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LGBT defendants face bias in death penalty cases, but you wouldn't know it from the data available

The capital punishment trial of Calvin Burdine in Texas is famous.

Burdine’s lawyer fell asleep multiple times during the October 2000 murder trial, prompting a retrial.

But the fact that the lawyer made derogatory comments about his client, a gay man, did not garner as much attention. And the prosecutor’s statement that “sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual” was not the cause for the retrial.

While there is an abundance of data on racial, gender and geographic bias influencing death penalty convictions, data are not collected on bias against LGBT defendants — but case studies across the nation show that discrimination exists.    


Robert Dunham, executive director of the death penalty information center, said the kind of argument used against Calvin Burdine is not uncommon in death penalty cases involving LGBT defendants. 

“To convince the jury or judge that they should take the life of a defendant, they attempt to demonize the defendant,” Dunham said. “They do it to make the defendant ‘other’ than human.”

Dunham said prosecutors often label LGBT defendants as sexually or morally deviant or bring up their sexual orientation when it is not relevant to the case.

Ruthann Robson, a law professor at the City University of New York and expert on sexuality issues and the law, said female defendants sometimes face implications of lesbianism regardless of how they identify.

“One way to dehumanize women, or at least defeminize them, is through their sexual orientation,” Robinson said. “…Lesbians are portrayed as hating men.”

Orange County District Attorney Jim Woodall said an argument attempting to dehumanize a defendant would be considered improper in North Carolina.

“That’s the kind of argument that would get a case overturned,” he said.

A jury of peers?

In addition to discrimination in prosecutor’s arguments, jury selection in capital punishment cases can also work against LGBT defendants, Dunham said.

“The death qualifying process tends to impanel who are more xenophobic,” said Dunham, citing a 2007 study from the University of South Florida. “That includes jurors who harbor feelings of discrimination against the LGBT community.” 

Mayor Mark Kleinschmidt, who is also a death penalty defense lawyer, stressed that not everyone who supports the death penalty is racist or homophobic.

“What is certainly true is that anyone who makes it to a death penalty jury believes in the death penalty,” Kleinschmidt said. “As the number of people who believe in the death penalty gets smaller and smaller over time, they become the only people who are eligible to serve on these trials.”

According to an October 2015 Gallup poll, 61 percent of Americans favored the death penalty for those convicted of murder — a percentage that has been slowly falling since support for the death penalty peaked in 1994 with 80 percent of Americans in favor.

“You start narrowing the pool, and I think it becomes more likely that you are identifying people who may hold other kinds of abhorrent beliefs,” Kleinschmidt said.

It is unlawful for lawyers to ask jurors about their sexual orientation, which some argue might make it more difficult to find a jury of peers for LGBT defendants.

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Kleinschmidt said a possible line of questioning would be to ask jurors if they know a gay person and about their relationship to that person. He said he also asks jurors in what kinds of cases the death penalty should be imposed.

“Often times you can hear in those explanations hints about other kinds of bias,” Kleinschmidt said. “…I always ask them why they think the way they do.”

In North Carolina, district attorneys can call for the death penalty if one or more aggravating factors are present in the case, according to Woodall. Aggravating factors include if the murder was especially cruel, if the murder was committed for financial gain and if the murder was committed during the commission of another felony, such as robbery or drug dealing. There are 11 aggravating factors recognized by the state.

“Once you find an aggravating circumstance, jurors have virtually unlimited discretion as to whether to spare a defendant's life or sentence him or her to die,” Dunham said.

In many places, views of homosexuality and LGBT rights have progressed in the last decade. According to a 2014 Pew Research survey, 62 percent of Americans said homosexuality should be accepted by society, compared to 46 percent in 1994.

And Robinson argues that even if society has progressed, these biases were certainly true at the time of many LGBT inmates’ convictions.

“And they’re still in prison.”

Data on discrimination

Dunham and other death penalty experts emphasize that there is no thorough data on discrimination against LGBT individuals facing the death penalty. The sexual orientations of defendants and victims are not tracked. Robinson’s research is all based on individual case studies.

UNC professor Frank Baumgartner, a death penalty expert, said in an email that there are data on the race, gender, age and other factors about those who are executed.

Baumgartner’s research has shown that the race and gender of the defendant and victim both play a part in death penalty sentences. For example, between 1976 and 2008 in North Carolina, 42 percent of all homicide victims were black males. But black males accounted for only 4 percent of the victims of those executed, while 43 percent of the victims of those executed were white females.

It is also rare to find women on death row. Baumgartner said in an email that nationwide, females account for about 10 percent of homicide offenders, yet just 1 percent of those executed.

“They tend to be executed for crimes against family members, whereas men are more often executed for crimes against strangers,” Baumgartner said in an email.

According to the Death Penalty Information Center, there have been 43 executions in North Carolina since 1976. The last execution was carried out in 2006. Currently, there are 157 inmates on death row in North Carolina, including four women.

Kleinschmidt said extreme circumstances such as a murder trial can bring out implicit biases, such as racism, sexism and homophobia.

“We’re not any closer to ridding the criminal justice system of anti-gay bias than we are ridding the criminal justice system of racial bias,” he said.