Drug Decriminalization in Maryland Through an African Centered Research Paradigm- Analysis and Recommendations

people in public and commercial establishments, but also fuelled their arrests for
solicitation even when no act of oral copulation occurred.80
After Colorado repealed its antisodomy law, one would expect that police regulation of
same-sex affection and intimacy would decline. Yet, it increased.81 One motivating factor
for this increase was that when the Colorado legislature repealed the antisodomy law, it
simultaneously passed a public indecency law that criminalized (1) making a “facility”
available to be used “for or in aid of deviate sexual intercourse,” and (2) ”lewd fondling
or caress of the body of another person.”82 Police invoked these new criminal provisions
to harass LGBT people by raiding gay and lesbian establishments and arresting clientele
simply for holding hands or kissing. As William N. Eskridge has explained, the effect of the
new provisions changed little more than the technical crime it was that LGBT people were
harassed and arrested under.83 In Denver, police harassment against LGBT civilians was
so rampant after the repeal of Colorado’s antisodomy law that hundreds of members of the
main Denver gay and lesbian organization—the Denver Gay Coalition—protested at
Denver City Council meetings.84 In 1973, the coalition filed a lawsuit against the police
department for a pattern of harassment and the selective enforcement of Colorado’s public
indecency law, which was settled the following year.85 In the settlement, the city agreed
that Denver police officers (particularly, officers in the department’s vice squad) would
stop raiding gay and lesbian establishments and initiating arrests for “kissing, hugging,
dancing, [and] holding hands.”86 Nevertheless, arrests doubled within a year of the
settlement.87 In addition, police regularly stood outside of Denver’s most popular gay and
lesbian bar and issued jaywalking tickets to clientele.88
This example can be interpreted in at least two ways—the second of which more clearly
speaks to the gap between pure decriminalization and policing. On one hand, Colorado’s
simultaneous repeal of the antisodomy law and creation of the public indecency crime
arguably reflected legislative intent to constrain same-sex affection to the domestic private
realm. Some evidence supports this view. For instance, as Eskridge has discussed, the
Colorado legislative committee justified the provision aimed at same-sex caressing on the
grounds that it considered those acts a “gross flouting of community standards.”89 Under
this view, the legislative reforms did not serve to constrain aggressive policing of LGBT
people in the public and commercial realms. On the other hand, the Colorado reforms
illustrate the limits of confining the force of pure decriminalization to the domain of
sanctions. Colorado’s pure decriminalization of sodomy eliminated possibilities for the
state to punish LGBT people for private consensual sexual conduct. At the same time, the
reform failed to capture many significant aspects involving how police used the antisodomy
law in practice to harass LGBT populations and to regulate same-sex affection and
intimacy in public settings. Therefore, the example further illustrates the high stakes that
the gap between pure decriminalization and police authority involves, especially for overpoliced
minority communities…
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