Criminal Justice

Access to public safety institutions is crucial for leading safe and dignified lives, especially for marginalized and disrespected minority groups. Yet, the criminal justice system in Maryland, from police surveillance to trials and sentencing, discriminates against racial, sexual, and gender minorities and the poor. This leads minorities to feel unsafe seeking their right to public security, especially when the state is the primary perpetrator of violence against their bodies.

Why is this important?

Police and the justice system are supposed to maintain security and uphold justice in our communities. However, too often, they are a main cause of violence against the minorities, particularly black and transgender people. Black communities in Baltimore have been particularly targeted by the systematic and implicit biases in policing, trials, and sentencing. And Maryland has the country’s most disproportionate prison population, with black Americans making up 75% of the prison population. Following the death of Freddie Gray in police custody in April 2015, the Maryland Office of the Attorney General issued a guidance memorandum on “Ending Discriminatory Profiling in Maryland,” which detailed the State’s commitment to equal protection by elaborating if, when, and how race, ethnicity, national origin, gender, gender identity, sexual orientation, disability and religion can be used in different policing scenarios. In addition, the city of Baltimore accepted a sweeping consent decree with federal authorities in 2017. These reforms include developing community oversight mechanisms, establishing new recruitment policies, and instituting additional training, including trauma-informed approach to investigations concerning gender violence. Many of these reforms are far from being actualized, and there is still a lot of work to be done.

These structural issues in our criminal justice also disproportionately impact the LGBTQ community in Maryland. In our 2016 Needs Assessment of LGBTQ Marylanders, we learned that almost 1 in 3 LGBTQ people consider street harassment and interactions with law enforcement to be urgent issues facing the community. Several participants shared accounts of requesting help from the police, only to be mocked or arrested. One respondent remarked: “My friends and I were leaving a bar one night and a car pulled up, about 4 guys got out of the car and started calling us names and throwing beer bottles at us. We took off running, called the police. When the police arrived, our response from the police was we should expect that to happen to us because of our lifestyle.” Moreover, the prevalence of street harassment based on sexual orientation and gender identity and the actual or perceived lack of recourse to law enforcement significantly impacts the freedom and wellbeing of LGBTQ Marylanders. For example, some participants significantly alter their daily routines to minimize the threat of harm. One Black transgender woman in Baltimore noted: “I have to run all my errands at night, because as a trans woman, if I go out during the day, I get harassed by the police.”

Importantly, many LGBTQ people also belong to black and brown communities, working class and poor communities, disability communities, and immigrant communities. And the risk of police violence or lack of recourse to police for security is compounded for members who share many of these identities. So, the fight for LGBTQ justice necessitates fighting for racial, economic, and immigration justice. As such, FreeState’s clients and community members represent every geography, age, ability, income-level, level of education, naturalization status, language, gender, race, religion, and other form of identity.  Our community’s, and specifically our clients’, identities are intersectional and perspectives from these intersections are especially valuable for informing our agenda, as well as helping us work in allyship with other organizations, communities, and movements.

What are the Issues and What Can We Do?       

Prohibiting LGBT bias panic defense

• In 2019, FreeState advanced a bill to ban the Gay and Trans Bias and Panic Defense. A panic defense is a legal strategy used in criminal court to defend violence against transgender and queer individuals. The panic defense is often used to prove the defendant was provoked into violence, their mental state was diminished, or that they were defending themselves from a threat. The gay and trans panic defense claims that the discovery of the victim’s identity as LGBTQ was so shocking that the perpetrator could not control their rage or fear and thus acted violently.This practice allows perpetrators to receive lesser sentences by placing blame on the victim’s actual or perceived sexual orientation or gender identity. Due to this blatant injustice, the gay and trans panic defense has been eliminated in four states and is under review in five states and at the federal level. The potential for the gay and trans panic defenses to be used in Maryland with the full blessing of the law is a blatant miscarriage of justice and a clear message to LGBTQ residents that their suffering and lives are not equal to those of other victims of violence.

Police training requirements for hate crimes

• In the 2019 legislative session, FreeState Justice supported a bill to institute mandatory police training. As demonstrated by the Needs Assessment, fear and exclusion from access to public safety institutions prevent LGBTQ Marylanders from leading safe and healthy lives with full access to dignity and rights. Mandating entrance-level and in-service training for police on hate crimes is essential to carry out the duties assigned to police officers by existing law, reduce disparities in reporting between counties, increase knowledge and resources for local police to make final verified or unfounded determinations on reported hate crime incidents, and improve the safety and wellbeing of LGBTQ Marylanders and other targeted groups. Maryland law requires state police to report hate crimes; however, in the Maryland Department of State Police’s 2018 Hate Bias Report, they noted multiple problems that prevent police from fulfilling this function. Since hate crimes based on sexual orientation and gender identity are the third most common type of hate crime following race, ethnicity, and ancestry (R/E/A) and religious incidents, these issues disproportionately impact the LGBTQ community. First, there were either no hate bias incidents or no reports submitted by multiple counties: Allegany, Calvert, Dorchester, Garrett, Queen Anne’s, Somerset, Talbot, Washington and Worcester. This lack of reporting does not mean there are no hate crimes; instead, it either indicates a lack of formal complaints by victims to police, often because victims may feel fear of reporting to police or assume that their reports will not be taken seriously, or a failure of police to properly code the incident or crime. Second, across the 15 counties that reported one or more hate crimes, the overwhelming majority of cases were determined to be inconclusive. This points to a systematic failure in the police department’s capacities and knowledge to carry out follow-up investigations that make a verified or unfounded determination on the status of reported cases. These issues can be addressed by training for hate crimes.

Repealing Maryland’s Sodomy Law

• In the 2019 legislative session, FreeState Justice successfully advocated for the repeal of Maryland’s extant sodomy law. Maryland’s sodomy law remained on the books despite a Supreme Court decision that overturned it and a dramatic shift in the state’s policies in regards to LGBTQ+ rights. While the law was not enforced, its continued existence in Maryland law continued to stigmatize LGBTQ people. Its repeal is a first step in remedying the injustices perpetrated against LGBTQ people historically under this law and validating non-normative genders and sexualities.

Easing ability to vacate offenses related to human trafficking

• In 2019, FreeState Justice supported a bill to remedy significant legal gaps in existing vacatur laws by expanding the post-conviction relief available to survivors of human trafficking, including many LGBT survivors, who are already recognized as lacking the criminal intent to commit the crimes they were convicted of. Traffickers frequently target marginalized populations and individuals with particular vulnerabilities. Studies have shown that LGBT homeless youth are at the highest risk for sex trafficking and sexual exploitation. According to the U.S. National Coalition for the Homeless, homeless LGBT youth are much more vulnerable to sexual exploitation and trafficking than other homeless youths. Maryland’s existing law has proved inadequate in meeting the needs of Maryland’s survivors, the majority of whom have trafficking-related convictions other than prostitution, such as trespassing and drug possession. Maryland’s law also does not expressly include survivors of labor trafficking, who are similarly convicted of crimes they were forced to commit.