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RELEASE: Broken Criminal Justice System Disproportionately Targets and Harms LGBT People

As support for criminal justice reform builds, a major new analysis examines how the system fails the LGBT population.

Washington, D.C. — There is a rare and growing consensus across the political spectrum that, with the highest incarceration rate in the world, the United States’ criminal justice system is in need of reform. However, one population has been largely absent from the discussion: lesbian, gay, bisexual, and transgender, or LGBT, people.

A major report released today offers the most comprehensive analysis to date of how LGBT people—and particularly LGBT people of color—face higher rates of incarceration and unfair treatment and abuse in the criminal justice system. “Unjust: How the Broken Criminal Justice System Fails LGBT People” documents how pervasive stigma and discrimination, biased enforcement of laws, and discriminatory policing strategies mean that LGBT people are disproportionately likely to interact with law enforcement and to have their lives criminalized. LGBT people are also treated unfairly once they enter the system; the report shows how they are not only more disproportionately incarcerated but also face abuse while incarcerated. Finally, the report sheds light on the fact that LGBT people face unique and considerable challenges in the struggle to rebuild their lives after experiences with law enforcement—and particularly after time spent in a correctional facility.

To illustrate the real impact of these failures in the criminal justice system, the report highlights personal stories of LGBT people impacted by the criminal justice system and spotlights innovative programs, initiatives, and organizations from around the country. “Unjust: How the Broken Criminal Justice System Fails LGBT People” was co-authored by the Movement Advancement Project, or MAP, and the Center for American Progress, or CAP, in partnership with Forward Together, JustLeadershipUSA, and Advancement Project. It is available online.

“It used to be a crime to be LGBT in the United States, and while police are no longer raiding gay bars, LGBT people—especially LGBT people of color—are still disproportionately pushed into the criminal justice system. They are treated unfairly within the system and in correctional settings and face extraordinary challenges in rebuilding their lives,” said Ineke Mushovic, executive director of MAP.

The report synthesizes the latest research and analysis to make the case that LGBT people, especially LGBT people of color and low-income LGBT people, pay an extraordinarily high price for the failures of the U.S. criminal justice system:

  • According to the National Inmate Survey, from 2011 to 2012, 7.9 percent of individuals in state and federal prisons identified as lesbian, gay, or bisexual, as did 7.1 percent of individuals in city and county jails. This is approximately double the share of all American adults who identify as LGBT, at 3.8 percent, according to Gallup.
  • Sixteen percent of transgender and gender nonconforming respondents to the National Transgender Discrimination Survey indicated that they had been held in jail or prison, with higher rates for transgender women at 21 percent and lower rates for transgender men at 10 percent. Comparatively, about 5 percent of all American adults will spend time in jail or prison during their lives.
  • In a 2015 survey of young people at seven juvenile detention facility sites across the country, an estimated 20 percent identified as LGBT or gender nonconforming, including 40 percent of girls and 14 percent of boys. This is about triple the share of all youth who identify as LGBT or gender nonconforming, at an an estimated 5 percent to 7 percent.

The report paints a harrowing picture of the three ways in which the broken system fails LGBT people:

Entering the system: Increased criminalization of LGBT people

Three factors increase the chances that an LGBT person will be stopped or arrested by police and pushed into the system:

  • Discrimination and stigma in society, housing, workplaces, families, and communities leave LGBT people more likely to live in poverty or to be homeless, which in turn leads to increased risk of having encounters with law enforcement and, ultimately, criminalization.
  • Discriminatory enforcement of criminal laws targets LGBT people, such as HIV criminalization laws, drug laws, and laws criminalizing consensual sex.
  • Harmful policing strategies and tactics push LGBT people—especially LGBT people of color and low-income LGBT people—into the criminal justice system.

In the system: LGBT people are more frequently incarcerated and treated harshly

Within the criminal justice system, LGBT people face two main challenges:

  • Discrimination in legal proceedings leaves LGBT people more likely to spend time in juvenile justice facilities, adult correctional facilities, and immigration detention facilities.
  • Unfair and inhumane treatment in jails, prisons, and other confinement facilities puts LGBT people at risk of violence, physical and sexual assault, and harassment by staff and fellow inmates. Incarcerated transgender people often lack access to competent, medically necessary health care, and when they are placed in facilities according to their birth sex, transgender people are at increased risk of harassment and sexual assault.

Life after conviction: LGBT people face added challenges to rebuilding lives

There are two primary post-conviction challenges for LGBT people:

  • Discrimination and a lack of cultural competency in probation, parole, and re-entry programs mean LGBT people may not receive the assistance they need. For example, hostile parole officers or unsafe group housing conditions may lead LGBT people to violate the terms of release or community supervision in order to feel safe, putting them at risk of being reincarcerated.
  • The impact of having a criminal record is substantial and touches every aspect of a person’s life. For people who already struggle with pervasive discrimination, such as LGBT people and people of color, the added challenges of having a criminal record create substantial barriers to rebuilding one’s life and avoiding future interactions with the criminal justice system. For LGBT immigrants, regardless of immigration status, having a criminal record can easily lead to deportation.

“As the nation continues to debate how to fix the criminal justice system, it is critical to explore solutions that will improve conditions and ensure fairness for everyone,” said Laura E. Durso, Senior Director of the LGBT Research and Communications Project at the Center for American Progress. “That includes America’s 9 million LGBT people who are at increased risk of having their lives and life chances destroyed by the current criminal justice system.”

For more information on this topic or to speak with an expert, contact Tom Caiazza at tcaiazza@americanprogress.org or 202.481.7141.

Partners

JustLeadershipUSA is dedicated to cutting the U.S. correctional population in half by 2030 while reducing crime. JLUSA empowers people most affected by incarceration to drive policy reform. Learn more at www.justleadershipusa.org.

Founded in 2006, the Movement Advancement Project is an independent think tank that provides rigorous research, insight, and analysis that help speed equality for lesbian, gay, bisexual, and transgender people. Learn more at www.lgbtmap.org.