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Background

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Know the laws in your state that protect LGBT people and people living with HIV.

THE ADMINISTRATION AGENDA

Over the past year, the Trump Administration, predominantly through the Department of Justice (“DOJ”), has dramatically escalated the use of criminalization as both a primary mechanism and a justification for attacks on our communities on multiple fronts.  On February 28, 2017, President Donald Trump signed a Presidential Executive Order to establish a Task Force on Crime Reduction and Public Safety under the direction of Attorney General Jeff Sessions.[2] The Executive Order states: 

It shall be the policy of the executive branch to reduce crime in America.  Many communities across the Nation are suffering from high rates of violent crime.  A focus on law and order and the safety and security of the American people requires a commitment to enforcing the law and developing policies that comprehensively address illegal immigration, drug trafficking, and violent crime.  The Department of Justice shall take the lead on Federal actions to support law enforcement efforts nationwide and to collaborate with State, tribal, and local jurisdictions to restore public safety to all of our communities.[3]

Soon after, in an April 5, 2017 Memorandum, Attorney General Sessions announced the creation of a Task Force on Crime Reduction and Public Safety, and identified the Violent Crime Reduction Strategy Development Subcommittee and Hate Crimes Subcommittee as part of this Task Force.  The April 5 Memo also described a review of existing policies in the areas of charging, sentencing, and marijuana; expanding the use of asset forfeiture; and prioritizing immigration enforcement and human trafficking as areas of focus for the subcommittees.   Attorney General Sessions asked for initial recommendations from the Task Force by no later than July 27, 2017.[4]

On July 26, 2017, Attorney General Sessions released a statement indicating that no recommendations from the Task Force on Crime Reduction and Public Safety would be made public.[5]  This led Senator Ron Wyden (Oregon) to state, “The American people have a right to know the basis for enforcement policy changes made by the Department of Justice,” and demand the public release of the report’s recommendations.[6]  Instead of subjecting the recommendations to public comment and robust debate, Attorney General Sessions indicated that they would simply be implemented on a rolling basis.

Since then, we have seen the recommendations in action.  The Trump Administration has continued to increase the criminalization and militarized policing of low-income communities and communities of color, while simultaneously intensifying immigration enforcement leading to increased collaboration between local law enforcement and immigration authorities.  The Attorney General has explicitly instructed federal prosecutors to pursue the highest possible penalties regardless of circumstances, in the name of reducing a largely fictitious “violent crime wave.”[7]  Beyond the direct impacts of these federal initiatives, the rhetoric and policy priorities of the federal administration – including repeated attacks on the rights of transgender people[8] - are having a growing impact on law enforcement approaches in some states.[9]

THE REPORT

The policing of gender and sexuality operates within the larger context of racial profiling, racially discriminatory policing, and targeting of homeless and low-income communities that pervades law enforcement, the operation of courts, and the penal system.[10]  As a result, increasing criminalization disproportionately affects LGBTQ people, and particularly LGBTQ people of color.  LGBTQ people and HIV-affected people are significantly overrepresented in all aspects of the penal system, from police interactions, to prosecutions, to incarceration, experiencing discrimination both based on sexual orientation and gender identity and as members of immigrant and Muslim communities and communities of color.  Because LGBTQ people come into contact with law enforcement at disproportionate rates, LGBTQ immigrants are also more likely to come to the attention of immigration authorities and be subject to immigration detention and deportation.

The Impact of the Trump Administration’s Federal Criminal Justice Initiatives on LGBTQ People & Communities and Opportunities for Local Resistance Report examines the impact of current and anticipated federal criminal justice initiatives on LGBTQ people and communities.  First, the report offers a review of publicly available information—including public statements by Attorney General Sessions, Department of Justice press releases, federal budget requests and justifications, and other sources relating to specific federal criminal justice initiatives—in the areas of Policing, Immigration, Trafficking, Drug Policy, and Hate Crimes that are likely to produce harm to LGBTQ and HIV-affected communities.  Second, we identify potential opportunities for federal, state, and local action to reduce or avoid the harms identified.

[2] Press Release, U.S. Dep’t of Justice, Att’y Gen. Announces Crime Reduction and Public Safety Task Force (Feb. 28, 2017), available at https://www.justice.gov/opa/pr/attorney-general-announces-crime-reduction-and-public-safety-task-force.
[4] Memorandum from Att’y Gen. Jeff Sessions for Head of Department Components and U.S. Atty’s (Apr. 5, 2017), available at https://www.justice.gov/opa/press-release/file/955476/download.
[5] Press Release, U.S. Dep’t of Justice, Statement by Att’y Gen. Jeff Sessions on Recommendations From the Task Force on Crime Reduction and Public Safety (July 26, 2017), https://www.justice.gov/opa/pr/statement-attorney-general-jeff-sessions-recommendations-task-force-crime-reduction-and.
[6] Letter from Sen. Ron Wyden to Att’y Gen. Jeff Sessions (Aug. 1, 2017), available at https://www.wyden.senate.gov/download/?id=4EA1FB77-9E23-4CFD-AD92-BE2F2E830F27&download=1
[7] Ames Grawert & James Cullen, Criminal Justice One Year into the Trump Administration, Brennan Center for Justice (Feb. 8, 2018), https://www.brennancenter.org/publication/criminal-justice-one-year-trump-administration; U.S. Dep’t of Justice, Memorandum from Att’y Gen. Jeff Sessions for All Federal Prosecutors (May 10, 2017), available at https://www.justice.gov/opa/press-release/file/965896/download; Att’y Gen. Jeff Sessions, Opinion: Being Soft on Sentencing Means More Violent Crime. It’s Time to Get Tough Again, Wash. Post, June 16, 2017, available at https://www.washingtonpost.com/opinions/jeff-sessions-being-soft-on-sentencing-means-more-violent-crime-its-time-to-get-tough-again/2017/06/16/618ef1fe-4a19-11e7-9669-250d0b15f83b_story.html?utm_term=.6f68c239def5.
[8] See Chase Strangio, “Trump’s Attack on Transgender Health Care Is an Attack on Trans People’s Existence,” Slate.com, May 9, 2018, https://slate.com/human-interest/2018/05/trumps-attack-on-transgender-health-care-is-an-attack-on-trans-peoples-existence.html; American Civil Liberties Union, “Breaking Down Trump’s Trans Military Ban,” March 30, 2018, https://www.aclu.org/blog/lgbt-rights/transgender-rights/breaking-down-trumps-trans-military-ban
[9] See Grawert & Cullen, see also Memorandum from Atty’ Gen. Jeff Sessions for All Federal Prosecutors (May 10, 2017), available at https://www.justice.gov/opa/press-release/file/965896/download.
[10] See Movement Advancement Project and Center for American Progress, Unjust: How the Broken Criminal Justice System Fails LGBT People, 2016, available at: http://www.lgbtmap.org/policy-and-issue-analysis/criminal-justice-poc; Catherine Hanssens, Andrea J. Ritchie, Dean Spade and Urvashi Vaid, A Roadmap for Change: Federal Policy Recommendations Addressing the Criminalization of LGBT People and People Living With HIV (May 2014), http://www.law.columbia.edu/sites/default/files/microsites/gender-sexuality/files/roadmap_for_change_full_report.pdf; Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the United States, Beacon Press (2011).