Was justice served?

The execution of a lesbian raises tough questions about the death penalty

On the evening of January 11, Wanda Jean Allen was led into the death chamber at the Oklahoma state penitentiary. She was strapped onto a gurney and made a few final remarks. "Father, forgive them, they know not what they do," she said. "That's it. Thank you." A chaplain read aloud from the Bible while Allen smiled at her attorneys and spiritual advisers and playfully stuck her tongue out at them. Moments later she was dead from a lethal injection.

Allen was a powerful symbol for death penalty foes everywhere. Poor and, according to her defense team, mentally retarded, Allen was the first woman ever executed in the state and the first African-American woman executed in the United States since 1954; her story had special resonance in the debate among gays and lesbians about the death penalty because Allen was lesbian. She was convicted of shooting to death Gloria Leathers, her lover, in front of a police station in Oklahoma City in 1988. Allen's fate has contributed to the movement among many gay activists to end capital punishment.

"Wanda Jean Allen was convicted of taking the life of her partner," says Kevin McGruder, executive director of Gay Men of African Descent. "If we as a society truly believe that taking a person's life is wrong, then we should not condone the state taking a person's life."

Activists maintain that Allen faced antigay rhetoric at her trial. They point to such statements as one by the prosecutor in which he said Allen was the one who "wore the pants" in the relationship with Leathers.

"Oklahoma is in the Bible Belt; it's very homophobic," says Tonya McClary, program director of the National Coalition to Abolish the Death Penalty. "Racist terms definitely come up in courtrooms and jury rooms, and so do homophobic terms."

The debate over the death penalty came to the fore after the 1998 murder of Matthew Shepard. Shepard's killers, Russell Henderson and Aaron McKinney, faced a death sentence. A group of gay organizations issued a statement condemning the death penalty in that case and all other cases on the grounds that it was antithetical to the values of the gay movement.

"An act of state-sanctioned violence in the form of the death penalty is no more or less violent than the barbaric acts of attackers," says Richard Haymes, executive director of the New York City Gay and Lesbian Anti-Violence Project.

Allen's case has raised a new set of issues, including the question of whether the judicial system is inherently fair to gay and lesbian defendants. Many activists and legal experts fear that gays, like other minorities, suffer bias in the American justice system.

"Courts are as imperfect as the people who occupy their jury rooms, counsel tables, and judicial benches," says Jon Davidson, senior counsel for Lambda Legal Defense and Education Fund. "Much of our litigation seeks to correct errors and overturn unjust outcomes that result from personal and societal biases, all too frequently not left outside the courtroom door."

Lambda was joined in its opposition to Allen's execution by the National Gay and Lesbian Task Force, the National Center for Lesbian Rights, the American Civil Liberties Union, Gay Men of African Descent, and the International Gay and Lesbian Human Rights Commission, among others.

There have been no definitive studies of gays on death row, though some cases suggest Allen wasn't alone in suffering antigay bias. "There appears to be a disproportionate number of lesbians and gay men on death row in the United States," says Lambda's Davidson. One 1997 study, titled "Gay Men, Lesbians, and the Law," concluded that approximately 40% of women on death row were identified as lesbians.

Death penalty opponents say discrimination often plays a role in capital cases. They cite a 1998 study that said African-American defendants were 3.9 times as likely to be sentenced to death as white defendants. Activists argue that gays and lesbians may face a similar bias in sentencing. McClary, like others who protested Allen's death sentence--including the Rev. Jesse Jackson, who was arrested outside the Oklahoma state penitentiary the night before her execution--says the prosecutor drove home the point that Allen and Leathers were a lesbian couple. (Allen, who had an IQ of 80, said she acted in self-defense.)

"The prosecutor was very meticulous in trying to solicit from his witnesses this stereotype about lesbians," says McClary. "He tried to solicit that Wanda was the man, that she dominated Gloria, that she ran the household. Homophobia definitely played a big part in her case."

Many of Allen's supporters believe she ended up on death row precisely because of her sexual orientation, even though she had a previous conviction for manslaughter. (In fact, Allen and Leathers met in prison.)

"If Wanda had been dating a man, would she be on death row? I don't think she would have," says McClary. "Even one of the judges who reviewed her case said, `I don't understand why this is a capital case. It's really more a crime of passion, more like manslaughter.'"

Another capital case involves Calvin Burdine, a gay man sentenced to die in Texas. Burdine was convicted of stabbing his lover to death with the help of a teenage accomplice. At his trial, Burdine's lawyer, Joe Cannon, was sleeping while the defendant was peppered with irrelevant questions about the sexual positions he preferred. At sentencing, the prosecutor argued for death, saying that life in prison "certainly isn't a very bad punishment for a homosexual."

Burdine's lawyer, who made antigay remarks and did not try to eject openly homophobic jurors, made no objections to the prosecutor's comments. Last year a federal court upheld the conviction because there was no proof that the attorney, who has since died, slept during important parts of the trial. Appeals were heard in the case on January 22.

It's precisely this kind of courtroom conduct that puts fear into the hearts of gay civil rights activists, who say bias extends well beyond capital cases. Michael Heflin, director of the lesbian, gay, bisexual, and transgender program of Amnesty International, says one study showed that jurors are more likely to convict someone who is gay or lesbian. "It's a legal tactic for some prosecutors to exploit a person's sexual orientation in the hopes of swaying a jury," he says.

Heflin believes all lesbians and gays should oppose the death penalty "given the amount of discrimination we still face." He'd like to see a nationwide study of antigay bias in the courtroom, especially in capital cases, adding that it might be time to mobilize gay groups around the issue. "Especially now, after the Matthew Shepard case and now Wanda Jean Allen, I think we have galvanized support for doing something to fight against these terrible injustices."

Kirby is a regular contributor to The New York Times.