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LGBTQ Policy Journal

Topic / Gender, Race and Identity

“There’s solid data that gay youth are disproportionately charged with sex crimes.” Our Q&A with Galen Baughman on mass incarceration, LGBTQ rights, and the sex offender registry.

Galen Baughman is an Open Society Foundations Soros Justice Fellow working to end the practice of civilly committing youth as sexually violent predators. Starting when he was still just a teenager, Galen was imprisoned for nine years, including four and a half years in solitary confinement. Today, he brings his experiences to audiences around the country, speaking to lawmakers, criminal justice stakeholders, and members of the public.

Take a look at his TED talk: “Are We All Sex Offenders?” or follow him on Twitter: @GalenBaughman

Why is it important for people who have been directly impacted by the criminal justice system to have a voice in reform? Why are they not involved more often?

People who are closest to the problem are often closest to the solution. Mass incarceration is an incredibly large and complex problem. It took dynamic factors coming together to put 2.2 million people in prison and 7 million people under some sort of correctional control in America. It’s going to take myriad of voices calling for reform to undo this problem. When I speak in public or meet with senior administration officials or folks on the Hill, the direct experience I’ve had with our criminal legal system makes these problems so much clearer and more immediate than when those same talking points are delivered by someone who hasn’t been there. Speaking from personal experience can capture an audience in a way that isn’t possible when it’s purely academic, and it goes a long way to humanize this problem. What would the gay rights movement have looked like without any gay people at the table?

What LGBTQ groups work on criminal justice reform issues? Why do you think this is a marginalized topic in the LGBTQ rights movement?

I belong to a working group of diverse LGBTQ and HIV rights organizations focused on federal criminal justice policy issues. We convene as a body of about 40 partner organizations every quarter for a roundtable meeting in DC, but the day-to-day advocacy work happens in smaller ad hoc teams of advocates, lawyers, policy experts, and lobbyists (including persons who’ve been directly impacted by these problems) who collaborate on similar areas of work. For example, we have working groups focused on policing, reentry, sex work, juvenile justice issues, and HIV criminalization. I anchor the sex offender policy work for this coalition along with a friend from the National Center for Lesbian Rights. I regularly work with rights organizations like Lambda Legal, the National LGBT Task Force, NCLR and I would love to collaborate more with the gay rights community.

Historically, there has been a tendency for marginalized populations to eschew association with criminal justice reform. Consider how long it took for the veteran community to address the way veterans returning with PTSD were being treated by the criminal justice system. Or how long it took mental health advocates to begin to talk about the way people suffering from mental illness are being warehoused in our prison system because of the lack of alternative treatment in the community. Now that the LGBTQ community has accomplished what many believed they would spend the rest of their lives fighting for – marriage equality, securing the right to military service, and soon-to-come the legal protection against employment discrimination – I have seen a growing willingness to begin investing energy in addressing the ways that LGBTQ people are disproportionately impacted by the criminal legal system.

For instance, many coalition members are working together on an amicus brief right now in a federal case. This brief will excoriate the Department of Justice for the treatment of LGBTQ prisoners (but especially gay men) in BOP custody. In the case in question, I personally listened to expert testimony from a former BOP assistant warden that BOP is well-aware that gay men are targeted for sexual assault in prison, and they basically don’t do anything about it because they just don’t care – especially if the person has been convicted of a sexual offense. It was incredibly damning testimony on the credibility of the federal government’s prison system and what I believe will soon be called cruel & unusual treatment by a federal court. Sadly, it’s not so unusual in the American prison system.

What was it like being in prison as an out gay man?

It wasn’t the easiest thing in the world, to be honest. I’ve talked to a lot of other guys about this who were held at different types of facilities in states across the US and in federal prisons – our experiences all vary dramatically. I have a friend who went to prison when he was in his late twenties in Club Fed. He had a sexual relationship with a man he met in the system and he has really fond memories of his relationship. By comparison, I’ve known guys who were gay who were placed in a cell with someone who was HIV positive and were raped and contracted HIV as a result – the guy I’m thinking of died just a few weeks ago at age 48 as a complication of his infection.

My personal experience was somewhere in between. I was held at six different prisons in Virginia over the course of 5 years. The other 4.5 years of my time behind bars I was in solitary confinement. There is some truth to the notion of a prison culture, but I believe that the vast majority of what is seen as the prison culture is just an extension of the demographics that are peopling our prisons – from economically disadvantaged rural and inner city young people who have not had many educational and other opportunities, to guards who come from similarly disadvantaged backgrounds in mostly rural America.

I met a lot of people who believed that just because I was gay I wanted to have sex with everyone who was male. (Of course, such attitudes can be found aplenty beyond the prison gates as well.) There was also a pervasive assumption that because I was white, young, and well-educated I must be gay and was probably also imprisoned for a sexual offense. There were people who wouldn’t talk to me because I was gay, and an entirely different population who were quite eager to befriend me for the same reason.

I didn’t have very many close friends while I was in prison. Toward the end of my sentence, I met a 23-year-old from Appalachia who connected with me. He was bright, handsome, about 5’7”, blond, and passionate about lifting heavy objects. He went by “B.A.” and was the best mimic, which made him an amazing storyteller. We lived together in the same dormitory for about 6 months until Virginia transferred me to yet another prison. While we were in the same dorm I regularly ran into difficulties from prisoners who viewed our friendship as a romantic relationship, and perceived that relationship as an obstacle to their interest in getting closer to him. I had been imprisoned for 4 or 5 years at that point and they were problems I was equipped to handle at that point. That experience was probably the closest I was ever able to come to happiness in prison, and goes to show how important other people and a sense of purpose and belonging can be in our lives, even in the worst of circumstances.

Do you think criminal justice practitioners (police, prosecutors, judges, etc.) treated you differently because of your sexual orientation or gender identity and expression?

There’s no doubt that sex laws are disproportionately used to target LGBTQ people – though mostly gay and bisexual boys. There’s solid data that gay youth are disproportionately charged with sex crimes (mostly of a consensual nature), given longer sentences, and more frequently sent to adult court for juvenile offenses. This shouldn’t really be surprising: There is an incredible amount of discretion in the criminal justice system. Someone decides whom to investigate, how to run the investigation, whether to bring a charge… prosecutors have a great deal of power in deciding what type of charges to bring and what the plea bargain would look like… all of these decisions are discretionary and wherever there is discretion we find our biases expressing ourselves, whether those be homophobia or racism or anything else.

How have people reacted to your story? What are common responses or feedback you receive?

The shocking thing about my story is how completely unexceptional I was – what happened to me could have very easily happened to just about any teenager. That points to a much bigger problem in our society and forces people to rethink what it means to be called a “sex offender.” Our laws have become so overly broad and so unmoored from the rational goal of child safety that very few among us can claim to have never violated one of these laws. High schoolers who sext or streak or hook up willingly, the college kid who peed in public, the teenage lovers – any of these things could land you on the sex offender registry.

I think a lot of people have a really hard time reconciling the person I am with the stories they’ve been told to believe about people we label “sex offenders” – the most consistent feedback I receive across different ages and backgrounds is that hearing about my experience has opened their eyes to problems they didn’t know existed and helped them talk about these issues with their family, friends, and colleagues.

I work with a lot of college students who intern with my project and I used to be a little nervous about how it was going to go when I first explain to each of them that they’re going to be working for someone who’s forced to register as a sex offender and who spent nearly a decade of his life in prison – it’s never phased anyone… if anything they seem to be more excited to get to work with a veteran who’s really been in the fight, as it were. The world is changing.

What are the biggest changes you’d like to see in the criminal justice system? How could these changes be implemented, and what are the obstacles?

When it comes to criminal justice reform I think the reality is that everyone is motivated by the same goals: We all want our children to grow up safe in their communities, and we believe that those communities are stronger when they respect the rights of everyone and provide people with access to opportunity. These values have gotten lost in the area of policy where I work, in favor of soundbite legislation and fear. People we have labeled sex offenders are branded with modern day scarlet letters in the name of child safety, even though decades of evidence proves that these laws don’t prevent recidivism and may actually increase child abuse.

The biggest change I would like to see is a paradigm shift toward addressing the causes of harm, instead of merely punishing the symptoms. We know what those causes are – basic things like poverty, lack of education, and lack of mental health care – and we are capable of addressing those problems as a society by investing resources in those problems. I think the obstacles to addressing harm are complex, but I’ll flag a few.

  1. Economic pressure: There are millions of people whose livelihood is dependent on the industry of imprisoning humans. These are unskilled jobs available in rural communities that drive their economies. Prisons have replaced manufacturing and agriculture as the economic lifeline of many rural communities.
  2. Prosecutorial culture: The prosecutorial culture in America is fundamentally adversarial; it’s about winning for DA’s, not public safety (rhetoric notwithstanding). Prosecutors are political by nature, and they are rewarded based on convictions and years behind bars, which they falsely equate to public safety. Twenty years ago, prosecutors brought felony charges in 1 of 3 cases, now it’s closer to 2 out of 3. Conversely, in Germany, 90 percent of cases end with a sentence that doesn’t include imprisonment. They also hold all the cards – prosecution in the American system relies on plea bargains because the system would grind to a halt without them. Around ninety-five percent of cases end in a guilty plea, because trials are incredibly risky for a defendant, whereas they cost prosecutors nothing if they lose. President Obama – who oversees the largest team of prosecutors in the world at the DOJ – has said, “We need to ask prosecutors to use their discretion to seek the best punishment, the one that’s going to be most effective, instead of just the longest punishment.”
  3. Political will: Simply put, it’s just not there. We aren’t going to see leadership in the Congress on criminal justice reform – legislatures are naturally conservative insofar as they respond to the public. Offices just care about the next Willie Horton. Until the public is sufficiently educated to demand more than fear-mongering from their lawmakers, meaningful reform will be elusive.

Are there some aspects of the criminal justice system that you think are important to maintain, and if so, why?

The values that our legal system was born from are timeless and universal ideals to adhere to. Values like proportionality between crime and punishment, innocent until proven guilty, the right to counsel… The problem in our current system is that we aren’t living up to our own ideals. We need to do better, and that starts with average citizens in our society recognizing that this is a problem that can impact all of our lives – it’s about all of us, not people we see as ‘other’ or less deserving of protection and human dignity.

I was locked up for a long time in some very violent places, and I’ve met more than my share of scary people. The problem is our system has lost all capacity to distinguish those our society should truly fear from those whom we’re merely angry at. When I have conversations with some offices on the Hill I hear rhetoric about the “bad guys,” and I honestly feel like the desk jockey policy counsel I’m having these conversations with feel like we’re in an old Western, not like these are human beings who made poor choices and whose lives are inherently valuable.