Race & Future Dangerousness: Part 1

The case of Buck v. Davis was decided by the Unites States Supreme Court on February 22, 2017. Petitioner Duane Buck was convicted of capital murder in a Texas court. Under state law, the jury was permitted to impose a death sentence only if it found unanimously and beyond a reasonable doubt that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist, Dr. Walter Quijano, to offer his opinion on that issue. Dr. Quijano had been appointed to evaluate Buck by the presiding judge and had prepared a report setting out his conclusions. To determine the likelihood that Buck would act violently in the future, Dr. Quijano had considered a number of statistical factors, including Buck’s race.

Statistical factors have taken a far greater role in New Jersey criminal courts with the advent of Criminal Justice Reform. Statistics are the driving force behind a defendant’s risk assessment and the determination regarding whether should be detained pre-trial or released under pre-trial conditions. The wise words attributed to Mark Twain, that there are three kinds of lies: lies, damned lies and statistics, highlights how statistics are subject to manipulation.

Although Dr. Quijano ultimately concluded that Buck was unlikely to be a future danger, his report also stated that Buck was statistically more likely to act violently because he is black. The report read, in relevant part: “Race. Black: Increased probability.” Despite knowing the contents of the report, Buck’s counsel called Dr. Quijano as a witness, where he testified that race is a factor “known to predict future dangerousness.” Dr. Quijano’s report was admitted into evidence at the close of his testimony. The prosecution questioned Dr. Quijano about his conclusions on race and violence during cross-examination, and it relied on his testimony in summation. During deliberations, the jury requested and received the expert reports admitted into evidence, including Dr. Quijano’s. The jury returned a sentence of death.