New Analysis from The Appeal Finds Anti-LGBTQ+ Bias Affects the Fate of Defendants in Death Penalty Cases

An analysis from The Appeal of more than two dozen cases in which LGBTQ+ defendants faced the death penalty found evidence that anti-LGBTQ+ bias affected case outcomes. After an examination of media reports, academic journals, and legal documents, The Appeal determined that these cases are likely a significant undercount of the number of LGBTQ+ people sentenced to death. “These capital cases illustrate the ingrained anti-LGBTQ+ bias endemic to the U.S. legal system—from sodomy laws that punished same-sex activity to those that now criminalize gender-affirming care for trans people,” according to the report. Not only do these cases exemplify the impact of anti-LGBTQ+ bias, but also show “the ways the legal system often bends over backward to avoid scrutiny of accountability.”

The Appeal notes the case of Calvin Burdine—a gay man tried in Texas in 1984 for the murder of his male partner. Though Mr. Burdine’s case is better known as the “sleeping lawyer” case because his trial attorney slept through much of the trial, Mr. Burdine’s case featured repeated instances of homophobia and anti-LGBTQ+ rhetoric. Mr. Burdine’s court-appointed attorney used anti-gay slurs about his own client, and Ned Morris, the prosecutor, also made several troubling statements regarding Mr. Burdine’s sexuality. In urging the jury to sentence Mr. Burdine to death, Mr. Morris argued against an alternate sentence of a term in prison because “sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual,” adding that it would be a “paradise” for Mr. Burdine and “like setting a kid loose in a candy store.” Mr. Burdine was convicted and sentenced to death. In 2003, nearly 20 years after his initial conviction, Mr. Burdine reached an agreement with the state to remove his death sentence in exchange for pleading guilty to other charges. He received multiple life sentences and is still incarcerated.

Mr. Burdine’s case bears an unfortunate resemblance to other cases of death-sentenced LGBTQ+ people. In South Dakota in 1993, Charles Rhines was sentenced to death, and jurors later told defense attorneys they expressed “a lot of disgust” during deliberations about the fact that Mr. Rhines was gay. Some jurors wondered whether Mr. Rhines would enjoy being in prison with other men because he was gay and sent questions to the judge on this subject that the judge refused to answer. Mr. Rhines raised the evidence of anti-LBGTQ+ bias in his case in multiple appeals. Ethan Rice, an attorney with Lambda Legal, filed an amicus brief in support of Mr. Rhines, urging appellate courts to allow for investigation into claims of juror anti-LGBTQ+ bias, as they do for claims of juror racial bias, but Mr. Rhines was executed in November 2019.

The bias of judges has also affected the fairness of court proceedings for LGBTQ+ people. In Gregory Dickens’ case, the judge’s bigotry was personal. Mr. Dickens, who was gay, was tried for the murder of a couple, yet it was acknowledged that Mr. Dickens’ 16-year-old companion pulled the trigger. Judge Tom Cole sentenced Mr. Dickens to death under Arizona’s law at the time that allowed for judges, not juries, to issue death sentences. Evidence emerged that Judge Cole regularly wrote “violent” and hateful letters to his son Scott, who was also gay. In one letter, Judge Cole wrote to his son, “I hope you die in prison like all the rest of your f—got friends.” It was not until after Mr. Dickens was sentenced to death that his attorneys learned about Judge Cole’s bias. Attorneys for Mr. Dickens urged a court to review whether another judge should have overseen post-conviction proceedings. A state court judge rejected Mr. Dickens’ arguments, writing that “Dickens offers no evidence that begins to suggest, much less constitute a colorable claim, that the judge in this case was biased against him.” Superior Court Judge Michael Cruikshank wrote that “the affidavits suggest, at most, that the judge may have had a difficult relationship with his son.” In January 2014, a federal appellate court granted Mr. Dickens a new hearing to raise ineffective assistance of counsel claims, but days later, Mr. Dickens died on death row of apparent suicide.

While some LGBTQ+ men are wrongfully portrayed as “sexual deviants,” LGBTQ+ women have been criminalized for their perceived violation of gender norms. Hugh Ryan, a queer historian and author, told The Appeal that “when we get into the 19^th century, and we start to see these laws appearing that criminalize homosexuality, they focus on men. But what we’re actually seeing is that women had been already criminalized much more extensively for their queerness than men had been, just earlier, without using that language.” Prosecutors often portray LGBTQ+ “women as masculine, violent, and aggressive to secure death sentences.” For LGBTQ+ women of color, these biases often intersect with racist tropes. In 1989, Wanda Jean Allen was accused of killing her girlfriend Gloria Leathers in Oklahoma. At trial, the state told the jury that Ms. Allen was the “man” and “wore the pants” in her relationship with Ms. Leathers, who they portrayed as “passive and submissive.” Ms. Allen was sentenced to death without the jury hearing important mitigating evidence surrounding severe head trauma and intellectual disability. Activists launched a campaign to free Ms. Allen, but she was executed in 2001—the first Black woman put to death in nearly 50 years.

The Appeal believes that these cases “illuminate a fundamental flaw—or feature—of the U.S. death penalty system.” Mr. Rice, of Lambda Legal, said that “it shows we don’t have enough safeguards to ensure that everyone actually has an opportunity to have a fair trial.” As written in Queer (In)Justice, a book that examines how LGBTQ+ people are criminalized, “the process of dehumanization required to obtain a death sentence is easier when the defendant is of a different race, class, sexual orientation, and/or gender identity than the jurors or judge.” The authors add that “the prosecutor’s task is also greatly facilitated when the accused belongs to a class of people stigmatized as abnormal, violent, sexually degenerate and pathological.” Because of this, many LGBTQ+ advocates have continuously called for the abolition of the death penalty. Mr. Rice says that “in every case of an LGBTQ+ person, there is such a high risk of getting it wrong that there’s no way to support the death penalty.”