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March Madness Takes on New Meaning When a Person's Skin Color is Cause For His Execution

Mass Incarceration
Mass Incarceration
Brian Stull,
Senior Staff Attorney ,
ACLU Capital Punishment Project
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March 20, 2013

Welcome to March Madness at the ACLU! We know you usually turn to other sources for this kind of coverage, but we’ve got something important to add. As you’re filling out winning brackets, imagine this scenario: the tournament selection committee decides that squads who fly blue as a team color are three times more likely to be invited to the tournament than non-blue teams. Duke, Kansas, and Michigan are likely in, but say goodbye to most of these powerhouses: Louisville (red & black), Indiana (red & white), Miami (green & orange), and Michigan State (green & white).

Yeah, right. The fans would riot, the coaches would quit, and players would take their games to the playground courts where skill, poise and grit are what count. It’s obvious that the invitation to the big dance must be based on the points a team puts on the board, not the colors it drapes on its athletes. Sadly, however, on a topic of far graver importance, we can’t say the same about the death penalty.

Duane Buck’s pending execution in Texas proves that the color of a man’s skin, not the circumstances of his crime, still predicts who will be sentenced to death.

Duane Buck is Black. He was sentenced to death in Harris County in 1997. A recently released empirical study by an experienced criminologist compares the rate at which the Harris County District Attorney sought the death penalty against white and Black defendants who were accused of capital murder crimes similar to Mr. Buck’s crime. The study found that, considering similar capital crimes, the prosecutor sought execution three times as often for Black defendants as it did for white defendants. And when this group of otherwise similar cases went to the jury, the verdict was death twice as often for Black defendants as it was for white defendants.

As in our absurd March Madness hypothetical, then, the men selected for the gurney were not there based on merit (severity of the crime), but on color. But this time it’s the color of a person’s skin – something neither chosen nor changeable.

The response to this kind of study by prosecutors has typically been along these lines – “yes, but these statistics don’t prove that anyone intentionally racially discriminated against this particular defendant in this case. So the execution must go forward.”

Setting aside for now our disagreements with this kind of argument, it simply does not apply to this case because here there is compelling evidence of intentional discrimination. As we have previously discussed, the prosecutor asked a future danger “expert” if Mr. Buck’s race made him more likely to be a danger in the future and therefore a candidate for execution. The expert said yes, and the prosecutor argued this evidence in asking the jury for Mr. Buck’s execution. If the defense needs to show intentional racial discrimination to put points on the board, they do so here with a slam-dunk.

While you’re putting the finishing touches on your brackets, Duane Buck’s lawyers will today be releasing a letter protesting his race-based death sentence, signed by elected officials, civil rights leaders, faith leaders, legal professionals, past ABA presidents, a former governor and concerned citizens, among them our very own Vanita Gupta, Deputy Legal Director, Denny LeBouef, Capital Punishment Project Director, and Dennis Parker, Racial Justice Project Director.

We’re running out of ways to say this – a sentence of death simply cannot be based on a person’s race. Let the madness end.

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