Scholarship from the Clinics: Impact of Bail Practices on the LGBTQ Community

This is part four in a series highlighting clinician scholarship.

Harvard Law School’s clinical faculty and instructors are advancing their advocacy by publishing books and critical scholarship in journals nationwide. This post highlights recent works published by HLS clinicians. If you have recently published an article, please let us know so that we can share your work!

Deborah Lolai’s Article “Out of the Closet, In on Bail” will be published in the forthcoming issue of the Harvard Civil Rights & Civil Liberties Law Review, Volume 61.1. Deborah is a clinical instructor at the LGBTQ+ Advocacy Clinic of the WilmerHale Legal Services Center and teaches the course LGBTQ Criminalization and Mass Incarceration as a Lecturer on Law. This is the first law review article to examine the American pretrial detention system from an LGBTQ perspective.

This Article examines the disproportionate impact of bail practices on the LGBTQ community. Lolai surveyed the bail laws of 52 jurisdictions and discusses how the most common bail factors considered in determining pretrial detention status across the country–including familial relationships and community ties, residence, employment, criminal records, history of substance abuse, and mental health–have an extreme discriminatory impact against LGBTQ people, resulting in increased coercion to plead guilty, abuse in the system, and even death.

The Article examines Layleen Xtravaganza Cubilette-Polanco’s experience as a case study to illustrate the bail factors’ problems in practice. “While it was excruciating to uncover the horrors Layleen was forced to endure, it was an honor to be able to tell her story and my hope is that this article will begin a conversation that will prevent future state violence against and deaths of LGBTQ people in the criminal legal system,” says Lolai.

The Article concludes by offering targeted recommendations for bail reform through an LGBTQ lens, aiming to address these disparities and promote equitable practices. By shedding light on how existing bail frameworks are impacted by and further exacerbate marginalization, this Article seeks to influence the broader bail reform movement and provide judges and other pretrial detention decision-makers with critical insights for making more informed and fair decisions when LGBTQ defendants appear before them.