Why sentencing reform is an LGBTQ issue

On Oct. 27, 1986, at the height of the “War on Drugs,” President Reagan signed into law the Anti-Drug Abuse Act. This law set into motion our current crisis of mass incarceration by requiring judges to impose mandatory sentences for all drug-related offenses, even for the possession of small amounts of cannabis. Three decades later, we are seeing the disastrous results of these “no tolerance” policies. With well over two million people—a majority of them Black and Latino men—behind bars, the United States now leads the world in the number of incarcerated individuals.

The staggering impact of the “War on Drugs” on communities of color has finally been gaining much-needed recognition. Less widely discussed, however, has been the disproportionate impact that it has had on lesbian, gay, bisexual, transgender, and queer (LGBTQ) communities, particularly LGBTQ people of color. As a result of social stigma and pervasive discrimination, LGBTQ individuals experience significantly higher rates of joblessness and poverty than the general population. Consequently, many LGBTQ people turn to underground economies like sex work or drug sales for income, and many use drugs as a coping mechanism. Police bias, abuse and profiling of LGBTQ people—especially trans women of color—means more LGBTQ people are targeted by law enforcement. These factors, together with widespread discrimination and social marginalization, contribute to the significant overrepresentation of LGBTQ people in prisons and jails.  

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It is for these reasons that organizations like the National LGBTQ Task Force Action Fund, the National Center for Transgender Equality, and the National Center for Lesbian Rights have endorsed the Sentencing Reform and Corrections Act (SRCA) introduced by Senator Grassley, this year. SRCA is a bipartisan bill that would reduce certain federal mandatory minimum sentences for non-violent, low-level and repeat drug offenses and expand reintegration services for those leaving the prison system.     

The data we have so far is limited but disturbing. Nationally, one in eight transgender people report having been incarcerated. That number is even higher for transgender people of color, with one in four transgender Latinas and nearly one in two of Black transgender people experiencing incarceration at some point in their lives. LGBT or questioning youth are also disproportionately represented in the juvenile justice system; while around 8 percent of the youth population nationwide are LGBT or questioning, studies have found that 13-20 percent of youth in juvenile detention are LGBT or questioning. 

It’s also becoming clear that LGBTQ people are more likely to suffer lasting harm while behind bars. LGBTQ prisoners are sexually abused at higher rates, with 12 percent of gay and bisexual men and 40 percent of transgender people reporting sexual assault by a guard or another prisoner. A recent survey of LGBTQ inmates found that 85 percent of respondents had been subjected to the trauma of solitary confinement—many purportedly for their own protection—and approximately half had spent two years or more in solitary. The trauma of abuse or isolation, as well as job and housing discrimination against LGBTQ people, can make it even more difficult to successfully reenter society and avoid re-incarceration.

The Sentencing Reform and Corrections Act would represent a key first step to addressing these problems for all our communities. By reducing mandatory many minimums and giving judges more discretion in sentencing, SRCA can prevent unnecessary and unfair sentences that don’t benefit society but have huge costs for individuals, families, and communities. Some previous changes in sentencing would also be made retroactive, a sensible and fair step. SRCA would also protect LGBTQ youth by banning solitary confinement for juveniles in the federal system except for very limited periods under certain circumstances. It also increases access to reentry programming during incarceration, giving LGBTQ people critical tools to deal with discrimination and marginalization as they emerge from incarceration and helping them succeed on the outside. These reforms could begin to roll back the severe disparities that are most significantly affecting LGBTQ people of color. 

While we are encouraged to see the growing support of LGBTQ equality across the country, we know that opportunity and justice will not be fully realized until the needs and challenges faced by the most marginalized in our communities are addressed. Passing federal criminal justice reform will be a much-needed step in the right direction.

Kendell is executive director of the National Center for Lesbian Rights. Carey is executive director of the National LGBTQ Task Force. Keisling is executive director of the National Center for Transgender Equality.

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