A lot of people are celebrating the last minute stay of execution granted to Texas inmate Duane Buck by the U.S. Supreme Court. And, to be sure, it’s much better news than the alternative. But no one should take this to mean that Buck’s execution won’t go forward and no one should take this to mean that the system by which people are sentenced to death is working.
The fact it took the highest court in the nation to prevent the judicial killing of a prisoner in such controversial circumstances will put the governor of Texas, Rick Perry, further under the spotlight. He was earlier approached by lawyers of Buck and exhorted to use his power to put a 30-day reprieve on the execution to give time for all parties to look at his case, but Perry did not act.
Perry, a frontrunner for the Republican nomination for next year’s presidential election, has presided over 235 executions since he became governor in 2000, the most recent on Tuesday. Last week he defended his record during a televised debate at which the Republican audience cheered when the number of those who had died under him was mentioned. Perry was in Iowa fundraising for his presidential campaign at the time the execution was due to have taken place.
Buck, 48, killed his former girlfriend and a man in 1995. His guilt is not in dispute, but the fashion in which he received the death penalty is. The jury that gave him the punishment was told by a psychologist, under prosecution cross-examination, that black people posed a greater risk to violent reoffending if released from jail.
The evidence of the psychologist, Dr Walter Quijano, was recognised as a legal problem by Texas’s then attorney general John Cornyn in 2000. Six other cases in which Quijano had given racially tinged testimony were identified and all were awarded a resentencing hearing. On legal technicalities, Buck has been awarded no such safeguard.
Even if the Supreme Court kicks this case back to Texas for a new sentencing hearing, and last night’s last-minute stay of execution doesn’t necessarily mean that they will, there’s no reason to presume that Buck will be spared another death sentence. Indeed, each of the five men mentioned just above were resentenced to death. Clearly, the prosecution has figured out that it’s possible to convey to jurors that they ought to be fearful of black men without actually putting someone on the witness stand to say those words aloud.
It’s not only possible to do this, of course; it’s easy. And the reason it’s easy is that racism continues to play a critical role in our society and, therefore, in our criminal justice system. If you’re not sure about this, look at the numbers.
Racism aside — and, to be sure, this is a huge aside, one that can’t really be put aside — we have to also contend with the fact that juries are told they must put offenders to death or they would undoubtedly reoffend. That the reason given was Buck’s race is abhorrent. But, even if some other reason was given (as it no doubt will be if he gets a new sentencing hearing), prosecutors are filling jurors with fear in order to ensure death sentences. They pretty much have to do this; it’s a central component of the capital sentencing statute in Texas. And the particular fear they’re instilling is based on the idea that the criminal justice system cannot protect us from violent offenders, that even if those offenders serve forty or more years in prison they will surely kill again (either in prison or as soon as they get out, if they are ever eligible for parole).
The unmissable point here is that behind all of this talk about the danger of reoffending is the wrong-headed notion that our system is not working, that we have no way to make ourselves safe through criminal justice, and thus that the only safety measure that our system can get right is execution. But if you believe that the system cannot rehabilitate or even control offenders — that it gets these things wrong — why would you then believe that the one thing it gets right every single time — as Rick Perry does, for example — is putting people to death?