On September 7th, 2011 Texas Governor Rick Perry was met by an outburst of applause from the audience at the Republican Party Presidential Debate when he expressed confidence in his state’s execution record. Governor Perry extolled the fairness of the Texas criminal justice system when asked about his personal confidence in the guilt of the executed defendants. However, death row inmate Duane Buck and the United State’s Supreme Court might disagree with Governor Perry’s assurance of the fairness of Texas’ criminal courts.

In 1995, Duane Buck was convicted of double homicide and sentenced to death by a jury in Harris County, Texas. Under Texas law, in order to impose the death penalty the Sate must prove beyond a reasonable doubt that there is a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society.[1] Before making this decision, the jury heard testimony from a psychologist, Walter Quijano, who testified that “identifying markers,” such as race, helped psychologists to make determinations abut whether a defendant had a high probability of repeating violent acts. More simply, Dr. Quijano testified that Mr. Buck was more likely to commit violence in the future because he was black.

The Supreme Court granted a temporary stay of execution on September 15th, just hours before Mr. Buck’s set execution, pending a decision on whether it would hear an appeal of the case. The two constitutional provisions at question in this case are the Eighth Amendment, barring cruel and unusual punishment as well as the Fourteenth Amendment, which gives citizens equal protection under the law.

What is interesting about Mr. Buck’s case is that it is not unique. The Supreme Court heard Saldaño v. Texas in 2000, an appeal of a death sentence in which Dr. Quijano had given similar racially biased testimony. The Supreme Court vacated Mr. Saldaño’s sentence and remanded the case in light of the then state Attorney General’s concession that the death penalty sentence had violated the Equal Protection Clause. The then-Texas State Attorney General also identified six other cases in which testimony was offered by Dr. Quijano that were similar to the Saldaño case. Five of those six cases have been vacated and remanded.[2] Mr. Buck’s case is the remaining sixth case.

The current Texas Attorney General has not conceded that Mr. Buck’s constitutional rights have been violated and instead has raised procedural defenses and claimed that his case is different from the other five cases because the defense offered Dr. Quijano’s testimony into evidence rather than the government. However, Mr. Buck’s case is not alone in this regard, as the defendants in both Blue and Alba chose to enter Dr. Quijano’s testimony into evidence as well. The appellate courts in Blue and Alba did not hold that this act negated the constitutional violations. Alba, No. 00-40194; Blue, No. 4:99-cv- 00350.

In Justice Brennan’s famous dissent in McClesky v. Kemp,[3] he points to the understanding of history and human experience in evaluating the fairness of the appellant’s death sentence. Justice Brennan highlights the historical “dual justice system” for whites and blacks in the United States; at the time of the Civil War in Georgia, where a white man might have received a life sentence for murder, a black man was automatically sentenced to death. Brennan notes that it would be unrealistic to ignore the influence of history in discussing the present death penalty sentence. If Mr. Buck’s sentence is not vacated and remanded, the Court runs the risk of affirming such a dual system. Under Texas criminal statute a black man might always get a harsher sentence for homicide than a white man based on his race alone. This not only “fails to account for the unique characteristics of each defendant,” but it also applies the death penalty in an arbitrary and capricious manner.[4]

In the case of Duane Buck, it is unclear whether race actually played

a final and determinative role in his death penalty sentencing, but it is certainly possible. Given the uniqueness of the death penalty, the Supreme Court should err on the side of caution and review the case on appeal. The Court should reject this morally repugnant death sentence that allows for a two-faced criminal justice system: one for blacks and one for whites, and it should make it clear that there is no room for racism in sentencing.