COMMENTARY: "Who Is Dangerous, and Who Dies? An appalling and racialized standard of “future dangerousness” has been used to condemn defendants. This lawyer fought it," by Errol Morris, published by The New York Times on June 7, 2017. (Errol Morris is a writer and filmmaker. He lives with his wife and French bulldog in Cambridge.)
GIST: "The
death penalty, like abortion, is one of those hot-button topics that
keeps popping up into the public consciousness, a roach motel for
meretricious ideas and bad public policy — including racism. I would bet
that if it involved putting white people to death for killing black
people, it would have been abolished years ago. Still, it persists.
Except our society — until recently — has come to believe that overt
expressions of racism might not be a good thing. Better to keep a fig
leaf over it than to explore its underbelly. In
1972, the Supreme Court found in the 5-4 decision of Furman v. Georgia
that the death penalty as practiced in this country was unconstitutional
under the Eighth and Fourteenth Amendments. But the majority couldn’t
agree on a rationale for its decision, so instead of one majority
opinion, five separate concurrences were produced. While Justices
Brennan and Marshall found the death penalty itself to be cruel and
unusual punishment, Justices Stewart, White and Douglas focused on its
arbitrariness, leaving the door wide open for states to rejigger their
statutes and return to executions. In 1973, Texas
did just that — the sentencing phase of a capital trial was separated
from the guilt phase, and the jury was asked to consider “whether there
is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society [future
dangerousness].” In response to the Furman decision, Governor Preston
Smith commuted the death sentences of 52 inmates in Texas, clearing out
death row entirely. In 1976, consolidating cases from five different
states (Georgia, Florida, Texas, North Carolina and Louisiana), the
court in Gregg v. Georgia found that the death penalty was not
unconstitutional in every case. Executions in Texas, now by
lethal injection — Old Sparky, the Texas electric chair, had been
retired — started back up in 1982. I first became
involved with all this while making my film “The Thin Blue Line.” I had
read about Dr. James Grigson, an expert witness regularly called by the
state of Texas. Some referred to him as “Dr. Death” because he would
routinely find that the defendant posed a risk of future dangerousness,
and thus should be executed. I met with Dr. Grigson in 1985, and on his
recommendation I started interviewing Texas death row inmates. Among
those Dr. Grigson had testified posed a risk of future dangerousness was
Randall Dale Adams, a convicted cop killer — or at least, so it seemed. My
film was finished, and Mr. Adams was exonerated. I had thought —
stupidly, it turned out — that Dr. Grigson had been put out of business.
Not so. The “dangerousness” provision of the Texas law remained very
much in place. But I forgot about it. I had done my fair share of good —
got an innocent man out of prison. Then,
not long ago, I read about the case of Buck v. Davis, decided by the
Supreme Court on Feb. 22. Duane Buck had been convicted of capital
murder in 1997. He killed his ex-girlfriend and one of her friends. The
details of the crime are appalling, but no less appalling is that Dr.
Walter Quijano discussed Mr. Buck’s race as a factor in determining his
future dangerousness. African-Americans, Dr. Quijano argued, are more
likely to commit acts of violence. Though Dr. Quijano opined that Mr.
Buck was not a risk of future dangerousness, his testimony about race
remained an element for the jury to consider. Dr.
Quijano has given similar testimony in other death penalty cases since
1991. Prompted by the Supreme Court’s decision in Saldaño v. Texas
(2000), which vacated the sentence of Victor Hugo Saldaño because Dr.
Quijano had testified that Mr. Saldaño’s Hispanic ethnicity made him a
greater risk of future dangerousness, State Attorney General John Cornyn
promised that his office would not object if the other defendants (Mr.
Buck among them) sought to overturn their death sentences based on Dr.
Quijano’s testimony. In Mr. Buck’s case, though, they did
object, claiming that since it was the defense attorney who put Dr.
Quijano on the stand and allowed his testimony into the record without
objection, the State of Texas owed the defendant nothing. I
called Mr. Buck’s attorney Christina Swarns, litigation director of the
NAACP Legal Defense & Educational Fund Inc., to discuss the case....(Read on at the link below for a fascinating discussion between Errol Morris and Christina Swarns. HL) And
so we’re back where we started, except things have gotten worse. We
have elected a president who invokes future dangerousness with respect
to country of national origin (and also religion). In 1977 it was Dr.
Grigson and sociopathy; in 1997, Dr. Quijano and race; and now it is
Donald Trump and a list of six countries. Think of it as a very thinly
disguised form of racism against Muslims. Christina
Swarns sent me several legal briefs submitted to the Supreme Court in
support of Buck, among them, a brief from the National Black Law
Students Association. “Whether by a judge, a prosecutor or defense
counsel, an appeal to a jury based on racial prejudice poisons our
system of justice.” And from the Lawyers’ Committee for Civil Rights
Under Law: “Mr. Buck was entitled to have his dangerousness assessed on
an individualized basis based on his personal attributes. Instead he
received a death sentence tainted by 400 years of racial stereotyping.” Notwithstanding,
the concept of dangerousness is alive and well. It took an egregious
error to call it into question in Duane Buck’s case. But it should have
been ruled as unconstitutional by the Supreme Court in 1976 (under the
Eighth and Fourteenth Amendments) and should be seen as unconstitutional
today. Admittedly, there is a difference between a court of law and a
presidential order involving immigration. But under any circumstance,
should public policy be held hostage to racial and religious
discrimination?"
The entire commentary can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
