Stonewall: The Tipping Point For Gay Rights. Is Criminal Justice Next?

The tipping point may be near, but until people in positions of training others and dictating policy retire or are voted out of office, there will be no widespread change.

This week marks the 50th anniversary of the Stonewall riots which many consider spearheaded the gay rights movement.

The Stonewall Inn was a bar in Greenwich Village where gay and transgender people could congregate, openly show affection, dance with same-sex partners and, to a large extent, not be hassled.  The club was reportedly run by the Italian Mafia, which paid off cops not to raid the place, although club managers enforced a sign-in policy for club attendees before letting them in which could be provided to police.  A lot of “Judy Garlands” came and went.

Anti-gay laws were in effect and homophobia was widespread.  Sodomy was illegal.  It was unlawful for men or women to cross-dress.  Everyone had to wear at least three items of clothing deemed “gender appropriate” or risk being arrested.

On June 28, 1969, whether because police stopped getting kickbacks or for some political motive (no one seems to be sure), undercover police, uniformed cops, and detectives went to the Stonewall Inn to close the place down.  But instead of being met by compliant patrons who docilely provided identification, submitted to searches, and walked out, things got out of control.  It was the tipping point.  Sick of skulking about, hiding their sexual preferences, being harassed and discriminated against, patrons decided to fight back.  As people were pushed outside into waiting vans, many resisted.  More supporters gathered outside.  Soon police were unnumbered.  Coins were thrown and reportedly bricks from a nearby construction site.  Fires were lit in garbage cans and windows broken.

Thousands more gathered the next night and clashes with police continued. It was not the first stance for gay rights, but it was pivotal in what became a national and even international movement that shifted the balance of power.  Instead of succumbing to the powers-that-be, non-straight people became a power unto themselves.  Associations in support of gay rights formed throughout the country. Slowly but surely, laws were changed until now, 50 years later, the LBGTQ+ community has greater rights, protections, and recognition.

Social justice movements start slowly.  They build up as a result of people being tired of suffering everything from small slights to downright abuse and discrimination.  When enough injuries accumulate, there’s a tipping point — a point of no return.  As writer Malcolm Gladwell explains in his eponymous book, the tipping point is the moment of critical mass, the threshold, the point when things boil over.

I’d like to think that now in 2019 we’re at another tipping point — a tipping point in criminal justice.  The zeitgeist, once all about tough-on-crime, now favors alternatives.  We’re asking questions instead of accepting the status quo.  Why does our country have more people in jail per capita than any nation in the world?  Why do our laws unfairly target people of color and the poor?  Why shouldn’t drug-possession crimes be viewed as health problems rather than evidence of criminality?  Why are adolescents punished as adults if their brain functioning and decision-making abilities don’t fully develop until their 20s?

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There’s a recognition that maybe our prior insistence on stricter laws and longer prison sentences is not cost effective.  Marijuana is being decriminalized.  The stop-and-frisk of young men merely because they’re black or Hispanic has been deemed unlawful. Police are being instructed to wear body cameras so actual corroboration exists of what happened during an arrest.  Interrogation sessions, from start to finish, are being videotaped so that jurors can judge whether police made any promises or threats to elicit a confession.  Whole states are taking a new look at their bail policies and, in many cases, reserving bail only for violent crime or people with proven track records of not returning to court.

Since I started practicing criminal defense in the 1990s, I’ve seen slow and steady change.  Who would have guessed that Ava DuVerney’s fictional drama, When They See Us, about the five men convicted (and later exonerated) of sexually assaulting a jogger in Central Park in 1989 could get the lead prosecutors on that case to resign from their jobs in 2019?

Who would have imagined that former defense attorney Lawrence Krasner would become the chief prosecutor in Philadelphia? That candidates for lead prosecutor in Los Angeles would be running on a justice-reform platform, or that a former public defender, Tiffany Caban, would run for office as the District Attorney of Queens, one of the most conservative boroughs in New York?

All of these signs are positive.  But this is just the beginning of a movement, not the end.

The mindset about criminality, punishment, and retribution as opposed to rehabilitation and restorative justice, took hold in the 80s and 90s and lingers today.  Many leaders of district attorney offices around the country — supervisors, bureau chiefs, etc. — still cling to an older view of what’s necessary to stop crime (jail and more jail), as opposed to what might actually help the prisoner not reoffend, thereby making communities safer.  They eschew scientific studies that show how misidentifications are common, that retribution is a far inferior way to deal with crime in the long run than alternatives to incarceration.

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Until these people in positions of training others and dictating policy retire or are voted out of office, there will be no widespread change of attitudes by prosecutors toward defendants.  No matter how much change is going on around them, too many old-guard prosecutors remain mired in the past –ignorant of the zeitgeist.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.