On September 15, 2011, the United States Supreme Court issued a stay of execution in a capital case where race-based testimony may have improperly influenced the jury’s sentence. Duane Buck, an African-American man on death row in Texas, was convicted of killing two individuals and injuring a third. During the sentencing phase of Mr. Buck’s trial, a psychologist testified that the defendant’s race is a factor “know[n] to predict future dangerousness.” In Texas, the jury must decide whether the defendant will pose a future danger before sentencing him to death. This psychologist had provided similar testimony in five other cases, and in each of those cases, the defendant’s death sentence was overturned as a result. The defense argued Mr. Buck should similarly receive a new sentencing hearing because of the unfair influence of the psychologist’s prejudicial racial testimony on the jury.
The State, however, attempted to distinguish the other cases in which relief was granted by because in Mr. Buck’s case the defense, not the prosecution, called the psychologist to testify. The State’s argument omitted the fact that in the other two cases where relief was granted, the psychologist testified for the defense as well, and the courts still granted relief based on his improper testimony.
On November 7, 2011, the Supreme Court declined to hear Mr. Buck’s case. Justice Alito, joined by Justices Scalia and Breyer, issued a statement explaining the Court’s reasons for denying review. Justice Alito relied on an even narrower distinction than the one proffered by the State: in the two other cases where the psychologist testified for the defense, the State elicited the race-based testimony on cross-examination, whereas in Mr. Buck’s case, it was elicited directly by his defense attorneys. Justice Sotomayor, joined by Justice Kagan, found that this was not a meaningful distinction and issued her own statement dissenting from the denial of certiorari. She wrote:
Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.
Race and the death penalty have been linked for decades. Both the race of the victim and the race of the defendant have been significant factors in the imposition of death sentences. Although victims in capital cases are nearly equally likely to be black or white, 80% of people executed since the death penalty was reinstated in 1976 have been executed for murders that involved white victims. Similarly, according to an Amnesty International Report, more than 20% of black defendants who have been executed were convicted by all-white juries.
Mr. Buck remains on death row, awaiting an execution date to be set by the state of Texas.