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

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…

What You Need to Know if the Supreme Court Takes the Case of Duane Buck

Duane Buck
Duane Buck
Was he sentenced to death "because he is black"?

The U.S. Supreme Court will soon consider whether to hear the Texas case of Duane Buck, who was sentenced to die in 1997 for shooting his ex-girlfriend Debra Gardner and her friend Kenneth Butler while Gardner's daughter pleaded, "Don't kill my mama." His small army of advocates don't dispute his guilt but argue he is facing the harshest possible punishment primarily "because he is black."

At his trial, Walter Quijano, a psychologist called by the defense, told jurors that Buck was more likely to commit a violent crime again because of his race. (Death sentences in Texas require that a defendant be judged a "continuing threat to society.") Quijano later told The Texas Tribune he was describing a statistical relationship, and not a causal connection between race and violence, but Buck's lawyers say his comments tainted the jury's decision.

Since then, Buck's attorneys at the NAACP Legal Defense Fund have turned his case into a symbol for the argument that the administration of the death penalty is rife with racial bias, part of the legacy of lynching and the ultimate manifestation of the racism that permeates the wider criminal justice system. Many capital defense attorneys see their work as an heir to the civil rights movement and a precursor to Black Lives Matter. "It is impossible to take race out of the death penalty because that's what it's for," defense attorney Danalynn Recer said at an American Bar Association conference in Austin, Texas, last month. "We spare the people that we identify with."

Later at the same conference, Stephen Bright, who has argued at the Supreme Court against efforts to keep blacks off death penalty juries, said the court "talks a good game but does nothing."

Buck's new appeal to the Supreme Court has been accompanied by a drumbeat of news releases, op-ed articles, and blog posts (even MTV noticed). His lawyers are asking the justices to decide whether his original trial lawyer was "constitutionally ineffective" for putting Quijano on the stand, framing this specific concern with the question of "whether and to what extent the criminal justice system tolerates racial bias and discrimination." (The justices halted Buck's execution in September 2011, but then decided not to hear arguments on his case, though Justice Sonia Sotomayor called his death sentence "marred by racial overtones.")

Regardless of what happens to Buck, these questions of race and the death penalty will remain unsettled. So now is a moment to look back at the reasons why, and the long line of cases his has joined.

Many historians (including David Oshinsky last week in the Wall Street Journal) see the contemporary death penalty as the latest stage in a history that stretches back to lynchings, pointing out that most executions continue to take place in the states of the former Confederacy. "We've used the death penalty to sustain racial hierarchy by making it primarily a tool to reinforce the victimization of white people," the lawyer Bryan Stevenson told The Marshall Project last year. Rachel Aviv's New Yorker story on the Louisiana case of Rodricus Crawford made prominent mention of the Confederate flag waving outside the courthouse during his trial.

But how can lawyers prove that their black clients are being subjected to racism? The difficulties center around the 1987 Supreme Court decision McCleskey v. Kemp. Warren McCleskey had been sentenced to death for murdering a police officer in Georgia, but the NAACP Legal Defense Fund argued that his sentence was part of a pattern of bias. They presented a study by law professor David Baldus finding that black murderers were 1.1 times more likely to get a death sentence than white murderers, controlling for dozens of other variables, and that killing a white victim made a defendant of any race 4.3 times more likely to be dealt a death sentence.

The court saw a slippery slope. "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system," wrote Justice Lewis Powell in a 5-4 decision rejecting McCleskey's claims. NAACP attorney Anthony Amsterdam famously called McCleskey's loss "the Dred Scott decision of our time."

The case led some justices to shift their overall views of the death penalty, but it closed off statistical arguments on racial issues. Still, scholars have continued to collect such data in such disparate contexts as Washington, North Carolina, and in the U.S. Military. As with Baldus, they have found that cases involving white victims are more likely to lead to a death sentence (a high-profile exception is Dylann Roof, a white man facing death for killing a group of black church members in South Carolina.) Duane Buck's lawyers also commissioned a study, which found that from 1992 to 1999 prosecutors in Harris County sought the death penalty for African-Americans more than 3 times as often as for whites who committed similar crimes. The county, which encompasses greater Houston, has not sentenced a white person to death since 2004.

But with little traction in the courts for such arguments, defense lawyers have tried instead to show, as they are doing now in the Buck case, that individual actors in death penalty trials introduced racism into the proceedings, making the sentence fundamentally unfair.

The Buck case concerns an expert witness; many others concern prosecutors. The best known is perhaps "Death Penalty Donnie," the prosecutor who compared a defendant to King Kong (that got the sentence overturned). But such overt statements are relatively rare; much of the debate often centers on what prosecutors do, rather than what they say. The Supreme Court is currently considering the case Foster v. Chatman, which turns on whether a defendant was unfairly sentenced to death because blacks were kept off his jury. 

Some cases have involved overt racist statements by jurors, like Victor Walther, a juror who voted to execute Gary Sterling and in a later affidavit continually used the word "nigger" (Sterling was executed in 2005). Last week, Georgia executed Kenneth Fults for shooting his 19 year-old neighbor in the back of the head in 1996, despite an affidavit from a juror who said, in 2005, "I knew I would vote for the death penalty because that's what that nigger deserved." The U.S. Supreme Court declined to hear the case.

Finally, and perhaps most surprisingly, there are cases involving racist defense lawyers. Fults also had a public defender who told racist jokes and once said of another black defendant he represented, "that little nigger deserves the chair."

Such cases are difficult for defenders to win. Many have been tripped by technical hurdles; if an early appeal does not bring up the issue, it usually can't be raised later. And lawyers must show a "reasonable juror" would not have sentenced a black defendant to death save for the racist elements. Buck's best hope - which failed to help Fults - is a precedent allowing judges to overturn sentences with "extraordinary circumstances." Multiple lower courts have ruled that Buck's trial was not extraordinary.

As the justices decide whether to examine Buck's case, they will confront a set of issues that remain unresolved nearly three decades after they refused McCleskey. And while many advocates see Buck's case as an "extraordinary" example of racial bias, they also see it as the latest illustration of discrepancies that are not extraordinary at all.

Source: themarshallproject.org, April 21, 2016

Racial Discrimination and Capital Punishment: The Indefensible Death Sentence of Duane Buck

In Harris County, Texas, where Duane Buck was tried and sentenced, all but 3 of the 18 defendants sentenced to death since 2004 have been African-American. In Harris County, Texas, where Duane Buck was tried and sentenced, all but 3 of the 18 defendants sentenced to death since 2004 have been African-American.

The N.A.A.C.P. Legal Defense and Educational Fund - or the Inc. Fund, as it's often called - has been one of the leading campaigners in the long effort to convince the Supreme Court that the death penalty is unconstitutional. Early on in that effort, the Inc. Fund was forced to broaden its approach. As the legal scholars Carol Steiker and Jordan Steiker explained in a law-review article last year, in the 19602, the Inc. Fund "focused on the persistence of racial discrimination" in the application of capital punishment, but the Justices "consistently declined to use race as the lens for understanding or regulating the American death penalty." Inc. Fund lawyers decided "that the best hope for many death-sentenced black inmates might rest on broader reforms - perhaps even abolition - of the capital system." In 1972, the Supreme Court struck down capital punishment, in Furman v. Georgia, leading to a 4-year moratorium on the penalty in the United States, thanks to a winning strategy devised by the Inc. Fund lawyers. They argued that, despite declining public support for the death penalty, states were keeping it so that they could impose it on marginal groups, including the poor and the powerless as well as blacks.

5 years later, in Coker v. Georgia, the Court decided that "the sentence of death for the crime of rape is grossly disproportionate and excessive punishment, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment." The Inc. Fund was lead counsel. (The Court struck down capital punishment for rape of adult women in that case. In 2008, it ruled that capital punishment for child rape is unconstitutional.) The opinion for the Court did not mention race or racial discrimination, even though, of the 455 men executed for rape between 1930 and 1967, four hundred and five were black, and almost all had been convicted of raping white women. It also took no notice of a brief by Ruth Bader Ginsburg - filed on behalf of the American Civil Liberties Union, the National Organization for Women Legal Defense and Education Fund, and other groups - arguing that punishing rape with death was tied to Southern traditions that "valued white women according to their purity and chastity and assigned them exclusively to white men." The Court avoided addressing the racial disparity in capital rape cases, and it avoided addressing the racial disparity in capital cases in general. That did not make the problem of racial discrimination go away.

Last week, Georgia executed an African-American named Kenneth Fults for murdering a white neighbor. For the trial, a white man in the pool of potential jurors was asked if his views on race would keep him from making a fair judgment about the case, since the defendant was a black man and the victim a white woman. He said no and was included in the jury that sentenced Fults to death. 8 years later, an investigator working on Fults's appeal took a sworn statement from the juror. The man said, "I don't know if he ever killed anybody, but that nigger got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that's what that nigger deserved." In rejecting Fults's appeal, the U.S. Court of Appeals for the Eleventh Circuit said that he should have raised this issue of prejudice sooner in state court or explained why he hadn't, so he was "procedurally barred" from raising it in federal court.

Racial discrimination is unavoidable in considering the Texas death-penalty case of Duane Buck. In the campaign to reduce his punishment from execution to life in prison, the Inc. Fund has been prominent and tenacious, because the discrimination in his case is blatant. Buck was convicted of murdering 2 women in 1996. He was sentenced to death in 1997. To sentence an offender to death under Texas law, a jury must unanimously conclude that the defendant is likely to commit future criminal acts of violence. In the Buck case, a psychologist named Walter Quijano provided evidence to that effect. Before trial, he claimed in a report that Buck was more likely to be dangerous because he is black. He wrote, "Race. Black. Increased probability."

Major studies have disproved the long-standing, prejudicial assumption of a link between race and dangerousness. In 2000, the Texas attorney general said that asserting that connection was both false and unconstitutional. In the case of Victor Hugo Saldano, who was found guilty of murder, the Supreme Court vacated his death sentence and sent the matter back to a Texas court for a new sentencing hearing at the request of the attorney general. "My position in this matter is taken with full respect and empathy for the suffering experienced by victims of crime and their families," he said. "But the public cannot have confidence in a criminal justice system if race is going to be considered at all in determining whether the ultimate penalty will be given." He pledged that in the Buck case and 6 others, "in which testimony was offered by Dr. Quijano that race should be a factor for the jury to consider in making its determination about the sentence in a capital murder trial," there would be new and fair sentencing hearings.

That happened in the 6 other cases, but not in Buck's. Texas said the Buck case is different because Quijano was a witness for Buck, rather than for the prosecution - though the psychologist was also a defense witness in 2 of the other cases. More important, a lawyer providing effective counsel would not have called Quijano as a witness, as Buck's lawyer did, after getting such an inflammatory report from him. (Another defense expert testified that Buck's records showed that he was not likely to commit criminal acts of violence in the future.) At the trial, on cross-examination, the prosecutor asked Quijano whether he had determined "that the race factor, black, increases the future dangerousness, for various complicated reasons; is that correct?" Quijano answered, "Yes."

Nor would a lawyer providing effective counsel have waited 2 years after the confession of error by the Texas attorney general, as a different lawyer for Buck did, to challenge on appeal the trial lawyer's introduction of race in the sentencing proceeding. Without considering the merits of Buck's case, Texas's highest criminal court dismissed his application for a hearing, calling it an abuse of the state's writ of habeas corpus because the issue should have been raised in an early application. Buck got new lawyers, who sought a new hearing on the merits in federal court. But, based on a 1991 precedent, the petition was not allowed to raise the issue of ineffective counsel in the state trial or appeal. That case worked its way up the chain of federal courts, and the Supreme Court denied his petition in 2011.

In 2013, Buck's lawyers filed a new habeas application in state court. While it was pending, the Supreme Court made a ruling in a different case that, for the 1st time, allowed a federal court to consider a claim of ineffective assistance of counsel. Texas's highest criminal court again denied Buck's application, by a vote of 6-3, but with a dissent by Judge Elsa Alcala, who wrote, "The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase." The lawyer who handled Buck's initial habeas appeal "was so incompetent as to assert not even one arguably legitimate claim," and the combination of that lawyer's "errors and the combined force of state and federal procedural-default laws" means that "no Court has ever considered the merits of applicant's legitimate claims for post-conviction relief."

In 2014, Buck's lawyers filed a new motion in a federal trial court for reconsideration of his case based on ineffective counsel. The court ruled that Buck's ineffective lawyers had not hurt his case and that their handling of the case did not qualify as extraordinary enough to warrant federal review. The U.S. Court of Appeals for the Fifth Circuit upheld that ruling, following its conspicuous pattern of denying this kind of appeal much more readily than the nearby federal circuits where states still execute offenders. Buck's lawyers asked the Supreme Court to review the Fifth Circuit decision.

The Court is expected to consider the Buck petition soon, filed by the Inc. Fund, the Texas Defender Service, and the law firm of Holland & Knight. The petition has attracted exceptional support from across the political spectrum. As a brief by high-profile Democrats and Republicans - including Gregory B. Craig, the former White House counsel in the Obama Administration, and Mark L. Earley, the former Virginia attorney general - admonishes, "Race is an arbitrary and pernicious factor which cannot play a role in our system of justice."

Between 1992 and 1999, in Harris County, Texas, where Buck was tried and sentenced, the district attorney's office was 3 1/2 times more likely to seek the death penalty against black defendants than white defendants, and juries were more than twice as likely to impose death sentences on blacks, according to a study by criminologists. Since 2004, all but three of eighteen defendants sentenced to death in Harris County have been African-American.

As the Buck petition says, the Supreme Court should review the case "to maintain public confidence that courts will not permit an execution tainted by 'expert' testimony explicitly linking race to dangerousness." That's especially so when ineffective counsel was responsible for that unconstitutional connection.

Source: The New Yorker, April 21, 2016 (wr)

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