Race shouldn’t matter in sentencing, but it does
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In 1995, Duane Edward Buck was convicted of murdering his ex-girlfriend and her friend. During his sentencing hearing, the prosecution presented evidence of Buck’s potential for recidivism, based on his criminal history, conduct, and demeanor. In defense, his court appointed attorney called a clinical psychologist, Dr. Walter Quijano, as an expert witness, who stated that he believed Buck’s “black” race increased the likelihood of future dangerousness.  Buck was subsequently sentenced to death and the Texas Court of Criminal Appeals affirmed his conviction and sentence.

On October 5, 2016, the U.S. Supreme Court heard an oral argument on Buck’s case. His new attorney, Christina A. Swarns, claims that his previous counsel was ineffective by knowingly calling an expert witness who testified that race was a factor in evaluating future dangerousness. Although the circumstances of Buck’s conviction were not up for debate, his attorney asked the Justices to order “a new, fair sentencing hearing.”

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Although the Justices described what happened during the sentencing phase of Buck’s case as “indefensible” and “abysmal,” they raised considerable concern that the outcome of his case wouldn’t be impacted, if a new sentencing hearing were granted. The circumstances surrounding Buck’s arrest were aggravating. His crimes were gruesome, he wasn’t remorseful, and he had committed various acts of domestic violence prior to the murders. However, his defense attorney maintained that, “putting an expert scientific validity to this pernicious idea that Mr. Buck would be more likely to commit criminal acts of violence because he's black” led to an arbitrary death sentence decision. Her argument centered on the fact that the expert witness’ testimony directly impacted the jury’s future dangerousness determination, which is the prerequisite for a death sentence in Texas.

The attorney for the State, Scott A. Keller, did not defend the competency of Buck’s public defender nor the racially bias statements made by the expert witness. Instead, he focused on the fact that the prosecutors did not use the expert witness’ testimony to make their claims for capital punishment and that a new sentencing hearing would not change the outcome. To support his argument, Keller described how the “Petitioner executed a mother when she was on her knees in front of her children with her daughter jumping on her.” He told the justices that Buck laughed about the murder of his victim and stated, “she got what she deserved,” after the crime.

Despite the seriousness of the offense, the Justices continued to question why this case in particular should not be reopened. In six other cases in Texas, the court reopened cases, which used race as an aggravating factor in sentencing. However, in these six other cases, the State confessed error, which Keller contends is a different issue than race being introduced as an aggravating factor by the defense.

One of these cases involved Victor Hugo Saldano, who was found guilty of capital murder and sentenced to death in 1996. In that case, the prosecution called the same expert witness that was called by Buck’s defense attorney, Dr. Walter Quijano. In Saldano’s case, he testified that “ . . . because [Saldano] is Hispanic, this was a factor weighing in favor of future dangerousness… African Americans and Hispanics are over-represented in prison compared with their percentage of the general population."

Since certain sociological issues are debatable, expert witness testimony can vary. Different studies can produce polarizing results due to disparate sample sizes and heterogeneity, research method quality, and analytic strategy, as well as error and bias. There are few issues that conclude with a scholarly consensus, but the nexus (or lack thereof) between race and crime is one of them. Although black and Latino males are disproportionately incarcerated in the United States, this is absolutely not a result of a higher proclivity for violence or crime. For decades, researchers have remarked on the differential treatment between white and non-white offenders at nearly every stage of the criminal justice process, sometimes due to racial bias. Moreover, modern research concludes that race has absolutely no bearing on the likelihood of recidivism.

Although it unclear whether Buck’s death penalty sentence will be reaffirmed at a new sentencing hearing, the fact that race is being introduced by “experts” as an aggravating factor in sentencing determinations is incredulous and a further testament to the critical need for comprehensive criminal justice reform.

Mehlman-Orozco is the author of “Hidden in Plain Sight: America’s Slaves of the New Millennium.” She holds a Ph.D. in criminology, law and society from George Mason University. Follow her on Twitter @MehlmanOrozco.


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