September 21, 2011

Texas capital case highlights racial bias in psychology

Is it fair to forecast future danger based on demographics?

Even as Troy Davis's execution tonight draws attention to Georgia's death penalty, Texas remains  the undisputed execution capital of the United States. And in Texas, psychologists are integral to the process because of the prerequisite of proving future danger.

Texas psychologist Walter Quijano
It is here that Texas psychologist Walter Quijano stepped in, testifying in more than 100 capital cases. And in case after case, called by both the prosecution and the defense, he testified that defendants on trial for their lives were especially dangerous if they happened to be African American or Latino.

Like Davis's execution, Quijano’s racially imbued risk assessments are also in the international spotlight, after the U.S. Supreme Court's grant of a 30-day reprieve from death for Duane E. Buck, a convicted double-murderer who had already eaten his last meal when he got the news.

To his credit, former Texas Attorney General John Cornyn agreed with defense attorneys that infusing race into criminal sentencing is unfair. When Quijano's testimony was called to his attention some time back, he red-flagged seven cases as meriting a new sentencing hearing. (The government now argues that Buck's case is different from the others for procedural reasons.)

Duane Buck
The "infusion of race as a factor for the jury to weigh in making its determination" violates a defendant's "constitutional right to be sentenced without regard to the color of his skin," the top prosecutor stated in reference to another of the seven cases. "Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice."

Quijano, a native of the Philippines, said in an interview with CNN correspondent Raju Chebium back in 2000 that his opinion about the dangerousness of Blacks and Latinos derives from the fact that they are overrepresented in prisons. "When you look at a problem, you have to consider all the factors that you identify and not ignore (selected ones) because of political reasons."

But using incarceration rates as evidence for violence risk is circular logic. It conveniently ignores other factors that contribute to the vastly disproportionate incarceration of non-white men. These include racial profiling, poverty, economic discrimination, and most of all the racial bias endemic within all stages of the criminal justice system.

Quijano's self-styled risk method is not the only instance in which psychologists use a demographic factor to elevate risk. But hopefully the Buck case will draw attention to the larger issues of fairness and social justice that the practice raises.


Steve said...

"The government now argues that Buck's case is different from the others for procedural reasons."

Indeed, Quijano was a defense expert and Buck introduced race on his behalf. Procedurally, he didn't raise his objection in the state courts.

Karen Franklin, Ph.D. said...

Not exactly. Quijano was indeed a defense expert, but the prosecution introduced the issue of race on cross-examination, seizing upon the fact that it was one of the 24 factors Quijano considered:

"You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons,” the prosecutor asked Dr. Quijano. “Is that correct?”

“Yes,” Quijano answered.

The government is arguing that this case is different from the others because Quijano was a defense expert. But he was also a witness for the defense in two of the other cases in which new sentencing hearings were granted.

Steve said...

The Fifth Circuit certainly didn’t see it that way:

"Even assuming arguendo that the correctness of the district court's procedural ruling were subject to debate among reasonable jurists, we are satisfied that Buck's claim would fail on the merits. It was Buck, not the prosecution, who introduced Dr. Quijano as an expert witness and then solicited testimony from him regarding the use of race as one of several statistical factors for predicting future dangerousness" (Buck v. Thaler, 345 Fed.Appx. 923, 930 (5th Cir 2009).

Irrespective of the substance of Buck’s claim, plain application of AEDPA results in his claim being procedural barred.

Karen Franklin, Ph.D. said...


Thanks for taking the time to post your interesting comments. You sound like you are more well versed in the legalities of the case than I am. The reason that I skated around that aspect is because it's irrelevant to the forensic psychology issue that this batch of Texas cases raises. That issue is: When is it acceptable to use an individual's demographic characteristics to infer risk?

Steve said...

It is an interesting question. Of course, we use gender all the time (and would be foolish not to).