We celebrate Pride this year in defiance of the almost 500 anti-LGBTQ bills pending or passed in state legislatures around the country. Unsurprisingly, these attacks are turning to the criminal legal system to enforce homophobia and transphobia:

• Bills that would criminalize health care providers and families of trans children for providing necessary and life-saving gender affirming care.
• Bills that would criminalize drag performances.

Queer people have always been over-criminalized and over-incarcerated. This is especially true for Black trans women and other trans women of color. According to the Sentencing Project, LGBTQ adults are incarcerated at three times the rate of the general population. Among trans people, 1 in 6 report being incarcerated at any point in their lives — and nearly half of those are Black trans people.

LGBTQ people live in a social reality that makes their lives much more precarious. For example, LGBTQ people are more likely to experience discrimination in housing and employment, meaning they are more likely to experience poverty and homelessness. Because our nation criminalizes people for poverty, LGBTQ people are more likely to be arrested and get trapped in the criminal legal system.

Governments criminalize queer people’s mere existence — and Black trans women and trans women of color are especially vulnerable. Police use laws criminalizing sex work to target trans women of color for “walking while trans.” For example, The New York Times reported in 2016, police used the extremely broad “anti-loitering” law to profile trans women of color as sex workers, including based on their appearance: they were “arrested while wearing short dresses or high heels or tight pants and, in one bizarre instance, that well-known symbol of sexual seduction: a black pea coat.” The law was repealed in 2021.

A relic of the moral panic around the AIDS epidemic, the majority of states still criminalize people living with HIV. These laws are based on discrimination, pure and simple, not on any valid public health rationale.

Ending mass incarceration and over criminalization must be, and has always been, a central part of the movement for LGBTQ liberation. Indeed, what we celebrate at Pride is an uprising against police violence and harassment, where queer and trans people asserted their right to live freely.

Credit: Eric O. Ledermann / Shutterstock

Because the criminal legal system is a tool for oppressing and controlling Black people, people of color, low-income people of all races, and queer and trans people — our shared freedom lies in significantly reducing the footprint of mass incarceration while investing in the resources our communities need to thrive and to be safe.

At the front end, that must mean supporting bail reform and pretrial release. On any given day in the United States, 427,000 people are incarcerated in our more than 3,000 jails despite not having been convicted of a crime. Many of these people are inside because they can’t afford their freedom. And, as a number of our lawsuits have shown, wealth-based pretrial detention is not only contrary to safety and justice, it is unconstitutional.

Even a few days in pretrial detention can have devastating impacts on a person, depriving them of their safety and stability. People in pretrial detention often lose their jobs, housing, or custody of their kids. They are separated from their families and community support networks — who scramble to figure out childcare and come up with the money to bail out their loved one. And conditions in jails are almost universally abysmal.

For LGBTQ people, pretrial detention carries additional risks. LGBTQ people often are held in solitary confinement to separate them from the general population “for their safety” — even though solitary confinement, even for short periods of time, has profound and irreversible psychological and physical effects.

Trans people generally do not have a choice about whether they’d feel safer in a men’s or women’s jail, do not receive access to gender-affirming health care or clothing, and face greater risk of violence, including sexual violence, from other people in the jail and jail staff.

The tragic and preventable death of Layleen Polanco is a case in point. Ms. Polanco was an Afro-Latina trans woman who could not afford $500 in bail. She died in solitary confinement at Rikers Island Jail in May 2019.

A report from the city agency with oversight of the jail found the Department of Corrections’ policy not to house transgender women with cisgender women contributed to the decision to put Ms. Polanco in solitary — even though she had epilepsy, a serious medical condition that should have exempted her from isolation. Her death was determined to be the result of medical complications due to epilepsy.

Bail funds like the LGBTQ Freedom Fund and SONG’s Black Mamas Bail Out Action center the intersectional experience of low-income, Black LGBTQ people and bail them out.

Jurisdictions that have adopted bail reform — whether through legislation or because of legal action — have seen significant positive impacts on safety and justice. A recent study of 11 jurisdictions with bail reform found eliminating cash bail had significant positive impacts for individuals, families and communities, in terms of relieving the financial burden and keeping families and communities intact. Those studies found crime and bail reform are not strongly linked — despite baseless fearmongering to the contrary.

The enormous efforts hostile state legislators and elected officials are taking to harm queer and trans people and pursue failed punitive policies only offer us fear and a lack of imagination, love, or empathy. If we want justice and safety for all of us, we need to reject punishment — and reject those who offer us punishment and call it safety.

Instead, we can demand investments in communities of abundance, where everyone has what they need to thrive: affordable housing, economic opportunity, health care access, well-resourced and affirming schools, and freedom from incarceration and violence.

Queer and trans communities offer us an expansive vision of love, safety, and justice. It is one where the streets are safe for all of us, no matter who we are or what we look like. It is one where we take care of each other. That is the world we want to live in, and that world is within reach.

Last week, the Department of Justice issued a report finding that the Minneapolis Police Department routinely used excessive force against Black and Indigenous people, and that George Floyd’s murder arose from this pattern of misconduct. They will now negotiate a consent decree with the city of Minneapolis to institute reforms. The report is damning, and it offers a view into an often-obscured problem of police violence.

Police violence is common across police departments, and it leads to trauma, injury, and killings in primarily Black, Latinx, and Indigenous communities. State and local authorities — who are responsible for most of America’s police — should not wait for a federal investigation before they address police violence. They can start now by building interlocking reforms that advance three key goals: reduce, rectify, and repair.

What do we mean by “police violence”? Police violence stems from this country’s history of using police to oppress marginalized people. American policing has never been a neutral institution. It perpetuates racism and oppression by design. From “slave patrols” that used terror and torture against enslaved Black people engaged in uprisings, to armed militia that enforced Black Codes and Jim Crow, to police that subverted labor unions to benefit political elites in the 19th century, policing has always been tied to suppression, surveillance, and control.

Police violence is not only when officers kill. It’s also the use of excessive force. It’s when police throw people into walls, onto pavement, or against cars. It’s when police punch and kick people who are face down on the ground. It’s when police pull tasers or guns on people who are compliant or restrained — a practice the Justice Department documented in Minneapolis. In heavily policed communities, police violence is a brushfire that steadily burns.

American Civil Liberties Union

Police Excessive Force | American Civil Liberties Union

In a country devastated by the deaths and injuries at the hands of police officers, drastic changes are needed.

When police kill people, it’s often a flare-up of that brushfire. After a high profile killing, the police department responsible frequently faces an investigation that uncovers a pattern of abusive and biased practices. Nearly 25 years ago, after the NYPD killed Amadou Diallo — an unarmed Black man — in a hail of 41 bullets, an investigation by the New York Attorney General found that the NYPD was stopping alarming numbers of Black and people without proper cause. In more recent years, Breonna Taylor was shot and killed by Louisville police while she slept in her home. An investigation by the Department of Justice later found that Louisville’s police department had a widespread practice of excessive force and “an aggressive style of policing” against marginalized people. The Minneapolis report is yet another example on a long list.

Prohibitions are not enough to solve the problem. When an NYPD officer killed Eric Garner using a chokehold in 2014, chokeholds were illegal in New York. The policy could not save Mr. Garner because the NYPD had for years pressured officers to aggressively stop-and-frisk Black people like him. The NYPD has long had policies regulating the use of force, including a training on the subject since 2016. Yet in a lawsuit one of us brought against the NYPD concerning an incident in 2020, officers punched and stomped on a 59-year-old Black man lying on the ground while calling him racial epithets. In another recent case, NYPD officers hit and kicked a 29-year-old Palestinian-American student whose hands were zip-tied behind his back; they pulled his head scarf over his eyes before beating him.

The disconnect between paper and practice in part results from bias. It also results from officers being directed to engage in abusive tactics; from officers seeing that excessive force is condoned and not condemned, to political fearmongering about “criminals.” While we need policies prohibiting excessive force, we also need to dismantle oppressive and biased police practices that fuel the fire.

That can’t be done with one-size-fits-all strategies. Rather, extinguishing the conditions that breed violence among police requires implementing interlocking measures that simultaneously advance three objectives: reduce, rectify and repair. “Reduce” means reducing our reliance on police where armed responders are not needed and limiting police discretion in areas where bias and aggression are common, like stop-and-frisk. “Rectify” means establishing mechanisms inside and outside the police department that interrupt and prevent police violence, such as civilian review boards with subpoena power and systems that require departments to act on complaints from the public to ensure accountability and transparency. “Repair” means ensuring the harms from police violence are redressed, which includes compensating those injured and empowering the impacted community to design accountability and safety measures on their terms.

American Civil Liberties Union

Saving Black Lives in Pittsburgh, One Call at a Time | ACLU

The pioneering Black-led ambulance service Freedom House brought medical aid and compassion where police brought harm or neglect.

Examples of changes advancing these objectives exist around the country. Philadelphia removed police from enforcing minor traffic violations like broken taillights that were unfairly used against Black people. The NYPD was ordered to incorporate complaints against officers in an early intervention system that triggers remedial action. And Chicago launched initiatives to redress police torture that included payment to victims, education funds for victim’s families, and community-designed health supports.

As James Baldwin said, “responsibility cannot be lost, it can only be abdicated. If one refuses abdication, one begins again.” State and local authorities must not abdicate their responsibility to end police violence; they must act now to protect communities.

Our cell phones and other digital devices play a central role in our private lives, storing an unprecedented amount of our most personal information. While Carpenter v. United States, which the ACLU argued before the Supreme Court, applied Fourth Amendment protections to our cell phone location data and declared that old-world legal rules don’t automatically apply in the digital age, the role of Fifth Amendment protections in the digital age has left lower courts divided.

Late last week, the Illinois Supreme Court ruled in People v. Sneed that the Fifth Amendment does not preclude the State from compelling a criminal defendant to recall and enter a passcode to their encrypted cell phone.

This decision by the Illinois Supreme Court is the latest in a growing number of cases concerning Fifth Amendment protections in the digital age and our right not to self-incriminate by unlocking our cellphones. While the high courts in Indiana and Pennsylvania have ruled that forcing defendants to unlock their phone violates their Fifth Amendment right against self-incrimination, others, including New Jersey and Massachusetts, and now Illinois, have ruled the opposite way.

In the Illinois Supreme Court case, during a criminal investigation for forgery charges against Keiron K. Sneed, the State obtained a warrant to search Mr. Sneed’s and his wife’s phones. After the State determined that the phones were locked and password protected, it filed a motion to compel Mr. Sneed to either provide or enter the passcode into his phone. The trial court denied the motion, determining that the compelled entry of a password to unlock and decrypt a digital device was testimonial, and would violate the defendant’s Fifth Amendment privilege against self-incrimination.

In the Illinois Supreme Court, we filed a friend-of-the-court brief with the ACLU of Illinois and several concerned organizations supporting the trial court’s decision. The brief argued that the State’s demand that Mr. Sneed enter his passcode to open his device necessarily compels him to make use of the contents of his mind by truthfully recalling and entering a memorized passcode — and the compelled use of one’s mind to assist the government is at the core of what Fifth Amendment privilege is meant to protect against. Compelled entry constitutes a modern form of compelled testimony, which is categorically prohibited by the Fifth Amendment.

Unfortunately, the court disagreed, holding that entering a passcode is akin to turning over business documents, and would reveal nothing more to the state than what it already knew: that the defendant knew the passcode.

While historically Fifth Amendment questions may have concerned combinations to physical property like safes or lock boxes, in the digital age, passwords to our personal devices unlock a much broader range of information, with thousands of files and personal data ranging from intimate communications, photographs and videos, location, and health information. That digital reality dramatically raises the stakes of how this issue is ultimately interpreted by the courts.

With its recent order reversing the trial court’s decision, the Illinois Supreme Court will force Illinoisans to face an unacceptable choice: either truthfully recall and disclose or enter information that will be used to incriminate them, lie about their inability to do so, or be held in contempt for failure to cooperate. The Fifth Amendment is intended to prevent suspects from ever having to face this “cruel trilemma,” which to the drafters of the Constitution recalled the dreaded Star Chamber and other early forms of pre-due process “justice.”

For these reasons, the ACLU has worked to ensure that lower courts across the country protect our Fifth Amendment rights and align this constitutional protection with modern technology. We have filed several friend-of-the-court briefs in state court cases, including in State of Utah v. Valdez, Seo v. State of Indiana, Commonwealth of Massachusetts v. Gelfgatt, Commonwealth of Pennsylvania v. Davis, State of Oregon v. Pittman, and State of Florida v. Garcia. We also filed a petition for certiorari to the U.S. Supreme Court in Andrews v. State of New Jersey. And years ago, we filed a brief in support of Apple’s challenge to FBI efforts to compel the company to help break into an iPhone.

In all of these cases, we’ve argued that our Fifth Amendment protection against self-incrimination extends to the digital age and prohibits law enforcement from forcing individuals to disclose their cell phone and computer passcodes.

This recent ruling in Illinois once again highlights the need for the Supreme Court to settle this critical question.