On Thursday evening, a few hours before Duane Buck was due to be executed for capital murder, the US supreme court intervened to grant him a stay of execution. Buck was sentenced to death in part because of his ethnicity: a psychologist in the original sentencing hearing testified that Buck was likely to be a future danger to society because he was black. The supreme court was acting in response to an 11th-hour motion filed by Buck's lawyers to prevent his execution on constitutional grounds – his state clemency petition having been rejected earlier this week.
Distressingly, but unsurprisingly, Buck's case is entirely consistent with the operation of the death penalty in Texas (pdf). A study by the Capital Jury Project in 2001 found that "white jurors thought black defendants were more dangerous than white defendants and believed that black defendants could be paroled sooner from prison than whites even when no evidence had been presented as to these points."
When asked about the death penalty recently, Texas Governor Rick Perry said that he "never struggled" with the idea of innocent people being executed on his watch, arguing that "the state of Texas has a very thoughtful, very clear process in place." Texas has executed 235 prisoners during Perry's terms as governor.
The case of Anthony Graves, a man who spent 12 years on death row (as a result of "egregious prosecutorial misconduct") before being declared innocent last year, contradicts this analysis. I have been fortunate enough to meet Graves, who now works as an investigator at the Texas Defender Service, and, despite his warmth and optimism, he is adamant that the state of Texas tried "to murder" him. Graves was the 12th person on Texas death row to be exonerated since 1973.
It is not merely a possibility that innocent people have been sentenced to death in Texas; it is a fact.
Perry's view is reflective of the prevailing societal attitude in Texas, which I have observed as an intern at the Texas Defender Service, the organisation which is acting on behalf of Duane Buck. According to the majority public opinion in Texas, anyone accused of crimes such as Buck's deserves to die and the question of whether that person receives a fair trial is a peripheral issue. As a result, many of the fundamental flaws that affect the death penalty regime in Texas have been ignored.
One of the most significant problems is the "future dangerousness" standard adopted by the Texas death penalty statute. At the sentencing hearing, the jury has to find that the defendant poses a "future danger to society". The Texas appellate court has held that the facts of the original crime – which have to be proven at the preceding "guilt-innocence" stage of a trial – may be sufficient to demonstrate that the defendant could be a future danger, an approach that empties the sentencing hearing of any significance.
It has also been held that psychiatric testimony as to the future dangerousness question, often given by expert witnesses who have never examined the defendant, is admissible, despite the inherent uncertainty of predicting recidivism. This practice has come under severe criticism from the American Psychiatric Association, which has said that "[t]he large body of evidence in this area indicates that, even in the best of conditions, psychiatric predictions of long-term future dangerousness are wrong in at least two out of every three cases."
That Buck committed a terrible crime is not disputed. What is problematic is the notion that a person convicted of a serious crime can thereby be denied his constitutional rights to a fair trial and due process, and face execution on the basis of his ethnicity. The fact that the Texas criminal justice system was prepared even to contemplate proceeding with an execution given this state of affairs is symptomatic of the flaws that plague the death penalty regime in Texas – a process that is anything but clear and thoughtful.
