At the core of every capital sentencing proceeding is a guarantee that before condemning a person to die, the sentencer must consider the humanity and dignity of the individual facing the ultimate sanction. This principle—that “death is . . . different” and, therefore, requires consideration of the “diverse frailties of humankind”—echoes throughout the United States Supreme Court’s Eighth Amendment jurisprudence. And yet courts are reluctant to remedy the devastating impact of prosecutorial arguments that dehumanize marginalized persons facing the death penalty, condemning these arguments while nevertheless “affirm[ing] resulting convictions based on procedural doctrines such as harmless error.”
These dehumanizing prosecutorial narratives are particularly problematic—and effective—when used against LGBTQ+ people, whose very identities have been criminalized, pathologized, and used as justification for condemning them to death. Dehumanizing stereotypes not only reinforce and leverage social biases as factors in aggravation, but also creates artificial barriers to connecting with the person charged, “othering” LGBTQ+ defendants in such a way as to minimize the impact of mitigating evidence.
This Article explores the use of dehumanizing prosecutorial narratives that target LGBTQ+ people in the pursuit of state-sponsored execution and argues that such narratives violate the Constitution’s protection of the dignity of persons facing the loss of life or liberty. Part I examines the history of dehumanization and criminalization of LGBTQ+ people, particularly those with multiple marginalized identities. Part II sets forth examples of the most common death-seeking portrayals of LGBTQ+ defendants, including the Woman-Hating Gay Predator, the “Hardcore” Man-Hating Lesbian, and the Gender-Bending Deviant. Part III analyzes how these dehumanizing stereotypes further disadvantage LGBTQ+ defendants by undermining mitigating evidence. Finally, Part IV, drawing inspiration from the work of Pauli Murray, proposes a reframing of the constitutional doctrines limiting prosecutorial arguments in support of a death sentence, proposing that a focus on the dignity of the individual and the dignitary harm to the individual should be at the center of the inquiry.