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Discriminatory Use of Death Penalty Against Gays Raises Concerns Globally and in the U.S.

As human rights activists raise alarms about a new law in Brunei that would punish homosexuality by death by stoning, the U.S. Supreme Court considers whether to hear a case in which jurors who exhibited anti-gay bigotry sentenced a gay defendant to death. Charles Rhines (pictured), a South Dakota death-row prisoner, is asking the U.S. Supreme Court to review his case, after a lower federal court denied him the opportunity to present juror statements showing that homophobic prejudice played a role in his death sentence. Leading civil rights organizations, including the NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and Human Rights Campaign, have asked the Court to hear the case. Meanwhile, on April 3, 2019, Brunei will institute new laws that will make homosexual sex punishable by death. Brunei’s action has drawn a sharp rebuke from United Nations officials, international human rights groups, and activists—including actor George Clooney and musician Elton John, who are calling for a boycott of properties owned by the Sultan of Brunei.

Charles Rhines filed a petition in the U.S. Supreme Court in February 2019 seeking review of his case after a split panel of the U.S. Court of Appeals for the Eighth Circuit voted 2-1 not to hear his appeal. The civil rights organizations filed supporting briefs on March 25 and the Court is scheduled to consider Rhines’ petition on April 12. At Rhines’ trial, prosecution witnesses testified that he was gay and, according to jurors, “[t]here was lots of discussion of homosexuality” during sentencing deliberations. “There 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 one juror 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.” South Dakota prosecutors have asked the Supreme Court to refuse to consider the civil rights groups’ briefs, calling the federal defenders office representing Rhines “an extremist organization” and saying the petition should “not become a cause célèbre for making Rhines of all people a false prophet of homosexual rights.”

In 2017, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires ... the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Rhines’ lawyers are advocating that the Court extend that ruling to include juror bias against a defendant’s sexual orientation. In an amicus brief, the NAACP Legal Defense Fund wrote, “Just as the Constitution does not permit a person to be sentenced to die because of his race, it should not permit a person to be sentenced to die because of his sexual orientation.” A brief submitted by seven LGBTQ rights organizations said, “[b]ias based on sexual orientation in jury deliberations reinforces historical prejudice against lesbian, gay, and bisexual people and undermines the integrity of our judicial system.”

Anti-LGBTQ use of the death penalty came under renewed international scrutiny as Brunei prepares to put a new law in place that would make adultery and homosexual sex punishable by death by stoning. U.N. High Commissioner for Human Rights Michelle Bachelet called the law “cruel and inhuman,” “draconian,” and “a serious setback for human rights protections.” Actor and activist George Clooney urged a boycott of hotels owned by Brunei’s monarch, Sultan Hassanal Bolkiah. In an op-ed for Deadline, Clooney wrote, “every single time we stay at or take meetings at or dine at any of [the Sultan’s] nine hotels we are putting money directly into the pockets of men who choose to stone and whip to death their own citizens for being gay or accused of adultery.” Musician Elton John joined Clooney’s call for boycotts, saying, “Discrimination on the basis of sexuality is plain wrong and has no place in any society.” “I believe that love is love and being able to love as we choose is a basic human right,” John said.


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He’s on California’s Death Row, But Demetrius Howard Never Killed Anyone

A February 4, 2019 article in the criminal justice newsletter, The Appeal, features the case of Demetrius Howard, a California prisoner sentenced to death for a crime in which he didn’t kill anyone. Howard was sentenced to death in 1995 for his participation in a robbery in which another man, Mitchell Funches, shot and killed Sherry Collins. Howard was never accused of firing a shot and he has consistently maintained that he neither expected nor intended that anyone would be killed. But under California’s felony murder law, he was eligible for the death penalty because he participated in the robbery. In a letter to The Appeal, Howard wrote, “I am no saint or some angel. I’ve made my share of wrongs, but I haven’t killed no one [or] told anyone to kill someone.”

California is one of twenty states that allow the execution of defendants who neither killed nor intended that a killing take place. The controversial practice has attracted the most attention in the state of Texas, where at least six prisoners have been executed despite undisputed evidence that they were not involved in the killing itself. In Howard’s case, the man who actually shot Collins, Mitchell Funches, received a sentence of life without parole when the jury in his trial could not reach a unanimous decision on whether to sentence him to life or death. In 2018, California passed a law that narrowed the scope of the felony murder law, making defendants liable for murder only if they were the killer, solicited the killer, or acted with reckless indifference to human life. The change is retroactive, but does not apply to Howard because the jury found that he had “acted with reckless indifference to human life” before it sentenced him to death.

Howard’s death sentence is also a by-product of outlier death-penalty practices in San Bernardino County. San Bernardino is one of five Southern California counties that imposed more death sentences between 2010 and 2015 than 99.5% of U.S. counties, earning the region the nickname “the new death belt.” In 1993, shortly before Howard was sentenced to death, there were 10 active capital trials in the county, and then-District Attorney Dennis Kottmeier said he was considering seeking it in two other cases. At the time, Kottmeier told the San Bernardino County Sun, “That’s higher than I’ve ever seen it. At any given time in the past the number pending seemed to be about six.” He attributed the high number of capital cases to a high rate of violent crime, as well as state laws passed in 1990 and 1993 that expanded the list of death-eligible crimes. The California Attorney General’s 2017 report, Homicide in California, shows that despite its disproportionate pursuit of capital punishment, San Bernardino’s higher-than-average murder rate has remained the same from 1997 to 2017, while murder rates have declined statewide and in many of California counties during that period.


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