Execution, When The Jury Feels Prison Might Be Fun

A persuasive argument not only makes the points in its favor, but acknowledges and addresses the points against it. ACLU lawyer Ría Tabacco Mar, who “represents L.G.B.T. people facing discrimination,” neglected to do the latter in her op-ed addressing the Supreme Court’s refusal to stop the execution of Charles Rhines.

On Monday, the Supreme Court announced it would not stop South Dakota from killing a man who may have been sentenced to death because he is gay.

Some of the jurors who imposed the death penalty on Charles Rhines, who was convicted of murder, have said they thought the alternative — a life sentence served in a men’s prison — was something he would enjoy as a gay man.

The first sentence is the sort that makes people bristle. Putting aside that the government shouldn’t be in the business of executing people at all, it comes off as disingenuous to contend that he was sentenced to death for being gay. They didn’t pluck some gay guy off the street and scream “kill the gay guy.” The second paragraph provides as much background as Mar is willing to offer, that he was convicted of murder. That’s a rather salient detail, and it was a gruesome murder.

The facts of Rhines are both grisly and bizarre. In 1992, Donnivan Schaeffer caught Rhines robbing the doughnut shop where he worked. Rhines promptly stabbed Schaeffer with a hunting knife, killing him; he later confessed to the crime.

Assuming, arguendo, that Rhines’ conviction wasn’t otherwise flawed, he might well be the sort of killer who ends up being executed. But the discussion inside the jury room wasn’t limited to the awfulness of what Rhines did to Schaeffer, but about the alternative.

That’s where deliberations went truly off the rails. The jury sent the trial judge a note posing several questions about the consequences of life without parole. Multiple questions seemed to indicate that jurors were concerned that Rhines, as a gay man, would enjoy himself too much in prison. Would Rhines, they wondered, be able to “mix with the general inmate population”? Could he “brag about his crime” to “young men”? Could he “marry or have conjugal visits”? Would he ever “have a cellmate”? After the judge responded that he could not answer these questions, the jury sentenced him to death.

This is the point where Mar picks up the argument, and takes the leap to Rhines being executed for being gay.

During deliberations, the jury had often discussed the fact that Mr. Rhines was gay and there was “a lot of disgust” about it, one juror recalled in an interview, according to the court petition. Another said that jurors knew he was gay and “thought that he shouldn’t be able to spend his life with men in prison.” A third recounted hearing that if the jury did not sentence Mr. Rhines to death, “if he’s gay, we’d be sending him where he wants to go.”

Even gay guys don’t “want to go” to prison, but when these bizarre assertions about Rhines based on his sexual orientation influenced, if not decided, the question of whether to put him to death, then the decision was made for the wrong reason.

And yet, the Supreme Court rejected the petition. Without dissent. Without opinion.

But its silence sent a deeply troubling message about the value placed on the lives of L.G.B.T. people.

This, too, is a disingenuous way to make the case, Granted, identity groups obsess over anything that impacts their identity groups, but a less myopic concern wouldn’t make this about the “value placed” on the lives of gay people but that the death penalty was imposed for a wholly improper reason, regardless of whether it was sexual orientation, race or blue eyes.

Indeed, the very fault of emotionalism that promotes making this a “gay” issue rather than a variety of alternative principled issues, is the same emotionalism that apparently compelled some members of the jury to condemn Rhines to death. Emotions flow both ways.

But why, then, didn’t the Supremes put a stop to this travesty? Not even the Notorious RBG or the Empathetic Sonia emitted a peep. Do they not value gay lives?

Juror deliberations are considered sacrosanct, but last year the Supreme Court carved out an important exception for cases of racial bias in the jury room. In a race discrimination case, there was evidence that the jury decided to convict an accused man of unlawful sexual contact and harassment because “he’s Mexican, and Mexican men take whatever they want,” in the words of one juror. The Supreme Court rightly found that such racial animus interfered with an accused’s person right to a fair and impartial trial.

The Supreme Court breached the “sanctity” of the jury room in Pena-Rodriguez v. Colorado, holding that a conviction obtained upon bias against the defendant’s race could not stand. Here, there were distinctions, but were they differences? Rhines’ bias went to sentence, not conviction. It was sexual orientation rather than race (noting in passing that Pena-Rodriquez called it race, while it was in fact nationality).

Even though Mar imputes reasons for the Court’s silence, it’s unclear why they rejected the case. What is clear is that the jury that decided on execution did so under the bizarre belief that life without parole might be fun for Rhines. That reflects a detriment suffered because of his sexual orientation that denied him equal protection. He may well have gotten the death penalty regardless, and may have (at least in some minds) deserved it, but not because prison would be too much fun because he was gay.

Sadly, the court will almost certainly be presented with more requests to review convictions or sentences poisoned by anti-L.G.B.T. bias. It should take the next opportunity to correct this mistake and recognize that prejudice against people who are L.G.B.T. should play no role in America’s criminal justice system.

Was Rhines being gay the problem, or was the jury’s imposition of the death penalty based upon improper and irrelevant assumptions the problem? The Supreme Court is presented with all issues of impropriety in the imposition of the death penalty, from severely retarded defendants to assumptions about Mexicans. Had Rhines been sentenced to death because the jury felt all Muslims are evil, would that have made this sentence more palatable to gay people?

Is the problem identity, such that each group gets to challenge the value placed on their lives, or is the problem with death juries’ inclination to impose execution for the wrong reasons? Is the problem with the death penalty itself?

9 thoughts on “Execution, When The Jury Feels Prison Might Be Fun

  1. Jim Majkowski

    FWIW, here’s part of what the SD S Ct wrote in 1995:

    In order to award the proper punishment we need a clear prospective [sic] of what “Life In Prison Without Parole” really means. We know what the Death Penalty Means, but we have no clue as to the reality of Life Without Parole.

    Other questions posed by the jury involved whether Rhines would be given work release, placed in a minimum security prison, allowed to create a group of followers or admirers, permitted to attend college, or allowed to “have or attain any of the common joys of life (ex TV, Radio, Music, Telephone or hobbies and other activities allowing him distraction from his punishment).” The jury also asked what the daily routine would be in prison. The jury closed with these remarks:

    We are sorry, Your Honor, if any of these questions are inappropriate but there seems to be a huge gulf between our two alternatives. On one hand there is Death and on the other hand what is Life in prison w/out parole.

    In this context, the jury’s questions about Rhines marrying, having a cell mate or conjugal visits, and having contact or discussions with other inmates do not reflect a bias against Rhines’ sexual preference. Instead, they reflect the jury’s legitimate efforts to weigh the appropriateness of life imprisonment versus the death penalty. We find no abuse of discretion by the trial court.

    Missing from Attorney Mar’s op-ed is any mention of why a case addressed by the SD S Ct in 1995 is disposed by SCOTUS in 2018.

  2. B. McLeod

    Curious that the jury even knew he was gay. I don’t see how evidence of his sexual preference would be relevant to either the crime or the sentence, or why either side would have been allowed to put that information of record.

    When it comes to trying to sort out what the justices were thinking, that is basically a magic rabbit hole at best. Maybe they have finally come to realize that when they remand these cases for impermissible discriminatory utterances, subsequent juries simply shift to doing it without talking about it.

      1. wilbur

        FWIW, the State’s response to the petition for cert strongly denies the jurors ever even said what is alleged, and that in fact the jurors unanimously state that sexual bias played no role whatsoever in the trial or sentencing verdicts. The State strongly imputes unethical and mendacious behavior to the appellate defenders. And that’s putting it nicely.

        At the trial, if the State had introduced the defendant’s homosexuality I think the petition for cert would have said so, loud and clear and in detail.

        But I’m speculating too.

          1. wilbur

            The State’s response is worth a quick look. If we they allege is true, the Appellant’s attorneys may end up with a problem themselves.

        1. Chris Halkides

          A reporter for the Marshall Project, Maurice Chammah, wrote, “But what really happened in the jury room? I reached out to three jurors — one quoted by the defense, one quoted by the prosecution, and one quoted by both sides — and the picture grew even muddier.” Slate’s Mark Stern reported that the prosecutors asked all but one of the jurors whether the defendant’s homosexuality was an issue for them, and also called witnesses at the trial who testified to that effect.

          1. SHG Post author

            Stern’s post (which is linked in my post) asserts that they had the goods:

            Later, several jurors issued sworn declarations confirming that deliberations were tainted by anti-gay bias. One juror stated that other jurors “knew that [Rhines] was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” Another remembered hearing a juror say that “if he’s gay we’d be sending him where he wants to go.” And a third juror said that there “was lots of discussion of homosexuality” and “a lot of disgust” over Rhines’ orientation.

            Is this false? Beats me, but it says what it says.

Comments are closed.