Criminal Justice

RELEASE: Supreme Court Strikes Blow Against Racism In Criminal Sentencing

The Constitution, however, forbids racial stereotypes from affecting the administration of justice, expressly guaranteeing every person the right to an impartial jury and the equal protection of the laws

Washington, DC – This morning, in the case of Buck v. Davis, the U.S. Supreme Court agreed that Duane Buck’s criminal sentencing was affected by the ineffective assistance of counsel – after his lawyer called an expert witness to testify on his behalf who nonetheless endorsed “a powerful racial stereotype” about African American men and violence in front of Buck’s jury, claiming that Buck was more likely to be dangerous because he was black. On news of this ruling, Constitutional Accountability Center President Elizabeth Wydra, whose organization filed a “friend of the court” brief in the case, issued the following reaction:

The Court today held that Duane Buck’s lawyer performed deficiently, and that his lawyer allowed ‘a particularly noxious strain of racial prejudice’ to skew the jury’s ultimate decision in sentencing Buck to death.

Make no mistake, that testimony injected an enduring racial stereotype into Buck’s sentencing proceedings, one that holds a unique, terrible power in this nation. As our brief to the Court examined in detail, the stereotype of the violent black male is deeply entrenched in American society, having been perpetuated for generations in political discourse, scientific conjecture, and popular entertainment – entrenching a racist narrative that portrays black men as inherently dangerous and primitive. This pernicious stereotype has a demonstrable effect on perceptions and judgments. As documented by an array of social science research, the association of African Americans with violence continues to distort perceptions of reality and result in racially biased assessments. The risk of this unacceptable bias is especially acute in death penalty proceedings. As Chief Justice Roberts aptly observed in his opinion today, such ‘toxins can be deadly in small doses.’

The Constitution, however, forbids racial stereotypes from affecting the administration of justice, expressly guaranteeing every person the right to an impartial jury and the equal protection of the laws. In fact, the Framers of the Reconstruction Amendments ratified after the Civil War repeatedly acted to ensure the existence of impartial juries that would fairly apply the law regardless of race. The Court was exactly right to recognize that endorsing such a racial stereotype during a capital sentencing hearing is incompatible with America’s commitment to equal justice for all under the Constitution.”

Soon, the nation’s attention will be focused on President Trump’s nominee to replace the late Justice Antonin Scalia, Judge Neil Gorsuch. Often described as an originalist, Gorsuch has the burden to show that his commitment to the Constitution’s text and history extends past the original document ratified in 1789, and through later Amendments that protect fundamental principles of racial equality – including the principles upheld by the Court today.



CAC’s “friend of the court” brief in Buck v. Davis

“The New Supreme Court Term: Blockbusters? Maybe Not. Significant? No Question,” Elizabeth Wydra, Huffington Post, October 4, 2016:

“Supreme Court’s new term: racial prejudice in the justice, electoral systems,” Brianne Gorod, The Hill, October 3, 2016:

“Supreme Court Faces Volatile, Even if Not Blockbuster, Docket,” Adam Liptak (quoting Elizabeth Wydra on the Buck case), New York Times, October 1, 2016:


Constitutional Accountability Center ( is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.


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