Bringing Back Federal Death Penalty Will Hit LGBTQ and People of Color the Hardest | Opinion

Attorney General William Barr's directive last week for the federal Bureau of Prisons to resume the use of the death penalty after almost two decades is another step backwards for our justice system under his tenure. This move is at odds with the 21 states and Washington, DC that have abolished the death penalty and the four states with gubernatorial moratoria. It is chilling to see the Department of Justice return to the "machinery of death" at a moment when public opposition to the death penalty is at an all-time high.

The discrimination that pervades the use of capital punishment conflicts with the goal of equality for all and much of my work seeks to correct errors and overturn unjust outcomes that result from personal and societal biases all too frequently not left outside the courtroom door. In April, I wrote about a gay man who was sentenced to die because jurors thought he would enjoy men's prison too much. As I wrote then, if our legal system allows anti-gay bias in jury deliberations, the integrity of our entire court system is undermined. Unfortunately, the Supreme Court denied review of this case.

If we want an impartial court to which we all have equal access, we should be very concerned that bias, prejudice, and politics could interfere with the fair administration of justice, especially when an individual's very life is at stake. Since 1973, over 160 people have been released from death row due to evidence of their wrongful convictions. The numbers of those who have been exonerated raise serious concerns regarding how many people are sentenced to death as a result of legal error as well as how many are executed who, in fact, are innocent. U.S. Supreme Court Justice Breyer has explicitly questioned whether the death penalty violates our Constitution's prohibition on cruel and unusual punishment because of its serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty's penological purpose.

A community survey by Lambda Legal, Protected and Served, found that discriminatory attitudes against LGBTQ people negatively affect their experiences in the civil and criminal courts as jurors, litigants, court employees, and other participants. For example, in a 2001 study of the California court system, more than a third of lesbian, gay, and bisexual court users "felt threatened in the court setting because of their sexual orientation." Of jurors who participated in mock trials between 2002 and 2008, a jury research firm found that 45 percent believed that being gay "is not an acceptable lifestyle." The LGBTQ community should oppose the death penalty because bias in the courts, including racism, gender bias, and homophobia affects who is sentenced to death.

The race of the victim and the race of the defendant in capital cases are major factors in determining who is sentenced to death in this country. Since 1977, the overwhelming majority of death row defendants (77 percent ) have been executed for killing white victims, although African-Americans make up about half of all homicide victims. While there is not as much data about the rates of discrimination based on gender and sexual orientation in capital cases, there have been a number of instances that document the overrepresentation of people at the intersections of race, gender, sexual orientation and gender identity among those facing capital punishment. For example, Wanda Jean Allen, an African American lesbian, was the first woman executed in the state of Oklahoma. Her sentencing was influenced by her gender expression, as the prosecution asserted that Allen "wore the pants in the family." The implication that Allen dominated her lover overwhelmed the evidence that both women had abused each other.

Capital punishment violates one of the most fundamental principles under widely accepted human rights law—that states must recognize the right to life. Over the past few decades, the use of the death penalty has been on the decline around the world, but this administration wants to resurrect what has already been abolished in 140 countries. The U.S. ranks fifth for the most executions in the world, behind only China, Iran, Iraq, and Saudi Arabia. Despite all this, the Trump Department of Justice does not seem too concerned as long as this President can claim to be tough on crime by wielding this irreversible misuse of government power.

Richard Saenz is a Senior Attorney and the Criminal Justice and Police Misconduct Strategist at Lambda Legal, the oldest and largest national legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those living with HIV.

The views expressed in this article are the author's own.