Questions about race, intellectual disability, and the death penalty will return to the halls of the Supreme Court in the near future. Yesterday, the Court agreed to hear appeals in two capital punishment cases out of Texas.
The first, Buck v. Stephens, involves a defendant who was sentenced to death after a psychologist, called to the stand by his own lawyer, testified that black defendants were more dangerous than white ones. The second, Moore v. Texas, concerns whether Texas can rely solely on an outdated, 23-year-old standard for determining intellectual disabilities for purposes of capital punishment, to the exclusion of modern standards.
My Lawyer, My Enemy
Duane Buck was convicted in 1995 of killing his former girlfriend and a friend and sentenced to death. At his trial, the psychologist Walter Quijano testified that Buck's race made him more likely to be dangerous in the future. "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system," Quijano said from the stand. When asked by prosecutors if race increased Buck's future dangerousness, his response was simply "Yes."
Quijano's testimony was the definition of racism. The use of such evidence to prove Buck's future dangerousness is troubling enough. Equally disturbing, however, is the fact that Quijano was called by the defense, knowing that Quijano was likely to testify that Buck's race made him dangerous.
Buck had previously challenged his conviction on the grounds of prosecutorial misconduct. The Supreme Court declined the review the case on those grounds in 2011, but indicated sever misgivings with the trial at the same time. In his statement concerning the denial of cert, Justice Alito described Quijano's testimony as "bizarre and objectionable."
Buck now seeks review of his conviction on the merits, due to ineffective assistance of counsel. The Fifth Circuit has declined to offer a certificate of appealability however, on grounds that there were no "extraordinary circumstances" that would permit relief. The Supreme Court will decide whether the Fifth imposed too burdensome a standard in that decision.
When It Comes to Disabilities, Texas Likes It Retro
The second death penalty case concerns Bobby J. Moore, who was sentenced to death in 1980 for shooting a supermarket clerk during a robbery. In 2014, after 34 years on death row, a Texas trial court found that Moore was intellectually disabled and found that, under Atkins v. Virginia, Moore could not be executed.
Atkins held that states could not sentence the mentally disabled to death, but provided leeway for states to determine their own standards of intellectual disability. It has since ruled that rigid, inflexible standards may not pass constitutional muster. In 2014's Hall v. Florida, the Court struck down Florida's I.Q. score cut off, with Justice Kennedy writing that "Florida seeks to execute a man because he scored a 71 instead of a 70 on an I.Q. test."
The court relied on the definition of intellectual disability used by the Association on Intellectual and Developmental Disabilities. A Texas appellate court reversed the trial court's finding, determining that the modern standard was the wrong standard. Texas court's instead must rely on the AIDD's 1992 standard, not its current one.
Tinkering With the Machinery of Death
Speaking at the University of Minnesota Law School last fall, the late Justice Scalia announced that it "wouldn't surprise" him if the Court declared the death penalty unconstitutional in the near future. And while Justices Breyer and Ginsburg have said they are open to the idea, that's not going to happen anytime soon. The Court isn't ready to declare "from this day forward, I no longer shall tinker with the machinery of death," as Justice Blackmun famously announced over two decades ago.
But, as these grants indicate, they may be willing to adjust the gears a bit.