Per-Anders Pettersson/Getty Images

How Dangerous Is Your Blackness?

With two men sent to death row based on racist testimony, two cases highlight the death penalty’s fatal flaw

Two black men sitting on death row in the South, Kenneth Fults and Duane Buck, recently turned to the Supreme Court for help. Fults, who had an intellectual disability, murdered 19-year-old Cathy Bounds during a burglary in 1996. Georgia arranged for his execution to take place on Tuesday night at 7 p.m.; earlier that day, the Supreme Court denied Fults’s petition. He died as scheduled. Buck got a reprieve from the high court five years ago, hours before he was to be executed in Texas for the 1995 shooting deaths of his ex-girlfriend Debra Gardner and her friend Kenneth Butler. The Supreme Court justices are due to decide soon whether they will hear Buck’s case again, after he was denied another sentencing hearing in Texas.

Whether these men committed their crimes isn't in question. They committed them. But their attorneys have argued separately that racism is one of the reasons Fults and Buck were given death sentences.

It’s easy to say, "So what?" On the surface, Fults and Buck represent the lowest humanity has to offer. For fellow African-Americans nowadays, men like these evoke a very specific type of dread, the kind we feel when the news anchor begins to describe a crime, prompting the familiar refrain of, Please don’t be black, please don’t be black, please don’t … damn. Still, their cases matter, because when we look at how America’s criminal justice system treats the worst of us, we can most clearly see the danger that it poses to all of us — black or not.

One need go no further than the Fults and Buck trials to see that bigotry is a feature, not a bug, of capital punishment. Forty-three percent of executions kill people of color, and black defendants are more likely to get a death sentence (black people are also more likely to be charged with a crime in the first place). And, as the Marshall Project’s Evan Mandery notes, “327 Americans have been executed for interracial murders. Of these 296 were for [sic] black defendants who killed white victims. Thirty-one — 9.4% — were for whites who killed blacks.” Translation? Kill a black person and you’re not nearly as likely to die for it.

Those statistics make plain the racial injustice of capital punishment, but racism can lack even more subtlety. A white juror in the Fults trial, Thomas Buffington, signed a statement eight years after the conviction that included these sentences: “I don’t know if [Fults] ever killed anybody, but that nigger got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that’s what that nigger deserved.” (According to reports, Buffington had indicated during jury selection that he had no racial prejudice.)

In Buck’s instance, racial bias was less obvious but undeniably present. Texas instructs its juries in death-penalty cases to consider a defendant’s “future dangerousness,” or propensity for offending again, when sentencing. Essentially, this is asking jurors to divine the unknowable. Buck’s lawyers contend that the jury factored in Buck’s blackness as they tried to predict his potential for recidivism, thanks to one guy’s testimony: Psychologist Walter Quijano, a Buck defense witness who during the sentencing hearing said when questioned by the defense that “it’s a sad commentary that minorities, Hispanics, and black people are over represented in the criminal justice system.” Quijano added that if Buck were incarcerated, he wouldn’t likely be a danger to society in the future. But when the Harris County prosecutor, during cross-examination, asked Quijano whether “the race factor, black, increases the future dangerousness for various complicated reasons,” he replied, “Yes.” Later, the prosecutor told the jury to consider the experience of Quijano, “who told you that there was a probability that the man would commit future acts of violence.” That’s the incredible logic Texas has used to keep Buck on death row for nearly 20 years.

This wasn’t the only time Quijano testified that race could make someone more dangerous. After reviewing Quijano’s testimony in several cases about black and Hispanic men and receiving a demand from a state senator to cut ties with him, the Texas Youth Commission terminated a contract for his services as a psychologist in October of 2011, a month following Buck’s Supreme Court reprieve.

The idea of conjecturing future unlawful acts is, quite literally, pulled from science fiction. Take away Tom Cruise’s Minority Report tech and crime-predicting psychic triplets, and substitute poisonous ideas like inherent black criminality in their place; add in the quack psychology Quijano embraced in Buck’s case and several others, and set it all in the state that’s killed the most inmates since the Supreme Court lifted the moratorium on the death penalty in 1976. Then the term “future dangerousness” turns into something more than a phrase out of an authoritarian fantasy. It becomes downright terrifying.

Death sentences and state-sponsored killings are both on the decline nationwide; last year saw 28 prisoners executed, the fewest since 1991. But as Mandery noted in March, states are still having trouble determining which crimes are so bad that they require an eye-for-an-eye solution. The “randomness” of death sentences, Mandery wrote, “has not been reduced and in many respects has grown substantially worse.” One of the factors he cites in that worsening is “excessive racism.”

Any serious political strategy to erase systemic racism has to include the abolishment of the death penalty. If politicians won’t work to stop states like Texas from killing us, I have to doubt their professed belief that black lives matter. It may not seem worth it to champion the cause of men like Fults and Buck, who ended three lives themselves. But even if you believe that the state should be able to murder murderers, consider whether they should be able to do so based on an argument that blackness itself is dangerous.