I want to be real clear about something at the beginning of this post. I’m opposed to the death penalty in any and all cases. Name history’s greatest criminals and I’m fine with allowing them to live the rest of their natural lives out in cells. That’s a minority position in the US, though I wish it weren’t.
So you’d think I’d be happy over the news that the Supreme Court ordered a temporary stay of Duane Buck’s execution in Texas. Buck, if you haven’t heard, was sentenced to death for the killing of two people at his ex-girlfriend’s house in 1995. His guilt is not in question. What’s unusual about this case is the way in which Texas prosecutors got the death penalty.
Tim Murphy at Mother Jones wrote the following: “Prosecutors firmly established Buck’s guilt, but to secure a capital punishment conviction in Texas they needed to prove “future dangerousness”—that is, provide compelling evidence that Buck posed a serious threat to society if he were ever to walk free. They did so in part with the testimony of a psychologist, Dr. Walter Quijano, who testified that Buck’s race (he’s African American) made him more likely to commit crimes in the future. (Quijano answered in the affirmative to the question of whether ‘the race factor, [being] black, increases the future dangerousness for various complicated reasons.’)”
People are outraged, and rightly so. (Not everyone–Texas Governor Rick Perry was applauded loudly during a question at the Sept. 7 Republican Presidential Debate about his record on capital punishment.) It’s offensive in the extreme that this argument was allowed in the first place, much less allowed to stand as long as it has. Five other cases in which this argument was raised have been retried, but not this one.
But here’s why I’m not excited about the current stay. The only thing that Duane Buck can possibly win here is a new sentencing phase of his trial, one which does not introduce information about Buck’s race into the proceedings. That’s all. Given Texas’s history with death penalty cases, I don’t see much reason to hope that a second hearing would end up any differently, and there’s certainly no reason to believe that the Texas state parole board or their current governor would recommend clemency now when they’ve refused it in the past.
In short, the odds are very good that Duane Buck will still be sentenced to death, and will still be executed, no matter how this part of the case ends up, and so I can’t be very excited about any decision that only delays a scheduled execution.
