Unjust criminal justice: Discrimination in legal proceedings

Pt. V: An Unjust Criminal Justice System

In the System

LGBT people, particularly LGBT people of color, enter the system due to a number of factors working against them. Once in the system, it doesn’t get much easier.

Section 2 of Unjust: How the Broken Criminal Justice System Fails LGBT People takes us on a walk through In the System: LGBT people are more frequently incarcerated and treated harshly (Center for American Progress, Movement Advancement Project). Two subjects will be covered in the next two weeks – discrimination in legal proceedings; and unfair and inhumane treatment in jails, prisons and other confinement facilities – and today we will be introducing the former.

Let’s examine why LGBT people are more likely to be incarcerated following their interactions with law enforcement. “LGBT people face disadvantages that reduce the chances of receiving adequate, fair representation and that increase the likelihood that they will spend time in a detention facility and eventually be convicted of a crime,” says Unjust.

The beginning problem is inadequate access to counsel. Young people in particular are encouraged to waive their right to counsel, which leaves them without a legal advocate during any court proceedings. In 2007, only 42% of youth in custody reported they had a defense attorney. This increases the risk of being adjudicated, punished, or having any assistance while in the system.

Not everyone convicted of a crime is guaranteed counsel, no matter their entitlement to legal representation according to the law. Applicants in civil proceedings and immigration proceedings can have serious consequences when lacking legal counsel. For example, an LGBT undocumented immigrant lacking a defense attorney may be in danger of deportation back to a country where LGBT people are treated harshly.

“For LGBT asylum seekers who have experienced trauma in their countries of origin because of their sexual orientation and gender identity, the need for legal counsel is even more urgent. But when immigration attorneys and judges lack basic competency and understanding of the LGBT community, LGBT people do not receive fair consideration of their asylum requests. Entering an immigration proceeding without counsel, and having to advocate for one’s own issues and specific needs, would be daunting under any circumstance. These challenges are compounded in asylum proceedings by frequent language barriers” (Unjust).

The second impediment is discrimination by judges, prosecutors and court staff. LGBT people are less likely to receive pre-trial release. They are frequently discriminated against in the court room by judges and prosecutors, thus more likely to receive harsh sentences. This increases the likelihood that LGBT people will be held in confinement facilities, such as prisons, jails, juvenile detention centers and immigration facilities.

In addition, black and Hispanic people are more likely to be confined while awaiting trial in the American criminal justice system compared to white people. Evidence has been gathered that judges and legal staff can be biased. This includes their assessment of non-pertinent characteristics like sexual orientation, gender identity and race.

Unjust goes on to say that LGBT youth are two times more likely to be placed in jail or in a correctional facility “while awaiting adjudication for nonviolent offenses like truancy, running away, and prostitution, compared to non-LGBT youth.”

Bias in court proceedings hinders LGBT defendants in their trials. Judges, prosecutors and even defense attorneys can be guilty of relying on misinformation and stereotypes when interacting with LGBT people. Inflammatory language against the LGBT community is known to be heard in courtrooms, according to a 2000 State Bar of Arizona review of their legal community. Extensive discrimination against the LGBT community was found in frequency.

Unjust says, “Respondents to the survey offered examples of unfair treatment such as: an adoption denied because the mother was lesbian; a man’s battery complaint dismissed as ‘asked for’ because the man was gay; and an order of restrain denied to a lesbian woman because the accused was her female partner.”

The gay or transgender “panic” defense, as it’s known, consists of some defendants claiming that a victim’s sexual orientation or gender identity excused the defendant’s violent actions. In 2013, the American Bar Association proclaimed that courts and jurisdictions should ban these defenses.

Another way sexual orientation has been described in the courts is evidence of “poor character”. As an example, Unjust uses Calvin Burdine, whose prosecutor in 1994 called for the death penalty rather than prison because “‘sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual.’”

This highly prejudicial ruling is certainly looked down upon when irrelevant to the charged crime. But, courts have made exceptions to the rules to permit evidence of sexual orientation to be brought as “proof” of their tendencies to commit crimes.

Bias in sentencing also occurs for the LGBT criminal population, as well as the population for people of color and non-citizens. This disparity cannot be calculated but is explained by Unjust as very likely.

“…it is likely that LGBT youth are disproportionately committed to residential facilities, in the same way that they are disproportionately likely to be placed in facilities while awaiting adjudication. Certainly this holds true for youth of color” (Unjust).

The final problem we will cover today is the discrimination in jury selection and by juries. Juries are meant to be a “jury of one’s peers” or a cross-section of the general population. However, prosecutors, defense attorneys and judges can guide the selection process. Juries can be selected or deselected regarding their personal feelings about issues raised in a case.

Studies show that African Americans are discriminated against when considered for jury duty. There have also been cases where prospective jurors were deselected because of their sexual orientation or gender identity. “For example, in a 2000 case a prosecutor challenged a prospective juror named Chris Lewis, a black transgender woman. The prosecutor stated, ‘I believe that people who are either transsexuals or transvestites…I don’t know what the proper term is…traditionally are more liberal-minded thinking people, tend to associate more with the defendants'" (Unjust). This is speculation, but at the time was cause for deselection.

Discrimination during a jury trial is harsh for LGBT people and people of color. Research finds that people of color are frequently more likely to experience more severe sentences. There are also documented instances of “prosecutors trying to bias juries or leverage jurors’ underlying biases against LGBT people to the advantage of cases against them.”

Unjust continues with a heartbreaking example. “When arguing for the death sentence for Jay Wesley Neill, a gay man, a prosecutor in Oklahoma asked the jury to disregard the man in front of them and focus only on his sexuality. ‘The person you’re sitting in judgment on – disregard Jay Neill. You’re deciding life or death on a person that’s a vowed [sic] homosexual…. But these are areas you consider whenever you determine the type of person you’re sitting in judgment on…. The individual’s homosexual.’ The jury sentenced Neill to death in 2001, and an appellate court upheld the sentence, despite one judge’s dissent saying the prosecutor’s blatant bias had improperly swayed the jury.”

Unfair and inhumane treatment in jails, prisons and other confinement facilities will be discussed next Monday, from Unjust: How the Broken Criminal Justice System Fails LGBT People.

The Gayly – 4/4/2016 @ 1:48 p.m. CST