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.