In the midst of National Pride Month commemorating the 50th anniversary of the Stonewall Riots and the birth of the modern LGBTQ rights movement, South Dakota has issued a death warrant seeking to execute a gay man whose death sentence was tainted by anti-gay bias. Charles Rhines (pictured) was sentenced to death by a jury that, according to juror affidavits, was influenced by bigoted stereotypes in reaching its decision. On June 25, 2019, in response to a motion filed by state prosecutors, Pennington County circuit court Judge Robert A. Mandel issued an order scheduling Rhines’ execution for the week of November 3 – 9, 2019.

Rhines’ sexual orientation became an issue in his trial after prosecution witnesses testified that Rhines was gay. According to the affidavits, that testimony provoked “lots of discussion of homosexuality” during jury deliberations. One juror said “[t]here was a lot of disgust. … There were lots of folks who were like, ‘Ew, I can’t believe that.’” In a 2016 sworn statement, juror Frances Cersosimo reported that another juror had said “If he’s gay, we’d be sending him where he wants to go” by sentencing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn statement, “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison.”

Following a 2017 U.S. Supreme Court decision that defendants could use statements by jurors to show that racial stereotypes or animus had denied them an impartial jury, Rhines’ lawyers asked the Court to extend that ruling to include juror bias based upon a defendant’s sexual orientation. In April 2019, the Court declined to review his case. Rhines’ attorney, assistant federal defender Shawn Nolan, said at the time, “As Chief Justice Roberts wrote in an earlier case, ‘[o]ur law punishes people for what they do, not who they are.’ New evidence – which has never been heard by any court – shows that some of the jurors who sentenced Mr. Rhines to death did so because of who he was, not for what he did.”

Rhines’ case highlights concerns about the persistence of bias against LGBTQ people throughout the U.S. criminal justice system. A 2009 studyof mock juror questionnaires found that nearly half (45%) of respondents believed that being gay “is not an acceptable lifestyle.” A 2011 study in the journal Pediatrics found that nonheterosexual youth are disproportionately punished in school and the justice system. Researchers from UCLA School of Law’s Williams Institute, a think tank dedicated to research on sexual orientation and gender identity in law and public policy, found that lesbian, gay, or bisexual (LGB) people “were three times more likely than straight people to be held in prisons and jails” and face harsher sentences and prison conditions. LGB people were also more likely to be sexually victimized while in custody, and more likely to be subjected to solitary confinement.

Death sentences tainted by anti-gay bias and stereotypes are not uncommon in the United States. In Calvin Burdine’s case—which gained notoriety because his attorney slept through major portions of the trial—the prosecutor told the jury that “sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual.” In a post-trial hearing, Burdine’s lawyer used anti-gay slurs to refer to Burdine and other gay men. The book Queer (In)Justice, which explores anti-LGBT bias throughout the criminal justice system, says, “In capital cases a prosecutor must successfully undertake what should be a morally difficult, ethically complex task of convincing a jury or judge to kill another human being. To succeed, the prosecution must demonize, dehumanize and ‘other’ the defendant … 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.” One example it offers is the trial of Wanda Jean Allen, who was executed in 2001 for the murder of her lesbian partner. Prosecutors emphasized Allen’s gender non-conformity, calling her the “man” who “wore the pants in the family.” Judge James F. Lane, who heard Allen’s appeal, wrote, “I find no proper purpose for this evidence, and believe its only purpose was to present the defendant as less sympathetic to the jury than the victim.”