by Elise C. Boddie, Professor of Law, Henry Rutgers University Professor, Robert L. Carter Scholar
Buck v. Davis, which was argued in the Court earlier this week, raises a troubling question: will a person who was sentenced to death, after his trial counsel introduced evidence that his race makes him more likely to be violent, be procedurally barred from raising an ineffective assistance of counsel claim that challenges the constitutionality of that death sentence? This question is highly technical, but crucially important. At a time when the country is increasingly attentive to grievous racial bias in our criminal justice system, Buck poses a very grave threat to the public’s confidence in the fairness and integrity of the judicial process. [Disclosure: My former employer, the NAACP Legal Defense & Educational Fund, Inc., represents Mr. Buck.]
The facts of Buck alone are deeply disturbing, but the case also raises larger questions about our broader system of justice in matters of race. That this case had to wind its way all the way to the Supreme Court for the possibility of relief, now for the second time, shows how doctrinal and procedural complexities in capital litigation undermine racial justice. It also reveals how differently race is regarded in the criminal justice system when compared to standards of judicial review in civil constitutional litigation. The cavalier treatment of race by the state and lower federal courts in Mr. Buck’s case is wildly inconsistent with the Supreme Court’s interpretation of equal protection doctrine, which treats any governmental use of race as presumptively unconstitutional, regardless of motive or context. Indeed, in Fisher v. University of Texas, the Court twice heard a challenge to a university’s race-conscious admissions policy, even though race had no demonstrable impact on the university’s decision to deny admission to the white plaintiff. There is a tragic irony in the lopsidedness of this judicial scrutiny, where even the faintest consideration of race triggers close review if it threatens to disadvantage a white plaintiff, but the overtly discriminatory use of race—in a way that may have led a black man to be sentenced to death—is buried by courts in procedural technicalities.
The case has a lengthy and complicated history, but the core facts are as follows: Mr. Buck was convicted of capital murder. During sentencing, his court-appointed counsel introduced expert testimony, exploited later by the prosecution on cross-examination, that Mr. Buck was more likely to commit criminal acts of violence in the future because he is black. Let me repeat that: Mr. Buck’s own attorney inserted evidence into the sentencing proceedings that Mr. Buck’s race was a legitimate factor for assessing his proclivity for future violence. Texas juries are required to find “future dangerousness” unanimously and beyond a reasonable doubt before a defendant can be sentenced to death. There is good reason to believe that this expert testimony —which perpetuates deeply rooted racial stereotypes that black people are predisposed to violence—could have persuaded at least one Texas juror that the death sentence was justified for Mr. Buck. If the Court agrees, it could clear the path for Mr. Buck to challenge the constitutionality of that sentence. (He is not challenging his conviction.)