State of the World's Minorities and Indigenous Peoples 2014 - United States of America

A number of issues affecting minority and indigenous communities dominated political and media discussions during 2013. Perhaps foremost among these was the implementation of the 2010 Affordable Care Act (ACA) – the legislation dubbed 'Obamacare' by its opponents after President Barack Obama, its sponsor – with significant portions of it coming into effect in late 2013. Repeated efforts by its opponents in the United States House of Representatives to repeal the law were a leading factor in a two-week shutdown of the federal government in October. One purpose of the ACA was to provide better health care for the poor and uninsured, helping to reduce health care disparities that adversely affect minorities. According to a 2013 report by the Centers for Disease Control, ethnic minorities in the United States suffer disproportionately from a number of health-related problems, including infant mortality and premature death. Because the ACA began to take effect only at the end of the year, it is too early to assess the law's impact on minority and indigenous health in the country.

Another issue that received considerable attention during the year – if little resulting political action – was immigration. According to a 2013 survey by the Public Religion Research Institute, a majority of people in the United States – both Democrats and Republicans – favour improving the path to citizenship for immigrants currently in the country. Efforts at new legislation have received some bipartisan support in Congress. At least one expert has asserted that because political and media rhetoric can inspire hate crimes, the improved public attitude towards immigrants might explain an apparent decline in the incidence of reported hate crimes against Latinos. By the end of 2013, however, despite public support and President Obama's strong urging, Congress had not yet undertaken meaningful efforts at reform and immigration continued to be a source of division. This was reflected in a surge in immigration legislation during the year, with 43 states passing laws on various related issues such as identification checks and access to benefits for undocumented residents. While some took positive steps to improve protections, however, others imposed tighter restrictions. Nearly 2 million people had thus far been deported since Obama took power in 2008 – the highest under any administration. Many of those accused of being in the United States illegally are held in detention centres run by for-profit companies, and federal law mandates that the beds in these facilities be kept full.

In other areas, the criminal justice system's disparate treatment of minorities also attracted significant coverage in 2013. People of colour are treated more harshly within every aspect of the criminal justice system, from police contacts to sentencing. 'Zero-tolerance' policies in schools often result in a large number of minority and disabled students being channelled into the juvenile justice system, while drug sentencing guidelines can lead to harsher punishments for minority offenders. In 2010, Congress passed the Fair Sentencing Act to reduce the large (100:1) disparity in sentencing requirements for powder versus crack cocaine: this had had an adverse impact on people of colour, who were disproportionately likely to be accused of possessing or selling crack cocaine. In 2013, a federal appeals court held that sentencing under the old guidelines was unconstitutional under the Equal Protection Clause and also ordered that the new rules be applied retroactively. Furthermore, Obama commuted the sentences of eight federal prisoners in 2013 who had already served very long terms for possessing crack cocaine.

In particular, the existence in many states of 'stand your ground' laws, which allow people to use deadly force in self-defence even if they could have safely retreated from the situation, have also been criticized for their potential bias against ethnic minorities. During the summer of 2013 George Zimmerman, a Floridian of mixed ethnicity, was tried for the killing the previous year of an unarmed African American teenager, Trayvon Martin. Many critics claimed that Zimmerman's actions were motivated by a racist assumption that Martin was dangerous merely because of his ethnicity. In July, although in the end his defence did not rely on the 'stand your ground' doctrine, Zimmerman was found not guilty of second-degree murder and manslaughter. Although the federal government considered hate crime charges against Zimmerman, by the end of 2013 such charges seemed unlikely. However, the case played a major part in the United States Commission on Civil Rights voting in June to launch an inquiry into the possible bias of these laws.

Finally, the proposed Keystone XL oil pipeline to carry oil across Canada and the United States triggered a range of objections on environmental and safety grounds in 2013. In January, the members of 25 US Native American tribes and Canadian First Nations signed a treaty of mutual support in opposition to the pipeline. Of particular concern is the fact that the pipeline would pass near or through the lands of numerous indigenous communities in both countries.

Minority groups in the United States, such as Jews, African Americans and immigrants, are also regularly vilified by extremist organizations. The apparent rise in the number of hate groups in the United States in recent years, documented by the Southern Poverty Law Center, may be partly driven by broader social and political forces in the country, including the poor economy. Another likely factor, however, was the re-election of the country's first African American president in 2012, combined with the shrinking share of the white population. According to a 2013 census report, ethnic minorities currently make up about half of the children under five years old in the United States. Non-Latino whites are expected to become a minority by 2043. These shifts – the result of immigration as well as differential birth rates – have created anxieties among some sections of the white population of a loss of power in the future.

But while hate group membership appears to have increased in recent years, relatively few hate crime offenders belong to extremist groups: in fact, most offenders are little different from other people in terms of background and beliefs. The extent to which the rise in the number of hate groups is mirrored by an increase in hate activity is unclear. A report issued by the Federal Bureau of Investigation in 2013 even suggested that hate crimes in the United States had actually decreased nearly 29 per cent between 2000 and 2012.

However, police data is problematic in a number of respects. For many years, researchers have been claiming that law enforcement data represents only a small portion of the hate crimes committed in the United States, largely because few incidents are reported to the police – though the true extent is unknown and estimates have varied. In 2013, however, the Bureau of Justice Statistics (BJS) released a report analysing hate crime data obtained from the National Crime Victimization Survey. According to this survey, which relies on direct questioning of people in the United States rather than on police reports, between 2007 and 2011 an average of nearly 260,000 hate crime victimizations occurred every year in the United States. More than 50 per cent of incidents were motivated by race, 30 per cent by ethnicity and a little over 20 per cent by religion. A little less than 20 per cent included gender as a motive. (As offences may have more than one motive, the total exceeds 100 per cent). By contrast, the FBI reported fewer than 10,000 hate crimes in each of those years. This suggests, of course, that fewer than one in 25 hate crimes are recorded by police in the United States.

There are a number of reasons why this disparity between actual and reported incidents might exist. According to the BJS survey, the most common explanation given by victims for failing to report the crime was that they felt the police would not or could not provide support. This is a troubling finding, but it is unclear if it is a reflection of poor relationships between law enforcement and minority communities or represents a more general lack of confidence in the police. Other reasons for failure to report, documented by researchers elsewhere, include reluctance by undocumented residents to contact police; embarrassment over victimization; fear of retaliation; and a lack of knowledge about the law.

Even when victims report a hate crime, law enforcement might not record it as such due to bias, inadequate training, lack of interest, the absence of a specialized bias crime unit, a desire to avoid additional investigation or the belief that a conviction is unlikely – which is in fact the case. According to a 2013 report by the California Attorney General, for example, 930 hate crimes were recorded by police the previous year. Of these, only 158 were eventually prosecuted as hate crimes and just 49 hate crime convictions had been obtained at the time of the report's publication. Among other things, these data suggest that while many states, such as California, have now had hate crime legislation on the books for over 30 years, there has been little or no improvement in conviction rates. Most likely this stems from the often impossible task of proving an offender's motive beyond a reasonable doubt. However, lack of convictions may also contribute to the reluctance of victims to report these crimes.

Hate crimes can usually – although not always – be prosecuted under state law, though laws vary a great deal from state to state and local enforcement patterns likely differ even more. In 2009, after years of congressional debate, the Shepard-Byrd Hate Crime Prevention Act became law. This law makes a bias-motivated offence a federal crime. By October 2013, a total of 44 people had been convicted under this law. It remains unclear how frequently the Department of Justice will seek to use the federal law, and whether it intends to focus on particular offences, victims or locations. The federal government has also taken action in certain cases where local authorities have appeared to be negligent in their responsibilities to hate crime victims. In one instance, in Suffolk County, New York, hate crimes against immigrants were common and in 2008 an Ecuadorian man was murdered by a group of high school students. A federal investigation of the police department ensued, culminating in a conclusion that local police had not adequately responded to hate crimes. In late 2013, a settlement was reached, giving the United States Department of Justice oversight over the local police.

Federal hate crime prosecutions and convictions in 2013 represented a variety of types of offences. For example, in Tennessee, two white men were convicted in December of burning a cross on the lawn of an interracial family. In Washington, a man received a 40-month sentence for severely beating a Sikh cab driver whom he mistakenly thought was Muslim. And in Texas, federal hate crime charges were filed against a white man who punched a 79-year-old black man and filmed footage of the incident, apparently as part of the so-called 'knockout' game.

Hate crimes against minorities in educational settings also gained attention during 2013. In November, four students at San Jose State University in California were suspended from school and charged with hate crimes against their African American room-mate. The four had evidently engaged in systematic racist bullying, including name-calling, hanging Confederate and Nazi images on the walls, and clamping a bicycle lock around the victim's neck. As a result of this incident, the California Assembly created a committee on campus climate, charged with investigating and improving diversity conditions at the state's public institutions of higher education. Bias-motivated incidents, such as racist remarks or graffiti, were also reported on a number of college campuses in other states during the year.

The protection of freedom of speech in the First Amendment of the US Constitution means that restrictions on expression, including hate speech, continue to be resisted. Legal actions against hate speech have typically focused on incidents where the verbal abuse is deemed as a prelude or incitement to imminent physical violence. This makes legal action especially difficult in the context of social media, where platforms such as Facebook, YouTube and Twitter are regularly used to post and disseminate hateful and denigrating content. When in April 2014 Senator Edward Markey introduced the Hate Crime Reporting Act of 2014 to require the National Telecommunications and Information Administration 'to update a report on the role of telecommunications, including the Internet, in the commission of hate crimes' and 'include any recommendations, consistent with the First Amendment to the Constitution of the United States ... appropriate and necessary to address' these issues, some activists attacked the legislation for its perceived encroachment on free speech.

Nevertheless, hate speech directed at ethnic and religious minorities and indigenous communities, as well as other marginalized groups, remains a visible part of the online landscape. According to a report released in 2013 by the Simon Wiesenthal Center, for example, many thousands of posts were made by people using bias-laden account names or hashtags. A map produced by students of Humboldt State University, using data on racist and other bias-motivated tweets, also illustrated the geographical sources of biased tweets in the United States. The map suggests not only that hate is widespread, but also that certain geographic areas are more likely to express hatred against particular groups.

While the First Amendment to the United States Constitution prohibits most government interference with internet speech, private companies are free to regulate the content that is posted on their platforms. Doing so is problematic for the companies, however, in part because of the volume of material that gets posted, and in part because regulation leaves them open to complaints of censorship. Some companies, such as Twitter and Tumblr, resist hate speech regulations because they are hesitant to block the free flow of ideas. Facebook and YouTube already have policies restricting hate speech, but it is unclear how well those policies are applied. Furthermore, these policies are in need of frequent adjustments.

However, social media users have also developed positive non-legal responses to counter online hate speech. For instance, one Twitter user, YesYoureRacist, retweets racist messages, especially those that contain the phrase 'I'm not a racist but ... ' Anti-bias organizations such as the Anti-Defamation League and the Simon Wiesenthal Center maintain very active social media presences and have tens of thousands of followers. The Southern Poverty Law Center, for example, had almost 150,000 'likes' in May 2014 on Facebook, and publishes a Teaching Tolerance blog (www.tolerance.org) with materials and activities for educators.