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  • Kaitlin Bigger

Indefensible: Recent Supreme Court Case Highlights Continued Racial Bias in Death Penalty

Updated: Oct 18, 2023

Duane Buck was sentenced to death by a jury in 1997 after his own counsel called an expert witness who testified that Mr. Buck would be a future danger to society because he was African American. A finding of future dangerousness is required under Texas law in order to impose a death sentence. Mr. Buck’s brief filed with the Supreme Court asserted that allowing Mr. Buck’s conviction to stand will create the risk of injustice in other cases, and undermine the criminal justice system as a whole. According to Mr. Buck, the expert’s opinion that labeled him as dangerous because of his race gives the appearance that the criminal justice system supports the connection of color and criminal behavior.

On October 5, 2016, the Supreme Court heard oral arguments in the highly anticipated case, addressing the troubling introduction of the experts’ testimony, and the Fifth Circuit Court of Appeals failure to discern the racial bias as justification for an appeal. The difficult that Mr. Buck has had getting his sentence reviewed on appeal is somewhat attributable to a thirty-year-old case. On April 22, 1987, the Supreme Court ruled in McClesky v. Kemp that racial disparities in death penalty sentencing did not violate the petitioner’s right to equal protection. That decision made it even more difficult for African American defendants to prove that their convictions were unfairly tainted by racial bias.

Texas in particular has continued to face scrutiny for disproportionate implementation of the death penalty between white and black defendants. In 2013, just over thirty-seven percent of those executed in Texas were African American, despite African Americans comprising only twelve percent of the total state population. Nationally, death sentences follow a similar pattern. Roughly thirty-five percent of defendants executed in the United States since 1976 have been African American. However, in 2015, African Americans comprised only thirteen percent of the total United States population.

By deciding Buck, the Supreme Court has an opportunity to bring the criminal justice system away from McClesky, and acknowledge the evidence of discrimination. During the oral arguments earlier this month, even traditionally conservative Justice Alito called the introduction of the psychologist’s testimony during sentencing “indefensible.” Yet while it appeared that all of the justices agreed Mr. Buck’s trial was influenced by racial bias, it remains to be seen whether the Court will take the opportunity to “send a clear message that appeals to racial prejudice have no place in the criminal justice system.” Should the Court rule in favor of Mr. Buck, prosecutors and defense attorneys alike will be impacted, as the decision will affect how capital cases are tried and appealed for many years to come. The criminal justice system will be placed under the microscope during a time where racial tensions run high outside of the courtroom, as the courts will be tasked with removing and preventing racially motivated death sentences.


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