Photo Credit: Gage Walker

Being LGBQ/GNCT in the American Criminal Justice System: Reforming and Informing Criminal Justice Policy to Reduce Disparities and Increase Supports for LGBQ/GNCT Youth in America

By Ian Grugan

Abstract

The current struggle for acceptance, equity, and non-discrimination of Lesbian, Gay, Bisexual, Queer, and Gender Non-Conforming/Transgender (LGBQ/GNCT), continues to create divisions in American society. This can be seen in the overrepresentation of LGBQ/GNCT youth entering and remaining in the criminal justice systems. Underlying discriminatory attitudes and rejection by society may contribute to the mistreatment of this social group but often missed are how lived experiences may also impact youth behavior. Without federal, state, and local support, government entities may fail to create appropriate policies that reduce over-prosecution and elimination of unfair practices for LGBQ/GNCT youth. Therefore, it can be argued that criminal justice systems have fundamentally failed to consider Sexual Orientation, Gender Identity, and Expression (SOGIE) when supporting a young person’s rehabilitation. Additionally, much of the United States, including the federal government, fails to recognize the SOGIE as a protected class from discrimination (Geidner, 2019).

This policy memorandum will review juvenile justice system data surrounding the over-representation of LGBQ/GNCT youth. Furthermore, it will explore youth lived experiences unique to this population and how they are accounted for in juvenile system practices. Finally, this paper will propose progressive policy development and reform, incorporating life experiences, to advocate for the rights and aid in the decriminalization of LGBQ/GNCT youth. Recommendations will include the creation of SOGIE specific training, collection of SOGIE demographics to support future reform, creation of and/or updating anti-discrimination policies, review and reform of risk and needs assessments to be more inclusive, and the establishment of policy to ensure LGBQ/GNCT youth confidentiality and access to appropriate community resources. Together these policies will sustain and inform the establishment of standardized performance-based outcomes of system support through enhanced practices, resources, programs, and interventions. Overall policy goals will benefit LGBQ/GNCT youth by decreasing over-criminalization, reversing poor system outcomes, and decreasing the rate of prosecutions.

Definitions

Sexual orientation (straight, lesbian, gay, or bisexual) refers to an individual’s emotional, physical, sexual, or romantic attraction to another person. A lesbian is a girl or woman who is emotionally, romantically, and sexually attracted to girls or women. At the same time, gay refers to an individual who is emotionally, romantically, and sexually attracted to individuals of the same sex (originally meaning mainly referred to boys or men). Bisexual refers to individuals who are emotionally, romantically, and sexually attracted to both male and female genders (Irvine, 2010).

Gender Identity refers to “an individual’s internal sense of being male or female, or in between, regardless of the person’s sex assigned at birth” (Irvine, 2010).

Gender Expression refers to how an individual physically or externally expresses their gender identity, such as through clothing, mannerism, or chosen names (Irvine, 2010).

Transgender is a term that encompasses various ways an individual may identify or express their gender, usually in opposition to their biological sex (Irvine, 2010).

Gender Nonconforming refers “to youths who have gender identities or gender expressions that break social norms (Irvine, 2010).

Cis-Gender refers to a person whose gender identity does correspond with their birth sex. (Irvine et al., 2017).

Being LGBQ/GNCT in the 2020 American Criminal Justice System

Recent national research has indicated that lesbian, gay, bisexual, queer, or questioning and gender-nonconforming and transgender (LGBQ/GNCT) youth, particularly LGBQ/GNCT youth of color, are overrepresented in the U.S. juvenile justice system. These youth are exposed to harsh and inequitable conditions during confinement (Irvine & Canfield, 2017). Separately, corresponding research has also found that LGBQ/GNCT youth have known negative life associations and disparities, including in; education, employment, mental health disorders, suicidal ideations, family, peers, and more. While criminal justice data collection and system reform in the U.S. has been taking place for two decades, advocates and policymakers for reform have largely overlooked the potential relevance of how LGBQ/GNCT life experiences shape patterns of criminal behavior, criminal system treatment, and the subsequent consequences of justice system involvement. Although similar research and data specific to New York State (NYS) fail to exist currently, policy development to better identify, support, serve, confine, and treat these youth is past due. Juvenile justice advocates for reform in the United States (U.S.) have largely overlooked the potential relevance of SOGIE in shaping patterns of criminal behavior, criminal justice treatment, and the subsequent consequences of unjust or unfair system involvement.

The NYS Division of Criminal Justice Services (DCJS) mission statement describes the purpose and role of the NYS criminal justice system as providing resources and services that; are informed through decision making and data; and improve offender opportunity, equity, and prejudice (NYS DCJS Mission Statement). While NYS has seen a significant decline of 23% in crime rates between 2009 and 2018 (NYS DCJS, 2019), it is still essential to look at the quality of its processes and understand if specific populations are still disproportionately affected by system involvement. This is seen by the individual comparison of minority identifiers (e.g., sexual orientation or gender) to nonminority peers at the same justice system processing point (e.g., probation intake). While NYS system actors have been able to reduce risky behavior of nonminorities, it has not effectively addressed the risky behaviors of vulnerable minorities, and that behavior exists, such as with LGBQ/GNCT youth. Overall, policy reform is often determined from the quality of the criminal justice system’s ability, treatment, and experience of one individual youth compared to another. Therefore, the NYS criminal justice system needs to review and reform system policy and practice to create/enhance treatment and opportunity for LGBQ/GNCT system-involved youth.

The purpose of this policy memorandum is to inform and create policy changes to enhance the NYS criminal justice system outcomes and treatment for the LGBQ/GNCT youth population at the earliest contact possible. Recommendations will include; policy reform to become more supportive and inclusive; the enhancement of risk reduction, risk management, service needs, and intervention; education for system professionals; and the creation of state-wide SOGIE data collection for youth involved in the justice system. These recommendations are supported by federal recommendations for supporting LGBQ/GNCT youth and advanced jurisdictions such as California that have undertaken similar system changes. Additionally, this policy memorandum will draw support to change and inform bias policies and practices by system professions by drawing connections to known LGBQ/GNCT life experiences that predispose youth to over prosecution.

Photo Credit: Mercedes Mehling

The Evolution (Understanding) of LGBQ/GNCT Advocacy within the Criminal Justice System

LGBQ/GNCT advocacy began with movements by LGBQ/GNCT individuals against unfair criminalization and laws. The most famous movement credited with starting the LGBQ/GNCT human rights movement was the 1969 Stonewall Inn riots. These events were led by a group of LGBQ/GNCT individuals in NYS, who revolted against discriminatory laws enforced by New York City Police. This led to a series of riots receiving national attention, beginning the fight for fair and non-discretionary laws for LGBQ/GNCT Americans (Grabianowski, 2017). Although Stonewall has been credited with beginning this movement, discriminatory laws and policies existed for centuries; Stonewall was not the first to protest these laws. Protest actually begun as early as the 1950s, when some of the most discriminatory laws and policies existed, including no federal protections, restrictions against dancing with same-sex partners in public, anti-sodomy laws that criminalized private sexual acts, and prescriptions for gender-appropriate clothing. While each early protest provided its own contributions to future protests, including the Stonewall riots, they did not only individually gain the same national attention. Some examples of these early protests include: (1) the 1959 Los Angeles (L.A.) Coopers Donuts’ protest, where LGBQ/GNCT individuals stood up to the L.A. Police Department (LAPD). After being raided, the LAPD demanded identification of all parties to verify their biological sex and compare it to their presenting gender expressions, arresting those who did not match (Healy, 2006). The 1966 NYC ‘Sip-In’ protest, where LGBQ/GNCT individuals and advocates protested the NYS Liquor Authority state policy prohibited alcohol sale to LGBQ/GNCT individuals because this population would become disorderly (Farber, 2016). These are just two of many other protests that gave momentum to the 1969 Stonewall riots and gave the LGBQ/GNCT population their first existence in the fight for fair and non-discretionary laws and treatment in America.

Over the next 50 years, the LGBQ/GNCT advocacy continued to expand, eventually reaching unfair treatment toward LGBQ/GNCT youth during the 1990s. At this time, advocacy against controversial ‘conversion therapy,’ which aimed to change an individual’s LGBQ/GNCT status due to beliefs that being LGBQ/GNCT is a choice, gained popularity. In the late 1990s, the American Psychological Association took a formal position on conversion therapy, denouncing the practice entirely in 2009 (George, 2016). It would take until 2019 in NYS for conversation therapy among youth under 18 to become illegal (NYS Senate Bill S1046). Problems linked to the treatment of LGBQ/GNCT youth continue to exist, including a lack of services or interventions. Another aspect of this problem is the lack of knowledge by system professionals and willingness to identify LGBQ/GNCT status by youth. Advocates have identified these issues as contributing to the overrepresentation, trauma, and systemic harm LGBQ/GNCT youth face. Still, today in 2020, laws and professional standards fail to acknowledge or address the harm suffered by LGBQ/GNCT youth at the hands of the NYS criminal justice system. Misinformation and bias subject LGBQ/GNCT youth to identity-based criminalization, unwarranted and prolonged confinement, and verbal, physical, and sexual abuse.

Significance of Policy Proposal

These policy changes are most prevalent to draw attention to life experiences that pre-expose LGBQ/GNCT youth to biases, discrimination, and rejection in the criminal justice system. Understanding these traumas will work to not further those experiences while in the system. This proposal will inform the NYS criminal justice process through enhanced services, supports, and treatment. Furthermore, it will seek policy changes to ensure LGBQ/GNCT confidentiality and protections. Moreover, the education of system professionals to align their actions with best practices to achieve the best possible outcomes and stabilization for these youth. In addition, data collection measures to understand the connections between LGBQ/GNCT life experiences and system involvement. With this deeper understanding, we can inform adequate supports and ways to enhance safety plans within the community.

Literature Review

The purpose of this literature review is to examine theory and research that explains the complexities of LGBQ/GNCT youth representation in the criminal justice system. Over the last decade, criminal justice reform has become a focal point to ensure system efficiency, system effectiveness, and public safety. To this end, there have been varying research into how vulnerable populations are affected while the system is involved. This review will discuss the background of NYS criminal justice procedures, and we will discuss the national understanding of LGBQ/GNCT criminal justice involvement and LGBQ/GNCT life experiences. While this policy memorandum will consider other jurisdictions’ policy changes, recommendations will ensure inclusive governing and outcomes for NYS LGBQ/GNCT youth.

Expert (National) Understanding of LGBQ/GNCT Youth in the Criminal Justice System

LGBQ/GNCT youth have always been present in the criminal justice system. Although, many concealed their identities to escape harassment and mistreatment. Historically, neither the law nor professional standards acknowledged or addressed the extensive harm LGBQ/GNCT youth suffered. Juvenile justice professionals widely denied, ignored or dismissed the significance of this reality and its negative implications on policy and practice. Recent system studies have begun to expose LGBQ/GNCT youth presents. However, to date, little research has included the negative impact of the life experiences of SOGIE on criminal behavior.

One of the researchers who explores these populations is Dr. Angela Irvine of Ceres Policy Research. According to Irvine and Canfield (2017), LGBQ/GNCT youth make up seven to nine percent of the general population but 20 percent of the criminal justice population. Those 20 percent LGBQ/GNCT youth break down to represent 40 percent of the overall juvenile female population and 13 percent of the overall juvenile male population. Additionally, 85 percent of these LGBQ/GNCT youth are of color. Therefore, confirming LGBQ/GNCT youth presents in the criminal justice system.

Majd et al. (2009) found that LGBQ/GNCT youth are at higher risk of confinement due to bias and misconceptions about their behaviors. Furthermore, Himmelstein and Bruckner (2011) exposed that LGBQ/GNCT youth report being stopped by law enforcement at significantly higher rates than their sexual nonminority (Heterosexual and Cis-Gendered) peers. Also, while in juvenile justice custody, LGBQ/GNCT youth experience harassment, emotional, physical, and sexual abuse, which leads to periods of isolation deemed for their protection. This treatment is linked to deeper system involvement, prolonged system confinement, and higher recidivism rates.

This research exposes the overrepresentation and mistreatment of LGBQ/GNCT youth in the criminal justice system. With their higher risks of system involvement, LGBQ/GNCT youth are missing the acceptance they require by system professionals and interventions to be successful. However, Wilber (2015) states there is also a lack of acceptance based on misconceptions about youth SOGIE, leading to their over-criminalization. This over-criminalization is a direct result of the biases and ignorance by professionals who are blind to the idea that youth under 18 years old can have a sexual identity. However, what hasn’t been explored is how lived experiences correlate to this over-representation, mistreatment, and over-criminalization.

Understanding Social Responses to Youths’ SOGIE and their Effects and Connections to the Criminal Justice System

LGBQ/GNCT youth face the same everyday challenges of growing up as their sexual nonminority peers, such as getting good grades and social and family relationships. However, this population also faces additional challenges related to their sexual orientation and gender identity that sexual nonminority peers do not. Research reveals that negative experiences through trauma, family conflict, social isolation, education, and exposure to punitive systems, are heightened for the LGBQ/GNCT community (Majd et al., 2009). These lived experiences are co-occurring during adolescence when brain development is already contributing to increased risk-taking behaviors (Willoughby et al., 2013).

Family conflict can result in youth experiences such as removal or running away from their homes, contributing to heightened rates of homelessness, physical abuse, neglect, school suspensions, or expulsions, and is often linked to mental health symptoms and substance abuse (Irvine et al., 2017). Furthermore, research shows that family conflict contributes to higher rates of neglect, abuse, and rejection by their family for more LGBQ/GNCT youth than their sexual nonminority peers. According to Friedman et al. (2011), LGBQ/GNCT youth reported childhood sexual abuse at rates 2.9 times higher than sexual nonminority peers. Controlling for gender, boys experienced childhood sexual abuse at a rate 4.9 times more than their male sexual nonminority peers. LGBQ/GNCT youth have also reported verbal and physical abuse by family due to rejection of their sexual orientation or nonconforming gender conduct. Family violence among LGBQ/GNCT youth is also a shared experience. According to Himmelstein and Bruckner (2011), 30 percent of LGBQ/GNCT youth face family violence due to their sexual or gender identity.

This initiative looked at family rejection due to SOGIE during adolescence and has significant impacts on health issues later in life. Studies found higher rates of poor health outcomes in LGBQ/GNCT adults who faced family rejection during adolescence. Specifically, LGBQ/GNCT adults who experienced family rejection during childhood are 8.4 times more likely to have attempted suicide, 5.9 times more likely to have higher levels of depression, and 3.3 times more likely to use illegal drugs (Ryan et al., 2009). Furthermore, the effects of family conflict, rejection, or violence due to a youth’s SOGIE include youth being kicked out or “thrown away” by their families. Often many youths choose to run away rather than face rejection by others within their home, often leading to increased rates of youth placements in group homes, local foster care, or even homelessness (Irvine, 2010). According to Irvine (2010), LGBQ/GNCT youth were twice as likely to experience removal from their homes, having lived in a group home, and have experienced homelessness due to family rejection. More recently, Irvine and Canfield (2017) found that 40 percent of the NYC homeless youth population identified as LGBQ/GNCT. Additionally, 20 percent of all LGBQ/GNCT youth who identify as female have reported experiences of homelessness. These lived experiences are linked to higher engagement in delinquent behaviors, such as sex work, drugs, and theft as a source of survival or coping.

Another place LGBQ/GNCT youth experience bullying and victimization is in schools. LGBQ/GNCT youth experience bullying and victimization from classmates, teachers, or administrators in the school. According to the Kosciw et al. (2010), the 2009 National School Climate Survey conducted by the Gay, Lesbian, and Straight Education Network (GLSEN), reports that 84.6 percent of LGBQ/GNCT students faced verbal harassment, 40.1 percent were physically harassed, and 18.8 percent were physically assaulted. Furthermore, studies by Friedman et al. (2011) found that due to fears of assault, LGBQ/GNCT students are 2.8 times more likely to report missing school. These educational environments are hostile and contribute to higher rates of assault, truancy, absenteeism, and dropping out of school (status offensive behaviors) among LGBQ/GNCT youth. Lastly, according to Morgan et al. (2014), educational leadership are more harshly and unfairly disciplining LGBQ/GNCT students for similar behaviors conducted by nonsexual minority students, including expulsions or prematurely or unnecessarily involving the criminal justice system for status offensive behaviors.

LGBQ/GNCT youth are 2 to 7 times more likely to attempt suicide, and they are at an increased risk of substance abuse disorders and higher rates of smoking, alcohol use, and drug use. In addition, victimization at home and school is linked to higher engagement in delinquent behaviors, especially survival sex or other sex work among LGBQ/GNCT youth, especially homeless youth, According to a 2013 report by the Institute of Medicine (IOM) and the National Research Council (NRC), known risk factors among LGBQ/GNCT youth such as homelessness, physical and emotional abuse, poor academic performance, and family rejection, have contributed to significant vulnerabilities to sexual exploration and sex trafficking. According to another report by Craig et al. (2013), these same experiences have also contributed to a higher risk for depression, mood and anxiety disorders, suicidal ideation, and attempts. Although this has not been supported through research, the victimization of family conflict and school harassment is indicative of the kinds of risky behaviors that connect LGBQ/GNCT youth with the criminal justice system. Therefore, traumatic experiences of youth that lead to risky behaviors result in punishment and are not addressed.

Photo Credit: Ehimetalor Akhere Unuabona

Background of Juvenile Justice Procedures on Youth in NYS including their Effects on LGBQ/GNCT Youth and System Theory

The NYS juvenile justice system is a conglomeration of interrelated and interdependent levels and parts. NYS comprises 62 counties at the local level consisting of 58 individual jurisdictions (NYC with 5 counties functions as one jurisdiction). Each jurisdiction comprises local criminal justice agents, including police, probation, courts, social services, detention facilities, and intervention programming. Three different agencies function collectively as independent silos to implement state legislation and govern local policy and practice at the state level. These agencies include; (1) The NYS DCJS who oversees policy practices and has regulatory authority over local probation departments; (2) The NYS Office of Children and Family Services (OCFS), which governs local social service agencies, and detention and placement facilities practices; (3) The NYS Office of Court Administration (OCA), who guides the NYS court systems. In NYS, Constitutional powers provide each of the 58 jurisdictions and are granted responsibilities for implementing state legislation under the guidance and support of appropriate state-level agencies (NYS Department of State, Division of Local Government Services, 2011). Therefore, implementing policy supports or procedures can be done differently within each local government structure, leaving the LGBQ/GNCT community with a problematic understanding of how policies and practices affect system-involved youth. Furthermore, NYS has no direct state-level LGBQ/GNCT policies or regulations in the juvenile justice system, making it complex and lengthy to truly analyze all policies enforced by each of the three state-level agencies.

We review regulations and procedures enforced by the NYS DCJS Office of Probation and Correctional Alternatives (OPCA) for this policy memorandum, which oversees local level probation departments. NYS juvenile probation is involved with 100% of system-involved youth classified as Juvenile Delinquents (JD) or Persons In Need of Supervision (PINS) through age seventeen (NYS DCJS OPCA). According to NYS DCJS OPCA, juvenile supervision is probations most prominent role and includes the enforcement of youth participation in cognitive-behavioral interventions, engagement in employment readiness training, education, and the use of incentives and graduated sanctions in response to non-compliant behaviors. In addition to juvenile supervision, NYS DCJS OPCA rules and regulations 348–359 hold local probation departments responsible for initial contact interviews, risk needs assessment, compliance supervision pre-adjudication (adjustment), and post-adjudication (formal supervision), pre-sentence investigations, and violations of probation determination. Therefore, through these probation functions, LGBQ/GNCT youth are subjected to professional discretion bias and disproportionate over-risking compared to their sexual nonminority peers.

This can be seen in Majd et al. (2009), in which they interviewed juvenile justice professionals. They disclosed that once an interview/assessment is completed, probation officers make recommendations to judges that can run the gamut from supervision to removal from the home. Removal from the home is most often recommended when family rejection and/or hostile home environments exist. Therefore, kinship care, foster care, or even detention can be viewed as being in the youth’s best interest. However, according to Ridgeway and Listenbee (2014), the deeper the system involvement, the more likely youth will recidivate. Unfortunately, Majd et al. (2009) state that biases and misconceptions that LGBQ/GNCT youth have more aggressive or hostile behaviors often lead to their over prosecution and misperception of being at greater risk of reoffending. Instead, these anti-social behaviors are shared among all youth who experience similar heightened hostile home environments, family rejection, victimization, and bullying in school. These misperceptions about LGBQ/GNCT youth have empowered some juvenile justice professionals to criticize youth risk-screening instruments as placing LGBQ/GNCT in higher-risked categories (Majd et al., 2009, 97).

The use of risk-screening/assessment instruments is conducted throughout all juvenile justice systems in the U.S. According to Moe et al. (2015), assessments are utilized to support practitioners’ standard level of care. Risk assessments play an essential role of guidance for professionals by helping determine what level of supervision is appropriate while recommending needed services to support positive change. Ultimately, these tools provide a structure for decision-making. Without these tools, biases can result in worse disparities. However, assessments cannot remove the practitioner’s biases; they must consider underserved populations’ historical and social/cultural context. What is often understudied is the idea that diagnostic tools such as risk-screening/assessment instruments may perpetuate heterosexual, gender, and sexist norms that negatively affect LGBQ/GNCT individuals (Moe et al., 2015, p. 6).

In NYS, DCJS OPCA regulations 351, 356, and 359 required probation departments to utilize a ‘state approved’ risk need assessment for youth at probation. These are utilized at intake/adjustment, supervision (pre and post-disposition), and during the ‘Volunteer Assessment and Case Planning Services’ process point offered during the pendency of a criminal court trial.

According to an OPCA Practitioner Guidance for Probation and Community Correction Agencies revised in 2015, NYS juvenile probation agencies utilize the Youth Assessment Screening Instrument (YASI). Through the outcome of the YASI, probation officers determine what level of supervision and what services are necessary for each youth, including whether further criminalization through formal prosecution is appropriate. However, assessment outcomes from youth to youth have shown a disproportionately higher risk of minority youth, particularly for LGBQ/GNCT youth. Therefore, LGBQ/GNCT youth face many life experiences that can be perceived in risk assessments as problematic. Consequently, even assessments of LGBQ/GNCT youth with lower risk are likely to be held in detention due to family rejection and poor school attendance (Irvine, 2010).

From a policy standpoint, assessments are viewed as valid predictors of reoffending. However, this must take into account the inherent bias in some of the assessment criteria. Further research from the NYS YASI can provide a deeper understanding of what role assessments play in over-risking LGBQ/GNCT youth, as more likely to harm themselves, someone in the community, and/or fail to appear in court compared to their sexual nonminority peers. Recommendations will include policy implementation to review and reform the NYS YASI and its outcomes for all youth. The outcome of this process will benefit all youth and compare LGBQ/GNCT youth to sexual nonminority youth outcomes, exposing how LGBQ/GNCT life experiences impact assessment results and probation recommendations. Moreover, these findings will guide our understanding of how the NYS YASI may contribute further to the disproportionate representation of LGBQ/GNCT youth in the NYS justice system. Ultimately, this review will establish a foundation for enhancing LGBQ/GNCT friendly services.

Governments of NYS Anti-Discriminatory Policies for Minority Populations

Although the research indicates the vast overrepresentation of LGBQ/GNCT youth in the justice system, many juvenile justice system professionals have continued to deny LGBQ/GNCT identities. Wilber (2015) concludes that this lack of acceptance is based on misconceptions about SOGIE, including the myth that youth at this age cannot be LGBQ/GNCT and that LGBQ/GNCT youth simply do not exist within the juvenile justice population. Currently, individual NYS county governments are responsible for their own development of non-discrimination policies. As stated earlier, this can complicate state-wide reform as there are 58 unique jurisdictions in NYS. Each develops its own policies rooted in state regulation and/or legislation. For example, the Office of the County Executive in the County of Onondaga (Syracuse, NY) policy states, “no person shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity on the grounds of race, color, national origin, gender or gender identity, sexual orientation, or disability…” (County Executive Order No 4–2016, 2016). On the other hand in Albany County, NY their policy states, “no person shall on the grounds of race, color, national origin, or English proficiency be excluded from participation in, be denied benefits of, or be subjected to discrimination under any County of Albany program, activity or service” (McCoy, Albany County Executive, Title VI Non-discrimination Policy Statement, 2016). This is evidence that two different NYS counties with larger county populations have very different non-discrimination policies, one that provides protections to SOGIE and one that does not. However, there is no formal training for public servants in Onondaga, where SOGIE is protected from discrimination, such as probation staff. Therefore, there is still an implicit bias that exists within their department. Additionally, neither Albany nor Onondaga provide any formal data to support SOGIE youth’s existence in the juvenile justice system or supportive services for their success while in their care.

Photo Credit: Ehimetalor Akhere Unuabona

Other Jurisdictions recommendations and Implementation of Policy to Support LGBQ/GNCT Youth

In contrast, the U.S. Office of Juvenile Justice and Delinquency Prevention (OJJDP) has made policy reform and created recommendations to support youth SOGIE through: (1) deinstitutionalizing status offenses; (2) updating Disproportionate Minority Contact (DMC) mandates and funding requirements to include concrete steps at reducing SOGIE disparities in the juvenile justice system; (3) Expand training, technical assistance, and research and evaluations to include LGBQ/GNCT youth; and (4) ensure all juvenile justice systems have informed policies, practice, and programs that recognize the needs of LGBQ/GNCT youth (Hanssens et al., 2014). Additionally, in contrast to NYS, California has recognized the need for data to inform their policies changes. According to recommendations from Irvine & Canfield (2017), juvenile justice professionals must do no further harm to LGBQ/GNCT youth while affirming their cultural and SOGIE identities. The best way to achieve this is by developing anti-discriminatory policies that promote equitable treatment, education of SOGIE to front-line staff, and the improvement of assessments to include SOGIE demographics (Irvine & Canfield, 2017). Similar recommendations will be explored in the policy recommendations and implementations section below.

Recommendations for NYS Juvenile Justice Policy reform

There are multiple efforts the NYS juvenile justice system can take to affirm and support LGBQ/GNCT youth identity. These measures that juvenile justice stakeholders, practitioners, and community organizations consider should successfully support the system’s unique needs involving this population. Therefore, my recommendations for NYS are to implement the following policy reform efforts.

• My first recommendation is to require training and technical assistance support for all probation personnel. As stated earlier, this is the most common first meaningful contact point.
• Second is policy requirements for local probation departments and detainment centers to collect SOGIE data for all youth in their custody. Furthermore, this policy will mandate reporting such data to appropriate NYS agencies to inform future policy and funding needs.
• A third recommendation is the required development of anti-discrimination policies that promote equitable treatment of LGBQ/GNCT youth at all system points.
• Fourth, policy reform to improve intake assessments. All conducted risk and needs assessments should include SOGIE supportive questions and guidelines to ensure youth SOGIE is considered during assessment evaluations.
• Lastly, recommendations include the creation of policy and practice guidelines that will ensure LGBQ/GNCT youth have access to supportive and appropriate services consistent with best practices for these populations — such as connecting youth to affirming social, recreational, and spiritual opportunities that respect their confidentiality.

As explained further in the implementations section below, these five recommendations will significantly impact the system’s success involving LGBQ/GNCT youth.

Policy Implementation

This policy memorandum calls for implementing the above-stated new and reformed policies. These recommendations will increase the supports and success of LGBQ/GNCT youth in the criminal justice system. First, required training and technical assistance support. A State-level policy is needed to require training for all local juvenile justice stakeholder personnel and state agency technical assistance support personnel. Training will be implemented to increase a professional’s general understanding of LGBQ/GNCT youth, including:

• General background and historical understanding of LGBQ/GNCT individuals’ experiences and risk factors;
• How to build rapport with youth through respectful verbal and non-verbal communication, affirming their identity, ensuring their confidentiality, and engaging them in the system process and case planning;
• How to appropriately question and collect SOGIE data;
• Understanding of implicit and explicit biases and misunderstandings about LGBQ/GNCT people and culture;
• How SOGIE, race, ethnicity, class, and system involvement intersect;
• How to identify services that ensure supportive efforts for LGBQ/GNCT youth and do no further harm.

Training in these topic areas will provide the needed knowledge to support LGBQ/GNCT youth better. Additionally, technical assistance for localities will remain as ongoing support by appropriately identified state-level agencies. This will include the employment of one full-time employee with the job title of “SOGIE Coordinator.” Furthermore, this policy will ensure the training of all existing probation staff and new staff moving forward during the required probation officer training academy. Guidelines to training other juvenile justice personnel will be built into agencies with the appropriate oversite of that system processing point.

Furthermore, the policy will require data collection and reporting to appropriate state-level agencies, which will include:

• SOGIE demographics breakdown in the NYS juvenile justice population across probation and detection;
• Life experiences of all youth involved in the NYS criminal justice system, which can be cross-referenced to their SOGIE identities.

These critical data elements will help explain how life experiences of LGBQ/GNCT youth contribute to their over prosecution and representation in NYS and how the effects of current policies, practices, and/or professional bias play a role in the disproportionate representation of minority youth. Furthermore, this data will determine how the NYS Youth Assessment Screening Instrument (YASI) results disproportionately in the over-risking of LGBQ/GNCT youth. The goals of this information will be to influence future policy, understanding, and interactions between youth and the criminal justice system. Additionally, implementing this data collection will allow NYS to measure the success of better support systems made from this policy memorandum.

State-level policy to be overseen by the respected agencies depending on the system point will guide local department and agency development and encourage partnerships with local LGBQ/GNCT centers and/or advocates. Moreover, NYS policy will require counties to adopt anti-discrimination policies that enforce the safety of LGBQ/GNCT youth and ensure their equitable and respectful treatment from arrest (appearance ticket) through case closure. These policies will work to protect LGBQ/GNCT youth from harassment and abuse by other youth, criminal justice personnel, and contracted providers.

In addition, the fourth policy requires the enhancement of system assessments to include SOGIE supportive questions. For system actors to effectively respond to youth needs, they must be sensitive to how youth in their care identify. Often, system actors assume they are not serving an LGBQ/GNCT youth due to physical stereotypes of someone who may appear gender conforming. Understanding how youth identify will better support a youth’s complex experiences and ensure referrals are culturally affirming. By updating intake and booking assessments to include SOGIE data questions, jurisdictions would allow each youth to self-identify when entering each system point. Youth who cycle through the various process or system points must be asked and allowed to identify each time, as it continues to affirm their identity and allows for answers to change as they develop and understand their identity. The collection of SOGIE information from youth holds multiple benefits. It will increase the visibility of LGBQ/GNCT youth and make justice serving agencies safer. Additionally, the collection of SOGIE data (discussed in recommendation two) allows for data-driven decisions to alleviate disparities and ensure reform efforts target the population most in need. Therefore, in conjunction with recommendation two, the collection of SOGIE data and reporting to identified state agencies will be required for state-level use to inform future reform efforts, fund supports, other policies, and the overall better treatment of LGBQ/GNCT youth in the justice system.

In the final policy recommendation, the state and local criminal justice agencies will ensure LGBQ/GNCT youth have access to supportive and appropriate services. This will be consistent with best practices for these populations, such as connecting youth affirming social, recreational, and spiritual opportunities that respect their confidentiality. There are many facets to this particular policy recommendation; all must be considered to account for the vast array of life experiences faced by each youth. Criminal justice agencies must recognize and acknowledge the experiences of alienation, exclusion, and persecution of youths at home, in detainment, in school, in the community, and throughout the juvenile justice system due to their SOGIE. Policies need to support LGBQ/GNCT youth and provide intervention or treatment for such experiences. This policy requires that system professionals take all necessary steps to ensure youth safety and well-being, including protecting confidentiality.

Furthermore, where possible, especially within family dynamics, ensure that all families provide counseling and other services to keep children with their families. If caregivers are unwilling to engage in supportive care, supportive residential arrangements should be made to ensure youth safety and well-being. At no point should any youth be forced back into a hostile environment. Lastly, this fifth policy ensures that juvenile justice professionals develop individualized case plans to address the behavior of each LGBQ/GNCT youth.

Culminating Experience

I have been employed with the NYS Division of Criminal Justice Services (DCJS) since 2014, working with all 62 NYS county criminal justice agencies and local service providers. During this time, I have learned that the challenges people face are often circular and affect many other parts of their lives. As a society, we are obligated to provide an equitable opportunity to all and ensure community safety. To that end, my role at NYS DCJS includes using NYS data to create, develop, and implement state probation policy, regulation, and legislation. I use data to provide quality assurance and technical assistance to local probation departments and to reform state probation legislation, policies, and regulations that determine the responsibilities of the 58 local NYS probation departments. NYS is a county-executed state, and its policies and regulations are left for open interpretation by county executives and attorneys, creating many challenges for uniform implementation across the state by government oversite personnel such as myself.

Furthermore, NYS probation agencies have similar goals to create probationer success and increase public safety; however, each can achieve this in different ways. This is why state policy/regulation and technical assistance/quality assurance provided by professionals like myself are essential to help align, ensure, and achieve these common goals. This helps create a more efficient oversight and implementation of state policies and ensures positive, evidence-based client services.

Unfortunately, public opinion holds much influence in state policy, even with complex topics such as juveniles, their brain development, and appropriate accountability for their actions. Public opinion against uplifting disadvantaged youth with problematic behavior to becoming better members of society has led to policy implementation that favors certain members of society. Through my graduate-level studies, I have gained a more comprehensive understanding of my work, and I have learned to incorporate theoretical knowledge with real-life practice and data to support further research and policy proposals. One of the classes I took was Social and Public Policy, where I learned the process of policy agenda sending and how to influence or gain attention to my policy item.

Additionally, other courses focused on policy implementation, such as Family Policy, Human Service Policy, Child Advocacy, and Public Policy Analysis. These taught me how policy affects all parts of society and implementation. All policy reform and creation are delicate processes that can positively and negatively impact society. My study in Social Policy Perspectives gave me the knowledge of the policymaking process and the philosophical ideologies that combine to frame policies. Lastly, one of the most impactful courses I had was Research Methods, which gave me an understanding of assessment, analysis, and interpretation of qualitative and quantitative data. In this course, I found that one of the essential components of policy proposal is data.

Data can influence policy recommendations by gaining or losing the support of fellow policymakers and community members. The process of continued research is vital in the modification of policy over time as society changes and adapts to new needs or wants. This is why one of the policy recommendations made in this memorandum focused heavily on data collection and its sustainability. I hope that these policies contribute to the success of disadvantaged youth due to life experiences and in the criminal justice system.

Photo Credit: Reagan Nicole

Conclusion

The United States population is often united in the need to fight crime; no public policy problem is more indefinable. The juvenile justice system in NYS is a cross between protecting the rights of the victims and the need to support and rehabilitate troubled youth. As our needs and civil rights change, so will the balance of power among official actors. It is time for all levels of government to recognize the needs of all young people, including LGBQ/GNCT youth. This can be achieved through support efforts to provide resources and appropriate supervision of those unfortunate youth who find themselves in the justice system for reasons that may be out of their control. Based on the literature discussed in this memorandum, there is ample evidence that LGBQ/GNCT youth experiences play an essential role in their criminal justice involvement. This policy memorandum intends to find correlations between family rejection, substance abuse, homelessness, runway, mental health, physical health, education, and criminal justice association. By understanding LGBQ/GNCT youth’s distinct experiences and heightened presence in the criminal justice system, we can reform policy, practice, assessment, and supports in the treatment of LGBQ/GNCT youth. This policy memorandum creates a more equitable system in that all youth are provided services and supports that are culturally or community-specific to the needs of each individual. A more efficient and supportive criminal justice system could divert youth from unnecessary prosecution and criminal records; thereby supporting youth in becoming contributing members of society.

NYS Criminal Justice policy reform to consider SOGIE — Timeline

NYS Criminal Justice policy reform to consider SOGIE — Timeline

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