Research Roundup: Anti-Queer Practices in Capital Cases

This is the first in a new monthly series covering academic research and articles in the field of capital punishment.

In the 2020 article, “Queer and Unusual: Capital Punishment, LGBTQ+ Identity, and the Constitutional Path Forward,” Matt Kellner surveys the legal and historical landscape of anti-queerness in the death penalty throughout history. He begins by highlighting the illustrative case of Charles Rhines. Mr. Rhines, a gay man, was sentenced to death on January 26, 1993 in South Dakota for the murder of Donnivan Schaeffer. However, it was discovered during appellate investigation that jury sentencing deliberations in his case were filled with discriminatory comments. According to a 2016 sworn statement of then-juror Frances Cersosimo, another 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]. This kind of statement was not an outlier. Mr. Kellner argues that this kind of ‘hostility’ and ‘animus’ should have necessitated a judicial review of Mr. Rhines case. Nonetheless, no court agreed to consider these issues and Mr. Rhines was executed on November 4, 2019. 

The article’s historical review begins with English anti-sodomy laws that extended throughout Britain’s colonial empire. For example, the act of same-sex intercourse was a death-eligible crime until 1873 in South Carolina, and resulted in two executions in Virginia. These laws, like other death penalty laws, were disproportionately applied against enslaved and free Black people. According to Mr. Kellner, Virginia reduced the punishment for white defendants convicted of sodomy to a maximum of ten years in prison in 1800, but retained the death penalty for enslaved people convicted of the crime.

Then, Mr. Kellner discusses the impact of two Supreme Court cases, Buck v. Davis and Peña-Rodriguez v. Colorado. These cases addressed the ability of prisoners to challenge racism in expert testimony and jury deliberations, respectively. Charles Rhines attempted to draw a parallel between race and sexual orientation, based on Justice John Roberts’ condemnation in Buck of “punishment on the basis of an immutable characteristic.” The author argues that although “[the] Sixth Amendment claims are likely limited to instances of racism, […] the Eighth Amendment’s prohibition on the criminalization of immutable statuses [can be] a potential source for relief,” for the law “punishes people for what they do, not who they are.” 

Mr. Kellner also describes the importance of such cases as Romer v. Evans and Lawrence v. Texas on the way queerness is perceived in judicial proceedings, including the potential for prisoners to challenge their convictions on the grounds of anti-queerness. 

Particularly during the celebration of Pride Month, Mr. Kellner’s work is a stark reminder that “LGBTQ+ people have suffered discrimination from prosecutors, juries, and even defense attorneys who assert that their sexuality or gender identity makes them worthy of death.”

Related articles: 

James Hampton, Homosexuality: An Aggravating Factor, 28 TUL. J.L. & SEXUALITY 25, 33-40 (2019);  

Joey L. Mogul, The Dykier, The Butcher, The Better: The State’s Use of Homophobia and Sexism to Execute Women in the United States, 8 N.Y.C. L. REV. 473, 483-91 (2005);   

Michael B. Shortnacy, Guilty and Gay, A Recipe for Execution in American Courtrooms: Sexual Orientation as a Tool for Prosecutorial Misconduct in Death Penalty Cases, 51 AM. U. L. REV. 309, 332-50 (2001).