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.”