U.S. justice still far from color blind

May 5, 2013


If the state of Texas executes Duane Buck, it’ll be because he is black.

Well, mainly it will be because in 1995, he shot his ex-girlfriend, Debra Gardner, and her friend, Kenneth Butler, to death at Gardner’s Houston home, and also wounded his own stepsister, Phyllis Taylor. But it will also be because he’s black.

In Texas, they have this rule: a jury contemplating the death penalty must evaluate the likelihood a defendant poses a future danger to the community. Jurors in Buck’s trial were told he poses said danger because he is a black man.

Mind you, this came from a defense witness, whose ultimate finding was that Buck himself represented little danger. But, said psychologist Dr. Walter Quijano, “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system.”

When asked by the prosecutor whether “the race factor, black, increases the future dangerousness,” Quijano answered, “Yes.”

So Buck sits on death row awaiting an appeals court ruling on his bid for a new sentencing hearing. Not a new trial, you understand. No one disputes his guilt — or the monstrousness of his crime. But about the sentence, there is plenty dispute, enough that his surviving victim and Linda Geffen, a prosecutor who helped convict him, both think he should get a new hearing. In 2000, Sen. John Cornyn, then Texas attorney general, identified six cases, including Buck’s, in which Quijano gave similar testimony and conceded the state erred in allowing race to be used as a sentencing factor.

The other five defendants — all black or Hispanic — received new sentencing hearings. All were re-sentenced to death. Buck was denied a new hearing.

Why? Bucks’ attorney, Christina Swarns, director of the Criminal Justice Project at the NAACP Legal Defense Fund, says the only explanation she’s heard “is it’s because Quijano was called as a defense witness. That would sound like a plausible explanation, if not that Quijano was called as a defense witness in two of the other cases in which they did concede error.”

Sara Marie Kinney, a spokesperson for the Harris County DA, says there’s a difference: in Buck’s case, the offending testimony came on direct examination — “not on cross.” In other words, the defense brought it up first. Whatever. There is something viscerally ... wrong in relying upon so flimsy a rationale to justify so blatant an appeal to bias.

But race, argues Kinney, was not the only factor in the jury’s decision. Buck, she notes, “was a violent offender who systematically killed these people. ... He checks all the boxes for the appropriate penalty being the death sentence.”

Quijano, by the way, stands by his testimony. He told The New York Times, “The literature suggests ... correlation” between race and threat. It is not, he said, “the blackness of the person that is causing the violence. It is what goes with it, poverty, the exposure to lack of education, exposure to criminal elements.”

Psychology professor John Monahan, whose writings Quijano cited among the “literature,” told the Times his work supports no such conclusion. Race, he said, “plays at most an extremely small role” in predicting future violent acts.

Moreover, it is specious in the extreme to act as if poverty, crime and ignorance are some natural outgrowth of blackness. They are not. They were imposed upon black people by generations of oppressive law, policy and custom. To act as if they are somehow endemic to blackness is like accusing a woman of walking funny after you have cut off her feet.

What we have here, then, is but the latest example of a “justice” system bloodied and soiled by racial bias. If Duane Buck is killed, it will be in part because an “expert” stoked a jury’s fear of the scary black man. That is not just wrong.

It is obscene.

— Leonard Pitts Jr. is a columnist for the Miami Herald. He chats with readers from noon to 1 p.m. CDT each Wednesday on


notaubermime 11 months, 3 weeks ago

I don't mind profiling when it comes to sentencing. It is pretty well established that child molesters and serial killers never reform. If someone will never be able to enter back into society without committing atrocious crimes, what is the point of keeping them alive and incarcerated? Guilt over ending a miserable life? Prison should not be a place to exact revenge on people or hole to shove them in when we don't want to deal with them anymore.

So I'm okay with profiling people by the reform rate of the crime and severity of trauma that crime causes to society. However, what Quijano endorses is profiling on socioeconomic class rather than by individual behavior. I think that this is an example of how to incorrectly use profiling by passing judgement without the need for an offensive action to have taken place. It also does not take into account the severity of the crime's effect on society. Further, it leads to the types of views on class that start to move into the realm of India's old caste system by automatically creating a different set of consequence for a particular crime depending on socioeconomic level.

So I disagree with Pitts only as much as he limits the discussion to race. Such blanket profiling is a risk for a much larger category of people than just minorities.


Leslie Swearingen 11 months, 3 weeks ago

In the Ohio execution, Steve Smith raped a killed a six month old baby girl.

I would say that social class plays a vital role in who we are and who we become, far more than race does today. People from the same class are all pretty much the same regardless of what race or culture or religion they belong to.


ChuckFInster 11 months, 3 weeks ago

" If Duane Buck is killed, it will be in part because an “expert” stoked a jury’s fear of the scary black man. "

Right, not because he is a double murderer.


50YearResident 11 months, 3 weeks ago

If you do the crime, you do the punishment.


jhawkinsf 11 months, 3 weeks ago

Ohio executed a white guy earlier this week. Pitts was quiet on the subject. No privilege, no sense of entitlement, just a needle in the arm.


Armstrong 11 months, 3 weeks ago

It's sad Pitts isn't color blind. Same tripe every week. Hey Len, ask the people Duane murdered if color had anything to do with the crime?


lily_livered 11 months, 3 weeks ago

Agree with Pitts. Holder was "color blind" with the NBP voter intimidation case. Well not really. If they'd donned white hoods, his color blindness would have cleared up in a nano second.


Paul R Getto 11 months, 3 weeks ago

This a part of what the school board is studying. Good column.


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