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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Race and the Death Penalty in Texas

Texas death chamber
Texas death chamber
This month, the Supreme Court will consider whether to hear the appeal of Duane Buck, a black man from Texas who was sentenced to die for the 1995 murder of his ex-girlfriend and a man who was with her. There is no dispute about his guilt; the issue is how he ended up on death row.

Under Texas law, a person can be sentenced to death only if prosecutors can show that he or she poses a future danger to society. During the trial’s penalty phase, Mr. Buck’s defense lawyer called a psychologist who testified that race is one of the factors associated with future dangerousness. The prosecutor got the psychologist to affirm this on cross-examination, and the jury sentenced Mr. Buck to death.

In other words, Mr. Buck is scheduled to be executed at least in part because he is black. Nearly everyone who has had any involvement with Mr. Buck’s case agreed that making this link was wrong — including one of his prosecutors, Texas’ state courts, the federal district and appeals courts, and the Supreme Court itself.

In fact, the psychologist who testified in Mr. Buck’s case also said there was a link between race and dangerousness in five other cases with black or Latino defendants who were sentenced to death. All of those men received new sentencing hearings after Texas’ attorney general at the time, John Cornyn, who is now a United States senator, agreed in 2000 that they were entitled to proceedings free of racial discrimination.

Mr. Buck, however, got no such relief. That’s because it was his lawyer, not the prosecutor, who first elicited the psychologist’s view on the correlation between race and future dangerousness.

That’s an astonishingly flimsy rationale for allowing a state to kill someone. If, as Mr. Cornyn said in 2000, “it is inappropriate to allow race to be considered as a factor in our criminal justice system,” does it matter who brought it up first? It did to the Supreme Court, which declined to review Mr. Buck’s previous appeal in 2011, even though it called the testimony“bizarre and objectionable.”

Mr. Buck is now back before the justices, this time with a claim that his trial lawyer was ineffective. A federal district judge said Mr. Buck’s lawyer “recklessly exposed his client to the risks of racial prejudice,” but still found that his case was not “extraordinary” enough to reopen.

It’s hard to see how this case isn’t extraordinary. The risk of prejudice is particularly high in Harris County, Tex., where Mr. Buck was sentenced. In a seven-year period that included Mr. Buck’s trial, Harris County prosecutors were more than three times as likely to seek the death penalty against a black defendant as against a white one. Over the past dozen years, every new death sentence in the county has been imposed on a man of color.

Racism, of course, has been central to the American death penalty from the start. Forty years ago, the Supreme Court reversed its own brief moratorium and permitted executions to resume, provided that death sentences were not imposed in an “arbitrary or capricious manner.”

Four decades later, the evidence is clear: The death penalty in 2016 is as arbitrary as ever — whether because of racial discrimination, bad lawyering, geographical variations or other factors. There is no way for the justices to rationalize capital punishment — not in Mr. Buck’s case, or any other.

Source: The New York Times, The Editorial Board, April 2, 2016

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