Christina Swarns on Race, Dangerousness, and the Death Penalty

Christina Swarns, litigation director of the NAACP Legal Defense Fund, tells the story of her recent victory in Buck v. Davis in this fascinating interview with Errol Morris, the director of The Thin Blue Line.

Ms. Swarns links the problems in Mr. Buck’s death-penalty case, where a psychologist testified that he was more likely to commit another violent offense because he was black, to broader racial injustices in the criminal law:

Predictions of future dangerousness are absurd, and then to be put in a capital punishment box which is already so contaminated by racial bias. The introduction of evidence linking race to dangerousness — like that which was presented in the Duane Buck case — was an inevitable product of future dangerousness in the capital punishment system in Texas. Because the Texas death penalty system was already so contaminated and corrupted by racial bias, the Duane Buck death sentence was a predictable outcome of that mess. …

In McCleskey v. Kemp the Supreme Court was asked to consider the statistical evidence of racial discrimination in death sentences reached by one study. The analysis found that defendants accused of killing white victims were 4.3 times more likely to receive the death penalty than defendants accused of killing black victims. The Supreme Court argued that racial discrimination has to be established in individual cases, not in the aggregate. Ironically, the court was perfectly willing to accept weak statistical arguments involving future dangerousness but to reject strong statistical arguments involving race and sentencing. …

The business of predicting future dangerousness without becoming corrupted by the various factors that are so tied to human functioning is impossible. It’s an absurd requirement. As a prerequisite for a death sentence, it’s insane.