Supreme Court Asked to Review Constitutionality of Death Sentence Grounded in Anti-Gay Stereotypes

A gay man on death row in South Dakota has asked the U.S. Supreme Court to review his case and to rule that it is uncon­sti­tu­tion­al for jurors to impose the death penal­ty based upon anti-gay ani­mus and stereo­types. Charles Rhines (pic­tured) argues that South Dakota’s courts improp­er­ly refused to con­sid­er evi­dence — includ­ing an affi­davit from one of his jurors that the jury ​“knew that he was a homo­sex­u­al and thought that he shouldn’t be able to spend his life with men in prison” — show­ing that jurors in his case improp­er­ly based their death ver­dict on his sexual orientation. 

In 2017, in Buck v. Davis, U.S. Supreme Court Chief Justice Roberts wrote that ​“Our law pun­ish­es peo­ple for what they do, not who they are.” The Court said that a death sen­tence based on race would be ​“a dis­turb­ing depar­ture from [that] basic premise of our crim­i­nal jus­tice sys­tem” and ruled that Buck’s lawyer had been inef­fec­tive for pre­sent­ing a wit­ness whose tes­ti­mo­ny led to a death ver­dict based on ​“a nox­ious strain of racial prej­u­dice.” The same year, 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 that the no-impeach­ment rule [under a state rule of evi­dence] give way in order to per­mit the tri­al court to con­sid­er the evi­dence of the juror’s state­ment and any result­ing denial of the jury trial guarantee.” 

Rhines’ peti­tion asks the Court to rule that states may not refuse to con­sid­er evi­dence of juror ani­mus based on sex­u­al ori­en­ta­tion and to declare that death sen­tences based upon prej­u­di­cial homo­pho­bic stereo­types are unconstitutional. 

An affi­davit sub­mit­ted by one of the jurors in Rhines’ case said that there had been ​“lots of dis­cus­sion of homo­sex­u­al­i­ty” dur­ing delib­er­a­tions and ​“a lot of dis­gust.” While they were delib­er­at­ing, jurors asked the court whether Rhines would be allowed to ​“mix with the gen­er­al inmate pop­u­la­tion,” ​“cre­ate a group of fol­low­ers or admir­ers,” ​“brag about his crime to oth­er inmates, espe­cial­ly new and[/]or young men,” ​“mar­ry or have con­ju­gal vis­its,” or ​“have a cell­mate.” According to an affi­davit, one juror advo­cat­ed against incar­cer­at­ing Rhines with oth­er men for life impris­on­ment with­out parole because it ​“would be send­ing him where he wants to go.” 

Quoting Buck, Rhines’ lawyers wrote, ​“To allow a juror to vote for a man’s death sen­tence on the basis of anti-gay ani­mus and stereo­types unques­tion­ably vio­lates the Sixth and Fourteenth Amendments, along with the foun­da­tion­al prin­ci­ple that ‘[o]ur law pun­ish­es peo­ple for what they do, not who they are. Dispensing pun­ish­ment on the basis of an immutable char­ac­ter­is­tic flat­ly con­tra­venes this guiding principle.’” 

South Dakota oppos­es Rhines’ request, argu­ing that the con­sti­tu­tion­al prin­ci­ples that pro­hib­it inquir­ing into jury sen­tenc­ing based on racial bias do not apply to ​“bias based on gen­der, alien­age, or sex­u­al ori­en­ta­tion. … No politi­cian has ever pro­posed con­struct­ing a wall to keep homo­sex­u­als out of the coun­try,” the state’s brief says. ​“No civ­il war has been fought over [sex­u­al ori­en­ta­tion]. No nation­wide pogrom has been per­pe­trat­ed for the enslave­ment or erad­i­ca­tion of homosexuals.” 

The Court has sched­uled a con­fer­ence for June 14 on whether to review Rhines’ case. [UPDATE: On June 18, 2018, the U.S. Supreme Court denied Rhines’s peti­tion for writ of cer­tio­rari, declin­ing to review his case.]