I. Warren McCleskey
Warren McCleskey was on death row in Georgia. His claim before the Supreme Court, when you cut to the chase, was that Georgia's death penalty system was infected with racial bias. The claim wasn't merely anecdotal. Justice Lewis Powell wrote for a 5-4 majority in McCleskey v. Kemp.
In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.
Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.
Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.
Powell accepted the Baldus study as reliable and then said that it didn't matter. There were two basic problems. (I'm oversimplifying a lot; but for purposes of this post that's not significant.)
First, the statistics didn't prove that McCleskey himself was sentenced to die because he was black and had killed whites. The Baldus study may have demonstrated that race impermissibly affected the death penalty system in Georgia but it didn't show that consideration of race was responsible for McCleskey's death sentence, that it was a factor in his particular case.
Second, if the Court were to acknowledge that racism so fucked up the death penalty system that it was fundamentally unfair, then the Court would have to admit that the same was true of the entire criminal justice system. And beyond racism, the system is improperly affected by all sorts of considerations. If McCleskey won, the whole damned arbitrary and discriminatory criminal justice system would collapse. The system was rotten to the core. Either we accepted it that way or we'd have to fix it. And really, it was beyond repair.
Powell didn't put it that way, of course. Instead, he said this (footnotes omitted).
McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Solem v. Helm, 463 U. S. 277, 289-290 (1983); see Rummel v. Estelle, 445 U. S. 263, 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant's facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.
The building that houses the United States Supreme Court is a majestic marble palace. Atop the steps, above the bronze doors and the Corinthian columns, over the main entrance (through which you can't enter or the terrorists will win, so sayeth John Roberts), it says
EQUAL JUSTICE UNDER LAW
Which is a noble sentiment.
Warren McCleskey was killed.
II. Victor Saldaño
Victor Saldaño was on death row in Texas. He was there, at least in part, because of psychologist Walter Quijano. Here's how it happened.
Under Texas law, when it's deciding whether to impose a death sentence, a jury is required to decide whether the person it found guilty of capital murder will, if not killed, pose a threat of further criminal violence. That is, will the killer likely do it again?
Predicting future dangerousness is, mostly, kind of like throwing darts blindfolded. It's pretty much random guesswork. Psychiatrists and psychologists aren't much better, if better at all, than the rest of us at it. But they have those degrees. They're experts. They sound authoritative. And in Texas they try to answer the question. Juries like that.
(Consider Dr. James Grigson, who claimed he never made a mistake in finding that everyone he ever examined would kill again - not even when he testified that Randall Dale Adams, who turned out to be factually innocent and hadn't killed before, would surely kill again. It was bullshit, pure and unalduterated. And juries ate it up. He explained that he made jurors feel good about imposing death sentences.)
Quijano was one of the psycho whores. Steven Kraytak blogging for the Austin American-Statesman:
Quijano regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic, testimony he based on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state’s general population.
Quijano did that in Victor Saldaño's case. And when his case went up on appeal, something quite extraordinary happened. John Cornyn, then Texas Attorney-General (now United States Senator), said that it was wrong. Quijano's testimony unfairly and improperly injected race into the sentencing proceedings. And that made the sentencing unfair. Saldaño should get another crack at it.
And not just Saldaño. Cornyn identified six others on death row whose sentences were similarly infected by Quijano. They should all, he said, get new sentencing hearings.
Saldaño and five of the others did.
Duane Buck did not.
He is scheduled to be murdered by the people of Texas on Thursday.
III. Linda Geffin
Duane Buck was tried and sentenced to die in 1997 in Harris County, Texas. Second chair prosecutor in that case was Linda Geffin. Monday, she sent a letter to the Board of Pardons and Paroles, to Governor ("I've never struggled with [the possibility of killing innocent folks] at all") Perry, to Texas Attorney General Greg Abbott, and to Harris County District Attorney Pat Lykos.
From time to time it is necessary to praise someone who works on the dark side. This is such a time.
Linda Geffin didn't say she's now opposed to the death penalty. She didn't say Duane Buck shouldn't be punished. She didn't even say he shouldn't be killed. She said he should have a fair sentencing. One that isn't infected by unconstitutional considerations of race. If he can't have that, he shouldn't be killed.
Mr. Buck committed a terrible crime, and he must be punished. But the Attorney General was right when he said that "it is inappropriate to allow race to be considered as a factor in our criminal justice system." It is· regrettable that any race-based considerations were placed before Mr. Buck's jury. No individual should be executed without being afforded a fair trial, untainted by considerations of race.
Take that Lewis Powell.
IV. Duane Buck
Texas plans to kill Duane Buck on Thursday. We'll see.