policy suggestions to
improve existing legislation and advocate for an increase in federal funding
allocated to hate crime training for law enforcement agencies. Lastly, I will 
suggest that training should also be required in schools and workplaces in 
order to diminish ignorance and intolerance, and to encourage communities
to embrace and celebrate diversity rather than fear it. 

What is a Hate Crime?
Before elucidating the complexities associated with hate crimes and 

hate crime legislation, it is important to first define what a hate crime is, and
explain why these crimes occur. Considering that each state has its own 
legal definition of the term hate crime, it is challenging to pinpoint its exact 
definition. However, the general consensus among scholars is that a hate 
crime has three main components: (1) it must be a threatened, attempted, or 
completed overt criminal act, (2) it must be intentionally motivated by bias, 
and (3) it must target a specific category of identity or property that is 
protected by law. What is considered a protected category varies by state 
and can often be controversial. The most common protected categories are 
race, ethnicity, religion, and national origin. 

In the wake of the COVID-19 pandemic, hate crimes directed toward
Asian Americans have been on the rise, with at least 2,800 incidents 
reported in 2020 across the nation.79 According to the Anti-Defamation 
League Audit of Antisemitic Incidents, in 2020, there were 2,024 reported 
antisemitic incidents in the United States, including 1,242 cases of 

78 Brandeis University Undergraduate, Class of 2021.
79 “Covid 'Hate Crimes' against Asian Americans on the Rise.” BBC News , April 2021. 
https://www.bbc.com/news/world-us-canada-56218684. 

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harassment, 751 incidents of vandalism, and 31 cases of assault.80 
Additionally, the Human Rights Commission reported that 37 transgender 
and gender non-conforming people were killed.81 These days, it seems as 
though reports of hate crimes are always in the news cycle, putting names 
and faces to these evergrowing statistics and attracting national attention. 
Hate crimes are not a recent phenomenon, but they are a continually 
increasing trend.82 Hate crimes send a powerful message to members of a 
victim’s group that they are “unwelcome and unsafe in their communities,” 
and can further marginalize minority groups.83 In 2019, 7,314 total hate 
crimes were reported across the country (a 3.95% increase from 2018), but 
because of issues related to reporting (to be explained more in-depth in a 
later section of this paper), it is estimated that more than half of all hate 
incidents that could be reported are not formally documented.84,85 

In a study regarding hate crimes, sociologists Jack McDevitt and 
Jack Levin categorized hate crimes into four classifications. The first and 
most common classification is “thrill hate crimes,” meaning that offenders 
are looking to “have some fun and stir up a little excitement … but at 
someone else’s expense.”86 They rarely know their victims and choose to 
target a certain individual who differs from them for psychological 

80 “Audit of Antisemitic Incidents 2020.” Anti-Defamation League. Anti-Defamation 
League , April 2021. https://www.adl.org/audit2020#executive-summary.
81 Roberts, Madeleine. “Marking the Deadliest Year on Record, HRC Releases Report on 
Violence Against Transgender and Gender Non-Conforming People.” The Human Rights 
Campaign . The Human Rights Campaign, November 19, 2020. https://www.hrc.org/press-
releases/marking-the-deadliest-year-on-record-hrc-releases-report-on-violence-against-
transgender-and-gender-non-conforming-people. 
82 Hernandez, Joe. “Hate Crimes Reach The Highest Level In More Than A Decade.” 
NPR, 1 Sept. 2021, https://www.npr.org/2021/08/31/1032932257/hate-crimes-reach-the-
highest-level-in-more-than-a-decade?t=1634395011991. 
83 “The Psychology of Hate Crimes.” American Psychological Association. American 
Psychological Association , August 2017. https://www.apa.org/advocacy/interpersonal-
violence/hate-crimes. 
84 “Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 
85  Shattuck, John, and Mathias Risse. “Hate Crimes.” Carr Center for Human Rights 
Policy , February 22, 2021, 1–13. 
https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 
86 Levin , Jack, and Jack McDevitt. “Hate Crimes.” Encyclopedia of Peace, Violence and 
Conflict 2 (2008). 
https://jacklevinonviolence.com/articles/HateCrimesencyc92206FINAL.pdf. 

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excitement and social acceptance by their peers. 87 An example of this kind 
of hate crime is when a group of teenage offenders selects a person who 
looks different from them and physically attacks them for that reason. The 
second category is defensive hate crimes. The perpetrator in this type of 
crime uses a triggering incident as a catalyst for the expression of their 
emotions. These types of perpetrators justify the attack of someone deemed 
as an outsider by claiming it is necessary to protect the public from 
“intruders.”88 Additionally, they usually do not know the victim personally 
and choose them at random. An example of this kind of attack would be if a 
black family moved into a predominantly white neighborhood and had a 
rock thrown through their window. Retaliatory hate crimes are the third 
category, in which the perpetrator is acting out against a stranger in response
to a world event and partially blaming him or her for its cause.89 An example
of this would be an attack on an Arab individual during the aftermath of 
9/11. The last form of hate crime is rare and mission-based. The perpetrator 
views individuals who are perceived to be different as grave threats, and 
feels as though it is their mission to “act before it is too late.”90 These types 
of perpetrators are the most likely of all types of perpetrators to join an 
organized hate group.91  

It is important to note that although some of these hate crime 
typologies imply that most hate crimes are perpetrated by white 
supremacists, white supremacy is not the only reason why hate crimes are 
on the rise. Even though data indicates that acts of hate have increased, there
are many who do not believe that hate crime legislation is necessary because
they believe that hate crime legislation provides minority groups with 
special treatment, as most offenders tend to identify as white.92 However, 
this is not always the case. In 2019, 23.9% of offenders identified as African

87 Shattuck, John, and Mathias Risse. “Hate Crimes.” Carr Center for Human Rights 
Policy , February 22, 2021, 1–13. 
https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 
88 Levin , Jack, and Jack McDevitt. “Hate Crimes.” Encyclopedia of Peace, Violence and 
Conflict 2 (2008). 
https://jacklevinonviolence.com/articles/HateCrimesencyc92206FINAL.pdf. 
89 Levin and McDevitt. “Hate Crimes.” 
90 Levin and McDevitt. “Hate Crimes.” 
91 Levin and McDevitt. “Hate Crimes.” 
92 “Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 

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American, and 10% identified as Hispanic.93 Furthermore, in the landmark 
case Wisconsin v. Mitchell (508 U.S. 476 (1993), the victim identified as 
white and the perpetrator identified as black. This dispels the argument that 
hate crime laws only benefit marginalized groups, as the defendant received 
the same sentence a white perpetrator would receive if they had committed 
the same crime.94 In 2019, data indicates that individuals of all races were 
victims of a hate crime, further weakening this argument.95 Additionally, the
Mitchell case thwarts another anti-hate crime legislation argument related to 
the First and Fourteenth Amendments. The Supreme Court ruled that there is
a meaningful difference between punishing the content of speech and using 
speech as evidence of the motive behind a crime. Even so, there continues to
be a vocal group of individuals who, for as long as hate crime legislation has
been in existence, have been adamant in abolishing it.

Historical Background and Federal Legislative History
Hate crimes have been long embedded within the American 

experience, although they may appear to be a relatively recent phenomenon. 
Throughout history, individuals within marginalized communities have been
subjected to various forms of discrimination and hatred due to elements of 
their identities that caused them to be percieved as “different.”96 While it can
be argued that a rise in hate crimes toward a certain demographic is an 
episodic reaction to a particular historical moment or event, such as the 
spike in hate faced by Japanese Americans during the Second World War, it 
is also evident that the persistence of hate crimes throughout time 
demonstrates the power and tenacity of prejudice. A prominent example of 
this is the hatred that those of African descent have historically experienced.
While the expressions of hatred they experience has evolved over time, from
government protection of slavery via legislation such as the Slave Trade Act
of 1794 to the intentional shooting at a predominately African American 

93 “Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 
94 Feinman, Amy. Northeast Area Civil Rights Counsel at Anti-Defamation League. 
“Interview with Jessica Daniel.” April 2021. 
95 “Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 
96 Shattuck, John, and Mathias Risse. “Hate Crimes.” Carr Center for Human Rights 
Policy , February 22, 2021, 1–13. 
https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 

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church in Charleston, South Carolina in 2015, the fact that they do 
experience hatred solely because of who they are has remained.97 The fact 
that intolerance and disdain toward racial, ethnic, religious, gender and 
sexual minorities has been a constant within American society is incredibly 
important to recognize, as it reveals a strong contradiction between 
constitutional rights in theory versus in practice. While the Constitution puts
forth the assumption that all Americans’ right to freely be who they are is 
protected, the recurrence of hate crimes serves as a reminder that this is not 
necessarily always true, especially for marginalized populations. 

There have been efforts made by the federal government to combat 
civil rights violations and prevent discrimination since the enactment of the 
Civil Rights Act of 1866. However, the first time the federal government 
began to address hate crimes specifically was over a century later in 1968 
through the passage of 18 U.S.C. Section 245(b)(2), which created federally 
protected activities.98 This code states that it is illegal for individuals to 
willfully injure, intimidate, or interfere with another person’s ability to 
“participat[e] in or enjoy[...] any benefit, service, privilege, program, facility
or activity provided or administered by any State or subdivision thereof” due
to his or her race, color, religion, or national origin.99,100 While the creation 
of legislation designed to bar discrimination on the account of these four 
identifying categories is significant, it is important to note that this statute 
was limited in its application, as only six activities were explicitly listed as 
federally protected.

In 1990, the Hate Crimes Statistics Act (28 U.S.C. Section 534) was 
passed which required the Department of Justice to collect and publish data 
about crimes motivated by hatred based on race, religion, ethnicity and 
sexual orientation. The data that continues to be collected annually comes 

97 Shattuck, John, and Mathias Risse. “Hate Crimes.” Carr Center for Human Rights 
Policy , February 22, 2021, 1–13. 
https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 
98 Edward Kennedy, Hate Crimes: The Unfinished Business of America, 44 Boston Bar J. 6
(Jan / Feb. 2000) Accessed April 27, 2021. 
99 “18 U.S. Code § 245 - Federally Protected Activities.” Legal Information Institute . 
Cornell Law School . Accessed April 27, 2021. 
https://www.law.cornell.edu/uscode/text/18/245. 
100  Shattuck, John, and Mathias Risse. “Hate Crimes.” Carr Center for Human Rights 
Policy , February 22, 2021, 1–13. 
https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 

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from voluntary submissions by state and federal law enforcement agencies. 
Since reporting is not mandatory, the numbers that are reported are not an 
accurate reflection of hate crime occurrences each year which can have 
many harmful consequences. This act is especially significant because it 
“defined the criminal conduct that constituted a hate crime: hate crimes are 
acts that manifest evidence of prejudice based on actual or perceived race, 
religion, [national origin], or ethnicity.”101 Four years later, the Hate Crimes 
Sentencing Enhancement Act was passed and added to the Violent Crime 
and Law Enforcement Act of 1994 as an amendment (42 U.S.C. Chapter 
136). This Act permits federal judges to impose harsher penalties for hate 
crimes while also expanding protected categories to include hate crimes 
motivated by gender, disability, and sexual orientation if they occur on 
federal property. 102, 103 

The Hate Crimes Prevention Act (18 U.S.C Section 249) was passed 
in 2009 as a response to the deaths of Matthew Shepard and James Byrd Jr. 
which were both hate crimes. This Act expanded federal hate crime laws 
further and officially included gender, disability, gender identity, and sexual 
orientation to the definition of a hate crime while removing jurisdictional 
obstacles to prosecutions of racially and religiously motivated violence.104 
Other hate crime related federal laws include the Criminal Interference with 
Right to Fair Housing Act (42 U.S.C Section 3631), which made it illegal to 
interfere with an individual’s housing rights due to any of their actual or 
perceived characteristics and the Damage to Religious Property, Church 
Arson Prevention Act (18 U.S.C. Section 247), which “prohibits the 
intentional defacement, damage, or destruction of religious property because
of the religious nature of the property [...] or because of the race, color, or 

101 Shattuck, John, and Mathias Risse. “Hate Crimes.” Carr Center for Human Rights 
Policy , February 22, 2021, 1–13. 
https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 
102 Stacey, Michele. 2015. "The Effect of Law on Hate Crime Reporting: The Case of 
Racial and Ethnic Violence." American Journal of Criminal Justice : AJCJ 40 (4) (12): 
876-900. doi:http://dx.doi.org/10.1007/s12103-015-9289-3. 
103 “Hate Crimes Timeline.” The Human Rights Campaign. The Human Rights Campaign.
Accessed May 5, 2021. https://www.hrc.org/resources/hate-crimes-timeline. 
104 “Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.” Legal 
Information Institute. Cornell Law School. Accessed May 5, 2021. 
https://www.law.cornell.edu/wex/matthew_shepard_and_james_byrd_jr_hate_crimes_preve
ntion_act. 

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ethnic characteristics of the people associated with the property.”105, 106 
Additionally, 18 U.S.C. Section 241 makes the involvement of two or more 
people in the conspiracy to commit a hate crime or intimidate an individual 
due to their actual or perceived characteristics from enjoying constitutional 
rights illegal in any context where the federal government would have 
jurisdiction.107 Through the passage of multiple legislative acts designed to 
prevent hate crimes from occurring or punish those who commit a crime 
with the intent of harming a specific person due to an element of who they 
are, hate crimes became a topic that garnered national attention. 
Demonstrating that hate crimes are a serious offense, the creation and 
implementation of these laws has encouraged victims to come forward and 
report incidents they experience as well as motivated states to add strong 
hate crime statutes to their criminal codes.

Hate Crime Legislation on a State Level  
States are granted primary regulatory authority over their own 

criminal codes through the Tenth Amendment, which allows for all “powers 
not delegated to the United States by the Constitution, nor prohibited to it by
the States” to be granted to the States.108 The Tenth Amendment also gives 
states police power, which essentially provides states with the right to 
establish and enforce laws that pertain to the wellbeing of its citizens.109 This
delegation of power is a significant reason why hate crime statutes vary so 
drastically. It is left up to the states’ discretion to determine what is a hate 
crime and how, if at all, they should be regulated or criminalized. In a recent
interview I conducted with Amy Feinman, the Northeast Area Civil Rights 
Counsel for the Anti-Defamation League, an organization that is devoted to 
securing justice and fair treatment for all, she noted that this varia nce is also

105 “42 U.S. Code § 3631.Violations; Penalties.” Legal Information Institute. Cornell Law 
School . Accessed May 7, 2021. https://www.law.cornell.edu/uscode/text/42/3631. 
106 “18 U.S. Code § 247 - Damage to Religious Property; Obstruction of Persons in the 
Free Exercise of Religious Beliefs.” Legal Information Institute. Cornell Law School . 
Accessed May 7, 2021. https://www.law.cornell.edu/uscode/text/18/247. 
107 “18 U.S. Code § 241 - Conspiracy against Rights.” Legal Information Institute. Cornell
Law School. Accessed May 5, 2021. https://www.law.cornell.edu/uscode/text/18/241. 
108 “Federalism.” Criminal Law by University of Minnesota. University of Minnesota. 
Accessed May 5, 2021. https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/. 
109 “Police Powers.” Legal Information Institute . Cornell Law School. Accessed May 5, 
2021. “Federalism.” Criminal Law by University of Minnesota. University of Minnesota. 
Accessed May 5, 2021. https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/. . 

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due to existing statutory frameworks.110 Given how their criminal codes are 
structured, some states opt to create free-standing hate crime statutes while 
others choose to embed regulations regarding bias-motivated crimes into 
pre-existing legislation. 111 This variation also determines whether states will
choose to adopt a penalty enhancement sentencing model. The rationale 
behind this model is to “recognize and effectively address this unique type 
of crime” and use a stiffer sentence to dissuade others from engaging in this 
problematic and incredibly impactful criminal behavior.112

 The penalty enhancement model is seen by some as a violation of an
individual’s First and Fourteenth Amendment rights . However, in the 
decision of the 1993 case Wisconsin v. Mitchell, the penalty enhancement 
model was upheld as constitutional by the Supreme Court. In the case, 
Mitchell, a young black male, and his friends were found guilty of 
aggravated assault after beating a white male on the street into a coma. The 
facts of the case indicate that Mitchell intentionally selected his victim due 
to his race, which caused him to receive an increased sentence due to 
Wisconsin provision Section 939.645. Mitchell challenged the 
constitutionality of the enhanced penalty sentence by claiming that it was a 
violation of his First Amendment rights to be sentenced more harshly due to 
what the legislature considered “offensive thought.”113 He also claimed it 
was a violation of his Fourteenth Amendment rights under the equal 
protection clause.114 The Court disputed these claims and ruled that because 
it was not Mitchell’s thoughts that were being criminalized but rather his 
motive, which were clearly displayed through his actions, the enhanced 

110 Feinman, Amy. Northeast Area Civil Rights Counsel at Anti-Defamation League. 
“Interview with Jessica Daniel.” April 2021. 
111 Stacey, Michele. 2015. "The Effect of Law on Hate Crime Reporting: The Case of 
Racial and Ethnic Violence." American Journal of Criminal Justice : AJCJ 40 (4) (12): 
876-900. doi:http://dx.doi.org/10.1007/s12103-015-9289-3.;Feinman, Amy. Northeast Area
Civil Rights Counsel at Anti-Defamation League. “Interview with Jessica Daniel.” April 
2021. 
112 “Hate Crime Laws.” Anti-Defamation League. Anti-Defamation League, 2012. https://
www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Hate-Crimes-
Law.pdf. 
113 Donna M. Evans; Colleen B. McElhaney, "Historical Overview: Massachusetts Court 
Decisions Shaping Federal Constitutional Law," Boston Bar Journal 44, no. 1 
(January/February 2000): 20-[ii] 
114 “Wisconsin v. Mitchell.” Legal Information Institute. Cornell Law School. Accessed 
May 5, 2021. https://www.law.cornell.edu/supct/html/92-515.ZO.html. 

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sentence was constitutional and justified. This case is noteworthy because it 
justified the use of penalty enhancement sentencing models and recognized 
on a national level the consequences of hate crimes. These repercussions 
include “provok[ing] retaliatory crimes, inflict[ing] distinct emotional harms
on their victims, and incit[ing] community unrest.115”

Another area of difference is how hate crimes are defined by each 
state, or more specifically, which identifying categories are considered 
legally protected. While federal law classifies a hate crime as a crime 
motivated by bias against race, color, religion, national origin, sexual 
orientation, gender, gender identity, or disability, many states have 
politicized some of these categories, resulting in sexual orientation, gender, 
and gender identity being omitted by some states.116 According to the Anti-
Defamation League, only twenty states have statutes that do not exclude 
federally recognized populations from receiving legal protection.117

 The final element that distinguishes hate crime legislation across 
various states is data reporting. Because the 1990 federal Hate Crimes 
Statistics Act requires data to be collected on a voluntary basis, there are 
many problems that can arise, including the fact that not all states collect 
hate crime data. According to the Department of Justice, only eighteen 
American states and territories have data reporting mandates.118 This can 
explain why states with prominent hate groups report such low numbers of 
hate incidents. For instance, for the past two years, Alabama has reported to 
the FBI that no hate crime instances have occurred within the state even 
though the FBI’s Hate Crime Statistics report shows that there was a 113 
percent increase in violent hate crimes across the country in 2019.119 
Alabama does not have a state law that mandates hate crime data collection. 
While it is very plausible to assume that unreported hate crimes have 

115 Amy Feinman, “Marblehead Police Training” (Zoom, April 21, 2021).
116 Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 
117 Thebault, Reis. “Nearly Every State Has a Hate Crime Law. Why Don't More People 
Use Them?” The Washington Post. The Washington Post, April 26, 2021. 
https://www.washingtonpost.com/nation/2021/04/26/hate-crime-laws-explained/. 
118 Morava, Maria and Saba Hamedy. "49 States and Territories have Hate Crime Laws -- 
but they Vary." CNN Wire Service, Mar 17, 2021. 
119 “Alabama Only State in U.S. To Report Zero Hate Crimes.” ADL Atlanta. Anti-
Defamation League , November 16, 2020. https://atlanta.adl.org/news/alabama-only-state-
in-u-s-to-report-zero-hate-crimes/. 

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occurred in Alabama within the past few years, due to the lack of a formal 
reporting mechanism in place, it makes sense that victims may be fearful of 
coming forward. Without universally required data reporting laws, 
victimized populations in states without these laws do not feel as though 
they have support from law enforcement and legislators to report incidents. 
This further strains the relationship between marginalized populations and 
law enforcement and also affects how much funding for hate-crime related 
training and data collection the state receives from the federal government. 
This also impacts communities within that state which are the most targeted,
as an inaccurate data set may mean that these communities receive less of 
the resources that they need.

 Training in hate crime education is essential, especially for law 
enforcement officers. A significant reason why hate crimes may not be 
formally reported is because officers may not recognize when they happen. 
Only twelve states require special training for law enforcement officers so 
that they can properly identify hate crimes if they occur, which is an 
alarming statistic given the prevalence of hate crimes in recent years.120 
Furthermore, due to the fact that agencies possess varying knowledge about 
the ways that bias can motivate crime, there are instances where hate is 
present in a crime in a less glaring manner that may be overlooked. 
Additionally, some manifestations of hate that occur are not considered part 
of a state’s official hate crime reporting data, such as bullying in schools 
where a slur or symbol is used to intimidate another student.121 Therefore, it 
makes sense that over half of the estimated 250,000 hate crimes that 
occurred annually between 2005 and 2014 around the country were not 
formally reported, as there are many reasons that a victim may be dissuaded 
from coming forward (including the fear of retaliation from the 
perpetrator).122 It is very problematic that hate crime statistics are inaccurate 

120 Shattuck, John, and Mathias Risse. “Hate Crimes.” Carr Center for Human Rights 
Policy , February 22, 2021, 1–13. 
https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 
121 Ross, Janell. Why Americans can’t Agree on which Crimes are Hate Crimes: What an 
Image about the Care and Pace of Investigating a White Baton Rouge Man Possibly 
Involved in Hate Crimes Tells and Conceals. Washington: WP Company LLC d/b/a The 
Washington Post, 2017.
122 Ross, Janell. Why Americans can’t Agree on which Crimes are Hate Crimes: What an 
Image about the Care and Pace of Investigating a White Baton Rouge Man Possibly 
Involved in Hate Crimes Tells and Conceals. Washington: WP Company LLC d/b/a The 

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and appear to be lower than the actual instance, and prevents the well-being 
of victimized groups from becoming a national priority.

Case Studies: Massachusetts and Pennsylvania 
In order to better understand the extent to which hate crimes 

legislation varies in terms of structure and implementation, the hate crime 
laws of Massachusetts and Pennsylvania will be analyzed. These two states 
were selected because it is interesting to assess hate crime laws of two states
within the same geographic region, but with divergent political leanings. 
The evaluation of laws from each state detailed below will demonstrate how 
and why legal responses toward hate crimes are so separate and dissimilar 
on a state by state basis. I also will explore how arguments against hate 
crime statutes have informed the creation of legislation. 

In Massachusetts, there were 388 total incidents of hate crimes 
reported in 2019. The three highest categories of crimes committed include: 
race, ethnicity, and ancestry (213), religion (10), and sexual orientation 
(92).123, Massachusetts uses a penalty enhancement sentencing model and 
defines hate crime officially through Mass. Gen Laws Ch. 22C, Section 32 
as any criminal act that is committed with biased intentions. This means that
any crime in which a victim or property is intentionally selected due to their 
racial, religious, ethnic, disability, gender identity, or sexual orientation is 
legally classified as a hate crime.124 The Commonwealth requires hate crime 
data to be collected through Mass. Gen Laws Ch. 22C, Sections 33-35 and 
made available to all law enforcement agencies within the state.125 Through 
Mass. Gen Law Ch. 266, Section 127A, it is a felony to “destroy, deface, 
mar or injure a church, synagogue, or other structure [...] or threaten to do 
so.”126 Furthermore, Massachusetts is one of only twelve states to require 

Washington Post, 2017.
123 “State Hate Crimes Statutes.” Brennan Center for Justice. Brennan Center for Justice, 
July 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimes-
statutes.; “Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics.
124 “Hate Crime Law in Massachusetts.” Mass.gov. Commonwealth of Massachusetts. 
Accessed May 7, 2021. https://blog.mass.gov/masslawlib/legal-topics/hate-crime-law-in-
massachusetts/.
125  “State Hate Crimes Statutes.” Brennan Center for Justice. Brennan Center for Justice, 
July 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimes-
statutes. 
126  “State Hate Crimes Statutes.” Brennan Center for Justice. Brennan Center for Justice, 
July 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimes-

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law enforcement officers to receive training through Mass. Gen Laws Ch. 6, 
Section 116B, which could be an indication of why Massachusetts hate 
crime statistics appear much higher than Alabama’s, and other states with a 
significant history of intolerance and racism. Additionally, Massachusetts 
treats hate crimes as a separate criminal violation through Mass. Gen Laws 
Ch. 265, Section 39, which states that it is illegal to “commit assault or 
battery upon a person, or damage the real or personal property of a person, 
with the intent to intimidate” due to any of the state’s listed protected 
categories.127 Currently, there is a new hate crime bill being discussed that 
would amend Section 39 to provide clear explanations of each element of 
the existing legislation and expand protected categories to include gender 
and immigration status. It would also “combine civil rights and hate crime 
statutes into one section of law, [...] impose stricter maximum sentences on 
serious offenses and strengthen penalties for repeat offenders.”128 While 
stressing the need for a new bill and attempting to gain support for it from 
colleagues and constituents, Representative Tram Nugueyen, one of the new
proposed bill’s lead authors, is quoted as saying: 

“Hate crimes are not just against individuals. These crimes are meant
to terrorize entire communities. These are crimes against all of us 
[...] hate crimes, much like terrorism, are designed to create fear and 
make people feel unsafe. We need to name them for what they are —
hate crimes — and prosecute them to an added degree to tell the 
community that we see them, that they are valued, and that we won’t
tolerate such violence and hate.” 129

statutes. 
127 “Section 39: Assault or Battery for Purpose of Intimidation; Weapons; Punishment.” 
The 192nd General Court of the Commonwealth of Massachusetts. Mass.gov. Accessed 
May 7, 2021. https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265/
section39#:~:text=(a)%20Whoever%20commits%20an%20assault,of%20not%20more
%20than%20five. 
128 Lisinski, Chris. “Massachusetts Attorney General Maura Healey: Times Call for 
Overhaul of Hate Crime Laws.” The Lowell Sun, March 31, 2021. 
https://www.lowellsun.com/2021/03/31/healey-times-call-for-overhaul-of-hate-crime-laws/.

129 Lisinski, Chris. “Massachusetts Attorney General Maura Healey: Times Call for 
Overhaul of Hate Crime Laws.” The Lowell Sun, March 31, 2021. 
https://www.lowellsun.com/2021/03/31/healey-times-call-for-overhaul-of-hate-crime-laws/.

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Representative Nuguyen’s statement epitomizes why it is essential for 
Massachusetts, and all states, to implement stronger legislation in response 
to the rise in hate witnessed around the country. 

While Massachusetts is actively working on eradicating hate by 
considering newer, more updated legislation, Pennsylvania has had the same
hate crime laws with little modification since 1982. Although there has 
recently been discussion on the local level to expand protected categories, 
progress has not yet been achieved. In its laws, Pennsylvania does not 
explicitly use hate crime as a legal term, but rather, classifies it as ethnic 
intimidation. Pennsylvania’s Ethnic Intimidation Law (18 P.S. Section 
2710) defines ethnic intimidation by stating that it is illegal for an individual
to commit certain crimes with motivation either partly or in whole rooted in 
hatred toward the race, color, religion, or national origin of another person 
or group.130 Ethnic intimidation is usually considered to be a separate 
offense, but can be charged if one of the following charges also occur: 
criminal mischief, assault, harassment, threats, stalking or homicide.131 
Related is the Crimes Code (18 P.S. Section 3307) which makes it a crime to
knowingly deface a religious facility.132 Furthermore, Pennsylvania 
mandates data collection for all crimes through its code (PA. ADM. Code 
Section 710) regarding state police responsibilities, so technically, even 
though it is not explicitly mentioned, hate crime data collection is 
required.133 Even so, hate crime numbers are very low in Pennsylvania, with 
41 total incidents reported in 2019. 28 incidents were related to race, 
ethnicity, and ancestry, 9 were connected to religion, and 4 were related to 

130 “2010 Pennsylvania Code Title 18 - CRIMES AND OFFENSES Chapter 27 - Assault 
2710 - Ethnic Intimidation.” Justia US Law. Justia. Accessed May 7, 2021. 
https://law.justia.com/codes/pennsylvania/2010/title-18/chapter-27/2710. 
131 “State Hate Crimes Statutes.” Brennan Center for Justice. Brennan Center for Justice, 
July 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimes-
statutes. 
132 “Hate Crime.” Office of Attorney General Josh Shapiro. Office of the Attorney General
of the Commonwealth of Pennsylvania . Accessed May 7, 2021. 
https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/. 

133 “Bias and Hate Crimes.” Pennsylvania Human Rights Commission. Commonwealth of 
Pennsylvania, https://www.phrc.pa.gov/Resources/Pages/Hate-Crime.aspx. 

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sexual orientation.134 Pennsylvania uses a penalty enhancement model for 
ethnic intimidation violations, but because convictions are minimal despite 
the fact that Pennsylvania is a very populous state, it is rarely used. If one 
were to be considered a victim of ethnic intimidation, however, under Civil 
Redress (42 Pa. C.S.A. Section 8309) they can file a civil rights lawsuit 
against the perpetrator of a hate crime.135

 There are several reasons that could explain why this is the case, the
most plausible being that the list of protected categories is quite short, 
excluding many populations who also face bias-motivated crimes. The 
reason why various demographics are excluded seems entirely political. For 
instance, in a 2002 amendment, sexual orientation was briefly a protected 
category in Pennsylvania. However, due to public outcry and how 
controversial it was, sexual orientation was removed as a protected 
category.136 Another reason for why there are minimal ethnic intimidation 
convictions is because the term hate crime is never explicitly used, and the 
phrase ethnic intimidation appears to have different connotations on various 
state websites. This may amount to confusion on what would count as ethnic
intimidation. This can dissuade individuals from feeling comfortable coming
forward and also may cause law enforcement officials to improperly 
recognize and respond to a hate incident, since training related to hate 
crimes is not a requirement in Pennsylvania. 

The difference in the number of convictions reported in 
Massachusetts (388) and Pennsylvania (41) in 2019 proves how the 
variations seen in hate crime laws and procedures by state have drastically 
different outcomes.137 It is not outrageous to assume that Pennsylvania, a 
state with a population nearly double the size of Massachusetts, would have 

134 Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 
135 “Hate Crime.” Office of Attorney General Josh Shapiro . Office of Attorney General 
Commonwealth of Pennsylvania, 2021. 
https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/. 
136 Boren, Michael. “Pa Expands Protections for LGBT People, but Hate-Crime Law Still 
Doesn’t Include Them.” The Philadelphia Inquirer . The Philadelphia Inquirer, August 27, 
2018. https://www.inquirer.com/philly/news/pennsylvania/lgbt-hate-crimes-pennsylvania-
human-relations-commission-20180817.html. 

137 “Hate Crime Statistics (2019).” The United States Department of Justice . U.S. 
Department of Justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 

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more incidents of hate crimes occurring than what is formally reported. 
However, what we have is an inaccurate picture of hate in Pennsylvania and 
other states with similar protocols. This is due to a variety of factors 
including different definitions of hate crimes, protected categories, and 
different training requirements. To further demonstrate how problematic this
discrepancy is, I will use a federal hate crime case example and address, 
based on their current hate crime statutes, how Massachusetts and 
Pennsylvania would respond if the case occurred in either state. In May 
2020, Sean Díaz De León and Juan Carlos Pagán Bonilla were convicted of 
knowingly targetting two transgender women in a violent carjacking.138 
They had sexual relations with the two women who were visiting Puerto 
Rico from New York and were angered after discovering that they were 
transgender.139 The defendants then attacked the women, shot at them, and 
then set their car on fire. If this case were to happen in Massachusetts, it 
would be classified as a hate crime because gender identity is considered a 
protected category. Furthermore, through Mass. Gen Laws Ch. 265, Section 
39, the crime would be counted as a separate offense and the defendants 
would receive an enhanced penalty sentence. However, if this case occurred 
in Pennsylvania, it would not be considered in violation of 18 P.S. Section 
2710, as gender identity is not a legally recognized protected category. The 
families of the victims would not get justice, and the fact that the case would
proceed missing an ethnic intimidation charge would send a message to 
transgender Pennsylvania residents that if hate crimes occur against them, 
no action would be taken by law enforcement because of the identifying 
factors that make them who they are.

Conclusion
Senator Edward Kennedy, a staunch supporter of hate crime 

legislation, once said “[h]ate crimes are a modern plague afflicting 
communities throughout the nation. Again and again, lives have been 
shattered by the violence of hate.”140 While it is evident that instances of 

138 “Hate Crime Case Examples.” United States Department of Justice. U.S. Department of
Justice . Accessed May 5, 2021. https://www.justice.gov/hatecrimes/hate-crimes-case-
examples.
139 Ring, Trudy. “Two Men Indicted for Murders of Transgender Women in Puerto Rico.” 
https://www.advocate.com/crime/2020/5/14/two-men-indicted-murders-transgender-
women-puerto-rico. Advocate, May 14, 2020. 
140 Edward Kennedy, Hate Crimes: The Unfinished Business of America, 44 Boston Bar J.
6 (Jan / Feb. 2000) Accessed April 27, 2021. 

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hate have been woven into the American experience since its very 
beginning, Kennedy’s quote is accurate in reflecting the urgency and 
necessity of legislation to combat a rising tide of hostility and violence 
experienced by marginalized communities. White supremacy, xenophobia, 
racism, antisemitism, homophobia, and other expressions of intolerance 
toward difference are nothing new, but have simply been magnified in 
recent years due to immense social, political, and economic change. Even 
though hate crime legislation exists on both a federal level and in most 
states, it is clear that there are flaws that must be addressed in order to 
ensure that the legislation is as effective as possible. It is imperative that all 
states have at least basic hate crime statutes implemented and utilize similar 
definitions of hate crimes to prevent confusion about what the term means in
practice. Currently, Arkansas, South Carolina, and Wyoming do not have 
any hate crime statutes in place which is very problematic, as it implies that 
hate crimes are not legitimate or do not occur within those areas, which is 
not true. 

While it is understandable that different states have different 
statutory structures, making universal hate crime laws across all states 
difficult to achieve, the categories of identity that are legally protected 
should be consistent within all states. In order to effectively combat hate 
experienced by one marginalized group in one state or location, it is 
essential to send the message that hate toward that group is not tolerated 
anywhere. Furthermore, training for law enforcement officers in each state 
should be mandatory, so that they can accurately recognize and report hate 
crimes if they occur and ensure that they are being entered into the system 
accordingly. Federal funding should be allocated to state agencies to ensure 
that each agency has the resources necessary to accomplish this endeavor. 
To that end, it should be required that all states report data of hate crimes 
that occur and sentencing that follows. This may dissuade potential 
perpetrators from manifesting hate into action and sends a message to 
affected communities that their experiences are being taken seriously. Ways 
to report hate crimes should be more accessible for those who experience 
them. Training should be a requirement in schools and workplaces to spread 
awareness about hate crimes and help individuals who experience them be 
able to accurately report them. Additionally, it would be beneficial if there 
was a hotline in place to help victims and provide guidance for how they can

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achieve justice. If these steps are implemented, relationships between 
victimized communities, law enforcement, and legislators could improve 
and individuals who experience hate crimes would feel more comfortable 
coming forward, sharing their experiences, and assisting in the efforts for 
change. 

While hate crime legislation is important, it is not the one solution to 
halting hate crimes for good. It is important to look outside the legal system 
and dismantle or transform systems of oppression that keep marginalized 
communities marginalized. Additionally, because hate crimes are often 
rooted in intolerance and ignorance, it is essential for there to be educational
efforts in schools and workplaces to help the public to understand each 
other’s differences, rather than fear them. There should be events within 
communities to celebrate different cultures, customs, and traditions, as well 
as more local efforts to create community and unity. For future research, it 
would be interesting to assess recent manifestations of hate, such as the 
murder of George Floyd, through the lens of hate crimes and evaluate if and 
how current laws would apply.

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