Attorney Jessica Sutton on the Unique Challenges of LGBTQ+ Capital Defendants

Anne Holsinger 0:00 

Hello and welcome to “Discussions with DPIC”. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. Our guest today is Jessica Sutton, principal attorney with Phillips Black, a nonprofit public interest law firm focused on representing those sentenced to the severest penalties under law. Ms. Sutton began her capital defense career at the Death Penalty Litigation Clinic in Kansas City, Missouri, and later established practice in Baltimore, Maryland, and has since represented capital clients in more than a dozen jurisdictions across the US and at all stages of proceedings. Thank you for joining us, Ms. Sutton. 

Jessica Sutton 0:35 

Thank you so much for having me. 

Anne Holsinger 0:37 

June marks the celebration of Pride month across the world and we wanted to explore unique issues that LGBTQ+ people face in the capital punishment system. In 2022, you and your colleagues from Phillips Black authored a law review article called “Death by Dehumanization, Prosecutorial Narratives of Death Sentenced Women and LGBTQ Prisoners”. Could you tell us about what inspired you and your colleagues to write the article as well as the main takeaways? 

Jessica Sutton 0:59 Yes, thank you so much Anne. We were inspired to write the article because in this era of heightened violence and discrimination against LGBTQ folks, the existence and experience of queer people sentenced to death is largely overlooked. We hoped that our article would shed light on the ways in which the state weaponizes anti-LGBT bias to target and to kill queer people on the basis of their gender identity and sexual orientation. So, the article presents several case studies, highlighting prosecutorial narratives that other and dehumanize queer folks, and then argues that these bias narratives constitute misconduct, that contravenes the Eighth Amendment protection for the individual dignitary interest when facing criminal proceedings. 

Anne Holsinger 1:56 

Could you share some specific case studies or examples that illustrate the dehumanization process that you discuss in your article? 

Jessica Sutton 2:04 

Absolutely! So, two come to mind immediately. The first is the case of Wanda Jean Allen. The trial took place in 1989 in Oklahoma, and in that case, the prosecution invited the jury to contem—, condemn Alan to death because she transgressed gender stereotypes and gender norms. So Allen, who at the time identified as a black lesbian, was charged with the murder of her partner, and the state focused on her gender expression and sexuality to portray her as this dangerous deviant in order to get a conviction and a death sentence. Some of the evidence that was introduced to portray her as this deviant was, for example, she spelled her name G-E-N-E, instead of J-E-A-N, Wanda Jean Allen. And they focused on how that was the male spelling rather than the female spelling, because, of course, completely irrelevant to the trial. They introduced testimony that she was the, a quote, “aggressive person” in the relationship. She was the quote, “man” in the relationship. And they used this to appeal to jurors biases against queer people and, and to get a death sentence. Sadly, she was convicted, sentenced to death and executed. Ultimately, on direct appeal, the Oklahoma Court of Criminal Appeals affirmed the convission—, conviction and death sentence. But there was a dissenting opinion. And in that opinion, the judge expressed the concern that this type of gender stereotyping evidence was not probative at all. And it’s only purpose was to present Wanda Allen as less sympathetic to the jury, and more deserving of a death sentence. So that is one one case in which you see this focus on gender stereotypes and the way that’s wielded to other and dehumanize the client. And in another case, the case of Bernina Mata, which took the trial took place in that case in 1999. The state, actually in that case, used Mata’s queer identity as both the motive for the crime and the reason that there should be the death penalty. The prosecution’s theory at the guilt phase of trial was that Mata killed a white, cisgender, heterosexual man, because he quote “made an unwanted path at her”, and that caused her who would the prosecution described as, quote, “hardcore lesbian”, to kill this man because, again, this is a prosecutorial narrative, because Mata hated men by nature. She was repulsed by men and she would kill any man who dared to touch her. That was the state’s theory of why she committed this crime and, what they—, that was the theory they presented to get a conviction. They also used her queer identity in order to establish an aggravating circumstance. And the only aggravating circumstance in that case was that this was a premeditated, calculated crime. And the only way that the state could attempt to prove that up is by again, appealing to the jurors’ biases, and making the argument that because she hated men so much as the lesbian, that she made a plan to murder the the next guy that tried to hit on her. And that was effective, I think the jury convicted her and found that existence of that aggravating circumstance. And of course, that narrative continued during the penalty phase, and which the prosecution painted Mata as a deviant as a danger to society by introducing completely irrelevant evidence, such as the fact that she owned a book called “The Lesbian Reader”, the fact, you know, testimony that she was, quote “overtly homosexual” and, “proclaimed it to everybody”. And, and they ended up convincing the jury to condemn or to judge for these transgressions. So I think those two cases, they not only highlight the ways in which there—, these folks’ queer identities and gender identities were put at the center of their cases. But, it also goes to the ways in which racism and heterosexism and homophobia and transphobia all compound and combine to kill folks, to kill queer people, by use of the death penalty. 

Anne Holsinger 7:05 

Yeah, you briefly mentioned racism there and both of the examples you gave are women of color. How does the intersection of gender sexual orientation and race affect these dehumanization narratives? 

Jessica Sutton 7:17 

That’s a great question. You know, as you can see the way that intersectional oppression and marginalization compounds those narratives and those two cases, and the prosecution has always attempted to dehumanize and other our clients to draw them further away from the jury to make it easier for the jury to condemn them to die. And so when they have a client, who whose identities exist at the margins, they will use every opportunity to use these structural biases in order to get a death sentence. The prosecution will zone in on these overlapping racist stereotypes of people of color posing a future danger, people of color being aggressive, being violent, and other deep seated, racist tropes that have been at the heart of criminalizing people of color for hundreds of years. And they’re going to identify the ways in which they can integrate similar narratives concerning queer people with regards to gender as well. You—, You see these hetero-sexist tropes come in concerning whether a queer woman was, quote, “a good mother”, “a good wife”, and by virtue—, by virtue of being queer, the state often argues that this person is deviant, dangerous, and doesn’t ascribe to the norms that society has constructed, that white society, straight society has constructed, and that they meet—, that these folks need to be punished and even need to be killed because of the threat that they pose to these social norms. 

Anne Holsinger 9:03 

How do these dehumanizing narratives impact the sentencing outcomes for women and LGBTQ individuals? Did you notice any patterns of disparity in their effects? 

Jessica Sutton 9:13 

That’s a great question. So, the narratives impact sentencing outcome(s) in various ways. The first pattern is that by othering and dehumanizing queer people as these dangerous deviants that threaten the moral fiber of society and are a danger to families, the state encourages the jury to condemn people to death on the basis of their gender identity and sexual orientation, rather than the facts of the crime, aggravating facts and other facts about the character of someone facing a capital trial. And so it really is different from your typical capital trial in that way. And sadly, the jury often accepts the invitation to condemn people to death based on their gender identity and expression, instead of all these other considerations that are supposed to be at issue. So, the state is targeting specifically queer people for the death penalty by turning their very identities into aggravating factors that make the case death eligible to begin with. So, for example, in the case of Jay Neill, which is another Oklahoma case, the prosecutor in closing argument explicitly stated, “you are deciding the life or death of a person who is an avowed homosexual and that you are allowed to consider his identity as a homosexual in determining the sentence whether to condemn this person to die, or to allow them to live, um you know—, live their life while incarcerated”. And—, and these are not for the most aggravated cases. You know, often these cases don’t bear the hallmarks of other capital cases, because they are so focused on just exploiting these anti-LGBTQ biases. And it’s working. Another pattern that we’ve identified is that the prosecution leverages heterosexism and transphobia to undermine the mitigating evidence in cases. So, that evidence that goes to the frailties of humankind, the evidence that connects the jury to the client that—, that provides a sense of kinship between them, and that allows them to see the client’s humanity, the state’s narratives, these dehumanizing narratives, they are specifically created to undermine that type of evidence. Another example is in the case of Charles Rhines. And in that case, the jurors voted to execute Mr. Rhines, rather than sentence him to life in prison, because he might be, quote, “a sexual threat”, and “take advantage of the other young men in prison”, when what we really know is that queer folks who are incarcerated face and extremely high rate of violence, and sexual assault, and discrimination. So when in reality, Mr. Rhines was much more likely to be a target and a victim of violence, the state has now twisted this, so that uh—, he now will be a predator in prison. And we see them do that and many in many other ways as well. Another good example, the case of Aileen Wuornos in Florida. In that case, Wuornos had previously been a sex worker and had experienced years of of trauma, of sexual assaults, and this—, that was presented in mitigation. But, by again, leveraging these biased stereotypes and these tropes, the state turned that mitigating evidence into aggravating eviden—, evidence. And the state’s narrative was that Aileen was a deviant because she liked sex and she was a sex worker because she had, quote, “a voracious appetite for sex and money”. And, the prosecution even belittled the years of sexual assault and victimization, and discredited the brutal rape that she experienced at the hands of the victim, uh you know, prior to his murder, and they did so by talking about her queer identity, her identity as a woman, and by dehumanizing her as an amoral woman, an unchaste woman. And so you again, you see the sort of intersectional overlapping prejudices that are used, you know, to convict and condemn people to die in these cases. 

Anne Holsinger 13:49 

Did you notice any differences in how these narratives are used against lesbian or gay defendants compared to how they affect transgender or gender non-conforming defendants? 

Jessica Sutton 14:00 

Yes, that’s—, that’s an interesting question. So while there are differences in the types of gender stereotypes and tropes weaponized by the prosecution, the underlying strategy is the same, you know, to strip LGBTQ defendants of their dignity and their humanity and to alienate them from the jurors who are going to determine whether they get to live or die. So for example, in capital cases involving gay men, prosecutions often focus on the perceived femininity as gender transgressions, and they, they leverage that as a way to alienate the jury and to other the defendants. So in Neill’s case, the one I just mentioned, for example, the prosecution emphasized, brought in testimony that Neill was flamboyant and materialistic and flighty and sex crazed. Essentially, all of—, all of these, you know, biased and false tropes about gay men, and that’s what they focused on to paint him as deviant and a future danger deserving of the death penalty. So it might be a different stereotype that’s used and and other cases in cases involving trans folks or gender diverse folks. They’re going to seek out and rely on the prevailing prejudicial narratives that exist in society at the time but the approach is the same. 

Anne Holsinger 15:33 

Since the reinstatement of the death penalty in the mid 1970s, public opinion, legal precedent, and societal acceptance regarding LGBTQ people in the U.S. have all shifted drastically. Has society’s increased acceptance of LGBTQ people affected the power that these narratives hold over juries? 

Jessica Sutton 15:51 

Unfortunately, I don’t believe so. Right now, you know, we’re at an interesting point in time, a—, a frightening point in time, you know, LGBTQ rights are under attack, there is a rise in anti-trans legislation and anti-LGBT legislation across the country. And there’s escalating violence against these folks as well, you know, interpersonal violence, as well as structural violence, such as that we see in the criminal system In Oklahoma, for example, I bring up Oklahoma because a number of these cases took place there and there has been a number of murders and assaults against trans folks there even within the past six months, a young queer person was murdered at school, in May, a—, a black trans person was murdered while incarcerated at Angola. You know, there are dozens of—, of LGBT folks who are killed every year. 75% of those folks are people of color, and about 35% are black trans women, so, and the numbers are growing. So, this is—, this is an issue across all institutions within society across all levels of society. And we’re seeing it play out in the criminal justice system, and then the capital system, as well. I mentioned earlier that prosecutors are tuned in to the prevailing narratives, and society, the—, the biased and prejudicial narratives in society, and they’re espousing those to inflict further violence on these individuals in these communities in the capital context. For example, there’s been a lot of discussion about so called bathroom bills, and, in essence, the—, the narrative and support of bills that would bar queer folks from using bathrooms that are in accordance with their gender identity and expression. In order to pass such legislation. They—, they are creating narratives of based on false stereotypes of queer people as sexual devients in order to create fear and draw up support for this legislation. Those are the narratives that the prosecution identifies and then incorporates into their own narratives because they’re able to really, uh—, target what the jurors concerns and fears are, and to weaponize that to get the result that they want, which is the death sentence. So I actually think that we’re at a particularly dangerous time, and it’s especially important that we ensure that peoples’ rights are respected in—, in these criminal proceedings. 

Anne Holsinger 18:39 

Most of our discussions so far has talked about the trial. But are there specific challenges that are faced by LGBTQ prisoners when it comes to the conditions of confinement on death row? 

Jessica Sutton 18:50

Yes, there are unimaginable challenges that queer folks face while incarcerated. To begin, there are higher rates of physical and sexual assault against queer people who are incarcerated. For example, there’s a great study, it’s called “Coming Out of Concrete Closets” and it was published by Black and Pink, which is a wonderful queer organization. And, they conducted a survey of well over 1000 queer folks who were incarcerated, including on death row, and they found out that about 80% of the trans women respondents reported sexual assaults while incarcerated both from some other incarcerated people and from staff. About 64% of the gay men who responded experienced sexual assaults, and they—, they really are able to break down discrimination, harassment, physical, sexual and verbal assaults that are experienced by queer people who are incarcerated then it’s—, it’s appalling. It’s stunning. That’s just just where we’re starting. Um, related to this issue of safety, there are also obstacles concerning housing. I know queer folks are often placed in solitary confinement at much higher rates, you know, purportedly for their own protection, because of the the risks of violence that they face. Well, we know that solitary confinement, it’s considered torture by the United Nations and other institutions. And we know that solitary confinement has devastating impacts on people’s mental health and physical health. And so this situation, in turn gives rise to this impossible choice for our queer clients either experienced the torture of solitary confinement, or stay in general population and risk assaults or even death. So that’s just one example of the challenges that our clients face. Another challenge is that queer folks are more likely to be targeted for strip searches as a form of sexual assault. Most folks cannot access gender affirming medical care, or mental health care, they can’t access hygiene products, they can’t access high programming, if they are placed in solitary confinement, typically, they are not able to, you know, access a lot of educational and programming opportunities. Another thing is that queer folks are more likely to be disciplined, to receive disciplinary infractions, because of their their sexual identity. In most prisons, it is not allowed to have consenting adult relationships with other incarcerated people. So if a—, if a queer person is having a consensual relationship with another queer person while incarcerated, they can be disciplined. And we know that queer people are more likely to face more severe punishments. So they could be placed in solitary confinement, have less communication with their families, biological or chosen families. And so there’s, there’s a—, there’s a multitude of overwhelming challenges that our clients face while they’re incarcerated, which in terms of impacts their cases. In capital trial, the state typically focuses on future dangerousness. And as we’ve been discussing, in cases involving queer people, they often rely, you know, on these stereotypes and biases. But it all is interrelated because should they focus on how the client, you know, had been adjusting to incarceration, which is something that’s frequently argued by the state, now our queer clients may have, you know, more violations simply because they’re queer. Our queer clients may have had less programming simply because they were queer, our queer clients may have, you know, may have this history of being in solitary confinement, which may give rise to an inference of dangerousness, but they’re really placed in solitary confinement simply because they’re queer. And and it’s very important that we, as defense attorneys, recognize the interrelated nature of all of these considerations. 

Anne Holsinger 23:11

Thank you. Based on your research, what policy changes or reforms would you like to see to address and mitigate prosecutors use of dehumanizing narratives against LGBTQ people? 

Jessica Sutton 23:22 At trial, defense counsel needs to anticipate, litigate, and prepare for these narratives. I mean, just identifying this as an issue is—, is a good place to start because they’re significant underreporting, of how many queer people are really capitally eligible or capitally sentenced, due to concerns over violence and dangerous while incarcerated, concerns over family dynamics, concerns over discrimination in the court system, which are all very real. And I don’t know that the defense community is really acknowledging the pervasiveness of this prosecutorial misconduct and the existence of these individuals and communities who are being victimized by it. So, just beginning with being able to, you know, identify these problems and start strategizing and how to address them is essential. The defense needs to to fight to exclude these narratives, to exclude these narratives in closing argument, to disallow evidence coming in about a client’s sexual identity or gender identity expression via testimony. They need to challenge the reliance on the client’s gender identity, and expression, and sexual orientation as a basis for capital prosecution, as a basis for aggravating circumstances and for sentence. And the defense needs to create a counter narrative that dispels these prejudicial myth(s) and subverts the prosecution’s bias narrative that is critical. So the defense at all stages, not just a trial, all stages need to do those things. And they, they need to assemble a culturally competent team, which is the really the only way to be successful at—, at doing this. And you’re going to need folks on your team who have fluency in the areas of queer identities and experience. That might mean seeking experts or consultations, in order to gain some advice and some guidance. I’m often retained as a consulting or testifying expert in these cases to support teams in conducting mitigation investigations through the lens of gender identity and expression or sexual orientation, to identify experts who can support conditions of confinement advocacy, to identify mental health experts who can talk about the impact of structural homophobia and racism, you know, or standard of care experts who can discuss the prevailing professional norms with regards to representing death eligible LGBTQ clients. So it’s so important to know what you don’t know and to seek that support in—, in those areas whether it’s as simple as how do I ask about a person’s name and pronouns? You know, to how do I help a client, get gender affirming medical care, to how do we conduct a mitigation investigation that’s culturally competent? 

Anne Holsinger 26:33 

Is there anything else you’d like to share with our listeners? 

Jessica Sutton 26:35 

Yes, just building off of what I was talking about. I just think it’s so important for us as defense teams to really be aware of what’s going on, the challenges that are facing our queer clients, the challenges that are facing queer communities in a broader sense, and to challenge our own biases in order to provide better representation to our clients. So for example, in the Black and Pink survey, we found out that about—, about half of all incarcerated trans folks felt discriminated against by their own defense attorneys on the basis of their gender identity. It was also about 40% For gay men. And over 40% of that same group said the same that they felt discriminated against by their attorneys on the basis of race. So against having an intersectional approach. But if our clients don’t feel comfortable talking to us about the challenges that they faced in their life up until that point, the challenges that they’re facing while incarcerated, and if we’re not able to then use that to identify misconduct and biased arguments by the prosecution, we won’t be able to effectively create independent mitigating narratives, or counter narratives to the prosecution’s argument and aggravation, and—, and our clients are going to suffer because of it. So I just really suggest that all—, all defense folks seek out some education on this topic, you may already have a queer client and you don’t know about it, you may have a clear client and future, about half of my clients are queer. And I—, I don’t think that that’s because I happen to be getting, you know, disproportionate number of queer clients. These are, these are clients that simply felt comfortable talking about their identities and experiences. I’m happy to provide people with classes that exist, trainers that exists to come in and kind of aid in this area. And I am just so grateful to be able to be here today, to be able to talk about this important topic, and to you know, really give it the attention that it deserves. So thank you so much for having me. 

Anne Holsinger 28:53 

Thank you so much for joining us and for bringing some light to this under-discussed issue. 

Jessica Sutton 28:59 

I really appreciate it and happy pride.

Anne Holsinger 29:01 

Thank you so much. To learn more about the death penalty, our listeners can visit the DPIC website at deathpenaltyinfo.org.. And to make sure you never miss an episode of our podcast, you can subscribe to “Discussions with DPIC” on your podcast app of choice.