Wisconsin’s official hate crime reporting plagued by missing cases, errors corrected too late

The State of Hate is a five-part series based on a review of hundreds of pages of hate investigation police reports as well as five years’ of criminal charges in Wisconsin. This is Part Three, covering cases missing from state hate crime data.

MADISON, Wis. — Her 5-year-old daughter still has nightmares.

Toshiana Northington says David Lythjohan kicked and punched her and her children in the East Madison Woodman’s parking lot last summer, using racial slurs after he became angry when her shopping cart temporarily blocked his car.

It was one of at least half a dozen anti-Black crimes investigated in Madison last year, during a period when News 3 Investigates found anti-Black crime more than doubled in Wisconsin amid protests against police violence.

Lythjohan is facing four criminal charges for the incident; all of them include the hate crime penalty that could significantly increase his sentencing if he’s found guilty of the battery and child abuse charges.

Madison police, however, don’t include the case in their official hate crime reports.

It’s one of nine cases just in Madison alone missing from Wisconsin’s Department of Justice hate crime tallies for 2020, where police investigated hate as a factor in a case that often went on to be charged–but the case still doesn’t meet definition reviews under the DOJ and FBI reporting guidelines. 

A News 3 review found similar cases elsewhere–in Racine, Kenosha, and Sauk counties, for example–where charged cases didn’t count in state reporting. 

In Portage County, when a man yelled racist, pandemic-related slurs at a Hmong individual in a grocery store, prosecutors brought the hate penalty in the case. But ultimately, it’s missing from hate crime reports for Stevens Point police. It’s one of a string of anti-Asian hate crimes, surging during the pandemic both state and nationwide, that aren’t reported as hate crimes in state tallies.

Reasons like this plague accurate hate crime reporting in state and federal reporting systems in Wisconsin, a News 3 Investigation finds. Hate crime is already chronically underreported to police; but a review of nearly 200 reports tagged as bias in Wisconsin finds that even when police are aware of hate, there’s no guarantee it will be reported and included in hate crime tallies.

Even when hate is prosecuted, cases are excluded from hate crime data

Even when crimes are prosecuted as hate in court, that doesn’t mean they’ll also be reported as a hate crime in Wisconsin’s official DOJ statistics. 

In Toshiana’s case, Dane County is prosecuting the crime with a hate penalty. But the Madison Police Department isn’t reporting it to the state as a hate crime, and didn’t add a bias tag to the incident. As a result, her case isn’t reflected in the state’s database, which is what the FBI uses when producing their annual hate crime reports.

Toshiana’s isn’t the only case in Madison. 

After completing their review, MPD’s official count is five hate crimes in 2020. A News 3 review found at least eight additional cases where prosecutors decided there was enough evidence to bring initial hate crime charges but they’re not tallied as a hate crime in MPD’s or the state’s records. 

Another five cases included clear racial indicators like slurs and threats in police reports, but didn’t rise to charges.

It’s an issue of completely different standards for the purposes of charging a crime versus reporting to the FBI.

“Those are two very different things,” MPD assistant police chief Vic Wahl said. “You could have a certain crime type that qualifies under the state statute that our district attorney chooses to prosecute and investigated it as that, but because it’s a certain type of crime, (incident based reporting) doesn’t allow for it to be categorized as a hate crime.”

From agency to agency, however, the standards of what gets reported and what doesn’t are mixed–partially because some agencies are newer to the FBI’s latest reporting standard.

Madison is by far not the only jurisdiction where charged hate crimes don’t appear in their own tally. In Kenosha, 78-year-old Robert Carver is facing the hate crime penalty after police said he shouted racial slurs at a Black woman before jumping in his car and accelerating his SUV in her direction.

But when News 3 Investigates asked Kenosha police for their hate crime reports, they produced just one incident in 2020 tagged as anti-white: a white man who called police saying someone in a group of Black teenagers had thrown a rock at his window after shouting anti-white slurs. (Kenosha PD did not respond to a request asking why Carver’s case hadn’t been tagged as a hate crime.)

Not one law enforcement agency in Racine County has reported a hate crime to the state in five years, according to the most current data. Prosecutors, however, have brought hate crime charges six times in that timespan, including two hate penalty convictions–one of them in the vicious beating of a Black gay man.

Mixed standards, late-corrected errors skew state, federal data

Routine clerical errors that record hate crimes where hate isn’t a factor are common when officers are entering reports to record management systems at agencies around the state, multiple police leaders and administrative staff explained. Officers are rushed, or at times adjusting to a new system, and accidentally click the wrong button when filling out the bias section of a report. The issue is typically caught and corrected in routine reviews.

But those reviews don’t always happen before those mistaken reports have already been recorded and reported by the FBI. 

More importantly, training issues and misunderstandings of the hate crime statute lead to improper reporting or no reporting at all. Time after time, a News 3 Investigation reviewing hundreds of pages of case reports found issues where training, understanding, or a failure to review bias tags on cases meant the official statistics are not just underreported, but the ones that are counted are skewed as well. 

FBI annual hate crime reports, for example, count 53 and 74 hate crimes in Wisconsin for 2018 and 2019, respectively.  But when News 3 Investigates asked for those hate crime reports from the agencies reporting those crimes, many said they were a misclassification or they weren’t able to locate the reports. 

The state’s database currently reports 47 and 55 hate crimes for those years, because it updates automatically months or years later after an officer adds or removes a bias tag from an investigation. 

“Throughout the year and throughout additional review processes, those numbers become more complete and more accurate,” explained Derek Veitenheimer, director of the Bureau of Justice Information and Analysis for the Wisconsin DOJ.

But the FBI’s annual hate crime reports are static documents, and most of the missing reports in 2018 and 2019 we traced to classification errors only corrected after the FBI’s reporting deadline passed–even though the FBI will at times conduct its own reviews of agency data before publishing their reports.

But the standard for what should and shouldn’t be classified as hate-motivated isn’t applied equally across the board. When a racial slur was found in 2019 in a school bathroom stall in Mayville, police first reported it to the state as a hate crime. 

Racially-motivated vandalism is a common hate crime throughout Wisconsin, and dozens can be found in the state’s database over the past five years. In fact, many cases–like parking lot attacks and other assaults–are similar to other crimes that agencies say are correctly classified as hate crimes.

But a state review found the Mayville incident shouldn’t be classified as hate, and they’re no longer included in the state’s hate database for 2019, a spokesperson said.

Underreporting: No official record even after hate suspected

A burned pride sign in Evansville last summer left the community distraught and their local police officers, some of whom are members of the LGBTQ community, committed to investigating it as a hate crime.

Ultimately, police chief Patrick Reese said prosecutors didn’t have enough evidence to charge the case as a hate crime, as the suspect said he hadn’t burned the flag and was ultimately more angry with and targeting the community of Evansville itself.

Police didn’t report the incident to the state as a hate crime, even though charges don’t need to be filed in order for a hate investigation to be reported (there’s rarely a suspect in vandalism cases, for example). 

Reese said it had shocked the community who had pushed for a hate crime penalty, but prosecutors said there simply wasn’t enough evidence.

“That is a good point…and something I should actually talk to the secretary about,” Reese said in response to a question about why it hadn’t been reported to the state as a hate crime. “Just because you don’t have the charge doesn’t mean you can’t classify one if you have one.”

Hate crime underreporting from law enforcement has been a chronic nationwide problem for years. Officials and marginalized communities have traced it to numerous factors: victims hesitate to report to police or police aren’t properly trained in detecting, investigating and reporting hate. 

Early on in the pandemic, Hmong individuals in Marathon County had reported slurs and attacks from individuals blaming them for COVID-19. The Marathon County Sheriff’s Office opened a hate investigation, but nothing was ultimately reported to the state because victims hadn’t been willing to talk to police, Sheriff Scott Parks said. 

From 2016 through 2020, only 101 of Wisconsin’s 478 law enforcement agencies reported a hate investigation to the state at all. Fewer than half of those reported more than one crime during that time, according to a snapshot of the state’s database in May.

Wisconsin’s top law enforcement official, attorney general Josh Kaul, recently joined a coalition of attorneys general calling on Congress to pass the NO HATE Act, which would provide federal funding to improve inaccurate and incomplete data.

Kaul believes the issues are largely traced to a lack of training and funding for law enforcement.

“This is one of the reasons training is so critical,” Kaul told News 3 Investigates in an interview. “We don’t have a great picture, broadly speaking, as to how well each individual officer or agency reports these crimes.”

Toshiana said it’s hurtful, knowing her assailant’s case is being charged as a hate crime but won’t count in state statistics–or MPD’s records.  More than that, she feels the entire case had been mishandled by police, who she says ignored her wellbeing when they responded and didn’t listen when she said her attacker had used racist slurs.

“It wasn’t fair that they didn’t write down a proper report,” she said. “It wasn’t fair that they didn’t have a good understanding of what happened in the situation.”