Update: The Supreme Court has temporarily halted Duane Buck’s execution.
Whether Duane Edward Buck will live or die by lethal injection on Thursday is now up to one man: Texas Governor and presidential hopeful Rick Perry. The case for commuting Buck’s death sentence to life in prison should have been a slam dunk, given the egregious racial bias in the case. But the state’s Board of Pardons and Paroles — a panel hand-picked by Perry — denied Buck’s clemency request on Tuesday, making it far easier for Perry to do what he’s already done 234 times: allow the execution to proceed.
Without an affirmative recommendation for clemency from the board, Perry’s only legal recourse is to grant Buck a 30-day reprieve, which Buck’s lawyers could use to try and bring another claim in state court. Perry could also use his considerable political powers to explain why Buck’s case demands more serious review to ensure that justice is done. But that would be totally out of character.
Except in cases where he was compelled to do so by Supreme Court rulings or other special circumstances, Perry has commuted only one death sentence to life without parole since he took office in December 2000. Appeals for clemency that involved cases of prosecutorial misconduct and inadequate counsel have all been shunned by Perry. The governor has demonstrated no reservations about allowing execution of juveniles or those with severe mental impairments. In one case that continues to haunt Perry’s presidential campaign, he denied clemency to Cameron Todd Willingham — sentenced to death for murdering his three daughters — despite what was probably the most credible claim of innocence by any death row inmate in the United States in the last 35 years.
Duane Buck, a 48-year-old African American, is scheduled to be executed at Texas’s busy Polunsky Unit deathhouse in Livingston later this week for killing his ex-girlfriend and her boyfriend in Houston in 1995. Buck admits that he shot both of them and that he shot Phyllis Taylor, who survived a bullet wound to her chest. What’s at issue is testimony by a psychologist who took the stand at Buck’s 1997 trial and stated that Buck was more likely to be a violent threat in the future because he’s black. The state used that testimony of “future dangerousness” to convince the jury that Buck should die.
In a highly unusual intervention in 2000 then-Texas Attorney General John Cornyn called for the retrial of Buck and five other death row inmates, citing evidence of racism in all six trials. “[I]t is inappropriate to allow race to be considered as a factor in our criminal justice system,” said Cornyn, now a Texas senator. “The people of Texas want and deserve a system that affords the same fairness to everyone.” The five other defendants all received new trials because Cornyn stood firm against appeals to race.
Phyllis Taylor, the surviving shooting victim, joined Buck’s lawyers in appealing for clemency. Even the assistant district attorney who prosecuted Buck in 1997 now says the trial was a miscarriage of justice. “It is regrettable that any race-based considerations were placed before Mr. Buck’s jury,” Linda Geffin wrote in a letter to Perry and his parole board last week.
Buck’s lawyer, Kate Black of the Texas Defender Service, said the parole board’s decision “fails to recognize what the highest legal officer in the State of Texas had acknowledged,” that Buck’s trial was “tainted by considerations of race.” Black called on Perry to stay the execution and allow Buck to pursue his case for a new sentencing hearing at which a jury would be asked to hand down an appropriate sentence for the two murders without being influenced by appeals to race. That jury would still have the option of sentencing Buck to death.
Had the parole board considered seriously its responsibility to try to mitigate miscarriages of justice, the outcome in the Buck matter would have certainly been different. But the board is a creature of the governor and its members knew that recommending a commutation to life in prison — or the 120-day reprieve Buck’s lawyer’s sought as an alternative — would have only complicated Perry’s political life. For Perry to deny clemency after his own board acknowledged that Buck was sentenced to death because of his race would have been hugely controversial and would have focused even more attention on Perry’s sorry clemency record. If, on the other hand, Perry agreed to a recommendation to commute the sentence, he no doubt would have angered his hardcore conservative base. Recall that only a week ago, during a debate among Republican presidential candidates at the Reagan Library in California, the audience erupted in wild applause at the mere mention of Perry’s execution record.
The parole board’s decision to say no to Buck will allow Perry to do what he normally does — issue a statement claiming that Buck had the benefit of a thorough review by the courts, the clemency board and the governor, and then send him to his death.
At last week’s Republican debate, Perry said that Texas has a “very thoughtful, clear process” for reviewing death cases. Sadly, the case of Duane Buck and many, many more suggest that nothing could be further from the truth.