Back in mid-September, I wrote that no one should celebrate too much about the Supreme Court stay granted to Duane Buck. The stay was good news, to be sure, but I suggested that it might simply be a short delay rather than an indicator that Buck could get a new trial or sentencing hearing based on the role that racism played in his original trial and death sentence. If you don’t remember the case, this is the one where an expert witness testified that black people posed a greater risk of reoffending if released from prison.

I’ve mentioned the Buck case a few more times (here and here), as an example that allows people to claim that the system is working when, in fact, it isn’t. Now, on the same day that the Texas Court of Criminal Appeals has granted a stay to Hank Skinner, the U.S. Supreme Court has denied Buck’s appeal:

Writing for the majority, Justice Samuel Alito described Quijano’s testimony as “bizarre and objectionable,” but he said the difference in Buck’s case was that the psychologist’s discussion of race was elicited by his defense lawyers. Quijano said that although Buck would not be a future danger to society, people of his race (Buck is black) are statistically more likely to engage in crime.

While Buck’s attorneys will now appeal to the powers-that-be in Texas in the hopes of a new sentencing hearing that isn’t tainted with racism, I want to point out — one more time, especially in light of the stay granted to Hank Skinner this afternoon — that the system isn’t working. When Buck received the stay back in September, I wrote that there was no guarantee that the Supreme Court would grant him a new trial or sentencing hearing. Similarly, there’s no guarantee that the stay of execution granted to Skinner will mean that the DNA evidence in his case will be tested or that he’ll be spared from execution.

The reason the system can’t be said to be working, no matter how many times last minute stays are granted by some court or other, is that the death penalty is carried out in a manner that’s largely arbitrary and completely capricious. The answer to the question of who lives and who dies on death rows across this country is a moving target; it’s totally impossible to know from one day to the next.

This isn’t justice; it’s roulette.