Discussions with DPIC Podcast: Attorney Jessica Sutton on the Unique Challenges of LGBTQ+ Capital Defendants

In this month’s episode of Discussions with DPIC, Managing Director Anne Holsinger speaks with Jessica Sutton, principal attorney with Phillips Black, a nonprofit public interest law firm focused capital defense. Ms. Sutton has represented clients facing the death penalty in more than a dozen jurisdictions across the U.S. and at all stages of proceedings. In recognition of Pride month, Ms. Sutton discusses the unique challenges LGBTQ+ people face in the capital punishment system and strategies defense teams can use to acknowledge and address these challenges.

In 2022, Ms. Sutton, along with colleagues at Phillips Black, authored a law review article called ​“Death by Dehumanization, Prosecutorial Narratives of Death Sentenced Women and LGBTQ Prisoners.” Using illustrative case studies, the article highlights ​“the ways in which the state weaponizes anti-LGBT bias to target and to kill queer people on the basis of their gender identity and sexual orientation,” explains Ms. Sutton. ​“These bias narratives constitute misconduct, that contravenes the Eighth Amendment protection for the individual dignitary interest when facing criminal proceedings.”

In capital cases, where proceedings are separated into a guilt-phase and a sentencing-phase, employing these biased narratives can have deadly effects. Ms. Sutton explains that the prosecution’s use of ​“other and dehumanizing” narratives that characterize the defendant as ​“dangerous deviants that threaten the moral fiber of society and are a danger to families” encourages juries to impose death sentences based on identity rather than the facts of the case. During the sentencing-phase, when mitigating factors are presented by defense counsel and aggravating factors are presented by the state, ​“the prosecution leverages heterosexism and transphobia to undermine the mitigating evidence.”

The challenges continue during incarceration and can have reverberating effects on considerations of ​“future dangerousness” and evaluations regarding ​“adjusting to incarceration” in capital post-conviction appeals. LGBTQ+ populations experience higher rates of physical and sexual assaults in prison and are often forced to choose between the risk of general population or the ​“torture of solitary confinement,” where many queer prisoners are placed for their own safety. LGBTQ+ prisoners are often subject to more indignities such as invasive strip searches and disciplinary infractions, which, when combined with a history of prolonged isolation and lack of access to educational programming, can easily lead to a misleading portrayal of a prisoner’s experience.

“[I]t’s so important for us as defense teams to really be aware of what’s going on, the challenges that are facing our queer clients, the challenges that are facing queer communities in a broader sense, and to challenge our own biases in order to provide better representation to our clients,” concluded Ms. Sutton.