by Deborah Lolai
Volume 61, No. 1, 2026
Abstract
This Article examines the disproportionate impact of bail practices on the LGBTQ community. This is the first law review article to examine the American
pretrial detention system from an LGBTQ perspective.
Part I introduces the experiences of LGBTQ defendants in pretrial detention and contextualizes the need for my original research. Part II provides the findings of my research, a comprehensive survey of bail statutes and laws across 52 jurisdictions (50 states, D.C., and Federal Courts). My analysis identifies key factors that judges commonly consider when ordering pretrial detention–such as familial relationships and community ties, residence, employment, criminal records, failures to appear, history of substance use, and mental health–that disproportionately disadvantage LGBTQ individuals due to systemic discrimination. The Article examines case studies to illustrate the bail factors’ problems in practice, with a particular focus on Layleen Xtravaganza Cubilette-Polanco’s experience.
After presenting this novel data, Part III offers recommendations for bail reform through an LGBTQ lens, aiming to address 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. It additionally aims to provide judges and other pretrial detention decision-makers with critical insights for making more informed and fair decisions when LGBTQ defendants appear before them.