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.