Queer (In)Justice: The Criminalization of LGBT People in the United States.

• Author: Shay, Giovanna
• Position: Book review

JOEY L. MOGUL, ANDREA J. RITCHIE & KAY WHITLOCK, QUEER (IN)JUSTICE: THE CRIMINALIZATION OF LGBT PEOPLE IN THE UNITED STATES (Beacon Press 2011). 216 PP.

1. INTRODUCTION

   Recently, the LGBTQ (1) rights movement has had high-profile victories, such as the passage of same-sex marriage legislation in New York and the repeal of Don't Ask, Don't Tell. There is some truth to the observation that these well-financed (2) campaigns reflect the priorities of economically advantaged, predominantly white gays to gain mainstream status and acceptance. (3) This is not the whole story, however. When New Yorkers celebrated marriage equality, they did so at the Stonewall Inn, (4) recognized as a birthplace of the gay rights movement and the site of the 1969 uprising against police harassment by relatively powerless and stigmatized gay and transgender people, some of them young people of color. (5)

   Many of the recent LGBTQ movement's goals turn on weighty constitutional law questions, perhaps partly because of what Justice Scalia has termed the "law-profession culture" (6) in which the issues are debated and litigated. At times, however, these debates do not capture the full complexity of the challenges facing LGBTQ people, some of whom are more concerned with meeting basic economic needs than with gaining the ability to marry. And many LGBTQ people of color, as members of multiple minority groups, grapple with the "synergistic" forms of such multi-level discrimination. (7)

   In the criminal justice arena, the LGBTQ rights movement has had particularly narrow goals. The movement has principally focused its energy on undoing unfavorable legislation--sodomy laws--and on enacting legislation viewed as favorable--hate crimes, sentencing enhancement statutes, and, more recently, anti-bullying statutes. Many thus viewed the Supreme Court's 2003 invalidation of sodomy laws in Lawrence v. Texas (8) as an overarching gay rights victory (9) and states' enactment of hate crimes statutes as evidence of society's move towards protecting sexual minorities as it protects racial, ethnic, and religious minorities.

   These achievements have had limited effects on the day-to-day functioning of the criminal justice system, however. Lawrence was surely a watershed victory, (10) and its elimination of criminal stigma has real practical importance for LGBTQ people in areas such as family law. (11) However, the decision has had relatively limited effect as criminal law precedent. (12) Similarly, hate crimes statutes may send an important message, but have done little to deter violence against LGBTQ people. (13) Indeed, the most recent data show a substantial increase in hate crimes against LGBTQ people, including horrific examples of hate-inspired homicides. (14)

   It is perhaps time, then, for the LGBTQ rights movement to expand its principal criminal justice goals to the issues that continue to confront LGBTQ people on the street and in the home every day. In terms of crime enforcement, LGBTQ people face discrimination by police and prosecutors on an ongoing basis. And as victims of crime, LGBTQ people face police indifference, even hostility, when confronted with crimes such as domestic abuse.

   Refocusing the LGBTQ-rights movement in the criminal justice context would therefore mean moving beyond broad constitutional and legislative goals towards ground-level issues such as discriminatory prison policy and practice, police targeting of LGBTQ people, police indifference to violence against LGBTQ people, and the discriminatory treatment of LGBTQ people in the courts. In some respects, this shift would mark a return to the core issues that touched off the modern gay rights movement.

   As scholars of criminal law who examine issues of gender and sexuality, we were therefore heartened to see the release of a book devoted to LGBTQ issues in criminal justice. Queer (In)Justice: The Criminalization of LGBT People in the United States, by Joey Mogul, Andrea Ritchie, and Kay Whitlock, synthesizes many themes emerging from research and activism regarding queer folk in various aspects of the criminal justice system--including violence against LGBTQ people, use of homophobic tropes in prosecutions of LGBTQ people, and custodial sexual abuse of prisoners with non-heterosexual orientations. (15)

   The book is a welcome contribution, given that many leading works about "gays and the law" discuss criminal issues primarily within the context of sodomy laws and other criminal prohibitions used to stigmatize sexual minorities. (16) Because the book's narrative is often based in anecdote, Queer (In)Justice does not always provide a comprehensive overview of the issues it addresses. Nonetheless, the book effectively widens the lens to encompass more aspects of LGBTQ interaction with the criminal justice system than are typically the focus of criminal justice reform efforts. The book follows themes of subordination of LGBTQ people through various phases of the process (arrest, charging, trial, incarceration) and across roles within that process (defendant, victim, prisoner).

   Most interesting to us, and potentially to other scholars, the book suggests many areas for further study. In this Review, we identify openings for scholarship that would build upon the themes and issues that Queer (In)Justice raises. The potential topics are numerous and include traditional legal scholarship, cross-disciplinary scholarship, and qualitative and quantitative research.

   In Part II, this Review provides an overview of Queer (In)Justice. Part III focuses on some particular narratives that the authors discuss and that illustrate the daily injustices faced by LGBTQ people. Part IV discusses the shortcomings of recent criminal justice reform efforts, and Part V introduces topics for further research and reform.

2. BROADENING THE DEBATE

   Queer (In)Justice seeks to substantially broaden the focus of the criminal justice reform movement on behalf of LGBTQ people. The book situates the problem of violence against gays within the framework of "mass incarceration." (17) It draws on the work of critics of the "prison-industrial complex," including Angela Y. Davis (18) and progressive activist groups such as Critical Resistance and the Sylvia Rivera Law Project. (19) At times, the rhetoric of the prison abolition movement can be a bit overheated, and Queer (In)Justice shares this flaw. The book does effectively elucidate, however, the ways in which the "criminal legal system"--as the authors term it (20) and as others have noted--is "regressive." (21) That is, the system ensnares poor people of color, with a special burden on poor people of color who are gay or transgender.

   The work is organized in part chronologically and in part thematically. It begins with a chapter on "Colonial Legacies," tracing the origins and enforcement of colonial sodomy laws. (22) The second chapter, "Gleeful Gay Killers, Lethal Lesbians, and Deceptive Gender Benders," focuses on "queer criminal archetypes," from demonized killers Leopold & Loeb to executed Florida prostitute-turned-alleged-serial-killer Aileen Wuomos. (23) The third chapter, "The Ghosts of Stonewall," describes the policing of gay social spaces, sex work, and public sex. (24) In the fourth chapter, "Objection! Treatment of Queers in Criminal Courts," the authors describe homophobia and transphobia in the judicial system. (25) The fifth chapter, "Caging Deviance: Prisons as Queer Spaces," is one of the most detailed and substantive chapters in the book. (26) In this chapter, the authors describe the myriad ways in which LGBTQ prisoners suffer discrimination and abuse. The sixth chapter, "False Promises: Criminal Legal Responses to Violence Against LGBT People," examines the ways in which criminal justice reform has failed to alleviate the wrongs described in the earlier chapters. (27) In the final chapter, "Over the Rainbow: Where Do We Go from Here?," the authors suggest approaches for correcting these wrongs, with particular attention paid to economically disadvantaged persons, trans persons, and people of color. (28)

   Queer (In)Justice attempts an ambitious survey. The work's scope is itself useful, given that scholars have yet to examine many aspects of how the criminal legal system treats LGBT people. However, the book's effectiveness is at times undercut by its largely anecdotal approach, which strings together a series of high-profile incidents and cases. The book often reads like a collection of stories that made the news, many of them (such as the Leopold and Loeb case) well-known and often told. The book also largely fails to provide comprehensive data or evidence of discrimination. This emphasis on storytelling over quantitative research may be understandable, given that the three co-authors are primarily civil rights advocates. Despite these shortcomings, there is an undeniable power in the narrative that the book tells. The next section provides a brief overview of that narrative.

3. THE POWER OF THE NARRATIVE

   The collective power of the stories that the authors present cannot be denied. Queer (In)Justice puts a human face on the issues by recounting numerous disturbing, and sometimes horrific, instances of abuse and discrimination. The authors chronicle the discriminatory treatment of LGBTQ people, citing studies done by bar associations and judicial commissions: queer defendants are more likely to be arrested and prosecuted for certain offenses than straight defendants; queer youth are more likely to be detained pretrial than straight youth; and queer defendants convicted of sex offenses receive harsher sentences than their straight counterparts. (29)

   The authors also recount numerous examples of homophobic rhetoric used by courts and prosecutors. In one homicide case, for example, a prosecutor described the defendant as a "hard-core" lesbian. (30) In a death penalty case in which the defendant was convicted of killing his lover, the...