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.”

The 2004 Texas study cit­ed by Edmondson exam­ined 155 cas­es in which pros­e­cu­tion experts said cap­i­tal defen­dants would pose a con­tin­u­ing risk of vio­lence and found that the experts’ pre­dic­tions of future dan­ger­ous­ness were wrong 95% of the time. The study of Oregon pris­on­ers con­vict­ed of aggra­vat­ed mur­der between 1985 and 2008 showed that ​“jurors’ pre­dic­tions of future vio­lent con­duct appeared ​‘to be com­plete­ly unre­lat­ed to the actu­al com­mis­sion of such acts’”; that “[m]ost cap­i­tal offend­ers, whether sen­tenced to death or placed in the gen­er­al prison pop­u­la­tion after being sen­tenced to life with­out parole or obtain­ing relief from a death sen­tence, do not com­mit seri­ous acts of vio­lence while in prison”; and that defen­dants who were sen­tenced to life, defen­dants who were sen­tenced to death, and defen­dants whose death sen­tences were reversed and were resen­tenced to life had vir­tu­al­ly iden­ti­cal low rates of seri­ous vio­lence while in prison.