The N.A.A.C.P. Legal Defense and Educational Fund—or the Inc. Fund, as it’s often called—has been one of the leading campaigners in the long effort to convince the Supreme Court that the death penalty is unconstitutional. Early on in that effort, the Inc. Fund was forced to broaden its approach. As the legal scholars Carol Steiker and Jordan Steiker explained in a law-review article last year, in the nineteen-sixties, the Inc. Fund “focused on the persistence of racial discrimination” in the application of capital punishment, but the Justices “consistently declined to use race as the lens for understanding or regulating the American death penalty.” Inc. Fund lawyers decided “that the best hope for many death-sentenced black inmates might rest on broader reforms—perhaps even abolition—of the capital system.” In 1972, the Supreme Court struck down capital punishment, in Furman v. Georgia, leading to a four-year moratorium on the penalty in the United States, thanks to a winning strategy devised by the Inc. Fund lawyers. They argued that, despite declining public support for the death penalty, states were keeping it so that they could impose it on marginal groups, including the poor and the powerless as well as blacks.

Five years later, in Coker v. Georgia, the Court decided that “the sentence of death for the crime of rape is grossly disproportionate and excessive punishment, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.” The Inc. Fund was lead counsel. (The Court struck down capital punishment for rape of adult women in that case. In 2008, it ruled that capital punishment for child rape is unconstitutional.) The opinion for the Court did not mention race or racial discrimination, even though, of the four hundred and fifty-five men executed for rape between 1930 and 1967, four hundred and five were black, and almost all had been convicted of raping white women. It also took no notice of a brief by Ruth Bader Ginsburg—filed on behalf of the American Civil Liberties Union, the National Organization for Women Legal Defense and Education Fund, and other groups—arguing that punishing rape with death was tied to Southern traditions that “valued white women according to their purity and chastity and assigned them exclusively to white men.” The Court avoided addressing the racial disparity in capital rape cases, and it avoided addressing the racial disparity in capital cases in general. That did not make the problem of racial discrimination go away.

Last week, Georgia executed an African-American named Kenneth Fults for murdering a white neighbor. For the trial, a white man in the pool of potential jurors was asked if his views on race would keep him from making a fair judgment about the case, since the defendant was a black man and the victim a white woman. He said no and was included in the jury that sentenced Fults to death. Eight years later, an investigator working on Fults’s appeal took a sworn statement from the juror. The man said, “I don’t know if he 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.” In rejecting Fults’s appeal, the U.S. Court of Appeals for the Eleventh Circuit said that he should have raised this issue of prejudice sooner in state court or explained why he hadn’t, so he was “procedurally barred” from raising it in federal court.

Photograph Courtesy Texas Department of Criminal Justice

Racial discrimination is unavoidable in considering the Texas death-penalty case of Duane Buck. In the campaign to reduce his punishment from execution to life in prison, the Inc. Fund has been prominent and tenacious, because the discrimination in his case is blatant. Buck was convicted of murdering two women in 1996. He was sentenced to death in 1997. To sentence an offender to death under Texas law, a jury must unanimously conclude that the defendant is likely to commit future criminal acts of violence. In the Buck case, a psychologist named Walter Quijano provided evidence to that effect. Before trial, he claimed in a report that Buck was more likely to be dangerous because he is black. He wrote, “Race. Black. Increased probability.”

Major studies have disproved the long-standing, prejudicial assumption of a link between race and dangerousness. In 2000, the Texas attorney general said that asserting that connection was both false and unconstitutional. In the case of Victor Hugo Saldaño, who was found guilty of murder, the Supreme Court vacated his death sentence and sent the matter back to a Texas court for a new sentencing hearing at the request of the attorney general. “My position in this matter is taken with full respect and empathy for the suffering experienced by victims of crime and their families,” he said. “But the public cannot have confidence in a criminal justice system if race is going to be considered at all in determining whether the ultimate penalty will be given.” He pledged that in the Buck case and six others, “in which testimony was offered by Dr. Quijano that race should be a factor for the jury to consider in making its determination about the sentence in a capital murder trial,” there would be new and fair sentencing hearings.

That happened in the six other cases, but not in Buck’s. Texas said the Buck case is different because Quijano was a witness for Buck, rather than for the prosecution—though the psychologist was also a defense witness in two of the other cases. More important, a lawyer providing effective counsel would not have called Quijano as a witness, as Buck’s lawyer did, after getting such an inflammatory report from him. (Another defense expert testified that Buck’s records showed that he was not likely to commit criminal acts of violence in the future.) At the trial, on cross-examination, the prosecutor asked Quijano whether he had determined “that the race factor, black, increases the future dangerousness, for various complicated reasons; is that correct?” Quijano answered, “Yes.”

Nor would a lawyer providing effective counsel have waited two years after the confession of error by the Texas attorney general, as a different lawyer for Buck did, to challenge on appeal the trial lawyer’s introduction of race in the sentencing proceeding. Without considering the merits of Buck’s case, Texas’s highest criminal court dismissed his application for a hearing, calling it an abuse of the state’s writ of habeas corpus because the issue should have been raised in an early application. Buck got new lawyers, who sought a new hearing on the merits in federal court. But, based on a 1991 precedent, the petition was not allowed to raise the issue of ineffective counsel in the state trial or appeal. That case worked its way up the chain of federal courts, and the Supreme Court denied his petition in 2011.

In 2013, Buck’s lawyers filed a new habeas application in state court. While it was pending, the Supreme Court made a ruling in a different case that, for the first time, allowed a federal court to consider a claim of ineffective assistance of counsel. Texas’s highest criminal court again denied Buck’s application, by a vote of 6–3, but with a dissent by Judge Elsa Alcala, who wrote, “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase.” The lawyer who handled Buck’s initial habeas appeal “was so incompetent as to assert not even one arguably legitimate claim,” and the combination of that lawyer’s “errors and the combined force of state and federal procedural-default laws” means that “no Court has ever considered the merits of applicant’s legitimate claims for post-conviction relief.”