Blog of Rights

Execution By Race

By Brian Stull, ACLU Capital Punishment Project at 5:35pm

When the United States Supreme Court approved death penalty statutes, it did so on the promise that race would play no role in the decision to execute a person. That, of course, mirrors society's moral stance. Some people believe capital punishment is just. Some don't. But we can all agree that deciding who lives and who dies must not be determined by the color of their skin.

Despite this broad agreement, our nation has failed to rid race from the decision to execute — take, for instance, the case of Marcus Robinson in North Carolina. And now, shockingly, Texas appears poised next week to execute Duane Edward Buck based on the fact that he is black.

In Texas, imposing the death penalty in capital cases comes down to one question: is the defendant going to be a "future danger" if he or she is not executed? Mr. Buck was sentenced to die based on testimony by Dr. Walter Quijano, who told jurors that Mr. Buck was more likely to pose a future danger to society because he is black. Dr. Quijano's testimony came in 1997, more than 20 years after Texas promised the Supreme Court that "no correlation exists between the race/ethnic background of a defendant and the probability that he will be either convicted of capital murder or given the death penalty."

The same psychologist gave similar testimony in a total of seven Texas cases. In 2000, then-Attorney General John Cornyn did something highly unusual for a prosecutor: he called for the retrial of all seven men who had been sentenced to death based on Dr. Quijano's testimony that their race or ethnic background made them more dangerous. This list of seven included Duane Edward Buck.

Courts granted new sentencing trials to six of those inmates, but upheld Mr. Buck's unconstitutional death sentence on technical procedural grounds (which we have previously noted often lead to unjust results based on form over substance). Mr. Buck was therefore not granted an opportunity to have a new sentencing hearing unbiased by race. He is scheduled to be executed by the State of Texas on September 15, 2011.

Attorney General Cornyn was a vigorous defender of the death penalty in Texas, but made it clear that he wanted no part of calling for executions that were based on this kind of racism: "The people of Texas want and deserve a system that affords the same fairness to everyone." It remains to be seen if the governor agrees.

We must not allow the execution of a man on the basis of his race. You can help to prevent this injustice: go here to urge Texas Governor Rick Perry and to the board of pardons and parole to intervene before it's too late.

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