Sexual Minorities, Criminal Justice, and the Death Penalty

By Shortnacy, Michael B. | Fordham Urban Law Journal, March 2005 | Go to article overview
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Sexual Minorities, Criminal Justice, and the Death Penalty


Shortnacy, Michael B., Fordham Urban Law Journal


Of the myriad issues explored in panels and discussions over the past few days of this conference--from same-sex marriage to immigration and asylum--this particular panel explores a topic that should be of central importance to the lesbian, gay, bisexual, and transgender ("LGBT") community: the systemic bias against and hostility towards sexual minorities within the legal system. This bias, exhibited by key players in the legal system such as attorneys, judges, court personnel, and jurors, not only makes the courthouse a hostile environment for sexual minorities but it also undercuts major legal victories, such as Lawrence v. Texas, (1) which are only as powerful as the attorneys, judges, and jurors who actually apply law to fact. Moreover, the bias towards sexual minorities within the legal system, in its most serious form, can ultimately affect the outcome of criminal prosecutions and may even encourage the imposition of death sentences for sexual minorities found guilty of capital crimes.

I will begin my remarks today with a quote from Justice Anthony Kennedy, who I think beautifully illustrates the gravity and seriousness of discrimination occurring within the courthouse itself. He writes, "The injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself. Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds." (2) Of course, Justice Kennedy was referring to racial discrimination in selecting juries for civil trials, but his words are no less powerful and no less applicable to the bias confronting sexual minorities in the legal system.

The existence and effect of racial and sex bias in our legal institutions has been the subject of extensive study and debate over the years. Bias against sexual minorities, however, has gone almost completely unstudied and rarely discussed. The limited research that has been conducted on this form of bias, however, has yielded some startling findings. There have been at least two comprehensive state-wide studies conducted on the issue of bias against sexual minorities within the legal system, which are worthy of consideration. One study conducted by the Judicial Council of California (3) found that thirty-eight percent of gay and lesbian respondents reported feeling threatened by the courtroom setting because of their sexual orientation. (4) The California study also found that one out of five court employees heard derogatory terms, ridicule, snickering, or jokes about gays or lesbians in open court, with the comments being made most frequently by judges, lawyers, or court employees. (5) A second state-wide study, conducted by the State Bar of Arizona, (6) found that seventy-seven percent of judges and attorneys reported that they heard disparaging comments about gays and lesbians. (7) Forty-seven percent of those reporting hearing these disparaging comments also reported hearing them in open spaces of the courthouse. (8)

While this research is admittedly limited in comparison to the volumes of studies and commentary over the years on other forms of bias in the legal system, it nevertheless paints a grim picture of the level of hostility toward sexual monitories in the legal system. I believe that the results of these two studies are only the tip of the iceberg and that further study will only support these already upsetting findings. Indeed, the legal community, including bar associations, judicial councils and conferences, and perhaps most importantly law schools, should begin to recognize that bias against sexual minorities exists and they should devote sufficient resources to allow for comprehensive study of this problem and for the education of the bar and the public.

One effect of critical importance to the LGBT community of the bias against sexual minorities exhibited by key players in the legal system who apply the law to the particular facts of particular cases--attorneys, judges, and jurors--is that it actually undermines the hard-fought legal victories gained in recent landmark legal rulings, such as Lawrence.

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