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LAW REVIEWS: Predictions of Future Dangerousness Contribute to Arbitrary Sentencing Decisions

In a new article for the Lewis & Clark Law Review, author Carla Edmondson argues that the future dangerousness inquiry that is implicit in capital setencing determinations "is a fundamentally flawed question that leads to arbitrary and capricious death sentences" and because of the "persistent influence of future dangerousness ... renders the death penalty incompatible with the prohibitions of the Eighth and Fourteenth Amendments on cruel and unusual punishment." Edmonson's article, Nothing is Certain but Death: Why Future Dangerousness Mandates the Abolition of the Death Penalty, reviews the pervasive influence of future dangerousness in capital sentencing decisions throughout the U.S., either as a statutory aggravating factor, or as a permissable line of argument that prosecutors may use to encourage a jury to impose a death sentence. Edmondson argues that the practice of considering future dangerousness "impermissibly asks jurors to function as fortune tellers, basing their sentencing determination on the likelihood of some future, unascertained event." The article examines the history of the future dangerousness question, its use in various states, and empirical evidence documenting its inaccuracy, randomness, and powerful impact. Edmonson cites seminal studies conducted in Texas and Oregon, two states in which capital sentencing juries are required to find that defendants pose a continuing threat to society before they may impose the death penalty. Those studies, she writes, demonstrate both the unreliability of expert testimony on future dangerousness and the inaccuracy of jury determinations on the subject. Experts in psychology have long argued that predictions of future dangerousness are junk science, and their use in capital sentencing proceedings continues to create serious constitutional concerns. On February 22, 2017, the U.S. Supreme Court overturned the death sentence imposed in Texas on Duane Buck (pictured), whose trial was tainted by racial bias when the defense's own psychologist testified that Buck posed a future danger because he was black. On August 19, 2016, the Texas Court of Criminal Appeals stayed the execution of Jeffery Wood to permit him to litigate claims that the future dangerousness predictions of the state's expert—who had been expelled from state and national professional associations for his unscientific and unethical future dangerousness predictions in the past—constituted false scientific evidence whose use violated due process. "Often based on unreliable and prejudicial evidence, predictions of future dangerousness undermine the efficacy of any imposed sentence," Edmondson argues. "Its unavoidable influence on life-or-death decisions, and the irremediableness of the problems associated with inaccurate predictions of future behavior, demonstrates why any system of capital punishment is unconstitutional and cannot be applied consistent with the Eight Amendment’s prohibition on cruel and unusual punishment."


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