Hiring: Color-blind judge, 77002

by Graham Egan

Nearly 50 years after the demise of Jim Crow laws, administration of justice in the United States is still far from color-blind. In some places, however, color matters more than others. In Texas, African Americans continue to be sentenced to death because of their race. The application of capital punishment in this manner makes a mockery of fundamental principles in the American criminal justice system: fairness and equality before the law.

Duane Buck is the most recent recipient of unequal treatment at the hands of the Texas criminal justice system. In a 6-3 decision handed down on November 20, 2013, the Texas Court of Criminal Appeals denied his appeal for a new sentencing hearing, despite clear evidence that racial bias contributed to his original death sentence. Mr. Buck, an African American in his fifties, was convicted in 1997 of two murders in Harris County, Texas. Although his guilt in these gruesome crimes is undeniable—Mr. Buck does not deny that he committed the murders—the tactics utilized by prosecutors to pursue a death sentence were overtly racist.

The Harris County prosecutors elicited testimony from Walter Quijano, a psychologist, who affirmed that the “race factor, black, increases the future dangerousness for various complicated reasons.” Because a finding of “future dangerousness” is a prerequisite for a death sentence in Texas, the prosecutor relied on Dr. Quijano’s testimony to convince the jury to sentence Mr. Buck to die.

Although the prosecutorial linkage of race and risk in Mr. Buck’s sentencing represented a clear miscarriage of justice, it was not the only time Texas prosecutors explicitly invoked race as a rationale for capital punishment. Dr. Quijano alone affirmed the link between race and “future dangerousness” in testimonies during the sentencing phase of five additional trials throughout the late1990s. All six men were sentenced to death. All were subsequently given new sentencing hearings free of racial discrimination—all, except Mr. Buck. Former Texas Governor Mark White and former Attorney General (and current U.S. Senator) John Cornyn, along with more than 100 civil rights leaders, elected officials, former prosecutors and faith leaders, had all called for a new sentencing trial.

Research on the relationship between race and the death penalty demonstrates that Texas prosecutors and juries have historically applied the punishment unequally based on race. Ray Paternoster, of the University of Maryland, with the assistance of Scott Phillips, of the University of Denver, examined over 500 death penalty cases from Harris County, where Duane Buck was prosecuted for his crimes. They found that district prosecutors were three times more likely to seek the death penalty for African American defendants as for white defendants, and that Harris Country juries were twice as likely to impose death sentences on African Americans as on white Americans.

With their decision, the Texas Criminal Court of Appeals missed a significant opportunity to restore integrity to their state’s criminal justice system. Instead, the court implicitly upheld the state’s practice of allowing prosecutors to seek the death penalty based on race. Texas’ failure to ensure that justice is applied equally to all of its citizens is indefensible and severely undermines the credibility of its criminal justice system.

To rectify this dangerous decision, Governor Perry should commute Mr. Buck’s sentence to life without parole and the Texas legislature should enact legislation that (1) forbids references to the association between race and future dangerousness in the sentencing phase and (2) provides an appeals process in which judges examine the role of race in the sentencing phase for any future capital punishment trials. North Carolina’s Racial Justice Act would be a suitable model. These actions would bring Texas one step closer to realizing color-blind justice.

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Graham is a first-year Master of Public Policy candidate in the Frank Batten School of Leadership and Public Policy at the University of Virginia. He is from New York City, and his policy interests include education and criminal law. He is also an associate editor at the Virginia Policy Review.