In U.S. Courts, Anti-LGBTQ+ Bias Can Be a Death Sentence

“A normal heterosexual person would not be so offended […] as to murder,” a prosecutor argued in a capital case in the late 1990s in rural Illinois. 

“I hope you die in prison like all the rest of your f*ggot friends,” an Arizona state court judge wrote to his terminally ill son and later sentenced a gay man to death over a murder he didn’t commit.

“We also knew that [he] was a homosexual and thought that he shouldn’t be able to spend his life with men in prison,” one juror wrote after sentencing a gay South Dakota man to death.

Decades of evidence demonstrate that the U.S. disproportionately wields the death penalty against the most marginalized—particularly people who are poor, have mental or intellectual disabilities, and aren’t white. But LGBTQ+ capital defendants have, and continue to, face unique and complex discrimination in the American capital punishment system.

And no part of the American death penalty regime has been free of this anti-LGBTQ+ bias: Judges have hidden virulent homophobia when presiding over cases; prosecutors have masculinized queer women and pathologized queer men to play into jurors’ biases; jurors have leaned into that bias when sentencing people to death; and defense attorneys have thrown in the flag when defending their queer clients. 

According to an analysis by The Appeal of more than two dozen criminal court cases in which LGBTQ+ defendants faced the death penalty, anti-LGBTQ+ bias impacted more than half of those cases in some capacity. The Appeal collected cases through media reports, academic journals, and legal documents. But that number may still represent just a fraction of LGBTQ+ people sentenced to death due to the many reasons people may not disclose being queer, particularly in criminal legal proceedings.

Among the more than two dozen cases, half of the defendants were eventually executed. Only a few remain alive, though still behind bars. This analysis is based on more than 1,000 pages of legal documents and academic research dating to the mid-1900s, as well as interviews with attorneys, legal experts, and advocacy groups. 

The cases span decades and coasts—from early 1960s Oregon, to mid-90s North Carolina, to Ohio just five years ago. These capital cases illustrate the ingrained anti-LGBTQ+ bias endemic to the U.S. legal system—from sodomy laws that punished same-sex activity to those that now criminalize gender-affirming care for trans people.

Joan W. Howarth, Dean Emerita of the Michigan State University College of Law,  said contemporary anti-LGBTQ+ legislation continues the nation’s long history of discrimination against queer people. “It really is repetitions of some of the vile panic about sexuality,” Howarth said. “It echoes today. Not echoes—drumbeats loud noises today. There’s nothing soft or background about it.”

Besides the glaring anti-LGBTQ+ bias they exhibit, these capital cases also demonstrate the ways the legal system often bends over backward to avoid scrutiny or accountability. In most cases detailed here, exhaustive appeals, judicial review, and even the U.S. Supreme Court couldn’t—or wouldn’t—challenge the overt bias that tainted these proceedings, in many cases leading to executions that legal experts say wouldn’t have otherwise happened. 

In essence, experts told The Appeal, the system would rather send people to death than face its shortcomings.

In the universe of legal cases impacted by anti-LGBTQ+ bias, there are few more notorious than Calvin Burdine’s.

Though Burdine is most commonly known as the defendant in Texas’s “sleeping lawyer” case—which almost made it to the U.S. Supreme Court because his lawyer slept through parts of his trial—Burdine’s case is also one of the most overt examples of how homophobia can impact a criminal case.

At the time of his trial in 1984, Burdine was in his early 30s and stood accused of robbing and killing his former roommate and sexual partner. Burdine committed the robbery alongside another person named Douglas McCreight, and, according to the American Civil Liberties Union, “there was evidence that McCreight was the ‘principal actor’ in the killing, but he agreed to a plea bargain and was paroled after serving eight years.”

But Burdine’s court-appointed attorney himself used anti-gay slurs and, while sleeping, let prosecutor Ned Morris make homophobic comments about Burdine unchallenged.

In particular, when urging jurors to sentence Burdine to death over life in prison, Morris argued that “sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual”—suggesting that a prison full of men would be a paradise instead. 

Burdine was eventually sentenced to death. At one point, he reportedly even came just an hour from being executed. But he was spared from execution in 2002—nearly 20 years after his original conviction—when the U.S. Supreme Court refused to examine a ruling granting him a new trial. 

In 2003, Burdine reached a plea deal with prosecutors that kept him off death row. In exchange for pleading guilty to aggravated assault with a deadly weapon, felony possession of a weapon, and capital murder, Burdine received consecutive life sentences. According to state corrections department records, Burdine is serving his time in a rural Texas prison and was denied parole in March, though he will be eligible again in 2027.

As extreme as Burdine’s case may be, it bears a resemblance to the homophobia that played a role in the 1993 death sentence—and eventual execution in 2019—of Charles Rhines, a gay man in South Dakota.

When jurors deliberated over how to sentence Rhines for fatally stabbing Donnivan Schaeffer during a doughnut shop robbery, they were concerned with whether Rhines would be able to mix with the general population or have a cellmate.

Court documents state that jurors recalled “a lot of disgust” at Rhines’ sexuality and made comments that, because he was gay, prison would be enjoyable. Jurors eventually sentenced Rhines to death. Activists then waged a yearslong legal fight to have Rhines’s sentence overturned.

Robin Maher, executive director of the Death Penalty Information Center, helped represent Rhines with a team of lawyers as an assistant federal public defender and called his case “miserable.”

“Miserable because he clearly never got a fair trial, and we could not get back into court with that evidence,” Maher told The Appeal. “The courts were not letting us back in to present that.” 

Rhines’ case garnered attention from LGBTQ+ rights groups, including Lambda Legal, the ACLU, the National Center for Lesbian Rights, and the National LGBTQ+ Bar Association. 

Lambda Legal’s Ethan Rice sent an amicus brief supporting Rhines’s case and urging the court to apply a 2017 ruling—that trial courts are allowed under the Sixth Amendment to investigate claims of juror’s racial bias—to LGBTQ+ people as well.

“There’s a thought it seems that throughout other cases that they would even want to be in prison because then they just have men around them,” Rice told The Appeal. “That did surprise me initially— even in the nineties in South Dakota—that during jury deliberations, they were discussing whether he wants to be in prison.”

Despite the public outcry, the Supreme Court declined to hear Rhines’s case. That ruling leaves unanswered questions of the legal system’s ability to break the veil of the jury box to investigate claims of anti-LGBTQ+ bias—and calls into question the legal system’s willingness to weed out such bias in the first place.  After years of legal battles and international outrage, Rhines was eventually executed in November 2019 by lethal injection.

Defense attorneys of queer clients have to contend with a double-edged sword, particularly in death penalty cases, according to Maher of the Death Penalty Information Center. Humanizing a client is critical, but it can be a gamble as to whether bringing up a queer client’s relationships (and thereby their sexuality) will soften or demonize them in the eyes of the jury. 

“Most of the effort on behalf of defense attorneys is to humanize the client and to give them the humanizing qualities that the jury can identify with, empathize with, and ultimately find mercy for,” Maher said. “And that requires the defense attorney to understand it in a way that they can talk about it to the jury, so the jury will be able to see that person as a human being that is deserving of their mercy.”

In conversations with The Appeal, legal experts and activists said that merely mentioning queerness has been enough to seal defendants’ fates. 

Before a jury was selected in the state of Oklahoma’s 1985 case against Jay Wesley Neill for robbery and murder, his sexuality was at the top of everyone’s mind, according to research by Michigan State’s Howarth.

Neill was on trial after he and his lover, Robert Grady Johnson, robbed a bank and killed four people in what became known as the Geronimo bank murders. Just days after the fatal robbery, the FBI arrested the pair in San Francisco, where they fled to spend the roughly $17,000 they stole from the bank.

According to Howarth, when questioning potential jurors in the case, Neill’s defense attorney repeatedly asked their views on homosexuality. Several jurors who were eventually selected mentioned personal or religious objections. The prosecutor tasked with securing Neill’s execution also told the jury that the defendant and Johnson were “homosexual lovers” during opening statements. At sentencing, the prosecutor added that “he is a homosexual. The person you’re sitting in judgment on—disregard Jay Neill. You’re deciding life or death on a person that’s a vowed [sic] homosexual…”

Howarth detailed this and other anti-gay aspects of Neill’s case in a 2008 article in the Tulane Journal of Law and Sexuality, the official legal journal of the National LGBTQ+ Bar Association. 

“It was like that was what stood out in everyone’s mind,” Howarth said. “And there was a weird way in which it almost overtook the gruesomeness of the murder.”

Neill launched lengthy appeals that eventually stopped at the Tenth Circuit, where a panel of judges ruled that the prosecutor’s comments were improper but not prejudicial. 

But not every judge was so dismissive. In a fierce dissent (and rare challenge to a prosecutor’s anti-LGBTQ+ comments), Judge Carlos F. Lucero called the statements  “blatant homophobic hatemongering [that] has no place in the courtrooms of a civilized society.” But that argument failed to sway the panel, which upheld Neill’s conviction. Neill was executed in 2002.

Legal experts said Neill’s case is neither surprising nor unique. His case echoes that of two other men, Stanley Lingar and Eddie Hartman, who were also both executed after prosecutors referenced their homosexuality at trial.

Lingar was executed in February 2001 for abducting and killing 16-year-old Thomas Scott Allen in the mid-1980s. During the trial’s penalty phase, a prosecutor mentioned Lingar’s homosexuality, a move that his attorneys and legal advocates have argued was prejudicial and played into rural Missouri jurors’ homophobia.

Like others before him, Lingar appealed his convictions and argued that mentioning his homosexuality violated his Eighth and Fourteenth Amendment rights. But the Eight Circuit Court of Appeals in  May 1999 ruled that the comments were “harmless” and upheld his death sentence.

Separately, Hartman in 1994 was given the death penalty in North Carolina for murdering his 77-year-old roommate—after prosecutors also mentioned his homosexuality during the sentencing phase of his trial. He appealed his conviction unsuccessfully. 

LGBTQ+ rights and other social justice groups rallied around Hartman, but he was executed in 2003.

While the lion’s share of responsibility in these cases lies with defense and prosecuting attorneys, judges aren’t immune to infecting cases with their own biases. But holding them accountable is far more challenging. 

Judges are paradoxically the most powerful people in courtrooms but typically subject to the least oversight. The U.S. legal system often gives judges leeway to issue rulings or punish people how they see fit, leaving room for bias to creep in.

Lamba Legal’s Richard Saenz previously told The Appeal that judicial bias can impact the trust LGBTQ+ people place in the legal system. However, the circumstances become particularly dire in capital punishment cases.

When Gregory Dickens stood before Judge Tom C. Cole in Yuma, Arizona, in 1993 for the murders of Bryan and Lauren Bernstein, neither Dickens nor his attorneys knew that the judge for years had physically and emotionally abused his son, Scott Cole, for being gay—even as Scott was dying of an AIDS-related illness behind bars. 

In Dickens’ case, the trail of evidence is stark: Cole sentenced Dickens to death even though another person—a then 16-year-old named Travis Amaral, whom Dickens claimed to be in an intimate relationship with—shot the Bernsteins the previous year.

Affidavits from Scott’s public defender, a former boyfriend, and a cellmate detail the sometimes violent hatred Cole had for his son’s sexuality, including repeatedly beating him.

Richard Stewart, Scott Cole’s former cellmate, said in a 2000 affidavit that “Judge Cole would lash out at Scott and write belligerent, vulgar and degrading things to Scott about his homosexuality.”

Stewart said that in one such letter, Cole told his son, “I hope you die in prison like all the rest of your f—got friends.”

In another affidavit, Scott’s then-boyfriend said he routinely observed bruises on his face after seeing his father.

Dickens’ attorneys only discovered the depths of Cole’s hatred after their client was sentenced to death. 

For their part, Dickens’ attorneys urged a court to review whether a judge other than Cole should have overseen the post-conviction proceedings. But a fellow state court judge summarily rejected arguments that Cole’s abusive homophobia toward his son had any bearing on Dickens’ case. 

“Dickens offers no evidence that begins to suggest, much less constitute a colorable claim, that the judge in this case was biased against him,” Superior Court Judge Michael Cruikshank

wrote in the decision. “The affidavits submitted suggest, at most, that the judge may have had a difficult relationship with his son.”

After the case returned to Cole, he rejected Dickens’s post-conviction efforts. Legal experts and Dickens’ attorneys say it strains credulity that this extreme bias wouldn’t impact Cole’s cases. 

Experts have said Dickens’ case also exemplifies how judges insulate one another from scrutiny. Judges and their colleagues are often tasked with weighing allegations of judicial bias. But, as Dickens’ case illustrates, judges are frequently averse or unwilling to hold their colleagues accountable—even in cases like Dickens’, where bias seemed obvious. 

“Judges are supposed to be leaders of the community, people we look up to as being fair,” Lamba Legal’s Saenz said. “And when the message coming from some of them is, ‘you’re not going to be respected or I’m refusing to respect you,’ that is a very dangerous thing to have out there.”

In January 2014, a federal appeals court granted Dickens a new hearing over whether he could raise claims of  ineffective counsel.

On that same day, Judge Cole died in his home. Just four days later, Dickens died by suicide inside his single-occupancy cell at the Eyman prison complex in Florence, Arizona.

Robin Konrad, one of Dickens’s last public defenders, previously said that he “would still be alive today if it weren’t for Judge Cole.”

While judges, jurors, and prosecutors have largely used stereotypes of queer men as insatiable sexual deviants to sentence them to death, queer women have faced capital punishment for a different reason.

Hugh Ryan, queer historian and author of The Women’s House of Detention: A Queer History of a Forgotten Prison, told The Appeal that while queer men have historically been punished for their sexual acts, queer women have been penalized for violating gender norms—whether through dress, romantic relationships, or acts of violence. 

“When we get into the 19th century, and we start to see these laws appearing that criminalize homosexuality, they focus on men,” Ryan said in an interview. “But what we’re actually seeing is that women had been already criminalized much more extensively for their queerness than men had been, just earlier, without using that language. 

In particular, prosecutors have long depicted queer women as masculine, violent, and aggressive to secure death sentences. Witnesses have played a critical role, too.

In 1961, Jeannace June Freeman, a butch lesbian, became the first woman sentenced to death in Oregon. Freeman and her partner, Gertrude Jackson, killed Jackson’s two children and left their bodies in a river.

Lauren Jae Gutterman, an associate professor of American studies at the University of Texas at Austin, has researched Freeman’s case and the unique social movement that coalesced around her decades after her conviction. According to Gutterman, though homosexuality had been a topic of discussion in Freeman’s case even before the trial, queerness took center stage when Jackson pleaded guilty and agreed to testify against Freeman.

“With Jackson’s help, the prosecution portrayed Freeman as almost inhuman: a monster incapable of empathy, obsessed with sex and with dominating others,” Gutterman wrote. “In her testimony before the court, Jackson insisted that Freeman was the ‘boss’ in their relationship, ‘the man of us,’ as she put it.”

Nearly a year after Freeman was eventually sentenced to death, the Oregonian published a news article about her impending execution, which was far more sympathetic than the pieces published during her trial. The article, which described her as pitiful, haunted, and despondent, helped launch an abolitionist campaign in her favor. The less Freeman was portrayed as an angry, masculine lesbian, the more sympathy she earned from the public. 

The movement culminated in Oregon voters voting to repeal the death penalty in 1964. According to news reports, Governor Mark Hatfield commuted her sentence to life in prison that same year. She died in 2003.

For queer women of color, these stereotypes of being masculine and aggressive can intersect with similar racist tropes about nonwhite people. And few cases illuminate this dangerous cocktail of bias more clearly than that of Wanda Jean Allen.

Allen, a Black woman, was sentenced to death in Oklahoma in 1989 after she shot and killed Gloria Jean Leathers, her girlfriend, at a police station. Leathers had previously slashed Allen with a rake that morning. 

“According to Allen, when she arrived at the police station, Leathers approached her with the rake in hand, prompting Allen to shoot to protect herself,” Joey Mogul and co-authors wrote in the book “Queer (In)Justice,” which examines how LGBTQ+ people are criminalized in America. “Allen claimed that she feared Leathers, who had also previously killed a woman in Tulsa, Oklahoma.”

At trial, prosecutors argued that Allen “wore the pants in the family” and was the “man” in her relationship with Leathers, whom prosecutors also painted as passive and submissive. This racist, homophobic depiction was successful, and the state gave Allen a death sentence. After her conviction, advocates also argued that Allen suffered from brain damage and was unfit for execution.

Rice, of Lambda Legal, says Allen encapsulates those whom the death penalty impacts the most: people who are disabled, queer, and nonwhite. In January 2001, Lamba demanded Oklahoma’s then-Governor Frank Keating block Allen’s execution.

According to “Queer (In)justice,” activists eventually launched a national campaign to free Allen, including a march opposing her killing. But she was still executed in 2001—the first Black woman put to death in nearly 50 years.

While anti-LGBTQ+ bias by judges, juries, prosecutors, and witnesses have affected death penalty cases for decades, the issue hasn’t disappeared. 

Among the already invisibilized group of queer capital defendants, transgender people are demonized even further. According to experts from the Cornell Center on the Death Penalty Worldwide, the number of trans people on death row in the U.S. can be counted on one hand. But, few as they may be, trans people are overrepresented on death row when compared to their percentage of the general population.

As social progress allows more people to publicly identify as transgender, the increased visibility also opens new opportunities for anti-trans bias to taint capital cases. 

Victoria Drain, a trans woman sentenced to death in 2020, argued in 2021 before the Ohio Supreme Court that the ineffective counsel she received at trial was in part because of her public defender’s dismissive approach to her gender identity. In a brief to the court, Drain’s new attorneys argued that the public defender had refused to use her proper name or pronouns. Additionally, her lawyer failed to push back against similar misgendering by state prosecutors. 

The court rejected Drain’s arguments and reinstated her death sentence in October 2022. Citing a report from a psychologist who evaluated Drain, the Ohio Supreme Court found that Drain had overlooked that she asked her defense to use “masculine pronouns and naming conventions” and rejected her claims that her previous attorneys had misgendered her. 

At Drain’s request, her execution date has been set to 2028, which would make her the second openly trans woman sentenced to death in America.

As different as these cases may seem, they all illuminate a fundamental flaw—or feature—of the U.S. death penalty system. 

“It shows we don’t have enough safeguards to ensure that everyone actually has an opportunity to have a fair trial,” Rice said.

And as Mogul and co-authors wrote in Queer (In) Justice, the more marginalized a defendant is, the easier it is for prosecutors to convince jurors and judges to sentence them to death. For queer Americans, the specter is all too real.

“The process of dehumanization required to obtain a death sentence is easier when the defendant is of a different race, class, sexual orientation, and/or gender identity than the jurors or judge,” Queer (In)Justice states, adding that “the prosecutor’s task is also greatly facilitated when the accused belongs to a class of people stigmatized as abnormal, violent, sexually degenerate and pathological.” 

For this reason, many LGBTQ+ legal advocates, including Lambda Legal, the ACLU’s LGBTQ Rights Project, and the National Center for Lesbian Rights, have for decades called for the abolition of the death penalty. In the face of overwhelming evidence that anti-LGBTQ+ prejudice continues to impact capital cases, Rice doesn’t mince words. 

“In every case of an LGBTQ + person,” she said, “there is such a high risk of getting it wrong that there’s no way to support the death penalty.”