Racial Distortion and the Way forward for the Loss of life Penalty in Texas


The murder of George Floyd – a Texan compatriot – this year brought the reality to the fore that racism – especially in the judiciary – is not a thing of the past.

As the state and nation continue to make advances in education, advocacy and awareness of racism, racial prejudice and the impact on the criminal justice system, it is clear that there is still much to be done.

As the legislative session approaches in January 2021, the Texas branch of the Racial Justice Coalition is redoubling its efforts to pass the Racial Justice Act.

The law would allow capital defendants to downgrade their convictions from the death penalty to life without parole if it can be shown that racial prejudice was a major factor in the conviction.

More than 72 percent of the people on death row in Texas are colored people. Studies link race as an important and determinant factor in the harshest punishment in the state. With the strength of the awareness generated in 2020, the RJC hopes to change that with the RJA in 2021.

“We hope that public discourse on racial inequality extends to combating racism in the death penalty and ensuring no one is executed for race,” said Megan Rollag, executive director of RJC in Texas. “It is important to emphasize that we are committed to a justice system that takes into account and aims to mitigate the effects of racial prejudice on the integrity of the judiciary. If our judicial system applies the law equally to some, it will be an injustice for all. The systemic inequality persists, because even if all actors obey the rules, the system itself did not take into account any unequal and unjust results. ”

With events in 2020, the RJC says it’s more important than ever to unearth data that illustrates how racial prejudice is affecting the Texas criminal justice system – even in cases involving the death penalty.


The coalition uses various focal points of data to support its advocacy work, including race, how race has historically influenced the judicial system in Texas, and the perception of black life in legal proceedings.

The first issue, Rollag said, is the race itself. Of the 213 inmates on death row in Texas, 156 inmates are non-white. According to the Texas Department of Justice, black inmates make up 44% of death row and Latinx inmates make up 26%. In a 2008 study published by the Houston Law Review, Professor Scott Phillips found that race of a black accused increased the likelihood of capital lawsuit by 75%.

Data from Pearson and the Texas Tribune show that in the past five years, more than 70% of Texas death sentences have been given to people of color. These numbers are even more pronounced in the counties of Texas where the death penalty is most widely used. Research by the Texas Coalition to Abolish the Death Penalty found that 20 of the 21 defendants sentenced to death in Harris County since 2004 are people of color.

But stories of how race historically influenced the judicial system in Texas are where the RJC’s work is perhaps most powerful.

The roots of the Racial Justice Act legislation began with the McCleskey v. Kemp case, which set a precedent for restricting the use of statistical evidence to show convictions and convictions based on race. Warren McClesky was accused of killing a white police officer during a robbery and faced the death penalty. During his trial, his attorneys presented the jury with strong evidence that African-American defendants like McCleskey were more likely to receive a death sentence than any other defendant.

Instead, the outcome of his case represented a legal expectation that could hardly be fulfilled: it burdened the accused with proof of discrimination in his own case. For people of color this is an insurmountable requirement.

To put a face to these numbers, Rollag mentioned others who had faced these obstacles in the judicial system, such as Duane Buck, who was sentenced to the death penalty in the late 1990s for the shooting of his ex-girlfriend and her girlfriend. The psychologist called on defense told the jury that Buck “was more likely to commit a violent crime because of his race.”

Cases like McCleskey and Buck’s are unfortunately all too common.

Hope for change

The McCleskey case also said that state lawmakers can pass their own laws on how defendants can use evidence to identify racial prejudice and appeal their convictions.

As a result, the draft Racial Justice Act could essentially prevent the state from obtaining or obtaining a criminal conviction or from imposing a penalty based on race, ethnicity or national origin.

Currently, accused Texans must rely on state or federal constitutional provisions to combat discrimination. And the stakes are highest when it comes to the death penalty, stressed Rollag.

“While we recognize and respect the activism of the past few years, this year in particular has shown that there is still a lot to be done,” said Rollag. “We are inspired by the collaboration and teamwork people across the country have shown in tackling racial inequality in the criminal justice system. Racial bias affects our judicial system at all levels and needs to be addressed. In cases of the death penalty, however, the stakes are highest. ”

The coalition is working with a data team to rethink research questions that need updating or another approach to analysis. The focus will be on jury selection, including jury shuffling, and the impact the race will have on both a jury and a minority defendant. Their efforts are also supported by several lawmakers in the capital, including Senator José Menéndez (D-San Antonio).

“We’re drawing on several studies looking at this issue across the country and at the county level,” Rollag said. “But we also hope that renewed perspectives and data analyzes will lead to swift action by the Texan legislature.”

RJC-Texas hopes that this act, and its potential impact on things like jury selection – a crucial element in the outcome of a trial and judgment – will be a powerful vehicle for change this year.

“When a jury hears expert testimony that makes a defendant’s race directly relevant to the question of life or death, the impact of that evidence cannot be measured simply by how much airtime they got in court or how many pages they got in the Record evidence, “wrote Chief Justice John Roberts in the Supreme Court ruling convicting Buck again.” Some toxins can be fatal in small doses. “