Anti-Gay Bias Has No Place in Our Juries
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Anti-Gay Bias Has No Place in Our Juries

The U.S. Supreme Court will soon consider whether to hear the case of Charles Rhines, who claims that the South Dakota jury that sentenced him to death harbored anti-gay bias. Such bias has no place in our criminal justice system because “our law punishes people for what they do, not who they are.” The Supreme Court recently reaffirmed this in Buck v. Davis, a case in which a jury may have imposed capital punishment based on a powerful racial stereotype “of black men as violence prone.”

Mr. Rhines was convicted of a heinous murder and was facing a sentence of either death or life in prison without parole. During jury deliberations, according to evidence submitted by Mr. Rhines’s attorneys, jurors expressed homophobic bias that impacted their decision. According to one juror, “[t]here was lots of discussion of [Mr. Rhines’] homosexuality . . . there was a lot of disgust . . . this is a farming community.” Another juror recalled that the jury “knew that [Mr. Rhines] was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” One juror commented that, “if he’s gay, we’d be sending him to where he wants to go” if the jury sentenced Mr. Rhines to a life term. The notion that Mr. Rhines, as a gay man, would enjoy spending the rest of his life in a men’s prison—rendering a life sentence not punishment enough—reflects a pernicious stereotype that gay men are hypersexual. This faulty yet powerful belief has long been used to unfairly justify discrimination in a variety of settings such as employment and housing.

Such biases and stereotypes should have had no bearing on the question the jury needed to decide. In 2016’s Peña-Rodriguez v. Colorado, the Supreme Court concluded that evidence that a juror relied on racial stereotypes or animus can invalidate a jury’s verdict. Mr. Rhines is asking the Court to similarly rule with respect to stereotypes about or animus toward gay people.

Prejudice against gay people in the justice system is a significant concern. In 2009, a researcher analyzed questionnaires from thousands of mock jurors and found that 45% of them believed that being gay “is not an acceptable lifestyle.” While certainly some jurors can set aside conscious biases, as they should be instructed by judges to do, others do not. Last year, for example, the Florida Supreme Court concluded in Patrick v. State that a defendant’s constitutional rights were violated when his attorney failed to challenge a juror who had said during voir dire that gay people are “morally depraved” and that his prejudice would affect his deliberations. The jury on which this juror sat sentenced the defendant—whose same-sex sexual behavior was raised at trial—to death.

Anti-gay prejudice in the justice system is not limited to jurors. Judicial councils, bar associations, and community organizations have found that ridicule, jokes, and other negative comments about gay people’s sexual orientation are common in court proceedings. A 2011 study indicated that “nonheterosexual adolescents, especially girls, suffer punishments by school and criminal-justice authorities that are disproportionate to their rates of transgressive behavior.”

Our own research shows that lesbian, gay, or bisexual (LGB) people are disproportionately incarcerated. In 2017, we analyzed federal data and found that LGB people were three times more likely than straight people to be held in prisons and jails. Another study found that nearly three-fifths of girls in juvenile detention facilities identify as lesbian, bisexual, or not completely straight. Both studies also found that LGB people receive more severe punishments, reflected in longer prison and jail terms, compared with straight inmates. LGB people were also more likely than their straight counterparts to be sexually victimized while in custody, and were more likely to be put in solitary confinement (sometimes, ostensibly, for their own safety).

In addition to the role that anti-gay prejudice, and possibly ignorance, may play in policing, prosecutions, trials, and sentencing, prejudice leads to many LGB people being rejected from their families, fired from their jobs, evicted from their homes, or unable to finish school – all of which can propel people toward poverty, mental health problems, and the criminal justice system.

For more than two decades, the Supreme Court has repeatedly recognized that our Constitution prohibits state-sanctioned bias against gay and lesbian people for their sexual orientation. Such bias is contrary to the equal dignity of all humans and, in the context of criminal trials, the guarantee that juries be impartial. The persistence of prejudice against sexual minorities in society should concern judges, lawyers, policy makers, and the public as it threatens the integrity and constitutionality of our jury system. We must do better to prevent conscious and unconscious biases of all types from playing any role in criminal proceedings, and one important step would be for the Supreme Court to extend its ruling in Peña-Rodriguez to anti-gay bias. Mr. Rhines should be punished for his crime, but not for being gay.

Adam P. Romero & Ilan H. Meyer are scholars at the UCLA School of Law’s Williams Institute,  a think tank dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy.

Suggested citation: Adam P. Romero & Ilan H. Meyer, Anti-Gay Bias Has No Place in Our Juries, JURIST – Professional Commentary, Apr. 2, 2019, https://www.jurist.org/commentary/2019/04/adam-romero-ilan-meyer-anti-gay-bias/


This article was prepared for publication by Matthew Borges, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org


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