UNJUST: HOW THE BROKEN CRIMINAL JUSTICE SYSTEM FAILS LGBT .

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UNJUST: HOW THE BROKEN CRIMINAL JUSTICESYSTEM FAILS LGBT PEOPLE OF COLORAugust 2016AuthorsPartners

This report was authored by:2Center for American ProgressThe Center for American Progress (CAP) is a think tankdedicated to improving the lives of Americans throughideas and action. CAP combines bold policy ideas witha modern communications platform to help shape thenational debate. CAP is designed to provide long-termleadership and support to the progressive movement.CAP’s policy experts cover a wide range of issue areas, andoften work across disciplines to tackle complex, interrelatedissues such as national security, energy, and climate change.Fore more information, visit www.americanprogress.org.Movement Advancement ProjectThe Movement Advancement Project (MAP) is anindependent think tank that provides rigorous research,insight, and analysis that help speed equality forLGBT people. MAP works collaboratively with LGBTorganizations, advocates and funders, providinginformation, analysis and resources that help coordinateand strengthen efforts for maximum impact. MAP’s policyresearch informs the public and policymakers about thelegal and policy needs of LGBT people and their families.For more information, visit www.lgbtmap.org.Contact InformationCenter for American Progress1333 H Street, NW, 10th FloorWashington, DC 20005202-682-1611www.americanprogress.comMovement Advancement Project (MAP)2215 Market StreetDenver, CO 802051-844-MAP-8800www.lgbtmap.orgThis report was developed in partnership with:Advancement ProjectAdvancement Project is a next generation, multi-racial civilrights organization. Rooted in the great human rights strugglesfor equality and justice, we exist to fulfill America’s promiseof a caring, inclusive and just democracy. We use innovativetools and strategies to strengthen social movementsand achieve high impact policy change. Learn more atwww.advancementproject.org.Forward TogetherForward Together is a multi-racial, multi-issue organization that ischanging how we think, feel, act, and make policy about families.Whether chosen or biological, we work to ensure that all familieshave the power and resources they need to thrive. We work at theintersections of race, gender, and sexuality—and find ways to shiftour culture and policy in the areas of reproductive justice, economicjustice, and ending mass incarceration. For more information, LeadershipUSA is dedicated to cutting the U.S. correctionalpopulation in half by 2030, while reducing crime. JLUSAempowers people most affected by incarceration to drivepolicy reform. Learn more at www.justleadershipusa.org.MALDEFMALDEF is the nation’s leading Latino legal civil rightsorganization. Often described as the “law firm of the Latinocommunity”, MALDEF promotes social change through advocacy,communications, community education, and litigation inthe areas of education, employment, immigrant rights, andpolitical access. MALDEF strives to implement programs thatare structured to bring Latinos into the mainstream of Americanpolitical and socio-economic life; providing better educationalopportunities; encouraging participation in all aspects ofsociety; and offering a positive vision for the future. For moreinformation, visit www.maldef.org.National Action NetworkNational Action Network (NAN) is one of the leading civilrights organizations with chapters throughout the U.S.Founded in 1991 by Reverend Al Sharpton, NAN works withinthe spirit and tradition of Dr. Martin Luther King, Jr. to promotea modern civil rights agenda that includes the fight for onestandard of justice, decency and equal opportunities for allpeople regardless of race, religion, nationality or gender. Formore information, visit www.nationalactionnetwork.net.National Black Justice CoalitionThe National Black Justice Coalition (NBJC) is a civil rightsorganization dedicated to empowering Black LGBT people.NBJC’s mission is to end racism and homophobia. As America’sleading national Black LGBT civil rights organization focusedon federal public policy, NBJC has accepted the charge to leadBlack families in strengthening the bonds and bridging the gapsbetween the movements for racial justice and LGBT equality. Formore information, visit www.nbjc.org.National LGBTQ Task ForceThe National LGBTQ Task Force works to secure full freedom,justice and equality for lesbian, gay, bisexual, transgenderand queer (LGBTQ) people. For over forty years, we havebeen at the forefront of the social justice movement bytraining thousands of organizers and advocating for changeat the federal, state, and local level. For more information,visit www.thetaskforce.org.

TABLE OF CONTENTSGRAPHICAL EXECUTIVE SUMMARY. 1INTRODUCTION.6Who are LGBT People of Color? . 6Data about LGBT People of Color in the Criminal Justice System. 7WHY ARE LGBT PEOPLE OF COLOR OVERREPRESENTEDIN THE CRIMINAL JUSTICE SYSTEM? .9Reason #1: Pervasive Stigma and Discrimination. 9Reason #2: Discriminatory Enforcement of Criminal Laws. 13Reason #3: Profiling and Police Tactics. 17HOW ARE LGBT PEOPLE OF COLOR TREATED IN CRIMINAL JUSTICE INSTITUTIONS?.24Challenge #1: Discrimination in Court and in Court Proceedings. 24Challenge #2: Unfair and Inhumane Treatment in Confinement Facilities . 27Challenge #3: Lack of Support in Preparing for Re-Entry. 32WHAT IMPACT DOES HAVING A CRIMINAL RECORD HAVE ON LGBT PEOPLE OF COLOR?.33Struggle #1: Lack of Support in Probation, Parole, and Re-Entry Programs . 33Struggle #2: Impact of a Criminal Record. 33CONCLUSION.38RECOMMENDATIONS.39ENDNOTES.423

UNJUST:1HOW THE BROKEN CRIMINALJUSTICE SYSTEM FAILS LGBT PEOPLE OF COLORPAGE 1YOUTHA D U LT SLGBT PEOPLE OF COLOR ARE OVERREPRESENTED IN THE SYSTEM1 IN 3ADULTS ARE PEOPLE OF COLOR2 IN 3ADULTS IN PRISON & JAIL ARE PEOPLE OF COLOROther,9%Black,37%Latino,22%White,32%3.8% OF ALL ADULTS IDENTIFY AS LGBT7.9% OF ADULTS IN PRISON & JAILIDENTIFY AS LGBTOF YOUTH IN JUVENILE JUSTICE FACILITIES85%1 IN 5YOUTH IDENTIFY AS LGBT OR GENDERNON-CONFORMINGOF LGBTQ YOUTH IN JUVENILE JUSTICEFACILITIES, 85% ARE YOUTH OF COLORSources: “QuickFacts: White Alone, Not Hispanic or Latino, Percent, July 1, 2014, (V2014),” U.S. Census Bureau; Gary J. Gates and Frank Newport, “Special Report: 3.4% of U.S. Adults Identify as LGBT,” Gallup, October 18, 2012; E. Ann Carson,“Prisoners in 2013” (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, September 2014); Allen J. Beck, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 – Supplemental Tables” (U.S.Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2014); Angela Irvine, “Dispelling Myths: Understanding the Incarceration of Lesbian, Gay, Bisexual, and Gender Nonconforming Youth,” Unpublished(Oakland, CA: National Council on Crime and Delinquency, 2014).

UNJUST:HOW THE BROKEN CRIMINALJUSTICE SYSTEM FAILS LGBT PEOPLE OF COLORPAGE 2WHY ARE LGBT PEOPLE OF COLOR OVERREPRESENTED?PERVASIVE DISCRIMINATION& STIGMADISCRIMINATORYENFORCEMENT OF LAWSHARMFUL POLICINGSTRATEGIES & TACTICSLGBT people are pushed into thesystem by:LGBT people disproportionatelyimpacted by:LGBT people experience negativepolicing strategies, including: Unsafe Schools and School-to-Prison Pipeline HIV Criminalization Laws Quality-of-Life and Zero-Tolerance Policing Family Rejection and Negative ChildWelfare System Experiences Drug Laws Policing of Gender Norms Poverty, Unemployment, and PervasiveDiscrimination Aggressive Enforcement of AntiProstitution Statutes Stop-and-Frisk and Profiling Collaboration Between Police andImmigration Enforcement Discrimination and Violence WhenSeeking Assistance Abuse and BrutalityHOW ARE LGBT PEOPLE OF COLOR TREATED INCRIMINAL JUSTICE INSTITUTIONS?DISCRIMINATIONIN COURTSUNFAIR AND INHUMANETREATMENT INCONFINEMENT FACILITIESWHAT IS THE IMPACT ON LGBT PEOPLE OF COLOR?LACK OF SUPPORTCOLLATERALCONSEQUENCES OFCRIMINAL RECORD2

BLACK COMMUNITIES BEAR THEBRUNT OF THE SYSTEM’S DYSFUNCTION3ARRESTED, SUSPENDED, AND STOPPEDBLACK STUDENTS ARE 3X AS LIKELY TO BESUSPENDED FROM SCHOOL AS WHITESTUDENTS72% OF ALL STOPS BY CHICAGO POLICE WEREOF BLACK PEOPLE, WHO COMPRISE JUST32% OF THE CITY’S POPULATIONIMPRISONED AND DETAINEDBLACK MEN ARE IMPRISONED AT 6XTHE RATE OF WHITE MEN40OF YOUTH IN THEJUVENILE JUSTICESYSTEM ARE BLACK%BLACK WOMEN ARE IMPRISONED AT2X THE RATE OF WHITE WOMENONLY14%OF YOUTHNATIONWIDEARE BLACKSources: Civil Rights Data Collection, U.S. Department of Education Office for Civil Rights, “Data Snapshot: School Discipline”; ACLU of Illinois, “Stop and Frisk in Chicago"; Carson, “Prisoners in 2013"; Rovner, “Disproportionate Minority Contact in theJuvenile Justice System."

LATINO LGBT PEOPLE & THECRIMINAL JUSTICE SYSTEM“4THERE IS A LACK OF DATA ON THE SPECIFIC EXPERIENCES OFLATINO LGBT PEOPLE IN THE CRIMINAL JUSTICE SYSTEM, BUT LIMITEDDATA PAINT A PICTURE OF BIAS AND OVERREPRESENTATION.4%“17%OF THE PEOPLE IN THEUS ARE LATINOOF LATINO ADULTSIDENTIFY AS LGBT (ASDO 3.4% OF ALL ADULTS)22%8%OF PEOPLE IN PRISONSAND JAILS ARE LATINOOF ALL INCARCERATEDADULTS IDENTIFY ASLESBIAN, GAY, OR BISEXUALLATINO LGBT PEOPLE AT INCREASED RISK FORINTERACTIONS WITH LAW ENFORCEMENT20%OF PEOPLE SHOT BY POLICEIN 2015 WERE LATINOLATINO LGBTYOUTH MORE LIKELYTO BE DISCIPLINEDAT SCHOOL44%36%LATINO LGBTSTUDENTSWHITE LGBTSTUDENTS Latinos are more likely to bestopped by police Collaboration between lawenforcement & immigrationofficials increases surveillanceof communities and discouragesreporting of crime Latina women areoverrepresented in HIVcriminalization casesSources: U.S. Census Bureau, "Annual Estimates of the Resident Population by Sex, Age, Race, and Hispanic Origin for the United States and States: April 1, 2010 to July 1, 2014," June 2015; Gary J. Gates and Frank Newport, “Special Report: 3.4% of U.S. Adults Identifyas LGBT,” Gallup, October 18, 2012; E. Ann Carson, “Prisoners in 2013," U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, September 2014; Allen J. Beck et al., “Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12,"U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2013; The Washington Post, "990 People Shot Dead By Police in 2015"; Neal A. Palmer, Emily A. Greytak, and Joseph G. Kosciw, “Educational Exclusion: Drop Out, Push Out, andthe School-to-Prison Pipeline among LGBTQ Youth,” GLSEN, 2016; Amira Hasenbush, Ayako Miyashita, and Bianca D.M. Wilson, “HIV Criminalization in California: Penal Implications for People Living with HIV/AIDS,” The Williams Institute, December 2015.

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INTRODUCTIONGreater national attention has recently been paidto the experiences of people of color,a particularly blackand Latino people, within the criminal justice system inthe United States —how violence and abuse, profilingand discrimination, and prosecution and incarcerationhave devastated communities of color. Racial and ethnicdisparities across the criminal justice system are extreme;see, for example, the graphic on pages 3 and 4 for asummary of key disparities for black and Latino peoplein the United States. Police arrests and convictions underdrug laws reveal racial biases by law enforcement and courtofficials. People of color are held in jail longer before beingtried and receive increased sentences compared to whitedefendants. People of color comprise the majority of peopleheld in immigration detention facilities. Disproportionatelyhigh rates of incarceration and the collateral consequencesrelated to having a criminal record force many people ofcolor back into the criminal and legal cycle.This report focuses on LGBT people of color andtheir interactions with the criminal justice system.It is a companion report to a larger report releasedin February 2016 entitled Unjust: How a BrokenCriminal Justice System Fails LGBT People. That reportexamines drivers of incarceration for LGBT people, theexperiences of LGBT people in the justice system andin confinement facilities, and added challenges to reentry for LGBT people.LGBT people live throughout the United States,comprising anywhere from 2.6% of the populationin Birmingham, Alabama, to 10.0% in the District ofColumbia.4 LGBT people of color are more likely thanwhite LGBT people to be raising children; data fromGallup finds that two in five (41%) Hispanic and AfricanAmerican LGBT women are raising children as are 38%of Asian LGBT women compared to 28% of white LGBTwomen.5 Childrearing rates are also higher amongHispanic, Asian, and African American LGBT mencompared to white LGBT men.Much like their non-LGBT counterparts, LGBT peopleof color have lower economic security, higher rates ofpoverty and uninsurance, and other economic strugglescompared to their white peers, and in some cases LGBTpeople of color also report greater economic insecuritycompared to their non-LGBT peers. For example, AfricanAmericans in same-sex couples have poverty rates at leasttwice the rate for African Americans in married oppositesex couples and poverty rates six times that of whitemen in same-sex couples.6 Transgender people of colorare more likely to live in extreme poverty than are nontransgender people of color; Asian and Pacific Islander(API) transgender people are six times more likely to reportincomes of less than 10,000 or less compared to nontransgender API people.7 Transgender people of color alsoreport higher rates of extreme poverty compared to thetransgender population as a whole; 15% of transgenderpeople in the National Transgender Discrimination Surveyreported incomes of 10,000 or less per year compared to34% of black transgender respondents, 28% of Latino/arespondents, 23% of both Native American and multiracialrespondents, and 18% of API respondents.8aWho are LGBT People of Color?More than one in three people in the United Statesidentifies as a person of color–over 113 million people.1Similarly, a survey of adults conducted by Gallup foundthat 33% of adults who identify as lesbian, gay, bisexual,and/or transgenderc are people of color, and people ofcolor are more likely than white people to identify asLGBT.2 In addition, research by the Williams Institute6bcIn some cases, this report uses the term people of color to refer broadly to African Americanor black, Latino or Hispanic, Asian/ Pacific Islander, Native American, and other non-whitepeople in the United States. This term is not meant to suggest a singular experience. Whereverpossible, this report reports statistics disaggregated by race or ethnicity. Please note that whendiscussing data from a particular survey, we use the same terms used by the survey instrument(e.g., Hispanic or Latino, black or African American, or American Indian or Native American).While data speaks directly to the experiences, in many instances, of black and African Americanpeople as well as Latino and multiracial people, less data is available to understand the waysin which other communities of color, including Asian and Pacific Islanders, Middle Easterners,and Native Americans, interact with the criminal justice system. For example, data show starkdisparities particularly for black and African American communities as well as Latino andmultiracial individuals in terms of incarceration rates. Limited data about sexual orientationand gender identity and limited disaggregated data about communities such as NativeAmericans and Asian and Pacific Islanders make it more difficult to present quantitative dataabout these communities’ experiences.All individuals have both a sexual orientation and a gender identity. Thus it is possible for anindividual to identify as transgender and not identify as lesbian, gay, or bisexual, or to identifyas both transgender and lesbian, for example.INTRODUCTIONFor LGBT people of color, experiences with lawenforcement, with the justice system, in confinementfacilities, and when rebuilding their lives with acriminal record are inextricably linked with racism anddiscrimination against LGBT people. Both people ofcolor and LGBT people, in general, are overrepresentedin the criminal justice system (as shown in the graphicsin the preceding pages). Therefore, it’s not surprisingthat LGBT people of color face exceptionally high ratesof incarceration.bfinds that an estimated 1.7 million young people of colorbetween the ages of 8 and 18 identify as lesbian, gay,bisexual, transgender, or questioning (LGBTQ).3

7Data about LGBT People of Color in theCriminal Justice SystemFigure 1: LGBT Adults are Overrepresented inJails and PrisonsPercent of People Identifying as LGBINTRODUCTIONIt is estimated that one in three adults in the UnitedStates, or more than 70 million people, have been arrestedor convicted for a serious misdemeanor or felony.9 Whilesimilar statistics are not available for the LGBT population,several studies find that LGBT people are more likely tobe incarcerated than the general population, as detailedbelow. Similar to the numbers for the broader populationof people in the criminal justice system, LGBT people inthe system are overwhelmingly people of color.LGBT Youth. In a survey of youth at seven juvenilejustice facilities across the United States, 85% of LGBTand gender non-conforming youth were youth of color.10High rates of incarceration for LGBT youth of color arenot surprising given that youth of color, in particularblack youth, are disproportionately likely to be in thejuvenile justice system; 40% of incarcerated youth areblack compared to 14% of youth overall.11 Rates ofincarceration for Latino youth are roughly proportionateto the Latino youth population overall, while whiteyouth are underrepresented among youth in juvenilejustice facilities (33% of incarcerated youth versus 53%of the overall youth population).12LGBT Adults. Data about LGBT people in thecriminal justice system are scarce. As part of recent datacollection efforts required under federal law, federalsurveys have begun to ask individuals in prisons, jails,and juvenile facilities about their sexual orientationand gender identity. Tworeports released by the federal Bureau ofJustice Statistics, one in 2008 and another in 20112012, found that 8% of adults in prisons and jails,or approximately 162,000 adults, identified assomething other than heterosexual.13 This is morethan twice the percentage of adults in the United

latino lgbt people in the criminal justice system, but limited DATA PAINT A PICTURE OF BIAS AND OVERREPRESENTATION. Sources: U.S. Census Bureau, "Annual Estimates of the Resident Population by Sex, Age, Race, and Hispanic Origin for the United States and States: April 1, 2010 to July 1, 2014," June 2015; Gary J. Gates and Frank Newport, “Special Report: 3.4% of U.S. Adults Identify

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