by Madison Bader & Christina Miller
Incidents of hate crimes in the United States surged to the highest level in twelve years in 2020. With 7,759 hate-based incidents and 10,532 related offenses reported to the Federal Bureau of Investigation (“FBI”), there are many hate crimes that remain unreported. The fact remains that, notwithstanding federal efforts to capture all hate-based incidents, such as under the Hate Crime Statistics Act of 1990, 28 U.S.C. § 534 (“HCSA”), and the Uniform Crime Reporting (“UCR”) Program which includes data from more than 18,000 city, university and college, state, tribal and federal law enforcement agencies covering 92% – 97% of the population, victim under-reporting and law enforcement under-identification and under-investigation of hate crimes leads to the underestimation of the actual number of incidents.
State-based efforts–such as under the Massachusetts Hate Crimes Reporting Act, G.L. c. 22C, §§ 32–35 (the “Massachusetts Act” or “Act”) –also underestimate the number of hate crimes because they do not mandate that cities and towns report hate-based incidents. Lack of reliable information on the volume and type of hate crimes occurring in Massachusetts may cause certain communities to perceive that they are being targeted but ignored or inadequately protected by law enforcement agencies. Furthermore, without accurate data, it is difficult to allocate appropriate resources and create effective prevention and intervention efforts to address hate-based incidents. Notwithstanding efforts, addressing hate-based criminal conduct in Massachusetts continues to present challenges, including inadequate reporting and data collection and limited resources targeted to effective investigation, prosecution, and prevention. This article summarizes current barriers and recommendations where Massachusetts can do better.
Citizen Reports of Hate Crimes
Reporting is the first and most important step to holding perpetrators accountable and ensuring the deployment of appropriate resources for the victim, impacted communities, investigation, and prosecution of hate crimes. Hate crimes impact not only the targeted victim; the entire community is harmed by the hate motivating the perpetrator. While hotlines and other avenues for witnesses to report hate crimes are a good start, increasing public knowledge of what constitutes a hate crime and community trust to overcome barriers that discourage reporting are needed.
There are numerous reasons why hate crimes are underreported. Some victims do not report hate crimes because they do not know that the act they suffered is legally recognized as a hate crime. Hate crime recognition may be particularly difficult among immigrant communities where their countries of origin do not criminalize or prosecute similar hate-based acts. Other reasons for non-reporting include the “normalization” of hate crimes. For example, a victim who experienced repeated hate-based incidents before being targeted for a hate crime may “normalize” the crime as a common incident not worth reporting. Additionally, cultural and religious influences may cause incidents to be characterized as shameful and deter reporting. For example, identifying as a victim may translate into labeling oneself as “weak” or “shameful.” Distrust of government and law enforcement within a community can also reduce reporting. For example, Muslim and transgender communities may underreport due to perceived or actual negative experiences with law enforcement, including fear of abusive or disrespectful treatment. Others, such as undocumented individuals, may avoid involvement with law enforcement for fear of being reported to Immigration and Customs Enforcement. Language barriers also frustrate reporting.
Government Reporting of Hate Crimes
As with civilians, law enforcement officers may not recognize many incidents as hate crimes because they define hate crimes too narrowly. Officers may see only blatant violations of two of the Massachusetts hate crime statutes–violation of constitutional rights (G.L. c. 265, § 37) and assault or battery for purposes of intimidation (G.L. c. 265, § 39)–as hate crimes. However, the Massachusetts Act which provides for the collection, analysis, and public dissemination of hate crime data, defines “hate crimes” broadly as:
any criminal act coupled with overt actions motivated by bigotry and bias including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender or sexual orientation prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person’s exercise of constitutional rights through harassment or intimidation (emphasis added).
The Act also expressly provides that hate crimes include the crimes of violation of civil rights (G.L. c. 265, § 37), assault or battery for purposes of intimidation (G.L. c. 265, § 39), the destruction of place of worship (G.L. c. 266, § 127A), and crimes against morality and good order (G.L. c. 272). Yet, Massachusetts officials reported only 351 hate crimes to the FBI in 2020, which likely underestimates the actual number of hate-based incidents in the state.
Furthermore, when a civilian does not expressly identify an incident as motivated at least in part by hate, investigating officers may discover a hateful intent only upon asking specific, tailored questions. However, the likelihood of asking tailored questions is reduced without specialized training on interview techniques and the identification of key features of hate crimes. Without training on the expansive definition of hate crimes, effective interviewing techniques, and the ability to recognize key features of hates crime, the under-investigation and under-reporting of hate crimes will continue in Massachusetts.
Allocating appropriate resources for the investigation and prosecution of hate crimes depends on knowing the scope and nature of hate crimes committed in Massachusetts. However, the Act is silent on whether law enforcement must report the hate-based incidents they investigate to the FBI or state data repositories, making reporting of hate-based incidents voluntary for police organizations and their city or town employers. This permits cities and towns to avoid reporting and publicizing hate crimes out of concern their community will be labeled as biased and discriminatory, as recently highlighted by Town of Danvers’ initial decision not to publicize certain hate-based incidents in their community, which was quickly reversed. Mandatory reporting under the Act would improve public transparency, appropriate police and government responses, allocation of targeted resources, and community trust.
Hate-based incidents that avoid reporting may ultimately lead impacted communities to believe that they are devalued or their government will not protect them or their members. The fact that law enforcement agencies across Massachusetts may rely on inconsistent or narrower definitions of “hate crimes” than specified under the Act, or lack the appropriate resources, motivation, policies, or training to accurately report, investigate, and prosecute hate crimes must be remedied.
Addressing Hate Based Incidents
Since 1996, any person convicted of assault or battery for purposes of intimidation is statutorily required to complete a “diversity awareness program” designed by the Executive Office of Public Safety. Twenty-five years later, no such program has ever been created in Massachusetts, leaving courts with no standardized educational, reformative program to address recidivism and the underlying cause of hate crimes. Some judges impose no educational program requirement or resort to a patchwork of available resources, such as individualized counseling or public service hours. This prolonged failure to implement an important statutory requirement must be remedied.
Recommendations to Improve Reporting and Ensure Effective Investigation and Prosecution
Reporting by law enforcement agencies should be made mandatory under the Act for accurate statistics for enhancing training, education, transparency of police and government responses, community trust, and the efficient allocation of resources all directed at eliminating hate crimes. Another crucial step lies with educating both the public and law enforcement about the broad, legal definition of hate crimes under the Massachusetts Act.
State and local governments need more resources, thoughtful policies, and specialized training to improve reporting and effective investigation and prosecution of hate crimes. Police academies and investigative organizations should increase programs for cadet and continuing training opportunities on how to identify hate crimes, the special handling of investigations in this area, and reporting of hate crimes to superiors and government data repositories. At a recent law enforcement roundtable on the subject, panelists stated that “[n]ot every agency may be able to support a specialized unit, but all should be able to develop procedures and collaborations that will ensure cases are handled with the appropriate expertise.” The roundtable members also recommended:
- Establishing policies that specify how hate incidents are identified and investigated, and who within the agency should be notified when a suspected hate crime occurs.
- Employing community liaison officers and bias crime coordinators to manage agency responses to reported hate crimes.
- Establishing bias crime detective positions or assigning someone to these specific responsibilities, allowing for a more thorough investigation and offering a check against hate crimes that may be misclassified by patrol officers.
- Exploring the possibility of sharing a regional bias crime position among multiple smaller or rural law enforcement agencies where resources do not permit establishment at individual agencies.
Furthermore, establishing a “diversity awareness program,” as mandated in G.L. c. 265, § 39, to address the hateful intents harbored by those adjudicated responsible for hate crimes will prevent future hateful acts and show victims and their communities that Massachusetts is serious about addressing hate in our communities. While such a program is mandated for those convicted of assaulting or battering another for purpose of intimidation, the program can be used for all those convicted of hate crimes as defined in the Act. Just as workplaces have unconscious bias and religious respect training, so should perpetrators of hate crimes.
We can do better to ensure hate has no home in Massachusetts.
 Carrega, Christina and Krishnakumar, Priya. “Hate crime reports in US surge to the highest level in 12 years, FBI says.” CNN, 26 October 2021, https://www.cnn.com/2021/08/30/us/fbi-report-hate-crimes-rose-2020/index.html.
 Davis, Ronald. “The Hate Crimes Reporting Gap: Low Numbers Keep Tensions High.” Police Chief Magazine, International Association of Chiefs of Police, May 2016, https://www.policechiefmagazine.org/the-hate-crimes/.
 Shively, Michael (et al). “Understanding Trends in Hate Crimes Against Immigrants and Hispanic-Americans.” Office of Justice Programs, United States Department of Justice, January 2014, https://www.ojp.gov/ncjrs/virtual-library/abstracts/understanding-trends-hate-crimes-against-immigrants-and-hispanic.
 Malik, Sanam. “When Public Figures Normalize Hate.” CAP, Center for American Progress, 25 March 2016, https://www.americanprogress.org/article/when-public-figures-normalize-hate/.
 Massachusetts Advisory Committee to the U.S. Commission on Civil Rights, “Advisory Memorandum on Hate Crimes in Massachusetts.” USCCR.gov, 13 June 2019, https://www.usccr.gov/files/pubs/2019/Advisory-Memo-on-Hate-Crimes-in-Massachusetts.pdf.
 Schwencke, Ken. “Confusion, Fear, Cynicism: Why People Don’t Report Hate Incidents.” ProPublica, Publica Inc., 31 July 2017, https://www.propublica.org/article/confusion-fear-cynicism-why-people-dont-report-hate-incidents.
 Pursuant to regulations promulgated by the colonel of the State police in accordance with G.L. c. 22C, § 33, enumerated bias indicators “can assist law enforcement officers in determining whether a particular crime should be classified as a hate crime.” 501 Code Mass. Regs. § 4.04(1) (1993).
[ix] G.L. c. 22C, § 32.
 US Department of Justice, “2020 Hate Crimes Statistics for Massachusetts”, Justice.gov, DOJ, 2020, https://www.justice.gov/hatecrimes/state-specific-information/massachusetts.
 Referred to in the statute as “crime reporting unit.” G.L. c. 22C, § 33 (1991); see also G.L. c. 22C, § 32.
 In a three-day span, the Town of Danvers went from announcing that not all hate- based incidents would be reported to the public to stating that all hate-based incidents would be made public, including a publicly available database. See Town of Danvers, Press Releases, Statement from Town of Danvers on Recent Incident (Dec. 20, 2021) & Update to the Statement from Town Officials (Dec. 23, 2021). See also Danvers reports another hate incident; future incidents won’t be made public (wcvb.com).
 See G.L. c. 265, § 39. The programing requirement to section 39 was added by St.1996, c. 163, § 2.
 U.S. Department of Justice Hate Crimes Enforcement and Prevention Initiative, “Improving the Identification, Investigation and Reporting of Hate Crimes – A Summary Report of the Law Enforcement Roundtable.” Cops.USDOJ.gov, 2020, https://cops.usdoj.gov/RIC/Publications/cops-w0895-pub.pdf.
 “State hate crime statutes vary significantly, and the elements required for UCR reporting do not mirror state statutes. The coordinator can help code hate crimes and reinforce training during roll call or in-service. Based on agency size, certain responsibilities could be assumed by civilians, reserve personnel, or volunteers. Bias crime coordinators can also maintain statistical data and produce statistical reports monthly as well as comprehensive reports twice yearly for law enforcement and other leaders.” Id.
Madison F. Bader is a Litigation Associate at Lawson & Weitzen LLP specializing in criminal defense. Madison previously worked as an Assistant District Attorney as well as at Proskauer Rose LLP and the United States Attorney’s Offices in Boston. She currently serves as a member of the Criminal Law Steering Committee of the Boston Bar Association as well as the liaison for the New Lawyers Forum to the Criminal Law Section.
Before Assistant Professor of Law Christina Miller joined Suffolk University Law School to run the Prosecutors Clinic and teach in the area of criminal law and effective advocacy, she supervised all hate crime prosecutions and prosecuted several hate crime cases for the Suffolk County District Attorney’s Office during her eleven years as the Chief of District Courts and Community Prosecutions.
by Victor Hansen
In one of his last opinions before his untimely passing, Chief Justice Ralph Gants addressed the unique and important responsibility of the criminal prosecutor to do justice. In fulfilling this responsibility, the prosecutor acts not as an extension of law enforcement but as an important check against corrupt and abusive practices. These reminders came in the Matter of a Grand Jury Investigation involving two police officers (the petitioners) who admitted filing false police reports regarding the use of force by a fellow officer.
While on duty, the petitioners observed, but did not participate in, the arrest of a citizen charged with, among other things, resisting arrest. The arresting officer, Michael Pessoa, claimed that the arrestee was noncompliant and threatening, and that force had to be used to subdue him, as a result of which the arrestee was injured. The petitioners supported Pessoa’s version when they completed an internal departmental report of the arrest. However, video evidence revealed that the arrestee had not resisted. Rather, Pessoa had struck the compliant arrestee with his head and shoulder, knocking the arrestee to the ground “in a violent manner.”
During an ensuing grand jury investigation into Pessoa’s conduct, the petitioners testified under grants of transactional immunity and admitted to lying in their departmental reports. The district attorney sought permission from the Superior Court to disclose this information to criminal defendants in other cases where the petitioners could be potential witnesses, asserting that due process required the disclosure of this potentially exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). The petitioners sought to prevent the disclosure of their testimony.
In its decision, the Supreme Judicial Court addressed three questions: (1) whether Brady requires disclosure of this information in unrelated cases; (2) whether, if there is such an obligation, the district attorney could disclose the evidence even if it was obtained pursuant to a grant of immunity and order to testify before the grand jury; and (3) whether, if there is a Brady obligation, the prosecutor must seek prior judicial approval before disclosing the evidence. The Court concluded that the prosecution had an obligation to produce the discovery at issue without a court order. Writing for the Court, Chief Justice Gants powerfully reaffirmed that prosecutors do not serve a narrow constituency and are not merely an arm of law enforcement. Rather, the prosecution has the unique and important responsibility to seek justice.
First, the Court took a broad view of the type of evidence that falls within the scope of Brady. Brady covers not merely direct evidence of a defendant’s possible innocence, but equally information that challenges the credibility of key prosecution witnesses (the type of evidence at issue in this case). The Court also noted that the prosecution’s disclosure obligations are broader than Brady, the Massachusetts Rules of Criminal Procedure, and the Rules of Professional Conduct require prosecutors to disclose all evidence or information that tends to negate the guilt of the accused or mitigate the offense. The Court thus included within Brady not only the constitutional obligation to disclose exculpatory information but also the broader obligation to make disclosure under Massachusetts rules.
Second, the petitioners argued that the failure to disclose this evidence in other criminal cases would not automatically require new trials in those cases because, even if a defendant were convicted, the information is not exculpatory. The Court rejected this argument for two reasons: it reflected a too narrow view of the scope of a prosecutor’s Brady obligation, and because such an approach would encourage prosecutors to game the system and only consider how much exculpatory information they could safely withhold. Chief Justice Gants reminded us that we expect more from prosecutors than gamesmanship: rather than operating close to the ethical sidelines, prosecutors must operate in the middle of the field. According to the Chief Justice, “once the information is determined to be exculpatory, it should be disclosed – period.” And if the prosecutors are at all in doubt about the exculpatory nature of the evidence, they should err on the side of caution and disclose it.
Applying this standard, the Court had little difficulty determining that, when police officers lie in official reports, such information is exculpatory and must be disclosed to any criminal defendant in whose case those officers may testify.
The petitioners also argued that the immunity grant they had received in exchange for their grand jury testimony should be applied broadly. They contended that, if their falsehoods were disclosed to defendants in other cases, it would penalize the police officers for invoking their privilege against self-incrimination and violate the protections they received from the immunity grant. The Court concluded, however, that, while the evidence was compelled, that did not affect the prosecutors’ Brady obligations. Even though the disclosed exculpatory information might paint the petitioners in a bad light and reveal their “dirty deeds,” the grant of immunity protected the petitioners only from prosecution and not embarrassment. Chief Justice Gants reminded prosecutors that complying with their Brady obligations might be inconvenient, uncomfortable, embarrassing or worse, but that prosecutors cannot fail to disclose Brady material out of a misplaced sense of duty or loyalty to law enforcement, or to prevent embarrassing themselves or members of their office, public officials or potential witnesses. Although avoiding needless or gratuitous embarrassment is worthwhile, that interest never outweighs a criminal defendant’s due process rights. Disclosure is always the correct choice, even when it may have a short term impact on the relationship between prosecutors and others, including law enforcement officials.
Finally, the Court addressed whether prior judicial approval is required before disclosing Brady material that was part of a grand jury proceeding. The Court again referred to the duties of the prosecutor. While maintaining grand jury secrecy is important, the Massachusetts Rules of Criminal Procedure governing grand jury secrecy provide that prosecutors may disclose matters occurring before the grand jury doing so is within the official performance of their duties. Just as prosecutors have an official duty to present inculpatory evidence to a grand jury, they have an equally important duty to disclose exculpatory information that may enable defendants to prove their innocence. Accordingly, the prosecution can disclose this Brady information without a court order as part of their official duties. Chief Justice Gants again emphasized that prosecutors represent not an ordinary party, but of a sovereignty whose obligation is to govern impartially.
Many familiar with the role and functions of the prosecutor may not find the Court’s ruling surprising. The ethical and constitutional obligations of the prosecutor are broad and, to its credit, the lawyers in the district attorney’s office recognized those obligations and proactively complied with them. One might wonder, then, why Brady violations continue to be a persistent problem in the criminal justice system, both nationally and in Massachusetts. Indeed, one of the most egregious Brady violations in the Commonwealth’s recent history occurred not long ago, when prosecutors failed to disclose the breadth of an Amherst drug lab technician’s substance abuse problems, which affected many hundreds of criminal cases.
The reasons why Brady violations persist are complicated and varied, including confirmation bias, the difficulty of prosecutors policing themselves, the desire of prosecutors to have good working relationships with law enforcement, job security, and even racial bias. It is a fitting testament to Chief Justice Gants’ legacy that he clearly recognized that none could outweigh a criminal defendant’s right to a fair trial. The Chief Justice’s opinion serves as a poignant and important reminder that our criminal justice system is far from perfect, and that prosecutors, when they are motivated and guided by a sense of doing justice, have a critical role to play to ensure it is just.
Professor Victor M. Hansen, Professor of Law, directs the Criminal Practice and Procedure certificate program and teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics at New England Law | Boston. He is the author of several articles and books on criminal and military law, evidence, and national security issues, and is an elected member of the American Law Institute.