Where there’s evidence that racial bias affected a jury outcome, the Supreme Court now sends criminal cases back for reconsideration. As Chief Justice John Roberts wrote in one such case, the “law punishes people for what they do, not who they are.” But in a recent appeal based on evidence of anti-gay bias, the Supreme Court took a pass.
In 1993, a South Dakota jury convicted Charles Rhines of stabbing another man, Donnivan Schaeffer, to death during a robbery. They sentenced him to death for the crime only after asking the judge what life in prison would be like for Rhines.
Their handwritten note had a not-so-subtle motivation:
If they didn’t vote for the death penalty, what would his life in prison look like? Would he be “allowed to mix with the general inmate population”? Would he be able “to create a group of followers or admirers”? Would he have a cellmate?
Jurors also asked if Rhines would be able to “brag” to “young men” or have conjugal visits.
Because Rhines is gay, jurors reasoned, he’d probably enjoy prison. After the judge replied that he couldn’t answer their questions, the jury opted for death rather than life in prison.
“There was lots of discussion of homosexuality,” one juror recalled, according to affidavits later filed in court. “There were lots of folks who were like, ‘Ew, I can’t believe that.’” Another juror said they “knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” A third recalled overhearing a fellow juror say that life in prison would mean “sending him where he wants to go.”
In an affidavit, one juror even admitted that knowledge of Rhines’ sexual orientation swayed his decision.
South Dakota argued not that sexual orientation had nothing to do with Rhines’s sentence, but that there were plenty of other reasons to sentence him to death. Counsel also attempted to distinguish sexual orientation from race, ethnicity, and nationality.
“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.”
Multiple studies suggest a greater proclivity to convict defendants the jury knows to be gay; a dissertation based on thousands of interviews conducted by the Capital Jury Project asserts that sexual orientation is, where relevant, very much on jurors’ minds.
As Leonard Pitts, Jr., argues in the Miami Herald:
[E]ven the person who supports state executions should be unsettled by this non-ruling, should want the questions raised here definitively decided as soon as possible. Either the ideal of equal justice is a foundation of our system — or it is not.
The Supreme Court could, of course, change course in the future. Declining to hear this case sets no precedent, and it doesn’t mean that they won’t grant a similar case in the future. It does mean, however, that a man may die for who he is rather than what he did.