How "Future Dangerousness

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Article
An Overdose of Dangerousness:
How “Future Dangerousness” Catches the Least
Culpable Capital Defendants and Undermines the
Rationale for the Executions It Supports.
Meghan Shapiro∗
I. Introduction ............................................................................................... 102
II. Overinclusiveness of Dangerousness Predictions Undermines the

Incapacitation Rationale of the Executions They Support ........................ 104
A. Dangerousness has stretched far beyond that which the Supreme
Court originally approved. ................................................................ 104
B. Over-prediction, inherent to the science of dangerousness
prediction, is greatly amplified in the capital context. ...................... 108
i. Common evidentiary rulings and refusals to provide limiting
instructions increase the likelihood of over-prediction............... 109
ii. Current use of future dangerousness experts contributes to
overprediction. ............................................................................ 115
C. Overinclusion undercuts the Supreme Court’s original
affirmation of capital dangerousness statutes.................................... 121
III. Dangerousness Obscures Culpability, Undermining the Retributive

Function of Dangerousness-Based Executions. ........................................ 124
A. Dangerousness obscures the purpose of capital sentencing
hearings, using fear to shift jurors’ attention away from any
meaningful culpability determination. .............................................. 124
B. Dangerousness catches defendants with low culpability and
results in death sentences unsupported by a retributive rationale. .... 128
IV. Dangerousness Has Fallen Dramatically Out of Step with the Supreme
Court’s Efforts to Constitutionalize the Death Penalty, and Out of Step
∗
J.D. 2009, University of Texas School of Law; B.A. 2006, College of William & Mary. This arti-
cle is dedicated to Wilbert Lee Evans, who helped save the lives of correctional officers during a 1984
escape by other death row inmates; dedicated also to my father, Jonathan Shapiro, who represented Mr.
Evans for eight years and stood by him the night he was executed by the Commonwealth of Virginia for
posing a future danger to society. I am speechlessly grateful for Jordan Steiker’s and David Bruck’s
tremendous generosity of time and ideas. Thanks also to Elizabeth Brummett, Hannah Miller, and Peter
Walker.
101
Electronic copy available at: http://ssrn.com/abstract=1402362

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with Reality. .............................................................................................. 131

A. Is future dangerousness flying under the constitutional radar? ......... 132
B. Future dangerousness misses the reality boat ................................... 136
i. Audita Querela: a means of reassessing dangerousness? ........... 139
C. Do future dangerousness-based executions have a legitimate
penological rationale? ....................................................................... 141
V. Conclusion................................................................................................. 142
Appendix A: Oklahoma and Future Dangerousness ............................................. 145
Appendix B: Virginia and Future Dangerousness................................................. 148
Appendix C: Future Dangerousness and the Execution of Juvenile Defendants .. 155
I. Introduction
“Future dangerousness” is a very non-technical1 name for a particu-

larly problematic capital sentencing factor used in nearly every capital ju-
risdiction in the United States,2 directly underlying at least half of all mod-
ern era executions3 and likely playing some role in the rest.4 Despite its
1 The term “future dangerousness” is only found in one capital sentencing statute. See WYO.
STAT. ANN. § 6-2-102(h)(xi) (2003). It is arguably misleading. As one researcher has explained, the
concept of dangerousness “is a social judgment that is overly broad, independent of contextual factors,
and not subject to reliable measurement.” Mark D. Cunningham, Dangerousness and Death: A Nexus in
Search of Science and Reason, 61 AM. PSYCHOLOGIST 828, 834 (2006) (hereinafter Cunningham,
Nexus). Most existing statutes, in contrast, technically call for an assessment of a probability of a spe-
cific future occurrence: acts of violence. Although the difference is more than a semantic one (some
capital attorneys even go to the length of barring the state from referring to this factor as “future
dangerousness” in the jury’s presence, see E-mail from Joseph Flood, Capital Regional Defender for
Northern Virginia, to author (Apr. 1, 2008) (on file with author)), for simplicity this article refers to this
sentencing factor as “future dangerousness,” its most commonly recognized name.
2 Future dangerousness is a requisite sentencing factor in two states (see OR. REV. STAT. §
163.150(1)(b)(B) (2005); TEX. CODE CRIM. PROC. art. 37.071(b)(1) (Vernon 2008)), an optional statu-
tory aggravating factor in four states (see IDAHO CODE ANN. § 19-2515(9)(i) (2006); 21 OKLA. STAT. §
701.12(7) (2001); VA. CODE ANN. §§ 19.2-264.2, 264.4(c) (2007); WYO. STAT. ANN. § 6-2-102(h)(xi)
(2003)), and an articulated non-statutory aggravating factor in at least two dozen states and the federal
system. Psychologist and “future dangerousness” expert Mark Cunningham reports testifying as a rebut-
tal witness in Texas, Virginia, Oklahoma, Arkansas, New Mexico, Arizona, Nevada, Oregon, Idaho,
Colorado, Kansas, Missouri, Tennessee, Illinois, Indiana, Louisiana, and other states, as well as testify-
ing or providing declarations for ineffective assistance claims in state post-conviction or federal habeas
in several of the above states plus Florida and California. E-mail from Mark Cunningham to author
(Dec. 1, 2007) (on file with author). For a list of twelve states that have mentioned future dangerousness
in case law as a non-statutory factor, see Mitzi Dorland & Daniel Krauss, The Danger of Dangerousness
in Capital Sentencing: Exacerbating the Problem of Arbitrary and Capricious Decision Making, 29
LAW & PSYCHOL. REV. 63, 64 n.12 (2005).
3 As of April 29, 2009, 1158 people have been executed in the United States since 1976. See
Death Penalty Information Center, Execution Information,
http://www.deathpenaltyinfo.org/article.php?scid=8&did=146 (last visited April 29, 2009). The top
three executing states are also the top three states to base executions on future dangerousness: all 436 of
Texas’ executions were so based (see Death Penalty Information Center, State by State Information,
Electronic copy available at: http://ssrn.com/abstract=1402362

SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
2008] Future Dangerousness 103
popularity (U.S. Attorneys raised future dangerousness claims in 77% of

federal capital prosecutions from 2005-2007),5 the American Psychiatric
Association has maintained for over twenty years that such predictions of
future threat are “wrong in at least two out of every three cases.”6 Thus,
while an inquiry into a defendant’s future dangerousness seems to align
with a Supreme-Court-approved purpose of capital punishment (“the inca-
pacitation of dangerous criminals and the consequent prevention of crimes
that they may otherwise commit in the future”),7 in application the incapaci-
tation rationale is severely undermined by alarmingly unreliable predictions
of future threat. Of even graver concern should be the effect of future
dangerousness to obscure any culpability determination, resulting in a high
number of death sentences for vulnerable defendants most people would
never consider “deserving of execution,”8 and undercutting another com-
mon rationale for capital punishment: retribution.
This should cause us all to pause and, as Justice Stevens recently
urged in Baze v. Rees, to question our retention of a system that is “the
product of habit and inattention rather than an acceptable deliberative proc-
ess that weighs the costs and risks of administering that penalty against its
identifiable benefits[.]”9 This article examines future dangerousness’
flawed application and unique ability to distort the constitutional function
of capital sentencing hearings, replacing a juror’s duty to consider individ-
ual culpability with a fear of responsibility for future violence. I conclude
that, while comprehensive reforms might minimize its unsettling and un-
http://www.deathpenaltyinfo.org/article.php?scid=8&did=1110); 74 of Virginia’s 103 (including 24

based on future dangerousness alone), see Appendix B, infra; and 65 of Oklahoma’s 89, see Appendix
A, infra.
4 The Supreme Court and legal scholars have observed future dangerousness considerations influ-
encing capital sentencing decisions even when never explicitly mentioned in the courtroom. See Deck
v. Missouri, 544 U.S. 622, 633 (2005); John H. Blume & Stephen P. Garvey, Future Dangerousness in
Capital Cases: Always “At Issue,” 86 CORNELL L. REV. 397 (2001).
5 See Mark D. Cunningham, Thomas J. Reidy, & Jon R. Sorensen, Assertions of “Future
Dangerousness” at Federal Capital Sentencing: Rates and Correlates of Subsequent Prison Misconduct
and Violence, 32 LAW & HUM. BEHAV. 46, 47 (2008) (hereinafter Cunningham, Assertions).
6 Amicus Brief of the American Psychiatric Ass’n for Petitioner at *14, Barefoot v. Estelle, 463
U.S. 880 (1983) (No. 82-6080), 1982 U.S. Briefs 6080 (1982) (hereinafter Amicus Brief) (“The large
body of research in this area indicates that, even under the best of conditions, psychiatric predictions of
long-term future dangerousness are wrong in at least two out of every three cases.”). A more recent
amicus brief from the American Psychological Association was filed in the United States Court of Ap-
peals for the Fifth Circuit, calling for the re-examination of the future dangerousness aggravating factor
in light of existing research, and the Texas Psychological Association and Texas Appleseed filed a simi-
lar brief with the Texas Court of Criminal Appeals in 2007. See Cunningham, Assertions, supra note 5,
at 63 (citing the American Psychological Association Amicus Brief filed in United States v. Sherman
Lamont Field and a 2007 amicus brief filed by the Texas Psychological Association in Noah Espada v.
Texas).
7 Gregg v. Georgia, 428 U.S. 153, 183 n.28 (1976) (plurality opinion of Stewart, Powell, and Ste-
vens, JJ.).
8 Roper v. Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319
(2002)) (“Capital punishment must be limited to those offenders who commit ‘a narrow category of the
most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’”).
9 Baze v. Rees, 128 S. Ct. 1520, 1546 (2008) (Stevens, J., concurring in the judgment).
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constitutional implications, current use of future dangerousness is leading to

unnecessary and unconstitutional executions lacking both incapacitation
and retributive rationales.
II. Overinclusiveness of Dangerousness Predictions Undermines the

Incapacitation Rationale for the Executions They Support
The incapacitation rationale for executions rests on an under-

standing that such executions are necessary. Basing executions on a con-
sideration known to be inaccurate and overinclusive undoubtedly undercuts
any argument that such executions are necessary. And yet, in-court deter-
minations that capital defendants pose a future threat have an absurdly low
accuracy rate—probably significantly below thirty-three percent, according
to a time-tested statement of the American Psychiatric Association.10 This
striking statistic results in extreme over-inclusion of non-dangerous indi-
viduals in that category of capital defendants adjudged a future danger. At
fault for this over-inclusion are two culprits: vagueness of statutory pur-
pose; and scientific unreliability that is uniquely amplified in the capital
sentencing context by flawed methodology, admission of prejudicial evi-
dence, and exclusion of pertinent evidence. The capital dangerousness fac-
tor, largely undefined both in its terminology and legislative purpose, is be-
ing treated less as a quantifiable risk assessment than a statutorily invented
psychological category. Modern jurors, presented with a prejudicial palate
of evidence and left with little guidance or even misguidance as to the fac-
tor, base death sentences on misunderstood and unrealistic versions of fu-
ture threat, resulting in unnecessary executions and undermining any inca-
pacitation justification.
A. Dangerousness has stretched far beyond that which the Supreme Court
originally approved.
Future dangerousness was born in the 63rd Texas Legislature,

which incorporated it in its 1973 scramble to reinstate the death penalty af-
ter Furman v. Georgia.11 Though actually absent from either bill originally
passed by Texas’ House or Senate, dangerousness was inserted by a confer-
ence committee and given little if any discussion before passage.12 As one
10 See Amicus Brief, supra note 6, at *14. As this section will make clear, capital sentencing
hearings create far from the best of conditions, rendering the accuracy rate presumably lower.
11 408 U.S. 238 (1972) (arbitrary and capricious capital sentencing violates the Eighth Amend-
ment).
12 House Bill 200 as revised and recommended by the Conference Committee (H.J. of Tex, 63rd
Leg., R.S. 4975-76 (1973)) and finally adopted by the Texas House and Senate on May 28, 1973, was
notably different from both prior adopted House and Senate capital sentencing bills, neither of which
relied on the special issues framework or incorporated a “future dangerousness” determination at all.
See H.B. 200, 63rd Leg., R.S. (Tex. 1973); S.B. 10, 63rd Leg., R.S. (Tex. 1973). Both of these unique
characteristics were born in Conference Committee. Representative Washington even moved for a
"point of order against further consideration of the Conference Committee Report on HB200 on the
researcher has described this legislative history, the Committee’s task was
“to create a death penalty statute of broad application that would still pass
muster with the Supreme Court” and little else.13 The resulting statute
asked the jury to determine “whether there is a probability that the defen-
dant would commit criminal acts of violence that would constitute a con-
tinuing threat to society[.]”14 The lack of legislative intent behind what has
become a critical feature of Texas’ capital system may be disconcerting,15
but the 1976 Supreme Court simply presumed Texas’ dangerousness statute
to be literally construed (a practical inquiry into the risk of future violence),
and affirmed it on the basis of its identical use in other legal proceedings.16
Five other states codified future dangerousness after the Supreme
Court affirmed Texas’ provision.17 The statutes are notoriously undefined;
grounds that it contains language not included in either the House or Senate versions of the bill. The
Speaker overruled the point of order." H.J. of Tex., 63rd Leg., R.S. 4985. Representative Spurlock
moved that the House not adopt the Conference Committee Report but appoint a new Conference Com-
mittee instead; this motion was tabled, and the report was adopted by the House by vote of 114 Yeas and
30 Nays. Id. The Senate passed the Committee's recommended bill by 27 Yeas and 4 Nays. Id. at 5022.
For a full discussion of this legislative history, including commentary in contemporary newspaper re-
ports, see Eric F. Citron, Note, Sudden Death: The Legislative History of Future Dangerousness and the
Texas Death Penalty, 25 YALE L. & POL’Y REV. 143, 162-74 (2006) (pp. 170-173 in particular focus on
the introduction of the future dangerousness language in committee).
13 Cunningham, Nexus, supra note 1, at 829 (citing personal communication with Jack Ogg,
March 24, 2006, and concluding, “Issues of particularization, such as they were, seem to have been
driven more by this agenda than by philosophical considerations of individual death worthiness or sound
scientific methodology.”). Cunningham reported that Texas Senator Jack Ogg served on the conference
committee of the 63rd Session in 1973 and “recalled that there was a collective appreciation among the
conference committee that there should be some feeling of future threat so that a capital defendant
would not be sentenced to life, that there needed to be some justification to go beyond a life sen-
tence[.]” Id. As Dr. Cunningham further explained, “The drafting of [the future dangerousness special
issue] was a minimalist individualizing consideration, crafted late in the session by a conference com-
mittee motivated to pass a death penalty bill and formulated on the basis of intuition rather than scien-
tific data. The legislative origins of future dangerousness as a capital sentencing determination call to
mind the observation of Otto von Bismarck (1815-1898): ‘If you like laws and sausages, you should
never watch either one being made.’ Interestingly enough, Mr. Ogg cited this homily in describing the
work of the conference committee.” Id. at 830. My own review of the House debate on House Bill 200,
prior to Conference Committee revision, is consistent with Dr. Cunningham's conclusion. Following the
Conference Committee's revisions, there was no recorded discussion of the language of the bill in the
House prior to passage. See H.B. 200, 63rd Leg., R.S. (Tex. 1973) (enacted); TEX. CODE CRIM. PROC.
ANN. art. 37.071 (Vernon 1973).
14 TEX. CODE CRIM. PROC. ANN. art. 37.071 §2(b)(1) (Vernon 1973).
15 See Citron, supra note 12 (arguing that the ambiguous intent behind Texas’ future
dangerousness statute argues for more judicial leeway in interpretation of the standard).
16 Despite the fact that, “It is, of course, not easy to predict future behavior,” when affirming
Texas’ new statute, the Supreme Court held in 1976 that “prediction of future criminal conduct is an
essential element in many of the decisions rendered throughout our criminal justice system.” Jurek v.
Texas, 428 U.S. 262, 274-75 (1976). Citing decisions pertaining to bail, non-capital sentencing, and pa-
role, the opinion concluded, “the statutory question in issue is thus basically no different from the task
performed countless times each day throughout the American system[.]” Id. at 276.
17 Of the five states to do so, Oregon’s statute is identical to Texas’, Oklahoma’s has no substan-
tive differences, Virginia requires a “serious threat” and consideration of the defendant’s criminal his-
tory, Wyoming's requires a finding that a defendant “poses a substantial and continuing threat of future
dangerousness or is likely to commit continued acts of criminal violence,” and Idaho’s—by far the most
unique—requires a finding that “The defendant, by his conduct, whether such conduct was before, dur-
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Texas, Oklahoma and Virginia, for example, leave every operative word
undefined.18 But it is the failure to define one word in particular that has
spawned a more serious problem in some states: despite the existence of life
without parole, Oklahoma and Virginia refuse to limit the “society,” to
which capital defendants are predicted to pose a threat, as prison society,
considering the inquiry a measurement of the defendant’s character instead
of a literal inquiry into his future risk.19 In one recent case, a Virginia trial
ing or after the commission of the murder at hand, has exhibited a propensity to commit murder which
will probably constitute a continuing threat to society.” IDAHO CODE ANN. § 19-2515(9)(i) (2006); see
also OKLA. STAT. tit. 21 § 701.12(7) (1983) (“The existence of a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to society[.]”); OR. REV.
STAT. § 163.150(1)(b)(B) (2005); VA. CODE ANN. § 19.2-264.2 (2007) (“In assessing the penalty of any
person convicted of an offense for which the death penalty may be imposed, a sentence of death shall
not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convic-
tions of the defendant, find that there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing serious threat to society or that his conduct in committing the
offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind or an aggravated battery to the victim; and (2) recommend that the
penalty of death be imposed.”); VA. CODE ANN. § 19.2-264.4(c) (2007) (“The penalty of death shall not
be imposed unless the Commonwealth shall prove beyond a reasonable doubt that there is a probability
based upon evidence of the prior history of the defendant or of the circumstances surrounding the com-
mission of the offense of which he is accused that he would commit criminal acts of violence that would
constitute a continuing serious threat to society, or that his conduct in committing the offense was outra-
geously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggra-
vated battery to the victim.”); WYO. STAT. ANN. § 6-2-102(h)(xi) (2003). Two additional states list some
form of non-dangerousness as a mitigating factor, employing a variety of the terms found in the above
statutes. See COLO. REV. STAT. § 18-1.3-1201(4)(k) (2006) (“the defendant is not a continuing threat to
society”); MD. CODE ANN., CRIM. LAW § 2-303(h)(2)(vii) (West 2006) (“it is unlikely that the defendant
will engage in further criminal activity that would be a continuing threat to society”); WASH. REV. CODE
§ 10.95.070(8) (2004) (“whether there is a likelihood that the defendant will pose a danger to others in
the future”). New Mexico, which only recently abolished its death penalty, listed “the defendant is
likely to be rehabilitated” as a mitigating circumstance. See N.M. STAT. ANN. § 31-20A-6(G) (2003).
18 Accordingly it is not error in Texas to fail to define “probability,” “criminal acts of violence,”
or “continuing threat to society”— every operative term in TEX. CODE CRIM. PROC. art. 37.071 §2(b)(1).
According to the Texas Court of Criminal Appeals, jurors are supposed to know such common mean-
ings; the terms are not impermissibly vague. See James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993)
(holding that same terms are not impermissibly vague); Druery v. State, 225 S.W.3d 491, 509 (Tex.
Crim. App. 2007) (“As we have previously stated, [t]his Court has repeatedly held that the terms . . .
‘probability,’ ‘criminal acts of violence,’ and ‘continuing threat to society,’ . . . require no special defini-
tions. . . . [They] are used in their ordinary meaning[.]”) (internal quotations and citations omitted). Vir-
ginia and Oklahoma reach the same conclusion on the logic that the Supreme Court upheld Texas’ stat-
ute. See Johnson v. State, 665 P.2d 815, 821 (Okla. Crim. App. 1982) (citing Jurek v. Texas, 428 U.S.
262 (1976) (disagreeing with petitioner’s argument “that it is impossible to predict future behavior and
that the question is so vague as to be meaningless.”)); Smith v. Commonwealth, 248 S.E.2d 145, 148
(Va. 1978) (same). Idaho appears to be the main exception to this rule, interpreting its “propensity” lan-
guage to specify that a person “is a willing, predisposed killer who tends toward destroying the life of
another, one who kills with less than the normal amount of provocation;” propensity assumes a “procliv-
ity,” and “susceptibility, and even an affinity toward committing the act of murder.” State v. Creech,
670 P.2d 463, 472 (Idaho 1983).
19 Berget v. State, 824 P.2d 364, 374 (Okla. Crim. App. 1991) (“As his eighth assignment of error,
Petitioner claims that the evidence offered in support of the aggravating circumstance ‘the existence of a
probability that the defendant would commit criminal acts of violence that would constitute a continuing
threat to society’ was insufficient. He alleges that because he would be confined for life in prison, the
term ‘society’ must relate only to prison society and not to the community at large . . . . We decline to
adopt such a narrow view of the term.”); Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991)
court judge interrupted defense counsel’s closing argument to correct coun-

sel’s characterization of society as “prison society,” stating society means
“[e]verybody, anywhere, anyplace, anytime[.]”20 Texas also fails to define
“society,” but on logic that jurors will naturally apply such a limiting con-
struction themselves.21 A recent question from jurors in a Virginia capital
trial proves the faultiness of such an assumption: “In the first aggravating
circumstance (continuing threat), are we to consider whether the defendant
would be a continuing threat if serving a sentence of life without parole?
Or are we to consider whether the defendant would be a continuing threat if
walking the streets as a free man?”22
However problematic this failure to define “society” was before the
nation began its sweeping adoption of life without parole, it is all the worse
now that jurors are given this alternative in every U.S. death penalty juris-
diction.23 Because necessity is implicit in the justification of incapacitation,
a lack of necessity—indicated not only by the existence of life without pa-
role but also by sociological research and polls indicating a drop in support
for the death penalty when life without parole is an option24—demonstrates
(even though the jury was instructed to disregard any consideration of parole, because the phrase ‘con-
tinuing threat to society’ did not require special definition), overruled on other grounds, Casillo v. State,
913 S.W.2d 529 (Tex. Crim. App. 1995); Lovitt v. Commonwealth, 537 S.E.2d 866, 879 (Va. 2000)
(“We find no merit in Lovitt's argument that the only relevant ‘society’ for the jury's consideration of his
‘future dangerousness’ was prison society. . . . The statute does not limit this consideration to ‘prison
society’ when a defendant is ineligible for parole, and we decline Lovitt's effective request that we re-
write the statute to restrict its scope.”). In a recent case argued to the Virginia Supreme Court, the
Commonwealth took the position, “Testimony about the security of a prison is simply irrelevant to the
issue before the jury about the defendant’s character.” Brief of Commonwealth at 17, Porter v. Com-
monwealth (Petitioner’s Reply-Brief, on file with author). Porter v. Commonwealth was decided in the
Commonwealth’s favor on this issue (and others). See Porter v. Commonwealth, 661 S.E.2d 415 (Va.
2008), cert. denied 2009 LEXIS 3047 (Apr. 20, 2009).
20 Porter, 661 S.E.2d at 442. The Virginia Supreme Court refused to consider Porter’s claim of
error resulting from this, because even though defense counsel requested a mistrial at the end of his clos-
ing argument, and the next day filed a written mistrial motion (both of which were denied), the objection
was not timely because not made at the time the words were spoken by the trial court. Id.
21 See Rougeau v. State, 738 S.W.2d 651, 660 (Tex. Crim. App. 1987), overruled on other
grounds by Harris v. State, 784 S.W.2d 5, 18-19 (1989) (The term “society” is “usually dependant upon
the context in which the word is used[,]” and “the jury would clearly focus its attention on the ‘society’
that would exist for the defendant and that ‘society’ would be the ‘society’ that is within the Department
of Corrections.”).
22 Question Submitted by the Jury in Commonwealth v. Prieto on February 29, 2008 (on file with
author). The judge did not provide a direct response to this question. The Virginia Supreme Court ap-
parently permits this imaginary interpretation of future dangerousness, and the U.S. Supreme Court has
never ruled on the issue.
23 Death Penalty Information Center, Life Without Parole, http://www.deathpenaltyinfo.org/life-
without-parole. New Mexico recently abolished its death penalty, eliminating the only remaining capital
jurisdiction that did not offer life without parole. Prior to abolition, New Mexico did permit some use of
future dangerousness in capital sentencing. See Clark v. Tansy, 882 P.2d 527, 533 (N.M. 1994) (holding
future dangerousness appropriate for consideration by capital sentencing juries as long as the defendant
is given an opportunity for rebuttal); E-mail from Mark Cunningham to author (Dec. 1, 2007) (on file
with author) (noting expert future dangerousness rebuttal testimony in New Mexico).
24 See Baze, 128 S.Ct. at 1547 n.11-12, and accompanying text (Stevens, J., concurring in the
judgment).
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that incapacitation is not a sufficient justification for a death sentence based

on unrealistic views of the “society” to which a defendant poses future dan-
ger.
And yet, if the Oklahoma and Virginia legislatures intended their
future dangerousness statutes not to justify incapacitation but instead to
provide prosecutors a capital system of “broad application,”25 they have
achieved their goal with these enduringly vague statutes: Virginia, Okla-
homa, and Texas—the three states to leave “society” entirely undefined—
have carried out more executions than any other states in the nation.26
Whether the Supreme Court would approve this new incarnation of future
dangerousness is very much an open question, but any foundation on the
necessity of incapacitation should unquestionably fail.
B. Over-prediction, inherent to the science of dangerousness prediction, is

greatly amplified in the capital context.
The accuracy of dangerousness predictions has an inverse relation-

ship to the length of commitment or confinement.27 This factor, and an in-
evitable tendency toward over-prediction,28 should warrant the highest level
of safeguards when dangerousness predictions are made in the death pen-
alty context; counterintuitively, the opposite is true. Despite the prevailing
doctrine that “death is different” from every other punishment, capital de-
fendants receive fewer protections than non-capital offenders—a trend re-
cently noted generally by Justice Stevens29 but endemic to capital future
dangerousness.
Although long detentions require “monitoring, frequent follow-up,
and a willingness to change one’s mind about treatment recommendations
25 See text accompanying note 13, supra.

26 In total numbers of executions since 1976, Texas is number one, Virginia is number two, and
Oklahoma is number three. See Death Penalty Information Center, Fact Sheet,
http://www.deathpenaltyinfo.org/FactSheet.pdf (last visited January 20, 2009). Oregon, Idaho, and
Wyoming, the only three other states with “future dangerousness” statutes, have executed only four peo-
ple collectively—three of whom were volunteers. See State v. Wells, 864 P.2d 1123, 1125 (Idaho 1993)
(Keith Eugene Wells was executed Jan. 6, 1994); Wright v. Thompson, 922 P.2d 1224 (Or. 1996)
(Douglas Franklin Wright was executed Sept. 6, 1996); State v. Moore, 927 P.2d 1073 (Or. 1996) (Harry
Charles Moore was executed May 16, 1997); Hopkinson v. State, 632 P.2d 79 (Wyo. 1981) (Mark A.
Hopkinson was executed January 22, 1992). See Death Penalty Information Center, State by State In-
formation, http://www.deathpenaltyinfo.org/state/ (last visited April 29, 2009).
27 Barefoot v. Estelle, 463 U.S. 880, 919 (1983) (Blackmun, J., dissenting) (evidence establishing
the unreliability of psychiatric long-term predictions is “overwhelming”); see also id. at 919 n.2 (citing
eleven authorities).
28 Overprediction is a noted effect in any dangerousness prediction. See, e.g., John Monahan, The
Prediction of Violence, in VIOLENCE AND CRIMINAL JUSTICE 15, 20-23 (Duncan Chappell & John
Monahan eds., 1973) (noting that dangerousness is overpredicted due to consequences to the predictor of
an incorrect non-dangerousness diagnosis); John Monahan & Lesley Cummings, Prediction of
Dangerousness as a Function of its Perceived Consequences, 2 J. CRIM. JUST. 239 (1974).
29 Baze, 128 S.Ct. at 1550 (Stevens, J., concurring in the judgment) (“Ironically, however, more
recent cases have endorsed procedures that provide less protections to capital defendants than to ordi-
nary offenders.”).
and dispositions for violent persons, whether within the legal system or
without,”30 as once noted by Justice Blackmun, “[i]n a capital case there
will be no chance for ‘follow-up’ or ‘monitoring.’”31 This is only one of
many serious shortfalls; the following subsections explore additional
sources of disparity: in the treatment of evidence (both admitted and ex-
cluded); in the failure of courts to provide limiting jury instructions; and in
the use of expert witnesses.
i. Common evidentiary rulings and refusals to provide limiting

instructions increase the likelihood of over-prediction.
State courts regularly admit certain types of dangerousness evi-

dence that are in fact not relevant to future risk, while excluding others that
unquestionably are. Admitted evidence frequently includes the defendant’s
criminal history and the circumstances of the murder32 (state supreme courts
have affirmed death sentences on the facts of the murder alone).33 Addi-
tionally, mental illness, psychiatric identification of dangerousness (ex-
plored extensively in the next subsection), and “lack of remorse” are com-
monly accepted forms of proof.34 Peer-reviewed research makes clear,
however, that—with the exception of past violent conduct in prison35—
30 Barefoot, 463 U.S. at 936 n.14 (Blackmun, J., dissenting) (citing American Psychiatric Associa-
tion, TASK FORCE REPORT: CLINICAL ASPECTS OF THE VIOLENT INDIVIDUAL 30 (1974)).
31 Id. For a discussion of how the legal system contributes to this problem, see notes 181-185,
193-197, and accompanying text, infra.
32 See Turrentine v. State, 965 P.2d 955, 977 (Okla. Crim. App. 1998) (“A finding that the defen-
dant would commit criminal acts of violence that would constitute a continuing threat to society is ap-
propriate when the evidence establishes 1) the defendant participated in other unrelated criminal acts; 2)
the nature of the crime exhibited the calloused nature of the defendant; or 3) the defendant had previ-
ously been convicted of a crime involving violence.”); Edmonds v. Commonwealth, 329 S.E.2d 807,
813 (Va. 1985) (In Virginia, the fact-finder is entitled to consider “not only the defendant’s past crimi-
nal record of convictions, but also any matter which the court deems relevant to sentence, the prior his-
tory of the defendant or the circumstances surrounding the commission of the offense, and the heinous-
ness of the crime[.]”) (internal citations, quotes, and ellipses omitted) (quoting VA. CODE ANN. §§ 19.2-
264.2, 264.4(B), 264.4(C) (1985)).
33 See Pennington v. State, 913 P.2d 1356, 1371 (Okla. Crim. App. 1995) (resting future
dangerousness “solely upon the evidence of the calloused nature of the crime itself.”); Workman v.
State, 824 P.2d 378, 384 (Okla. Crim. App. 1991) (same); Walbey v. State, 926 S.W.2d 307 (Tex. Crim.
App. 1996) (generally); Sonnier v. State, 913 S.W.2d 511, 517 (Tex. Crim. App. 1995) (finding the facts
of the crime alone sufficient to support the affirmative finding that the defendant would constitute a con-
tinuing threat to society); Black v. State, 816 S.W.2d 350, 355 (Tex. Crim. App. 1991) (same); Alexan-
dria v. State, 740 S.W.2d 749, 761 (Tex. Crim. App. 1987) (same); Green v. Commonwealth, 580
S.E.2d 834, 849 (Va. 2003) (“The circumstances surrounding the murder of Mrs. Vaughan, including the
shooting of Mr. Vaughan, are alone sufficient to establish Green’s future dangerousness.”); Murphy v.
Commonwealth, 431 S.E.2d 48, 53 (Va. 1993) (“the facts and circumstances surrounding a capital mur-
der may be sufficient, standing alone, to support a finding of ‘future dangerousness.’”); Edmonds v.
Commonwealth, 329 S.E.2d 807, 813 (Va. 1985) (the circumstances surrounding the offense may be
used to prove future dangerousness); Quintana v. Commonwealth, 295 S.E.2d 643, 655 (Va. 1983) (the
defendant was found to pose a continuing serious threat to society solely because of the "heinous cir-
cumstances" surrounding the homicide).
34 See notes 48-51, 63-91, 119, and accompanying text, infra.
35 See Mark D. Cunningham & Jon R. Sorensen, Predictive Factors for Violent Misconduct in
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none of this evidence is actually correlated to future violent prison activ-

ity.36 Although some of this evidence may be relevant to other considera-
tions in capital sentencing, for purposes of future dangerousness its highly
prejudicial effect far outweighs its lack of probative value.
The jury will almost always be asked to consider the defendant’s
criminal record in association with its future dangerousness determination.37
This can include not only past convictions but also unadjudicated38 and en-
tirely non-criminal acts,39 from suspicion of prior murders40 to juvenile re-
Close Custody, 87 THE PRISON J. 241, 248 (2007) [hereinafter Cunningham & Sorenson, Predictive
Factors] (“[T]hose who had a prior record of committing violent acts in prison were more than twice as
likely to commit a violent act in the institution during 2003. This is also consistent with previous re-
search, which has generally found that the best predictor of violence is a simple anamnestic one, but
limited to a similar context or environment. Simply put, although violence in the free world is not in-
dicative of violence in prison, prior violent acts in prison are a good indicator of future violence in an
institutional setting.”).
36 See Cunningham, Nexus, supra note 1, at 832-836, listing and disproving the following com-
monly made “assumptions” about future dangerousness predictions: “A history of serious criminal vio-
lence in the community and an associated criminal record are reliably predictive of future violent acts in
all settings” (at 832); “Capital offenders will be disproportionately violent in the future” (at 833); “Reli-
able identification of capital defendants who are at high risk for future violence can be accomplished by
applying common sense” (at 833); “Mental health experts can reliably identify capital defendants who
have high probabilities for future serious violence” (at 835). “[T]hough simplistically attractive at capi-
tal sentencing, a single-dimensional view that prison aggression is solely a function of the individual is
not supported by the data.” Id. at 836.
37 Virginia law in fact requires this consideration in capital sentencing. VA. CODE. ANN. § 19.2-
295.1 (2007) (requiring the Commonwealth to present “certified, attested or exemplified copies” of the
“prior criminal convictions” of the defendant, and defining “prior convictions” as “convictions and ad-
judications of delinquency under the laws of any state, the District of Columbia, the United States or its
territories.”).
38 See State v. Sivak, 806 P.2d 413, 425-26 (Idaho 1990) (opinion of Bistline, J., concurring) (de-
nying defendant's claim that admission of unadjudicated offenses contravene the prohibition on unfair
prejudice); Johnson v. State, 665 P.2d 815, 822-23 (Okla. Crim. App. 1983) (citing Jurek v. Texas, 428
U.S. 262 (1976), and stating that “relevant evidence of other crimes is appropriate in the punishment
stage to enable the jury to make a knowing and intelligent decision as to whether a defendant should be
sentenced to life imprisonment or [whether the jury should] impose the death penalty.”); State v. Wag-
ner, 752 P.2d 1136, 1175 (Or. 1988) (“evidence of defendant’s previous bad character, acts and criminal
conduct that did not result in convictions . . . is the kind of evidence on which logical human beings,
every day in our society and criminal justice system, make predictions about what a person is most apt
to do in the future”); Milton v. State, 599 S.W.2d 824 (Tex. Crim. App. 1980); Farris v. State, 819
S.W.2d 490 (Tex. Crim. App. 1990) (admitting a broad range of unadjudicated acts through lay testi-
mony of acquaintances); Frye v. Commonwealth, 345 S.E.2d 267, 283 (Va. 1986) (holding that Vir-
ginia’s statute permitting consideration of criminal history contemplates proof of future dangerousness
by the defendant's “prior history,” in addition to his prior criminal convictions, and that unadjudicated
acts of criminal conduct are part of the defendant's past history and are thus admissible). See also Bea-
ver v. Commonwealth, 352 S.E.2d 342, 346-47 (Va. 1987) (rejecting the argument that such evidence is
unreliable); Gray v. Commonwealth, 356 S.E.2d 157, 175-76 (Va. 1987) (same); Stamper v. Common-
wealth, 257 S.E.2d 808, 919-20 (Va. 1979) (evidence of other crimes not more prejudicial than its pro-
bative value).
39 See Farris v. State, 819 S.W.2d 490, 497 (Tex. Crim. App. 1990) (evidence of unadjudicated
conduct included that defendant once shot unlawfully at a cow, killed a buffalo at a wildlife refuge, and
was a heavy methamphetamine user); Robles v. State, No. AP-74726, 2006 WL 1096971, at *7 (Tex.
Crim. App. 2006) (defendant had a tattoo of a demon eating the head of Christ); McBride v. State, 862
S.W.2d 600, 603 (Tex. Crim. App. 1993) (defendant wrestled a friend over infidelity, threw down his
sunglasses and crushed them, and then yelled at his friend to bend down and pick up his keys).
cords,41 property crimes,42 nonviolent disciplinary problems in school,43 or

even past crimes of which the defendant was acquitted.44 This kind of evi-
dence can be difficult, if not impossible, to rebut.45 Because unadjudicated
acts can include activity that is not even criminal, and in some states almost
any scintilla of evidence can support admission of such evidence,46 it is so
40 In the first Virginia case to expressly rule on the use of unadjudicated acts at a capital trial, the
defendant challenged the admission of a confession linking him to four killings for which he had not
been tried. Poyner v. Commonwealth, 328 S.E.2d 815, 827 (Va. 1985). The defendant claimed that
admission of the confession was unreliable because he was “in effect, being tried . . . for unrelated
crimes.” Id. The Supreme Court of Virginia rejected the defendant's challenge, finding that the statu-
tory scheme did not “restrict the admissible evidence to the record of convictions,” and that the defen-
dant's confessions to the other murders were “highly reliable” and “wholly relevant” to the issue of fu-
ture dangerousness. Id. at 828.
41 See Corwin v. State, 870 S.W.2d 23, 25-26 (Tex. Crim. App. 1993) (evidence of juvenile acts
and misconduct is admissible and does not violate due process).
42 See Alvarado v. State, 912 S.W.2d 199, 209 (Tex. Crim. App. 1995) (prior unadjudicated acts
of violence against property is admissible).
43 See Kunkle v. State, 771 S.W.2d 435, 446 (Tex. Crim. App. 1986) (defendant’s assistant prin-
ciple testified that he received infractions in high school for truancy, smoking in the classroom, and
classroom disruption).
44 See Vega v. Johnson, 149 F.3d 354, 359 (5th Cir. 1998) (evidence of prior acts may be intro-
duced despite acquittal because the standard of proof for future dangerousness purposes is much lower).
45 This point was clearly illustrated in a student note over fifteen years ago, describing the case of
Kenneth Bernard Harris, a Texas inmate executed in 1997 for the 1990 rape and murder of a Houston
woman. If, for argument’s sake, Mr. Harris was factually innocent of these unadjudicated acts, it would
be extremely difficult for him to disprove the following accusations, particularly in the face of the
prosecutor’s strong reliance on them in closing:
At the sentencing phase . . . the state offered the testimony of five white women
who claimed that the defendant, who was black, raped and robbed them. Harris
had never been arrested, tried, or convicted on four of the allegations, and the fifth
had not been tried, though an indictment had been returned. Furthermore, the state
produced no physical evidence to show that the defendant had been near three of
the women at all, and the other two women could offer only inconclusive circum-
stantial evidence that he had been in their apartments. Despite the paucity of evi-
dence linking the defendant to the five alleged rapes, the court allowed the jury to
consider this testimony as evidence militating in favor of the death penalty.
The prosecutor relied heavily on the five alleged rapes in his argument to the jury.
In asking the jury to find the statutory aggravating circumstance that the defen-
dant would probably constitute a continuing threat to society, the prosecutor in-
voked the names of the alleged rape victims: "Is there such a probability . . . ?
Why don't you ask K.B. that question? . . . Why don't you ask that question of
A.K.? . . . Why don't you ask that question of J.K.? Ask S.T. Ask C.L." The
prosecutor then asked the jury to sentence Harris to die because “it's time to make
sure there aren't any future . . . S.T.s, . . . A.K.s, J.K.s, K.B.s. That's your re-
sponsibility.”
Steven Paul Smith, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the
Penalty Phases of Capital Trials, 93 COLUM. L. REV. 1249, 1249-50 (1993) (internal footnotes omitted)
(describing Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992)).
46 The Supreme Court has never ruled on the constitutionality of any such evidentiary rules, and
the states are widely split. Virginia and Texas appear to apply no limitation whatsoever. See Walker v.
Commonwealth, 515 S.E.2d 565, 571-72 (Va. 1999) (rejecting defendant's claim that unadjudicated acts
of criminal conduct must be proven to have occurred beyond a reasonable doubt to be relevant to capital
sentencing); Vega, 149 F.3d at 359 (evidence of prior acts may be introduced despite acquittal because
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prejudicial that even some states allowing it in capital sentencing strin-

gently ban it from non-capital sentencing.47
Mental illness, too, can be central to a dangerousness claim. A la-
bel of “sociopath,” frequently cited by future dangerousness experts48
the standard of proof for future dangerousness purposes is much lower). A number of death penalty
states impose some limitation on use of such evidence, either through a standard of proof, a limiting in-
struction, or an evidentiary standard preventing overly prejudicial evidence. The Federal Government
employs the latter. See FED. R. EVID. 403 (“Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair prejudice[.]”). California requires proof
beyond a reasonable doubt for “prior violent criminality” evidence. See People v. Balderas, 711 P.2d
480, 516 n.32 (Cal. 1985). Certain other states bar all evidence of “uncharged and unconvicted criminal
acts.” See, e.g., State v. McCormick, 397 N.E.2d 276 (Ind. 1979); State v. Bobo, 727 S.W.2d 945, 952
(Tenn. 1987); State v. Bartholemew, 683 P.2d 1079 (Wash. 1984) (noting that the principle of prejudice
set forth in Gregg is a clear limitation on the “all relevant evidence” doctrine).
47 Va. Code Ann. § 19.2-295.1 (1997) requires the Commonwealth to present “certified, attested
or exemplified copies” of the “prior criminal convictions” of the defendant, and defines “prior convic-
tions” as “convictions and adjudications of delinquency under the laws of any state, the District of Co-
lumbia, the United States or its territories.” In non-capital sentencing proceedings, unadjudicated or
partially adjudicated (i.e., nolle prossed) acts are inadmissible. See Byrd v. Commonwealth, 517 S.E.2d
243, 245 (Va. Ct. App. 1999) (“We can discern no relationship between the purposes of sentencing and
the jury’s role in determining appropriate punishment in non-capital cases that would make evidence of
nolle prossed charges relevant to the jury’s task.”). For an identical treatment in Texas, see Gentry v.
State, 770 S.W.2d 780, 792-93 (Tex. Crim. App. 1988) (noting that the statute for non-capital sentencing
excludes such evidence and the death penalty statute does not, the court stated that the language
“evinces its intention to eliminate the rule of evidence that excludes proof of extraneous offenses in
capital sentencing. Had it wanted to limit proof in capital trials to adjudicated offenses, it could have
provided so in [Texas Code of Criminal Procedure] Article 37.071, as it has in Article 37.07.”); Jones v.
State, 479 S.W.2d 307, 308 (Tex. Crim. App. 1972) (reversing and remanding a thirty-five-year sen-
tence for marijuana possession due to the admission of photographs of the defendant exposing himself at
a parade as bad character evidence because “[t]his court has consistently held that specific acts of mis-
conduct to evidence a person’s bad character may not be used except where they are in the form of con-
viction for other crimes. There is no evidence in the record that appellant was convicted of an offense
from his performance in the parade. Even if he had been charged but not yet convicted with such an
offense, evidence that such charge had been filed could not properly be admitted.”) (internal citations
omitted). See also Dale Lezon, Court Tosses Sentence in Houston Murder Conviction, HOUSTON
CHRON. ONLINE ED., March 19, 2008, available at
http://www.chron.com/disp/story.mpl/front/5633421.html (vacation by the Texas Court of Criminal Ap-
peals of a sentence for non-capital murder due to ineffective assistance of counsel for failure to object to
the improper admission of the defendant’s juvenile record for sentence enhancement purposes). The
Fifth Circuit has rejected an Equal Protection challenge to this discrepancy based on “the . . . strong in-
terest in ensuring that all relevant evidence concerning the capital defendant is placed before the jury so
that it can consider the evidence when answering the special issues.” Williams v. Lynaugh, 814 F.2d
205, 208 (5th Cir. 1987). The Supreme Court has not ruled on the issue, but Justices Marshall and Bren-
nan commented in strong dissent to a denial of certiorari, “I can think of no constitutionally legitimate
reason why evidence of unadjudicated offenses should be admissible in capital cases but not in other
cases. The decision of the court of appeals sanctions a reduction of procedural protection for the very
reason that the defendant’s life is at stake.” Williams v. Lynaugh, 484 U.S. 935, 939 (1987) (Marshall
and Brennan, JJ., dissenting to denial of certiorari).
48 Arguments linking a diagnosis of “sociopath” to future dangerousness have “notorious fre-
quency of appearance in violence risk assessments at capital sentencing[.]” Mark Cunningham, Foren-
sic Psychology Evaluations at Capital Sentencing, in LEARNING FORENSIC ASSESSMENT 228 (Rebecca
Jackson ed., 2007) [hereinafter Cunningham, Evaluations]. Accord. Satterwhite v. Texas, 486 U.S. 249,
259–60 (1988) (noting Dr. Grigson stated unequivocally that in his expert opinion defendant would be
continuing threat to society; that defendant was “as severe a sociopath as you can be;” that on scale of
one to ten, where ten indicated complete disregard for human life, defendant was ten; and that defendant
was beyond the reach of psychiatric rehabilitation); Barefoot, 463 U.S. at 919 (Blackmun, J., dissenting)
(whose role in the process is reviewed in the next subsection) and empha-
sized by prosecutors,49 is widely feared by capital defense attorneys for its
common association with immunity to rehabilitation and lack of con-
science. Properly termed Antisocial Personality Disorder (APD), there is in
fact “no research demonstrating that APD . . . [is] reliably predictive of se-
rious violence in American prisons.”50 “Psychopathy,” an extreme form of
APD, is not any more predictive.51
Capital defendants are prejudiced not only by the admission of evi-
dence unrelated to actual risk assessment, but also by the suppression of
relevant evidence in conjunction with judges’ failure to provide limiting
jury instructions (such as limiting “society” to “prison society,” discussed
previously). Virginia typically bars testimony about prison security meas-
ures,52 for example, viewing this evidence as irrelevant to the
dangerousness inquiry because it is not specific to the individual defen-
(quoting Dr. Grigson as testifying that the defendant was in the “most severe category” of sociopaths
meaning that on a scale of one to ten, defendant was “above ten;” that whether defendant was in society
at large or in a prison society there was a “one hundred percent and absolute” chance that defendant
would commit future violent acts) (emphasis in original); Estelle v. Smith, 451 U.S. 454, 459–60 (1981)
(noting that Dr. Grigson testified that defendant was “a very severe sociopath;” that he will continue his
behavior and his sociopathic condition will “only get worse;” that defendant has “no regard for another
human being’s property or for their life, regardless of who it may be;” that there is no treatment or medi-
cine that would change defendant’s behavior; and that defendant had no remorse or sorrow for his ac-
tions). See also Pennington v. State, 913 P.2d 1356, 1371 (Okla. Crim. App. 1995) (citing Snow v.
State, 876 P.2d 291, 298 (1994)) (“The defendant’s attitude is critical to the determination of whether
this defendant poses a continuing threat to society.”); Stewart v. Commonwealth, 427 S.E.2d 394, 408
(Va. 1993).
49 See Satterwhite, 486 U.S at 260 (In closing argument the District Attorney “highlighted Dr.
Grigson’s credentials and conclusions in his closing argument: ‘Doctor James Grigson, Dallas psychia-
trist and medical doctor. And he tells you that on a range from 1 to 10 he’s a ten plus. Severe sociopath.
Extremely dangerous. A continuing threat to our society. Can it be cured? Well, it’s not a disease. It’s
not an illness. That’s his personality. That’s John T. Satterwhite.’”).
50 See Cunningham, Evaluations, supra note 48, at 228 (“Antisocial Personality Disorder not Re-
liably Predictive of Prison Violence”), citing Mark D. Cunningham & Thomas J. Reidy, Antisocial Per-
sonality Disorder and Psychopathy: Diagnostic Dilemmas in Classifying Patterns of Antisocial Behav-
ior in Sentencing Evaluations, 16 BEHAV. SCI. & L. 71 (1998). See also Mark D. Cunningham, Thomas
J. Reidy, & Jon R. Sorenson, An Actuary Model for Assessment of Prison Violence Risk Among Maxi-
mum Security Inmates, ASSESSMENT, Vol. 12, No. 1 (March 2005), at 41 (“Psychological diagnosis has
also not proven reliable in discriminating offenders who engage in violent prison misconduct. This fail-
ure includes antisocial personality disorder, which is so pervasive in a prison population (i.e., 75%) that
it fails to predict the infrequent act of serious prison violence.”).
51 See Cunningham, Evaluations, supra note 48, at 229 (“Psychopathy, though representing an ex-
treme end of the APD continuum and present in a much smaller proportion (25%) of inmates, has fared
no better as a predictive construct for serious violence in American prisons), citing, among other
authorities, Mark D. Cunningham, Thomas J. Reidy, & Jon R. Sorenson, Is Death Row Obsolete? A
Decade of Mainstreaming Death-Sentenced Inmates in Missouri, 23 BEHAV. SCI. & L. 307 (2005); John
F. Edens, et al, Psychopathy and the Death Penalty: Can the Psychopathy Checklist-Revised Identity of
Offenders Who Represent “a Continuing Threat to Society?, 29 J. OF PSYCHIATRY & L. 433 (2001).
52 Bell v. Commonwealth, 563 S.E.2d 695, 714 (Va. 2002), cert. denied 537 U.S. 1123 (2003);
Burns v. Commonwealth, 541 S.E.2d 872, 893 (Va. 2001), cert. denied 534 U.S. 1043 (2001); Cherrix
v. Commonwealth, 513 S.E.2d 642, 653 (Va. 1999); Walker v. Commonwealth, 515 S.E.2d 565, 574
(Va. 1999).
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dant53 (despite a public stance by the Virginia Department of Corrections

that, in the case of a foiled escape plan by a death row inmate in 1994,
“[t]here was never any danger to the public. He had not gotten free from
his cell, and even if he had he would still have been in the compound[.]”).54
Oklahoma has similarly barred expert testimony from a Department of Cor-
rections Administrator that life without parole “means a defendant would
serve his natural life in a maximum security prison” because the Oklahoma
Court of Criminal Appeals finds no error in failing to define life without pa-
role.55 Virginia additionally, and quite consistently, bars the testimony of
expert risk assessors who would provide the information, statistics, and ana-
lytical tools necessary to make a practical risk assessment (explained in
greater detail in the next subsection).56 All of this information, and an accu-
rate definition of “society,” is critical to the determination of whether a de-
fendant poses a realistic threat while serving the rest of his natural life in a
high security environment. Without it, juries can (and apparently do) fear
that failing to impose a death sentence could lead to high levels of in-prison
violence,57 eventual release through parole,58 or escape59—all of which are
53 See Bell, 563 S.E.2d at 715 (“evidence regarding the general nature of prison life in a maximum
security facility is not relevant to that inquiry, even when offered in rebuttal to evidence of future
dangerousness”) (quoting Burns, 541 S.E. 2d at 893); Petitioner’s Reply Brief at 17, Porter v. Com-
monwealth, 661 S.E.2d 415 (Va. 2008) (on file with author) (“Testimony about the security of a prison
is simply irrelevant to the issue before the jury about the defendant’s character.”).
54 Associated Press, Death Row Inmate’s Escape Plan Discovered, THE LEDGER-STAR, Septem-
ber 13, 1994, at B11, available at http://scholar.lib.vt.edu/VA-news/VA-
Pilot/issues/1994/vp940913/09130531.htm (quoting a Corrections Department spokesman).
55 Hamilton v. State, 937 P.2d 1001, 1011-12 (Okla. Crim. App. 1997), overruled on other
grounds in Alverson v. State, 983 P.2d 498 (Okla. Crim. App. 1999).
56 See note 64, infra, and accompanying text.
57 See David Bruck, Simmons v. South Carolina and the Myth of Early Release, in CAPITAL
PUNISHMENT STORIES 386 (John H. Blume & Jordan M. Steiker, eds., 2009) (“Virginia has been able to
carry out death sentences imposed by juries whose notions of the likelihood of serious in-prison violence
are more likely to have been derived from prison action movies and HBO’s Oz than from reality.”). For
a full discussion of exceedingly low rates of violence among life without parole populations, see note 74
and accompanying text, infra.
58 Belief in the existence of parole generally persists because of a phenomenon catalogued by the
Capital Jury Project: jurors do not believe life without parole actually eliminates parole availability. In
California, for example, where the jury’s non-capital sentencing verdict itself reads “life imprisonment
without possibility of parole,” only about one-fifth of actual trial jurors interviewed by the Capital Jury
Project believed that a defendant who received such a sentence would spend his whole life in prison.
William J. Bowers & Benjamin D. Steiner, Death By Default: An Empirical Demonstration of False and
Forced Choices in Capital Sentencing, 77 TEX. L. REV. 605, 650 (1999). In fact, every death penalty
state has now adopted life without parole. Death Penalty Information Center, Life Without Parole,
http://www.deathpenaltyinfo.org/life-without-parole (last visited April 29, 2009). Virginia, for example,
has eliminated parole for all felonies. Va. Code § 53.1-165.1 (1995), in pertinent part, provides that
"[a]ny person sentenced to a term of incarceration for a felony offense committed on or after January 1,
1995, shall not be eligible for parole upon that offense.” Va. Code § 53.1-40.1 provides for parole of
geriatric prisoners, but expressly excludes from its application individuals convicted of capital murder, a
class one felony. See also VA. CODE ANN. § 53.1-151(B) (2007) (no possibility of parole from a sen-
tence of death).
59 Although there have not been any successful escapes from Virginia’s new supermax prisons
since they were opened, such testimony of prison wardens—and that concerning security procedures
preventing escape—is regularly barred from capital sentencing hearings. If it were allowed, experts
statistically highly unlikely and even fanciful in most cases.60

But some juries are in fact permitted to treat dangerousness as a hy-
pothetical inquiry, imagining the defendant’s behavior if immediately re-
turned to society at large.61 The Supreme Court has never considered this
practice, and there is little doubt that it cannot be substantiated merely by
reference to the Court’s previous affirmation of future dangerousness—
which, as has already been discussed, presumes a realistic approach to as-
sessing future threat. Virginia litigators have begun to raise this issue with
some urgency, and while the Supreme Court recently denied cert in one of
these cases there will be more opportunities in the future.62
ii. Current use of future dangerousness experts contributes to

overprediction.
Overprediction of dangerousness is amplified by questionable use

of capital future dangerousness experts. These experts come in two varie-
ties, one legitimate (“risk assessors”), and one illegitimate (“dangerousness
diagnosticians”).63 The latter typically poses as the former, predicting
dangerousness to an unqualifiedly high degree of certainty while relying on
methodology condemned by the American Psychological Association. Risk
assessors, on the other hand, limit themselves to pointing out characteristics
correlated to an increased rate of future violence and do not typically make
individualized conclusions about a defendant’s dangerousness. True risk
assessment experts are a relatively recent addition to capital sentencing and
are generally used to rebut the accuracy of dangerousness diagnoses.
would testify to the following:
In our maximum security facility, the inmate, other than in his cell, is under direct
supervision at all times, supervision of correctional officers, as well as use of
video camera supervision. There’s control movement. Officers at certain strate-
gic points are armed with weapons to prevent an incident from occurring. In-
mates are escorted whenever they’re out of their cell to and from their destination.
Trial proffer of Gary Bass, the Chief of Operations for the Virginia Department of Corrections, expert
witness on prison security in Commonwealth v. Schmitt, 547 S.E.2d 186 (Va. 2001) (on file with author)
(Bass proffered also that the exterior of the facility is guarded by double fences, electronic surveillance,
security towers, and a perimeter rover—an armed officer either riding or walking and sometimes ac-
companied by a dog. If the fence is touched, an alarm sounds.)
60 See notes 58, 59, and 72-74, supra and infra.
61 For a recent example of confusion of Virginia jurors over whether “society” is meant to limit
future dangerousness to a realistic view of future threat, see Question Submitted by the Jury in Com-
monwealth v. Prieto, supra note 22, and accompanying text.
62 In 2008, Virginia litigators presented the Virginia Supreme Court with the argument that “real-
ity-based” risk assessment must be permitted because the Supreme Court assumes “dangerousness”
claims “will be subjected to rigorous adversarial testing.” Brief of Appellant, Porter v. Commonwealth,
661 S.E.2d 415 (Va. 2008) (on file with author) (citing Simmons v. South Carolina, 512 U.S. 154, 163-
64); Barefoot, 463 U.S. at 901; California v. Ramos, 463 U.S. 992, 1004 n.19 (1983). The Virginia Su-
preme Court did not directly address this “reality-based” aspect of the petitioner’s claim, Porter, 661
S.E.2d 415, and the Supreme Court denied cert in the case. 2009 LEXIS 3047 (Apr. 20, 2009).
63 These terms are purely descriptive and invented for use in this article only.
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But risk assessors’ role in capital sentencing is far from secure;

Virginia, for example, regularly bars such testimony.64 Dangerousness di-
agnosticians, on the other hand, have had a protected place since the Court
approved of their testimony in 1983, reasoning, “if it is not impossible for
even a lay person sensibly to arrive at that conclusion [of dangerousness], it
makes little sense, if any, to submit that psychiatrists, out of the entire uni-
verse of persons who might have an opinion on the issue, would know so
little about the subject that they should not be permitted to testify.”65 Like
its broader comparison between dangerousness predictions in the capital
and non-capital contexts, the Court has not explored its comparison be-
tween dangerousness predictions by psychiatrists and laypersons either.
And just as the capital dangerousness experience has called into question
the prudence of resting the use of dangerousness in the capital context on its
use in the non-capital context (further explored later in this article),66 the
same reasons argue against allowing psychiatrists to predict dangerousness
to any degree of certainty in capital proceedings—let alone a lay person.
A steadily growing body of peer-reviewed literature directly under-
64 The Virginia Supreme Court has never upheld the per se exclusion of this testimony, but it did
uphold exclusion in two recent cases, finding it not “particularized” to the individual defendant. See
Porter, 661 S.E.2d at 423 (quoting the trial judge as ruling that the Virginia Supreme Court “has consis-
tently upheld the denial of use of public funds for such an expert, as it’s not considered to be . . . proper
mitigation evidence; therefore not relevant to capital sentencing[.]”); id. at 440 (“Porter’s Prison Expert
Motion for appointment of Dr. Cunningham is notable for an essential, but missing, element. At no
place in the motion does he proffer that Dr. Cunningham’s statistical analysis of a projected prison envi-
ronment will ‘focus . . . on the particular facts of [his] history and background, and the circumstances of
his offense.’”) (internal citations omitted); contra id. at 453-54 (Koontz, J., dissenting) (noting that the
affidavit from Dr. Cunningham in fact stated that his “individualized assessment” evaluated many fac-
tors “in determining whether a particular defendant posed a future danger to society” and included de-
fendant-specific factors such as “his age, his level of educational attainment . . . other features and char-
acteristics regarding him [and] particularized to him based on demographic features, adjustment to prior
incarceration, offense and sentence characteristics, and other factors. It also included information re-
garding how, if appointed, Dr. Cunningham would determine the setting and time span in which Porter’s
violent conduct would be likely to occur, the base rate of serious violence in that particular setting, and
the individual characteristics and prior record of Porter in relation to the likelihood of serious violence in
the prison setting.”). See also Juniper v. Commonwealth, 626 S.E.2d 383, 423-24 (Va. 2006) (uphold-
ing exclusion of expert opinion that defendant would pose a lower risk of future violence in prison than
in society on grounds that this opinion was not based on the defendant’s personal characteristics, history,
background, or the circumstances of the offense). The Oklahoma Court of Criminal Appeals has not
ruled on this but recognizes that “the potential error would be of constitutional magnitude.” Hanson v.
State, 72 P.3d 40, 53 (Okla. Crim. App. 2003) (remanding for a Daubert hearing on an expert witness to
testify regarding the nature of probability in this context, the scientific literature on the issue, and how
that applied to the defendant). Texas routinely allows such testimony. The Supreme Court has not yet
addressed this issue and recently declined the opportunity in Porter. 2009 LEXIS 3047. For a list of
states in which one risk assessor in particular has testified or proffered some form of testimony, see note
2, supra.
65 Barefoot, 463 U.S. at 896-97. Dangerousness diagnosticians have had a protected role in capi-
tal sentencing ever since. Virginia has permitted this type of expert testimony, finding the expert does
not express an opinion on the sentence itself and therefore is not testifying upon an ultimate fact in issue.
See Payne v. Commonwealth, 357 S.E.2d 500 (Va. 1987). Texas has rested the determination on expert
testimony alone. See Estelle v. Smith, 451 U.S. 454, 460 (1981) (noting that the future dangerousness
witness “Dr. Grigson . . . was the State’s only witness at the sentencing hearing”).
66 See notes 92-102 and accompanying text, infra.
cuts the legitimacy of future dangerousness diagnoses. Strong criticism be-

gan almost immediately,67 and by 1983 the American Psychiatric Associa-
tion had reached the firm conclusion that:
Psychiatrists should not be permitted to offer a prediction con-

cerning the long-term future dangerousness in a capital case, at
least in those circumstances where the psychiatrist purports to be
testifying as a medical expert possessing predictive expertise in
this area. . . . Medical knowledge has simply not advanced to the
point where long-term predictions—the type of testimony at issue
in this case—may be made with even reasonable accuracy. The
large body of research in this area indicates that, even under the
best of conditions, psychiatric predictions of long-term future
dangerousness are wrong in at least two out of every three
cases.68
The extensive, peer-reviewed research of several widely respected

psychologists has more recently bolstered these conclusions.69 Mental
health professionals themselves are entirely skeptical of their own predic-
67 In 1977 Professor George Dix published a skeptical assessment of Texas’ new statute and its re-
liance on “future dangerousness,” noting, “Behavioral scientists and legal scholars have recently raised
substantial doubt whether a person’s dangerousness can be predicted as accurately as has been tradition-
ally assumed,” and concluding:
Experience with the Texas death penalty procedure demonstrates that the doubts
recently expressed by commentators concerning prediction of dangerousness, es-
pecially in the litigation context, are justified. The Texas experience reveals sub-
stantial practical deficiencies in the dangerousness inquiry that render suspect the
product of the inquiry and call into question its general use as a basis for impor-
tant legal decisions.
George E. Dix, Administration of the Texas Death Penalty Statutes: Constitutional Infirmities Related to
the Prediction of Dangerousness, 55 TEX. L. REV. 1343, 1344 & 1407 (1977) (hereinafter Dix, Constitu-
tional Infirmities) (citing Bernard L. Diamond, The Psychiatric Prediction of Dangerousness, 123 U.
PA. L. REV. 439, 452 (1974) (“Neither psychiatrists nor other behavioral scientists are able to predict the
occurrence of violent behavior with sufficient reliability to justify the restriction of freedom of persons
on the basis of the label of potential dangerousness.”)); Joseph J. Cocozza & Henry J. Steadman, The
Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence, 29 RUTGERS L.
REV. 1084 (1976); Edwin I. Megargee, The Prediction of Dangerous Behavior, 3 CRIM. JUST. & BEHAV.
3 (1976); Bernard Rubin, Prediction of Dangerousness in Mentally Ill Criminals, 27 ARCHIVES OF GEN.
PSYCHIATRY 397 (1972).
68 Amicus Brief, supra note 6, at *14 (“The large body of research in this area indicates that, even
under the best of conditions, psychiatric predictions of long-term future dangerousness are wrong in at
least two out of every three cases.”). A more recent amicus brief from the American Psychological As-
sociation was filed in the United States Court of Appeals for the Fifth Circuit, calling for the re-
examination of the future dangerousness aggravating factor in light of existing research, and the Texas
Psychological Association and Texas Appleseed filed a similar brief with the Texas Court of Criminal
Appeals in 2007. See Cunningham, Assertions, supra note 5, at 17-18 (citing the American Psychologi-
cal Association Amicus Brief filed in United States v. Sherman Lamont Fields and an amicus brief filed
in Noah Espada v. Texas).
69 See notes 68 & 70-77, supra and infra.
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tions,70 academics appear to have unanimously accepted that such profes-

sionals are unreliable,71 and studies of capital jurors show a high mispercep-
tion of general risks of violence. One such study shows the belief of an
“85% likelihood” of violent crime “and a 50% likelihood” of a new homi-
cide while serving a life sentence,72 while actual prison violence rates reveal
capital murderers to be “among the most docile and trustworthy inmates in
the institution.”73 “Based on large-scale data collection of the prison behav-
ior of various categories of inmates,” risk assessment experts report, “The
estimated likelihood of violence being committed by a newly received capi-
tal murderer over the next forty years . . . is .164 [16.4%] . . . [and] the
probability a capital defendant will kill again while incarcerated over the
next forty years is .2%, or about two in one thousand.”74
In what may be the most recent study of life-sentenced capital de-
fendants, the authors conclude that the error rate of dangerousness asser-
tions in federal capital prosecutions is “sobering, both in its inability to dis-
criminate who will and will not engage in violent misconduct in prison and
in the minority who fulfill the prediction.”75 Less than one percent of fed-
eral inmates in the study, for all of whom the government claimed
dangerousness, perpetrated an assault causing moderate injuries,76 and none
caused a life threatening injury or assaulted a member of the prison staff, let
70 In a study of several hundred practicing physicians, clinical psychologists, and mental health
lawyers, the mean self-reported estimate of percentage of accurate future dangerousness predictions fell
between forty and forty-six percent. See Mark David Albertson, Can Violence Be Predicted? Future
Dangerousness: The Testimony of Experts in Capital Cases, 3 CRIM. JUST. 18, 21 (1989).
71 See JOHN MONAHAN, PREDICTING VIOLENT BEHAVIOR: AN ASSESSMENT OF CLINICAL
TECHNIQUES (1981), quoted in Albertson, supra note 70, at 21 (“[R]arely have research data been as
quickly or nearly universally accepted by the academic and professional communities as those support-
ing the proposition that mental health professionals are highly inaccurate at predicting violent behav-
ior.”). See also generally, Eugene T. La Fontaine, Note, A Dangerous Preoccupation with Future Dan-
ger: Why Expert Predictions of Future Dangerousness in Capital Cases Are Unconstitutional, 44 B.C.
L. REV. 207, 235-36 (2002); Edmund H. Mantell, A Modest Proposal to Dress the Emperor: Psychiatric
and Psychological Opinion in the Courts, 4 WIDENER J. PUB. L. 53 (1994) (hereinafter Mantell, Modest
Proposal).
72 See Jonathan R. Sorensen, Criminology: An Actuarial Risk Assessment of Violence Posed By
Capital Murder Defendants, 90 J. CRIM. L. & CRIMINOLOGY 1251, 1269 (2000) (study conducted
through capital juror exit polls).
73 Id. at 1256.
74 Id. at 1264. A small sample of Texas inmates against whom the prosecution presented expert
dangerousness diagnoses showed that only five percent actually engaged in seriously assaultive behav-
ior. Texas Defender Service, DEADLY SPECULATION: MISLEADING TEXAS CAPITAL JURIES WITH FALSE
PREDICTIONS OF FUTURE DANGEROUSNESS 23 (2004), available at
http://www.texasdefender.org/publications.htm. This number is confirmed also by another researcher,
who reported a 95% error rate among mental health professionals predicting dangerousness in 155 Texas
cases, taking into account even behavior causing minor injuries. John F. Edens, et al, Predictions of
Future Dangerousness in Capital Murder Trials: Is It Time to ‘Disinvent the Wheel’?, 29 LAW & HUM,
BEHAV. 55 (2005).
75 Cunningham, Assertions, supra note 5, at 61.
76 “Moderate injuries” are those “requiring evacuation to an outside hospital, but not life threaten-
ing.” Id.
alone committed another homicide.77 Although these results must be quali-

fied by the fact that sentencing juries did not adopt all of the government’s
dangerousness contentions in these inmates’ trials,78 the researchers believe
the study proves low quality control for government dangerousness asser-
tions and unreliability of the predictions in general. Of course, the disparity
could also be explained by a fundamental difference between the federal
government’s and the researchers’ understandings of “future
dangerousness”—the government believing it to be a character trait, similar
to its treatment in Virginia, and the researchers believing it to be a predic-
tion; at least one of the authors of the study has in fact identified this incon-
gruity of “dangerousness” usage in several articles.79
This may also explain why typical dangerousness diagnostic testi-
mony ignores risk assessment research like that described above. In Vir-
ginia, such testimony instead forecasts “a high probability of future
dangerousness”80 (although to be fair, reliance on such experts in Virginia
has waned, but certainly not due to any judicial action), while in Texas ex-
perts are notorious for predicting dangerousness to absolute levels of “sci-
entific certainty”81 and prosecutors have continued to elicit such testimony
despite direct disavowal of these predictive techniques by the American
Psychiatric Association.82
77 See Id.
78 Of the 145 federal capital inmates included in this study, all were serving sentences of life
without parole, and future dangerousness was alleged in 104 of these inmates’ trials (71.7%); of the total
145-inmate sample, seventy-five received life without parole sentences from their judge or jury, fifty-
two pled guilty to a life without parole sentence, and for eighteen the government’s notice seeking death
was withdrawn. See id. at Table 1. It is unclear, from among these three options, precisely how the 104
defendants for whom the government alleged future dangerousness ended up with life sentences; but the
researchers did point out that “[i]t is notable that among those capital offenders (n=70) for whom the
notice of intent to seek the death penalty was withdrawn or who were allowed to plead to [life without
parole] terms, ‘future dangerousness’ had been alleged against 72.9%.” Id. at 8. The average observa-
tion time of these inmates (via their prison disciplinary records) was 6.17 years. See id. at 7.
79 See note 1, supra.
80 Edmonds v. Commonwealth, 329 S.E.2d 807, 813 (Va. 1985). See also Savino v. Common-
wealth, 391 S.E.2d 276, 280 (Va. 1990) (“Dr. Centor opined, however, that Savino ‘show[ed] signs of
future dangerousness in view of his past criminal history so that he would have a high probability of
committing criminal acts of violence that would constitute a continuing serious threat to society in the
future.”).
81 Predictions of future dangerousness to an absolute level of scientific certainty have been noted
in the cases of over 121 death-sentenced inmates in Texas. See Texas Defender Service, A State of De-
nial: Texas Justice and the Death Penalty, 25, available at
http://texasdefender.org/state%20of%20denial/Chap3.pdf (last visited June 29, 2008) (hereinafter TDS,
State of Denial) (“At least 121 Texas death row inmates were sentenced to death based on psychiatric
testimony universally condemned as unreliable.”). One notorious expert was cited predicting
dangerousness to “100% certainty,” or similar language, in 141 capital cases in Texas alone. See Brent
E. Newton, A Case Study in Systemic Unfairness: The Texas Death Penalty, 1973-1994, 1 TEX. J. C.L.
& C.R. 1, 23 (1994).
82 See TDS, State of Denial, supra note 81, at 29-30, citing a July 20, 1995 news release from the
American Psychiatric Association. One notorious Texas expert continued to be called as a State expert
despite complete expulsion from the American Psychiatric Association “for arriving at a psychiatric di-
agnosis without first having examined the individuals in question, and for indicating, while testifying in
court as an expert witness, he could predict with 100% certainty that the individuals would engage in
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Whether characterized as making a prediction or identifying a mal-

ady, enigmatic and highly persuasive diagnostic experts have gained notori-
ety as particularly adept at the task of convincing juries of the need for
death sentences.83 Judges on many courts, including the Fifth Circuit and
the Supreme Court, have publicly acknowledged their effectiveness.84 One
former Texas Court of Criminal Appeals judge observed of one such diag-
nostician, “when Dr. Grigson speaks to a lay jury . . . the defendant should
stop what he is then doing and commence writing out his last will and tes-
tament[.]”85
Even when the rebuttal testimony of risk assessors is permitted, in-
cluding introduction of studies like those above, dangerousness diagnosti-
cians in the Grigson tradition are difficult opponents.86 Jurors are far more
likely to have negative opinions of opposing defense experts,87 and to see
future violent acts.” Id. at 29. The Texas Defender Service noted, “Rather than attempt to defend or
explain his methodology, Grigson attacked the decision and the APA [American Psychiatric Associa-
tion], calling the organization a bunch of liberals who think queers are normal.” Id. at 30. It should also
be noted that Dr. Grigson has also been hired as a defense witness, and in that role “in 1991, he told the
jury that he had never seen so much remorse in a defendant.” Id.
83 See Newton, supra note 81, at 22 (in 90% of cases in which Dr. Grigson testified, the jury sen-
tenced the defendant to death). Dr. Grigson is profiled in Errol Morris’ documentary film, THE THIN
BLUE LINE (BFI/Third Floor/American Playhouse 1988).
84 See Satterwhite v. Texas, 486 U.S. 249, 259-61 (1988) (“[the expert] concluded his testimony
on direct examination with perhaps his most devastating opinion of all: he told the jury that Satterwhite
was beyond the reach of psychiatric rehabilitation . . . The finding of future dangerousness was critical
to the death sentence.”); id. (finding it “impossible to say beyond a reasonable doubt that Dr. Grigson’s
expert testimony on the issue of Satterwhite’s future dangerousness did not influence the sentencing
jury”); id. at 268 (Blackmun, J., concurring in part and concurring in the judgment) (referring to “the
ubiquitous Doctor Grigson”); Barefoot, 463 U.S. at 905 (“There is no doubt that the psychiatric testi-
mony increased the likelihood that petitioner would be sentenced to death[.]”); Flores v. Johnson, 210
F.3d 456, 466 (5th Cir. 2000) (Garza, J., concurring) (“[W]hen a medical doctor testifies that ‘future
dangerousness’ is a scientific inquiry on which they have particular expertise, and testifies that a particu-
lar defendant would be a ‘continuing threat to society,’ juries are almost always persuaded.”); Bennett v.
State, 766 S.W.2d 227, 231 (Tex. Crim. App. 1989) (Teague, J., dissenting) (explaining that Dr. Grigson
earned the nickname “Dr. Death” because he frequently testified in capital cases on behalf of state with
successful results). See also Ake v. Oklahoma, 470 U.S. 68, 84 (1985) (in which the persuasiveness of a
state expert on future dangerousness made “the relevance of responsive psychiatric testimony so evi-
dent” that due process required appointment of a defense expert).
85 Bennett, 766 S.W.2d at 232 (Teague, J., dissenting).
86 See Citron, supra note 12, at 160-61 (“Clearly the transformation of the future dangerousness
question into a psychological issue represents an impossible barrier for defendants, because they will
always be up against well-practiced state ‘experts’ who are adept at speaking to juries and who can
claim with impunity that they ‘have been proven to be right in [their] prediction of individuals continu-
ing to kill.’ Even Senator Ogg, an original drafter of the standard, now worries whether this transforma-
tion prejudices defendants - especially indigent ones - because they have little chance of securing an
expert competent enough in court to refute the likes of Dr. Grigson.”).
87 A study of capital jurors in California indicates that impressions of defense psychiatrists are
“more than twice as likely to be negative rather than positive.” See Scott E. Sundby, The Jury as Critic:
An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 VA. L. REV. 1109,
1123 (1997). Jurors negatively cited twenty-seven different defense experts in eighteen cases, while
negatively citing a total of three experts among the prosecution’s witnesses in thirty-six cases. Id. at
1123, 1125. Professor Sundby concluded, “The professional experts called by the prosecution, there-
fore, enjoyed a far better positive to negative ratio than did the defense experts.” Id.
them as “hired guns,”88 than they will of State experts. A reason for this in-
equity may be that defense risk assessment experts generally testify not that
the defendant will not be a future danger, but rather that the State’s diagno-
ses are unscientific and unfounded. Given a choice between the expert who
states with certainty that the defendant will kill again and the expert who
testifies merely that no prediction can be made, jurors understandably are
likely to opt for the expert who can help them in the dangerousness predic-
tion they are forced by law to make, who takes some of the onus of the de-
cision off their shoulders, and who offers an escape route from the potential
consequences of an incorrect non-dangerousness prediction.89 Jurors do—
in the words of one prosecutor in a Texas capital case—“what the doctor
says[.]”90 A dangerousness diagnosis quickly becomes the most salient
piece of evidence, leading to overprediction of dangerousness and overin-
clusion of defendants in that category.91
C. Overinclusion undercuts the Supreme Court’s original affirmation of

capital dangerousness statutes.
Not only does future dangerousness’ current evolution make reli-

ance on the Court’s original approval tenuous, but advancement in risk as-
sessment science calls into question the Court’s basis for approval (com-
parison of capital future dangerousness to its use in other legal contexts)
altogether.
The Court was correct to note future dangerousness at work in nu-
merous legal areas. By the 1970s, “prediction of dangerousness [was] the
basis for an increasing number of legal decisions.”92 This trend has come to
88 Id. at 1129-30 (Jurors in the study were far more likely to see defense experts than state experts
as “hired guns.”).
89 See Flores v. Johnson, 210 F.3d 456, 466 (5th Cir. 2000) (Garza, J., concurring) (Jurors tasked
with such a decision and “threatened with the immeasurable potential consequences of an incorrect de-
termination, are understandably likely to defer to an ‘expert’ determination which will eliminate those
consequences, even if its reliability is questioned by another ‘expert.’”); Mantell, Modest Proposal, su-
pra note 71, at 65-66 (quoting Barefoot, 463 U.S. at 926 (Blackmun, J., dissenting)) (“Given a choice
between an expert who says that he can predict with certainty that the defendant, whether confined in
prison or free in society, will kill again, and an expert who says merely that no such prediction can be
made, members of the jury charged by law with making the prediction surely will be tempted to opt for
the expert who claims he can help them in performing their duty, and who predicts dire consequences if
the defendant is not put to death.”).
90 Closing argument in the capital prosecution of Joe Lee Guy. See TDS, “State of Denial,” supra
note 81, at 33. Guy ultimately received a clemency recommendation from the Texas Board of Pardons
and Paroles, followed by penalty phase relief from a federal district judge in 2004. He is now serving a
life sentence. See Texas Department of Corrections, Offenders No Longer On Death Row,
http://www.tdcj.state.tx.us/stat/permanentout.htm.
91 See, e.g., James W. Marquart, Sheldon Ekland-Olson & Jonathan R. Sorenson, Gazing into the
Crystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases?, 23 LAW & SOC'Y REV.
449, 464-66 (1989).
92 See Dix, Constitutional Infirmities, supra note 67, at 1346 (citing as examples the California
Lanterman Petris Short Act, CAL. WELF. & INST. CODE § 5300 (West 1972) (authorizing hospitalization
beyond an initial 14-day period only if the proposed patient presents an “imminent threat of substantial
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fruition in today’s legal system. Many states allow the involuntary com-
mitment of mentally ill individuals who are found to be dangerous,93 and
the Court has long approved of the practice, explaining as early as 1905 that
without such measures “organized society could not exist with safety to its
members.”94 More recently the Court expanded this approval, affirming in-
voluntary commitment of dangerous sex offenders95 and the use of future
dangerousness for pretrial detention purposes and bail revocation.96
And yet, even while going so far as to declare that questioning the
capital use of future dangerousness would “immediately call into question
those other contexts in which predictions of future behavior are constantly
made,”97 the Court has never actually explored this perfunctory comparison.
If it did, it would discover very few if any implications for other legal con-
texts.
physical harm to others”), and ARIZ. REV. STAT. ANN. § 36-540 (1974) (authorizing involuntary treat-
ment if proposed patient is, as a result of mental disorder, a danger to himself or others)). Use of future
dangerousness was expanding in areas of involuntary commitment of the mentally ill. Id. at 1347 (“In
the area of involuntary care of the mentally ill, some courts have imposed a dangerousness standard as a
matter of due process of law, reasoning that other standards are either unconstitutionally vague or over-
broad because they permit hospitalization of person for whom no constitutionally defensible basis for
hospitalization exists.”) (citing Doremus v. Farrell, 407 F. Supp. 509, 514-15 (D. Neb. 1975); Lynch v.
Baxley, 386 F. Supp. 378, 390-92 (M.D. Ala. 1974).) It was also expanding to cover sex offenders. See,
e.g., George E. Dix, Determining the Continued Dangerousness of Psychologically Abnormal Sex Of-
fenders, 3 J. PSYCHIATRY & L. 327 (1975). Civil liability can be added to the list as well. See Dix, Con-
stitutional Infirmities, at 1347 n.10 (citing Grimm v. Arizona Bd. of Pardons & Paroles, 564 P.2d 1227,
1234 (Ariz. 1977) (members of parole board will be liable for damages to person injured by released
inmate if they violated duty to avoid “grossly negligent or reckless release of a highly dangerous pris-
oner”); Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 344-47 (Cal. 1976) (psychotherapist will be
liable in damages for failing to warn victim of dangerous patient if this breached his general duty to pro-
tect third persons from dangerous patients); Samson v. Saginaw Prof’l Bldg., 224 N.W.2d 843, 849-50
(Mich. 1975) (building owner liable for breach of duty to warn tenants about dangerous nature of clients
of another tenant, a mental health clinic)).
93 See, e.g., Heller v. Doe, 509 U.S. 312, 314-15 (1993) (Kentucky statute permitting commitment
of “mentally retarded” or “mentally ill” and dangerous individual); Allen v. Illinois, 478 U.S. 364, 36-66
(1986) (Illinois statute permitting commitment of “mentally ill” and dangerous individual); Minnesota
ex rel Pearson v. Prob. Ct. of Ramsey Cty., 309 U.S. 270, 271-272 (1940) (Minnesota statute permitting
commitment of dangerous individual with “psychopathic personality”).
94 Jacobsen v. Massachusetts, 197 U.S. 11, 26 (1905).
95 The Court approved involuntary detention of sex offenders based on “a finding of future
dangerousness . . . link[ed] . . . to the existence of a ‘mental abnormality’ or ‘personality disorder’ that
makes it difficult, if not impossible, for the person to control his dangerous behavior.” Kansas v. Hen-
dricks, 521 U.S. 346, 358 (1997) (approving KAN. STAT. ANN. § 59-29a07 (1994) because the commit-
ment is not punitive, and its “duration is instead linked to the stated purposes of the commitment,
namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.”).
96 United States v. Salerno, 481 U.S. 739, 750 (1987) (upholding the Bail Reform Act of 1984, 18
U.S.C. § 3142 (approving pretrial detention determinations based not on the likelihood of the defen-
dant’s appearance, but on a finding that “no conditions of release can reasonably assure the safety of the
community or any person.”)). The Bail Reform Act allows pretrial detention based on “the likelihood of
future dangerousness,” considering the “nature and the circumstances of the charges, the weight of the
evidence, the history and characteristics of the putative offender, and the danger of the community,”
using procedures the Court found “specifically designed to further the accuracy of that determination.”
Salerno, 481 U.S. at 751-52. See also Schall v. Martin, 467 U.S. 253 (1984) (permitting pretrial deten-
tion of juveniles arrested on any charge with a showing of potential for future violence).
97 Barefoot, 463 U.S. at 898.
The gross unreliability and overprediction of future dangerousness

explained in the previous subsections magnifies an important difference be-
tween use of these predictions in capital versus other contexts and the main
reason that this article’s conclusions about future dangerousness need not
extend outside capital sentencing: mistaken predictions are far less onerous
for civil and pretrial purposes, where detention is non-punitive and there is
access to reassessment and correction.98 The Court’s approval of
dangerousness-based detentions and commitments is in fact premised on
their non-punitive nature,99 while execution, on the other hand, unques-
tionably has a punitive component. Accuracy is in fact better in shorter-
term contexts,100 and as the length of detention increases, so too does the
need for reassessment.101 Capital punishment allows for no reassessment,102
and, as will be explained in later sections, capital use of future
dangerousness overshadows other imperative jury inquiries, while in civil
and pretrial proceedings future dangerousness may be the central inquiry.
In light of these significant differences, elimination of dangerousness from
capital sentencing would not undermine its use in other contexts.
Capital future dangerousness can no longer ingenuously claim a
foothold in the Court’s original affirmation, and neither can it support death
sentences based on any necessity for incapacitation. This alone should be
reason enough to reconsider dangerousness’ role in capital sentencing. But
as the next section makes clear, use of dangerousness also undermines an-
other core rationale of capital punishment: retribution.
98 All other uses of dangerousness predictions approved by the Supreme Court include some kind
of reassessment and correction. The sex offender statute approved by the Court entitles a person con-
fined under its provision to immediate release if, at any time, he is adjudged “safe to be at large.” KAN.
STAT. ANN. § 59-29a07 (2008). An incorrect determination under the Court-approved pretrial detention
statute similarly can be cured by acquittal, a sentence of time served, or a low ultimate sentence after a
full hearing. See 18 U.S.C.A. § 3142(f) (West 2008).
99 See Salerno, 481 U.S. at 747 (approving the Bail Reform Act in part because the detention is
regulatory, not punitive); Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (approving sex offender de-
tention statutes for the same reason).
100 Barefoot, 463 U.S at 936 n.14 (Blackmun, J., dissenting) (citing Amicus Brief, 1982 U.S.
Briefs 6080 (1982)) (“short-term predictions of future violence, for the purpose of emergency commit-
ment or treatment, are considerably more accurate than long-term predictions”); But see Douglas Moss-
man, Assessing Predictions of Violence: Being Accurate About Accuracy, 62 J. CONSULTING &
CLINICAL PSYCHOL. 783, 790 (1994) (arguing that today, psychiatrists’ ability to predict dangerousness
may have improved to the point that “clinicians are able to distinguish violent from nonviolent patients
with a modest, better-than-chance level of accuracy.”).
101 See Barefoot, 463 U.S. at 396 n.14 (Blackmun, J., dissenting) (citing American Psychiatric
Association, TASK FORCE REPORT: CLINICAL ASPECTS OF THE VIOLENT INDIVIDUAL 30) (Long deten-
tions require “monitoring, frequent follow-up, and a willingness to change one’s mind about treatment
recommendations and dispositions for violent persons, whether within the legal system or without[.]”).
102 Not only does actual execution stand in the way of amending an incorrect prediction, but so
does the legal system. Although the typical pre-execution incarceration lasts over a decade, see note 192
infra, there are currently no utilized means of reevaluating a defendant’s “future dangerousness” before
the execution is carried out. For a full discussion of this problem, see notes 181-85 and accompanying
text, infra.
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124 AM. J. CRIM. L. [Vol. 35:2
III. Dangerousness Obscures Culpability, Undermining the Retributive

Function of Dangerousness-Based Executions.
Along with incapacitation and deterrence, retribution—relating di-

rectly to culpability103—is one of only three legitimate rationales for capital
punishment in the United States.104 As described in the previous section,
future dangerousness transforms the capital sentencing inquiry into one of
unscientific, misinformed prediction, and in so doing takes the focus en-
tirely away from any meaningful culpability consideration. In this way, fu-
ture dangerousness manages to simultaneously undermine the retributive
rationale for the executions it supports and trap many of the least-culpable
capital defendants.
A. Dangerousness obscures the purpose of capital sentencing hearings,

using fear to shift jurors’ attention away from any meaningful
culpability determination.
Future dangerousness can have the effect of shifting jurors’ atten-

tion entirely away from a measured culpability judgment, displacing two
traditional and essential components of capital sentencing: aggravation and
mitigation.105 Although dangerousness often falls under the label of aggra-
vating factors—whether statutorily, as in Virginia,106 or non-statutorily, as
in the federal system107 —it differs from more typical aggravation, which is
directly linked to culpability (examples of these aggravating factors include
findings that the underlying murder involved torture or aggravated battery,
created a grave risk of death for more than one person, was committed in
the course of a felony or escape from custody, was committed for pecuniary
gain, was a hate crime, or was against an elderly person, to name a few).108
Although statutory aggravating factors109 must be found beyond a reason-
able doubt,110 when dangerousness is considered alongside other aggrava-
tion there will always be a risk that it will replace culpability-based aggra-
vation in the ultimate sentencing decision by shifting a juror’s focus entirely
103 See Atkins v. Virginia, 536 U.S 304, 319 (2002) (“If the culpability of the average murderer
is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the
mentally retarded offender surely does not merit that form of retribution.”).
104 Gregg, 428 U.S. at 183 & n.28 (joint opinion of Stewart, Powell, & Stevens, JJ.)
105 See id. at 193-195 (describing Georgia’s, and the Model Penal Code’s, use of aggravation and
mitigation to guide capital jurors’ discretion).
106 VA. CODE ANN. §§ 19.2-264.2, 264.4(c) (2007)
107 See note 2, supra.
108 For a compilation of aggravating factors in every death penalty state, see Death Penalty In-
formation Center, Aggravating Factors for Capital Punishment by State,
http://www.deathpenaltyinfo.org/article.php?&did=2356.
109 If the aggravating factor is merely the existence of a certain past criminal conviction, that find-
ing does not have to be found by a jury; all other statutory aggravating factors, however, must be found
beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 301 (2004).
110 Ring v. Arizona, 536 U.S. 584, 595 (2002).
to a fear of responsibility for future violence. This is problematic both be-

cause it may cause a jury to ignore weaknesses in the State’s case for culpa-
bility-based death-worthiness and because it may divert a juror’s attention
away from thorough consideration of culpability-based aggravation that
might legitimately support a death sentence under a retributive rationale.
Future dangerousness can also have the unfortunate effect of trans-
forming otherwise compelling mitigation into an argument for increased fu-
ture threat of violence. The transformation of mitigating evidence into ag-
gravation, while increasing the likelihood of a death verdict, is not
unconstitutional unless the jury is simultaneously stripped of the chance to
consider that mitigation.111 The ability of future dangerousness to make the
entire culpability inquiry moot arguably possesses this unconstitutional
quality.
Dangerousness’s ability to recast mitigation as aggravation can be
demonstrated by its effect on mitigative areas unquestionably under the Su-
preme Court’s protection: youth112 and decreased mental capabilities (such
as mental retardation).113 These two characteristics are well known for their
“double-edged” quality;114 although they may decrease moral culpability, a
111 See Penry v. Lynaugh, 492 U.S. 302, 320 (1989) (“Although Penry offered mitigating evi-
dence of his mental retardation and abused childhood as the basis for a sentence of life imprisonment
rather than death, the jury that sentenced him was only able to express its views on the appropriate sen-
tence by answering three questions [including] . . . Is there a probability that he will be dangerous in the
future? . . . The jury was never instructed that it could consider the evidence offered by Penry as mitigat-
ing evidence and that it could give mitigating effect to that evidence in imposing sentence.”) (emphasis
in original); Even though Penry was permitted to present his mitigating evidence at sentencing, “the jury
was unable to express its ‘reasoned moral response’ to that evidence in determining whether death was
the appropriate punishment[.]” Id. at 322.
112 The Supreme Court deemed it cruel and unusual to execute defendants who committed their
crimes when younger than eighteen because “juvenile offenders cannot with reliability be classified
among the worst offenders.” Roper, 543 U.S. at 571 (finding that the justifications for capital punish-
ment are disproportional “if the law’s most severe penalty is imposed on one whose culpability or
blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity”). The
Court’s special recognition of youth is not limited to this categorical bar. See id. at 574 (“Drawing the
line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The
qualities that distinguish juveniles from adults do not disappear when an individual turns 18.”). See also
Johnson v. Texas, 509 U.S. 350, 367 (1993) (“There is no dispute that a defendant’s youth is a relevant
mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death
sentence is to meet the requirements of Lockett and Eddings.”); Graham v. Collins, 506 U.S. 461, 518
(1993) (Souter, J., dissenting) (“Youth may be understood to mitigate by reducing a defendant’s moral
culpability for the crime, for which emotional and cognitive maturity and inexperience with life render
him less responsible[.]”) (internal citations omitted).
113 Mentally retarded defendants cannot be executed in accordance with the Eighth Amendment,
because “impaired intellectual functioning is inherently mitigating[.]” Atkins,, 536 U.S. at 316, See
also Tennard v. Dretke, 542 U.S. 274, 287 (2004) (“[W]e cannot countenance the suggestion that low IQ
evidence is not relevant mitigating evidence[.]”).
114 See, e.g., Penry, 492 U.S. at 324 (“[M]ental retardation . . . is thus a two-edged sword: it may
diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be
dangerous in the future.”). Youth has not specifically been recognized by the Court as double-edged in
nature, see generally Graham, 506 U.S. 461 (1993), but its recent parallel treatment of mental retarda-
tion indicates that it should be considered very similarly. See generally Roper, 543 U.S. 551 (generally
comparing the circumstances of the juvenile death penalty to the analysis in Atkins).
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126 AM. J. CRIM. L. [Vol. 35:2
capable prosecutor can easily spin these factors to demonstrate a defen-

dant’s dangerousness instead.115 Introducing a question of dangerousness
into a jury’s task thus runs the risk of redirecting mitigating evidence spe-
cifically protected by the Supreme Court into aggravating evidence. This
risk is well known to at least one state supreme court—Florida’s—which
bans the non-statutory future dangerousness factor for just this reason.116 It
is also demonstrated by history: of the twenty-two juveniles executed na-
tionally in the last thirty-two years, at least eighteen were sentenced based
at least in part on future dangerousness.117 Of the three juveniles executed
who were also mentally retarded, the sentences of two were based in part on
future dangerousness.118
This same risk is inherent when a jury is asked to consider a defen-
dant’s demeanor or level of remorse—a legally acceptable part of a future
dangerousness determination.119 Even the Supreme Court has noted, in the
mental retardation context, that factors properly viewed as lessening a de-
fendant’s culpability can instead create an appearance of “lack of re-
morse.”120 Consideration of demeanor or remorse in a future dangerousness
inquiry can thus risk punishing most severely those defendants with consti-
tutionally protected mitigation.
But even more consequentially, future dangerousness invites jurors
115 See, e.g., Wood v. State, 959 P.2d 1, 14 (Okla. Crim. App. 1998) (A mental health expert testi-
fied for the defense about Wood’s schizophrenia, and the State turned him into a future dangerousness
expert on cross examination; in closing the prosecutor stated that Wood’s mental impairment was “not
even mitigation at all.” This was found permissible by the Oklahoma Court of Criminal Appeals.)
116 The Florida Supreme Court has prohibited use of non-statutory aggravating factors, particu-
larly “future dangerousness,” specifically because of the risk of conversion of valuable mitigation into
aggravation. See Miller v. State, 373 So.2d 882, 886 (Fla. 1979) (“The legislature has not authorized
consideration of the probability of recurring violent acts by the defendant if he is released on parole in
the distant future. To the contrary, a large number of the statutory mitigating factors reflect a legislative
determination to mitigate the death penalty in favor of a life sentence for those persons whose responsi-
bility for their violent actions has been substantially diminished as a result of a mental illness, uncon-
trolled emotional state of mind, or drug abuse.”) See also Perez v. State, 919 So.2d 348, 382 (Fla. 2006)
(Pariente, C.J., concurring) (“A sentencing court is limited to the statutory aggravating circumstances
listed . . . . Future dangerousness is not on the list.”). Chief Justice Periente specifically noted, “By fac-
toring future dangerousness into the weight given a mitigating factor, the sentencing court runs the risk
of converting mitigation into prohibited non[-]statutory aggravation.” Id.
117 See Appendix C, infra.
118 See State v. Prejean, 379 So.2d 240, 248-49 (La. 1979); see also generally Garrett v. State,
682 S.W.2d 301 (Tex. Crim. App. 1984) (en banc).
119 Lack of remorse is a proper factor to be considered on the issue of future dangerousness. See
State v. Creech, 670 P.2d 463, 472 (Idaho 1983) (“The testimony of an eyewitness to one of Creech’s
previous murders, coupled with psychiatric evidence, tends to prove that the appellant is violent and
vengeful and that he experiences no remorse for his actions.”); Frye v. Commonwealth, 345 S.E.2d 267,
283 (Va. 1986); Clark v. Commonwealth, 257 S.E.2d 784, 790 (Va. 1979). For the view that the defen-
dant’s remorse is too prejudicial if used purely as evidence of future dangerousness but may nonetheless
be raised by the state in rebuttal to a defendant’s evidence of remorse, see State v. Jacobs, 10 P.3d 127,
147 (N.M. 2000).
120 See Atkins, 536 U.S. at 320 (“reliance on mental retardation as a mitigating factor can be a
two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness
will be found by the jury. . . . their demeanor may create an unwarranted impression of lack of remorse
for their crimes”).
to fear responsibility for the defendant’s violent future acts, and this fear
has the ability to render the defendant’s culpability entirely irrelevant.
Prosecutors can exacerbate this phenomenon, as one Texas District Attor-
ney did when he gave the following warning in closing: “If you don’t stop
him and he does it again, you had the chance to stop him. . . . I’m not going
to say blood on your hands. But it will be more difficult to wash them.”121
States that fail to limit the definition of “society” doubly compound this
likelihood of jurors’ fear by increasing the universe of potential future vio-
lent acts, and expert dangerousness diagnosticians further increase the like-
lihood of jurors giving effect to their fear. As explained by the California
Supreme Court:
A trier of fact offered the opportunity to base a decision on the

affirmative assertion by an apparently well-qualified professional
that a defendant’s execution is essential to saving the lives of
others is likely to take that opportunity rather than face the diffi-
cult task of evaluating the offender’s ethical culpability.122
Future dangerousness thus distorts the capital sentencing process by

diverting jurors from their proper role of assessing the defendant’s culpabil-
ity.123 Capital sentencing schemes have been invalidated time and again for
preventing jurors from considering and giving effect to mitigating evidence
that lessens culpability.124 Yet future dangerousness appears to be accom-
plishing this end undetected.
121 Norris v. State, No. 69,856, at 29 (Tex. Crim. App. March 1, 1995).
122 People v. Murtishaw, 631 P.2d 446, 471 (Cal. 1981).
123 See, e.g., Brewer v. Quarterman, 127 S. Ct. 1706, 1724 (2007) (invalidating a death sentence
where the jury was prevented from considering certain evidence with “relevance to the defendant’s
moral culpability”); Penry, 492 U.S. at 319 (“Underlying Lockett and Eddings is the principle that pun-
ishment should be directly related to the personal culpability of the criminal defendant. . . . Moreover . . .
it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sen-
tencer must also be able to consider and give effect to that evidence in imposing sentence. Only then
can we be sure that the sentencer has treated the defendant as a uniquely individual human being and has
made a reliable determination that death is the appropriate sentence. Thus, the sentence imposed at the
penalty stage should reflect a reasoned moral response to the defendant’s background, character, and
crime.”) (internal citations omitted) (emphasis in original).
124 See Eddings v. Oklahoma, 455 U.S. 104, 117 (1982) (O’Connor, J., concurring) (“Because the
[sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death
sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.”); id. at 113-14
(majority opinion) (“Just as the State may not by statute preclude the sentencer from considering any
mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigat-
ing evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating
evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review,
may determine the weight to be given relevant mitigating evidence. But they may not give it no weight
by excluding such evidence from their consideration.”) (emphasis in original); Penry, 492 U.S. at 319
(“Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigat-
ing evidence to the sentencer. The sentencer must also be able to consider and give effect to that evi-
dence in imposing sentence.”) (emphasis in original); Hitchock v. Dugger, 481 U.S. 393, 394 (1987)
(unanimous decision) (“We have held that in capital cases, the sentencer may not refuse to consider or
be precluded from considering any relevant mitigating evidence.” ) (internal quotations omitted).
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B. Dangerousness catches defendants with low culpability and results in

death sentences unsupported by a retributive rationale.
A review of executions based on future dangerousness reveals a

trend consistent with the elimination of culpability determinations as de-
scribed above: a morass of strikingly young defendants without particularly
aggravated crimes, and frequently with lessened culpability due to addi-
tional factors that are universally recognized as mitigating. This should
come as no surprise where a sentencing factor replaces the culpability in-
quiry with one of risk assessment, as the dangerousness inquiry does—
especially when the inquiry is complicated by a jury’s fear, as explained in
the previous subsection. The result of this practice is the elimination of any
legitimate retributive rationale—a consequence compelled by the elimina-
tion of culpability consideration.
The Virginia experience—unique for its use of future
dangerousness as one of only two potential aggravating factors (one of
which must be found in order to support a death verdict)125—provides a
concentrated example of this phenomenon. Virginia has executed twenty-
four people based on future dangerousness alone,126 the average and median
age of whom was only twenty-four.127 Two defendants were seventeen at
the time of their crimes,128 four were likely mentally retarded,129 and a total
of twelve of the underlying offenses were armed robberies, burglaries, or
impulsive crimes committed by defendants twenty-four or younger.130 At
125 See VA. CODE. ANN. § 19.2-264.2 (2007); VA. CODE. ANN. § 19.2-264.4(c) (2007).
126 See Appendix B, infra.
127 Id.
128 See Roach v. Commonwealth, 468 S.E.2d 98, 100 (Va. 1996) (Steve Edward Roach; executed
January 13, 2000); Wright v. Commonwealth, 427 S.E.2d 379, 383 (Va. 1993).
129 See Bell v. Commonwealth, 563 S.E.2d 695, 700 (Va. 2002) (Edward Nathaniel Bell was exe-
cuted February 19, 2009 on the basis of future dangerousness); Royal v. Commonwealth, 458 S.E.2d
575, 576 (Va. 1995) (Thomas Lee Royal, Jr. was executed October 19, 1999 on the basis of future
dangerousness); Yeatts v. Commonwealth, 410 S.E.2d 254, 259 (Va. 1991) (Ronald Dale Yeatts was
executed April 29, 1999 on the basis of future dangerousness); Mackall v. Commonwealth, 372 S.E.2d
759, 764-65 (Va. 1988) (Tony Mackall was executed February 10, 1998 on the basis of future
dangerousness). See also Appendix B, infra.
130 See Appendix B, infra. It is also of note that at least six defendants in this group of twenty-
four were executed despite being denied instructions on their parole ineligibility, either because they
were tried before Simmons, failed to preserve the error, or because of solely technical parole eligibility.
See Chandler v. Commonwealth, 455 S.E.2d 219, 225-26 (Va. 1995) (Simmons claim barred because
counsel did not object at trial); Ramdass v. Commonwealth, 437 S.E.2d 566 (Va. 1993) (remanded for
consideration under Simmons v. South Carolina; death sentence reaffirmed by Virginia Supreme Court
and the U.S. Supreme Court in Ramdass v. Angelone, 528 U.S. 1068 (2000), finding that Bobby Lee
Ramdass was not entitled to answer his jury’s question about his parole ineligibility because he could
not establish ineligibility conclusively at the time of sentencing; a pending judgment against him would
have made him parole ineligible under Virginia’s three-strikes law, but the judgment was not yet final);
Wright v. Commonwealth, 427 S.E.2d 379 (Va. 1993) (remanded for consideration in light of Simmons;
reaffirmed by Virginia Supreme Court the same year for reasons similar to Ramdass); Eaton v. Com-
least four of the remaining defendants, who were between the ages of
twenty-six and thirty-three, had severe addictions and provided evidence
linking their deviant behavior to access to drugs or alcohol.131
One twenty-four-year-old black defendant, Johnile Dubois, who
killed a white clerk during the armed robbery of a convenience store, was
sentenced to death by his trial judge despite entering a plea agreement with
the Commonwealth in which the Commonwealth did not seek death.132 The
judge cited an expert evaluation contained in the pre-sentence report stating
that “Dubois would continue to be a ‘danger to others by virtue of his way
of life[,]’”133 and a criminal history consisting of grand larceny, possession
of a firearm, two non-violent probation violations, and misdemeanor as-
sault.134
Tony Mackall, a mentally retarded black man, was only twenty-one
years old when he shot a white gas station clerk in an armed robbery.135
Mackall was executed in 1998 based on his history of non-aggravated lar-
cenies and burglaries136 and a clinical psychologist’s testimony that “anger
and hostility, exhibited during his interviews with her, ‘might be trans-
formed into violence.’”137 Of the eight defendants Virginia has executed
monwealth, 397 S.E.2d 385, 392-93 (Va. 1990) (trial predated Simmons); O’Dell v. Commonwealth,
364 S.E.2d 491 (Va. 1988) (the Supreme Court in fact used O’Dell’s case—O’Dell v. Netherland, 521
U.S. 151 (1997)—to announce that Simmons was a new rule under Teague); Townes v. Commonwealth,
362 S.E.2d 650, 657 (Va. 1987) (Richard Townes, Jr. represented himself and failed to raise a Simmons
objection); Peterson v. Commonwealth, 302 S.E.2d 520, 525 (Va. 1983) (predated Simmons).
131 See Schmitt v. Commonwealth, 547 S.E.2d 186, 193-94 (Va. 2001) (twenty-six-year-old
Schmitt “presented testimony from his juvenile probation officer, friends, and family members who de-
scribed Schmitt as courteous and respectful when he was not under the influence of drugs.”); Orbe v.
Commonwealth, 519 S.E.2d 808, 811-12 (Va. 1999) (thirty-three-year-old Dennise Orbe killed a con-
venience store clerk during an armed robbery, in the third armed offense in Orbe’s history, all three hav-
ing occurred within a month. “The defendant's mother and step-father testified about the defendant's
troubled childhood and his problems with alcohol abuse. One of his friends described a change in the
defendant's behavior shortly before the incidents in January 1998.” A defense expert testified he “did
not perceive the defendant as being a future danger in a prison setting unless he was able to access alco-
hol inside the prison[.]”); Eaton v. Commonwealth, 397 S.E.2d 385, 398 (Va. 1990) (Under the influ-
ence of drugs, thirty-two-year-old Eaton spontaneously shot two friends. Fleeing from these acts, he
impulsively shot a state trooper, engaged in a high-speed chase ending when he crashed into a lamp post
and shot his girlfriend and then himself, both in the head.); Savino v. Commonwealth, 391 S.E.2d 276
(Va. 1990) (twenty-nine-year-old Savino killed his male lover with a hammer and knife while heavily
under the influence of cocaine and/or heroin. He had a long history of severe heroin abuse and con-
tended that the murder was the result of overwhelming emotional conflicts between himself and the vic-
tim, elevated by his drug addictions. His criminal record, characterized by the Virginia Supreme Court
as “substantial,” in fact consisted solely of larcenies and robberies which the defendant regularly com-
mitted to support his drug habit—none of which resulted involved any assaultive behavior.)
132 Dubois v. Commonwealth, 435 S.E.2d 636, 637 (Va. 1993) (Dubois “indicated that he did not
wish to question the probation officer who prepared the report nor did he wish to present any mitigating
evidence. . . . The Commonwealth acknowledged that, pursuant to the terms of the plea agreement, it
was not asking for the death penalty[.]”).
133 Id. at 639.
134 Id. at 638-39.
135 Mackall v. Commonwealth, 372 S.E.2d 759 (Va. 1988).
136 Id. at 771.
137 Id. at 768.
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with likely mental retardation—a condition now considered so absolutely

mitigating that such executions per se violate the Eighth Amendment138 —
four, including Mackall, were executed based on future dangerousness
alone139 and two others (perhaps three) were executed based on future
dangerousness in part.140 Given the high likelihood of mistaken
dangerousness predictions detailed in the previous section and the practice
of at least one Virginia prosecutor to “charge capital murder even if it’s
questionable as whether or not it fits in that category,”141 certain unlucky
Virginia defendants who would not be considered death-worthy by most
people are receiving death sentences nonetheless.142 The prosecutor who
made that statement has won the most death sentences of any single prose-
cutor in Virginia’s modern history,143 and future dangerousness was a sen-
tencing factor in almost all of them.144
This experience with future dangerousness is not unique to Vir-
ginia. Texas, whose statute requires a finding of future dangerousness for
every death sentence,145 has executed thirteen juveniles146 and one defen-
138 See Atkins, 536 U.S. at 321.

139 See Royal v. Commonwealth, 458 S.E.2d 575 (Va. 1995) (executed October 19, 1999 on the
basis of future dangerousness); Yeatts v. Commonwealth, 410 S.E.2d 254 (Va. 1991) (executed April
29, 1999 on the basis of future dangerousness); Mackall v. Commonwealth, 372 S.E.2d 759 (Va. 1988)
(executed February 10, 1998 on the basis of future dangerousness).
140 See Mason v. Commonwealth, 254 S.E.2d 116, 121 (Va. 1979). See also Death Penalty In-
formation Center, Execution Database, http://www.deathpenaltyinfo.org/executions.php (noting that
Kevin Green, executed May 27, 2008, had evidence of mental retardation). It is unclear whether or not
Alton Waye’s death sentence was based in part on future dangerousness. See Waye v. Commonwealth,
251 S.E.2d 202 (Va. 1979). Walter Correll, the seventh Virginia capital defendant executed despite evi-
dence of mental retardation, was sentenced based on the “vileness” predicate alone. See Correll v.
Commonwealth, 352 S.E.2d 352, 353 (Va. 1987).
141 Frank Green, Like They’re God: Prosecutorial Discretion Called Awesome, RICHMOND
TIMES-DISPATCH, February 5, 1998, at A-1. (quoting Commonwealth’s Attorney Paul Ebert of Prince
William County, Virginia).
142 A report from the American Civil Liberties Union of Virginia lists Prince William County’s
death sentence rate at 138 percent—with eleven death sentences out of eight “potential capital crimes.”
American Civil Liberties Union, Broken Justice: The Death Penalty in Virginia at 53, available at
http://www.aclu.org/capital/general/10591pub20040210.html (2004). The report explains, “These
anomalies are most likely due to underreporting and miscoding[.]”. Id. Prince William County is the
only county listed with such discrepancies. To provide some points of reference, the Virginia jurisdic-
tion with the highest number of death sentences is the capital, Richmond, with seventeen. This is out of
162 potential capital crimes, however, making their death sentence rate only ten percent. Two other
counties are credited with 100 percent sentencing rate, but they have each sentenced only two out of two
defendants indicted for capital murder. Broken Justice, at 51-53.
143 Green, supra note 140.
144 See Elliott v. Warden, 652 S.E.2d 465 (Va. 2007); Muhammad v. Warden, 646 S.E.2d 182
(Va. 2007); Powell v. Warden, 634 S.E.2d 289 (Va. 2006); Wolfe v. Commonwealth, 576 S.E.2d 471
(Va. 2003); Chichester v. Commonwealth, 448 S.E.2d 638 (Va. 1994); George v. Commonwealth, 411
S.E.2d 12 (Va. 1991); Smith v. Commonwealth, 389 S.E.2d 871 (Va. 1990); Mu’Min v. Common-
wealth, 389 S.E.2d 886 (Va. 1990); Mackall v. Commonwealth, 372 S.E.2d 759 (Va. 1988).
145 TEX. CODE CRIM. PROC. art. 37.071 §2(b)(1) (Vernon 2008).
146 See Death Penalty Information Center, Execution Database,
http://www.deathpenaltyinfo.org/executions.php (Toronto Patterson, T.J. Jones, Napoleon Beazley, Ger-
ald Mitchell, Shaka Sankofa (Gary Graham), Glenn McGinnis, Robert Anthony Carter, Joseph Cannon,
Ruben Cantu, Curtis Harris, Johnny Frank Garrett, Jay Pinkerton, and Charles Rumbaugh).
dant who was both a juvenile and mentally retarded;147 Oklahoma has justi-
fied the execution of two juveniles, in part, on its optional future
dangerousness aggravating factor.148 One story from Louisiana, a state
without a dangerousness statute, is particularly demonstrative. Executed in
1990, sixteen-year-old, mentally retarded Dalton Prejean had impulsively
shot and killed a police officer who was patting down his brother after pull-
ing the two over for driving without headlights. Prejean was intoxicated at
the time. Although future dangerousness is not a statutory aggravating fac-
tor in Louisiana, the Louisiana Supreme Court affirmed Prejean’s death
sentence because a “combination of dull mentality, alcohol and handguns
could reasonably be said to increase the probability of tragic repetition.”149
In Texas, Randall Dale Adams—a man ultimately proved factually innocent
and freed from prison—was found to be a future danger and sentenced to
death after a psychiatrist testified that he would continue to be a threat to
society, saying, “there is nothing known in the world today that is going to
change this man, we don’t have anything . . . it wouldn’t matter where it
was [or whose life], you or a guard or a janitor or whoever it might be.”150
In all of these examples, future dangerousness provided justification for
execution of defendants that most would not consider possessing the sort of
“extreme culpability [that makes] them ‘the most deserving of execu-
tion.’”151
Although states can no longer execute juveniles or mentally re-
tarded offenders, the correlation between such past executions and future
dangerousness should raise concern as to the retributive justification of any
dangerousness-based execution. An undercutting of the retributive ration-
ale was a major reason the Court disavowed execution of mentally retarded
persons in Atkins v. Virginia152 and of juveniles in Roper v. Simmons,153 ex-
plaining, “Retribution is not proportional if the law’s most severe penalty is
imposed on one whose culpability or blameworthiness is diminished, to a
substantial degree[.]”154 When a dangerousness inquiry obscures any con-
sideration of a defendant’s culpability, no resulting death sentence can le-
gitimately claim support in the retributive rationale.
IV. Dangerousness Has Fallen Dramatically Out of Step with the Supreme
Court’s Efforts to Constitutionalize the Death Penalty, and Out of Step with
147 See Garrett v. State, 682 S.W.2d 301 (Tex. Crim. App. 1984).
148 See Hain v. State, 919 P.2d 1130, 1146 (Okla. Crim. App. 1996); Sellers v. State, 809 P.2d
676, 689 (Okla. Crim. App. 1991).
149 State v. Prejean, 379 So.2d 240, 248-49 (La. 1979).
150 TDS “State of Denial,” supra note 81, at 32. Mr. Adams is currently employed, happily mar-
ried, and has had no arrests or violence since his exoneration. Id. at 33.
151 Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319).
152 Atkins, 536 U.S. at 319-21. See also Roper, 543 U.S. at 563 (“The impairments of mentally
retarded offenders make it less defensible to impose the death penalty as retribution for past crimes[.]”).
153 543 U.S. at 551.
154 Id. at 571.
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Reality.
Unreliability paired with procedural shortfalls and the severe con-

sequences of incorrect predictions have led a small minority of past Justices
to believe reliance on future dangerousness “cuts sharply against the grain
of [the] Court’s capital jurisprudence,”155 leading to “perverse” results156
and “the despair of irreversible error.”157 It should not be surprising that
such upsetting observations align with a sentencing factor that successfully
undercuts both incapacitation and retribution—two major capital punish-
ment rationales. But the Court as a whole has not addressed any of these
issues, despite the apparent violation of several constitutional norms and
disregard for reality.
A. Is future dangerousness flying under the constitutional radar?
Much of the Court’s capital sentencing jurisprudence focuses on

ensuring that a jury is able to consider any facts tending to lessen the defen-
dant’s culpability.158 States have a duty to ensure that “capital sentencing
decisions rest on an individualized inquiry” under which the defendant’s
“character” is considered;159 they “cannot limit the sentencer’s considera-
tion of any relevant circumstances that could cause it to decline to impose
the penalty”160 because sentencers must “be able to consider and give effect
to” a defendant’s mitigating evidence.161 Juries are to express the “con-
science of the community,”162 linking the sentencing decision inextricably
to a measurement of culpability. The Court has been clear and firm in es-
tablishing the principle that “[c]apital punishment must be limited to those
offenders . . . whose extreme culpability makes them ‘the most deserving of
execution.’”163 But as demonstrated by numerous cases, only a small frac-
155 Williams v. Lynaugh, 484 U.S. 935, 939 (1987) (Marshall and Brennan, JJ., dissenting from
denial of certiorari).
156 Id. (Marshall & Brennan, JJ., dissenting from denial of certiorari).
157 Barefoot, 463 U.S. at 936 n.14 (Blackmun, J., dissenting).
158 See, e.g., Brewer v. Quarterman, 127 S. Ct. 1706, 1709 (2007) (quoting Penry, 492 U.S. at
323) (“a sentencing jury must be able to give a reasoned moral response to a defendant’s mitigating evi-
dence—particularly that evidence which tends to diminish his culpability—when deciding whether to
sentence him to death.”).
159 McKleskey v. Kemp, 481 U.S. 279, 303-304 (1990).
160 Id. at 306.
161 Penry, 492 U.S. at 319. See also Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982) (“Just as
the State may not by statute preclude the sentencer from considering any mitigating factor, neither may
the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.”); id. at 117
(O’Connor, J., concurring) (“Because the [sentencer’s] failure to consider all of the mitigating evidence
risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand
this case for resentencing.”); Hitchcock v. Dugger, 481 U.S. 393, 394 (1987) (“We have held that in
capital cases, the sentencer may not refuse to consider or be precluded from considering any relevant
mitigating evidence.”).
162 Witherspoon v. Illinois, 391 U.S. 510, 519 (1962).
163 Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319).
tion of which are detailed in this article, future dangerousness has contrib-
uted to executions of defendants with low culpability. These executions,
and the potential for others, flatly present an Eighth Amendment violation.
The potential unconstitutionality of future dangerousness does not
end there. Jurors faced with a dangerousness determination may believe
they are basing a difficult sentence on pragmatic concerns of safety, while
the evidence they are considering is in fact unrelated and irrelevant to that
end (e.g., an APD diagnosis, an out-of-prison criminal or non-criminal re-
cord, or an expert’s dangerousness diagnosis), which prejudices their death
verdict. Particularly in states where risk assessment testimony is sup-
pressed, “society” is not limited to prison society, and prison security evi-
dence is barred, future dangerousness creates for capital sentencers an en-
tirely false sense of their role. The Constitution forbids prejudicial
sentencing considerations that “so infect[] the sentencing proceeding with
unfairness as to render the jury’s imposition of the death penalty a denial of
due process.”164 Future dangerousness may create such a situation.
The failure to limit “society” to the prison population may also vio-
late Simmons v. South Carolina,165 in which the Court forbade states from
“creat[ing] a false dilemma by advancing generalized arguments regarding
the defendant’s future dangerousness while, at the same time, preventing
the jury from learning that the defendant never will be released on pa-
role.”166 Realism arguments cut both ways, however, in addressing the pos-
sibility of executive clemency. States seem to be split as to permitting in-
structions about the possibility of clemency,167 and a 1983 Supreme Court
opinion approving such an instruction168 might just as strongly argue for the
164 Romano v. Oklahoma, 512 U.S. 1, 12 (1994).

165 512 U.S. 154 (1994).
166 Id. at 171. The Supreme Court has limited Simmons’ applicability by finding state supreme
courts may reasonably apply Simmons only when the defendant is definitively parole ineligible under
state law and where the state argues future dangerousness. See Ramdass v. Angelone, 530 U.S. 156
(2000) (denying relief where state court refused to give a Simmons instruction even though Virginia’s
three-strikes law would make the defendant ineligible for parole once his conviction became final; be-
cause the third conviction was not yet final, parole ineligibility—although most likely—was not a legal
certainty); Kelly v. South Carolina, 534 U.S. 246, 253-57 (2002) (explaining the limitation of Simmons
to cases in which future dangerousness is put “at issue;” in Kelly, although the state did not directly ar-
gue dangerousness, it was put “at issue” by the state’s choice of evidence and argument clearly directed
to that purpose); O’Dell v. Netherland, 521 U.S. 151, 153 (1997) (characterizing Simmons as requiring
“that a capital defendant be permitted to inform his sentencing jury that he is parole-ineligible if the
prosecution argues that he presents a future danger”).
167 See generally Annotation, Prejudicial Effect of Statement or Instruction of Court as to Possi-
bility of Parole or Pardon, 12 A.L.R.3d 832 (1999); Annotation, Procedure to be Followed Where Jury
Requests Information as to Possibility of Pardon or Parole from Sentence Imposed, 35 A.L.R.2d 769
(1997). Virginia bars not only such an instruction, but also all argument by the prosecutor in this regard.
See Williams v. Commonwealth, 360 S.E.2d 361 (Va. 1986) (prosecutors may not argue the possibility
of executive clemency, nor may the court make any comment to the jury about what might happen after
the sentence is imposed).
168 In Ramos, 463 U.S. 992, the Court, by a 5-4 vote, held that instructing the jury of the possibil-
ity of executive clemency or commutation violated neither the Eighth Amendment nor the Due Process
Clause. Justice O’Connor described such an instruction as “bringing to the jury’s attention the possibil-
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constitutionality of leaving “society” undefined. However, this is an open

question.
The influence of fear on a jury is very prejudicial (Virginia appar-
ently maintains a doctrine that death sentences may not be based on “fear
rather than reason.”).169 But with future dangerousness on the table, death
sentences can potentially result from jurors’ fear of the imagined conse-
quences attendant to an incorrect prediction of non-dangerousness, since the
consequences of an incorrect prediction of dangerousness are comparably
less. This could rise to a Due Process violation, and at the very least
clashes with an Eighth Amendment principle of Caldwell v. Mississippi.170
The Caldwell Court reversed a death sentence which resulted from weigh-
ing the consequences of a similar mistake—the fact that an appellate court
could correct an invalid sentence of death but not one of life.171
A recent Court opinion highlights a separate potentially unconstitu-
tional aspect of future dangerousness’s prejudice. Deck v. Missouri172 held
that prejudicial evidence tending to show dangerousness (in Deck’s case,
shackles at his capital sentencing hearing) “can be a thumb on death’s side
of the scale”173 and thus unconstitutional. The overbearing influence of fu-
ture dangerousness—whether due to an expert diagnosis, admission of
prejudicial evidence, exclusion of relevant risk assessment evidence, or ju-
rors’ fear of an incorrect non-dangerousness prediction—can also be “a
thumb on death’s side of the scale.”174
ity that the defendant may be returned to society,” and then approved it as “invit[ing] the jury to assess
whether the defendant is someone whose probable future behavior makes it undesirable that he be per-
mitted to return to society.” Id. at 1003.
169 Virginia had long recognized that “fear” can have a detrimental effect on defendants, finding
in a 1968 case that “evidence of what a defendant’s future conduct might be could only serve to divert
the attention of the jurors from the real issue in the case: namely, was the defendant relieved of criminal
responsibility because of insanity at the time the offense was committed. Such evidence was irrelevant
and immaterial to the issue of the case and highly prejudicial to the defendant’s right to be tried only on
the offense charged.” Farris v. Commonwealth, 163 S.E.2d 575, 577 (Va. 1968). This case has been
interpreted in the capital context to stand for the proposition that a death penalty cannot be “based upon
‘fear rather than reason.’” Yarbrough v. Commonwealth, 519 S.E.2d 602, 613 (Va. 1999) (quoting Far-
ris, 163 S.E.2d at 576).
170 472 U.S. 320 (1985).
171 Caldwell, 472 U.S. at 332 (“Bias could similarly stem from the fact that some jurors may cor-
rectly assume that a sentence of life in prison could not be increased to a death sentence on appeal.”).
Caldwell is read by the Court under Justice O’Connor’s controlling concurrence, described in Darden v.
Wainwright, 477 U.S. 168, 184 n.15 (1986), as “relevant only to certain types of comment [by the
prosecutor]—those that mislead the jury as to its role in the sentencing process in a way that allows the
jury to feel less responsible than it should for the sentencing decision.” This reference to Caldwell is,
therefore, only to dicta, and not to a controlling constitutional holding. However, at least three current
members of the Court appear to support a broader reading of Caldwell. See Romano v. Oklahoma, 512
U.S. 1, 15-17 (1994) (Ginsburg, Blackmun, Stevens, & Souter, JJ, dissenting).
172 544 U.S. 622 (2002).
173 Deck, 544 U.S. at 633 (quoting Sochor v. Florida, 504 U.S. 527, 532 (1992)) (internal quota-
tion marks and brackets omitted).
174 Further, reassessment of a dangerousness prediction only appears to be available to defendants
originally found not dangerous. These reassessments occur, in effect, whenever a capital defendant who
the state asserts will be a future danger is sentenced to life in prison, but subsequently commits another
The role of fear in the jury room touches upon an even more fun-
damental principle: the “vital importance to the defendant and to the com-
munity that any decision to impose the death sentence be, and appear to be,
based on reason rather than caprice or emotion.”175 For this reason, “con-
sideration must be given to the quality, as well as the quantity, of the infor-
mation on which the sentencing [authority] may rely.”176 Reliance on fu-
ture dangerousness improperly shifts jurors’ focus from legitimate evidence
of culpability to prejudicial evidence of dangerousness by exploiting a
powerful emotion—fear—and in this way may frequently violate the Eighth
Amendment.
Given all the problems identified with dangerousness predictions,
current reliance on them fails to meet “the ‘acute need’ for reliable deci-
sionmaking when the death penalty is at issue.”177 That the Eighth
Amendment requires heightened reliability in capital cases is a critical con-
stitutional doctrine.178 The Supreme Court has faithfully invalidated proce-
dures “that tended to diminish the reliability of the sentencing determina-
tion”179 because the Eighth and Fourteenth Amendments forbid any risk
“that the death penalty will be imposed in spite of factors which may call
for a less severe penalty.”180 Reliance on a sentencing factor that invites
prejudicial considerations fails to provide a realistic understanding of a
jury’s task, nullifies evidence of reduced culpability, is so scientifically un-
reliable as to be wrong more often than right, and provides no possibility
murder and ends up on death row nonetheless. The fact that the possibility for reassessment is available
only to defendants who disprove predictions of non-dangerousness, but not to those who have been un-
necessarily sentenced to death, argues for an unconstitutional “thumb on death’s side of the scale” just
as heavily as any of its other problems attendant future dangerousness determinations.
175 Gardner v. Florida, 430 U.S. 349, 358 (1977).
176 Id. at 359.
177 Deck, 544 U.S. at 632 (quoting Monge v. California, 524 U.S. 721, 732 (1998) (citing Lockett
v. Ohio, 438 U.S. 586, 604 (1978))).
178 See, e.g., Sumner v. Shuman, 483 U.S. 66, 72 (1987) (“Heightened reliability [is] demanded
by the eighth amendment in the determination whether the death penalty is appropriate in a particular
case.”); id. at 85 (referring to “the constitutional mandate of heightened reliability in death penalty de-
terminations”); Ake v. Oklahoma, 470 U.S. 68, 87 (1984) (Burger, C.J., concurring) (“In capital cases
the finality of the sentence imposed warrants protections that may or may not be required in other
cases.”); Barefoot, 463 U.S. at 924 (Blackmun, J., dissenting) (describing the doctrine of heightened
reliability in capital sentencing “is as firmly established as any in our Eighth Amendment jurispru-
dence”); Ramos, 446 U.S. at 998-99 (“The qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the capital sentencing determination.”); Godfrey
v. Georgia, 463 U.S. 420, 443 (1980) (Burger, C.J., dissenting) (in “capital cases we must see to it that
the jury has rendered its decision with meticulous care”); Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(“We are satisfied that this qualitative difference between death and other penalties calls for a greater
degree of reliability when the death sentence is imposed.”); Woodson v. North Carolina, 428 U.S. 280,
305 (opinion of Steward, Powell, and Stevens, JJ.) (“Death, in its finality, differs more from life impris-
onment than a 100-year prison term differs from one of only a year or two. Because of that qualitative
difference, there is a corresponding difference in the need for reliability in the determination that death
is the appropriate punishment in a specific case.”).
179 Beck v. Alabama, 447 U.S. 625, 638 (1980) (citing Gardner v. Florida, 430 U.S. 349 (opinion
of Stevens, Stewart, & Powell, JJ.)).
180 Lockett v. Ohio, 438 U.S. 586, 605 (1978).
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for reassessment deeply offends the doctrine of heightened reliability.
B. Future dangerousness misses the reality boat
A further concern transcends constitutional considerations and rests

entirely on a healthy respect for reality. Dangerousness-based executions
are carried out as if time froze at the time of sentencing when, in reality, the
defendant has aged approximately a decade, and events may have transpired
that either tend to disprove the original dangerousness prediction, or call
into question its continuing validity. James Vernon Allridge, III, executed
by Texas in 2004, became an artist and a mentor during his seventeen years
on death row, where one of his guards could “never imagine James posing
any kind of threat to any other inmates or correctional officers. . . James
probably saved a lot of correctional officers’ lives and they didn’t even
know it, just by calming the situation.”181 Allridge’s attorneys appealed to
Texas courts, federal courts, the Supreme Court, and the Texas Board of
Pardons and Paroles; no one would reassess his future dangerousness.182
Wilbert Lee Evans, the first person nationwide to be executed on a finding
of dangerousness alone, was credited with saving the lives of several nurses
and guards during a successful escape from death row in which he did not
participate.183 Federal District Judge Robert Mehrige found that Evans’
“‘selfless and heroic acts’ during the May 1984 prison break, together with
guards’ statements that he was a model prisoner, cast doubt on the sentenc-
ing jury’s inherently ‘speculative’ February 1984 finding that, unless exe-
cuted, Evans would pose a danger to society[.]” Despite it being “‘unwar-
ranted vengeance in its ultimate form’ to execute Evans without a full
hearing to consider anew whether he would be dangerous if allowed to live
out his life in prison,”184 Virginia had no system in place to reassess the
dangerousness finding that originally put Evans on death row.185 It still
does not, and neither does any state employing future dangerousness.
The passage of long lengths of time between a death sentence and
an execution should not be ignored when the state justifies that death sen-
tence with the necessity of direct deterrence. This is not an argument for
the per se unconstitutionality of such executions186 but the potential uncon-
181 Jessica L. Roberts, Note, Futures Past: Institutionalizing the Re-Examination of Future
Dangerousness in Texas Prior to Execution, 11 TEX. J. C.L. & C.R. 101, 101-02 (2005).
182 Id. at 102. Roberts’ note proposes “a standard procedure to revisit the issue of future
dangerousness when the execution becomes imminent.” Id. at 104.
183 See Evans v. Muncy, 498 U.S. 927, 928-29 (1990) (Marshall, J., dissenting from denial of stay
of execution).
184 Stewart Taylor, Jr., We Will Kill You Anyway, THE AM. LAWYER, December 1990, at 56.
Merhige’s decision was reversed three days later by the Fourth Circuit, adopting the state’s position that
“nothing any condemned man does after imposition of a valid death sentence, no matter how heroic,
entitles him to judicial relief.” Id.
185 See generally id.
186 At least two Supreme Court Justices have opined that execution after long delay is per se un-
constitutional. See, e.g., Knight v. Florida, 528 U.S. 990, 993-99 (1999) (Breyer, J., dissenting from
stitutionality they hold for death sentences based on predictions of future

dangerousness. Peer-reviewed research and the Bureau of Justice Statistics
demonstrate that the long-accepted criminological principle of “aging out”
applies with full force to prison populations.187 The probability that a sev-
enty-year-old inmate poses a risk of violence is so miniscule that such a
dangerousness-premised execution makes little sense despite the offender’s
risk level when first sentenced.188 According to Dr. Cunningham’s 2007
study of federal life-without-parole inmates, “[a]ge was the factor that was
most strongly and consistently related (inversely) to prison miscon-
duct[.]”189 This finding is widely and consistently observed in state and
federal inmates across the country.190 Its significance grows in light of the
fact that death row inmates in the U.S.—an increasingly aging popula-
tion191 —frequently spend over a decade on death row.192
Although several means of reassessing a defendant’s dangerousness
denial of certiorari); Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting the denial of certio-
rari); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from denial of certiorari).
187 See Mark D. Cunningham, Presentation at Washington & Lee Law School’s “Defending a
Capital Case in Virginia XVII: Life Without Parole and the End of Future Dangerousness” (Apr. 5,
2005) (citing Thomas J. Flanagan, Time Served and Institutional Misconduct: Patterns of Involvement in
Disciplinary Infractions Among Long-Term and Short-Term Inmates, 8 J. CRIM. JUST. 357, 367 (1980)
& Thomas J. Flanagan, Long-term prisoners: A study of the characteristics, institutional experience and
perspectives of long-term inmates in State correctional facilities (dissertation, School of Criminal Jus-
tice, State University of New York at Albany) (on file with author); id., “Average Number of Prison
Rule Violations per Inmate per Year by Age” (citing Prison Rule Violators, Bureau of Justice Statistics
(1989)) (on file with author). See also Cunningham & Sorenson, Predictive Factors, supra n.35, at 246
(“Consistent with previous research, the age of the inmate was the strongest predictor of violence pro-
tention. The overall relationship was negative, with younger inmates being most likely to commit vio-
lence misconduct and older inmates being least likely to commit violent rule infractions.”); Mark D.
Cunningham & Thomas J. Reidy, Integrating Base Rate Data in Violence Risk Assessments at Capital
Sentencing, 16 BEHAV. SCI. & L. 71, 86 (1998).
188 Four men over the age of seventy have been executed since 1976: John Nixon (Mississippi),
executed Dec. 14, 2005, at age seventy-seven after spending twenty years on death row; Clarence Ray
Allen (California), executed Jan. 19, 2006, at age seventy-six, after spending twenty-three years on
death row; John Boltz (Oklahoma), executed June 1, 2006, at age seventy-four, after spending twenty-
two years on death row; James Hubbard (Alabama), executed Aug. 5, 2004, at age seventy-four, after
spending twenty-seven years on death row. According to the Death Penalty Information Center, “Hub-
bard forgot who he was at times because of dementia. He suffered from colon and prostate cancer, and
was so weak that other inmates sometimes walked him to the shower and combed his hair.” Death Pen-
alty Information Center, Time on Death Row, http://www.deathpenaltyinfo.org/article.php?&did=1397
(hereinafter Time on Death Row). None of these men’s death sentences were predicated on statutory
“future dangerousness” findings, but even if they were, states provide no system of reevaluation of “fu-
ture dangerousness,” even in extreme cases like Hubbard’s. Virginia and Texas have executed a total of
eight men over sixty. Id. Both of the men executed in Oregon were fifty-six years old. Id.
189 Cunningham, Assertions, supra note 5, at 60.
190 Id.
191 See Time on Death Row, supra note 188 (“America’s death row population is aging signifi-
cantly: A record 137 prisoners were 60 years old or older as of 2005. That figure represents a spike in
the senior death row population, which numbered just 39 in 1996.”).
192 See id. The composite average number of years spent on death row pending execution, as of
1995, was nine years. See James Liebman, Jeffrey Fagan, & Valerie West, BROKEN SYSTEM: ERROR
RATES IN CAPITAL CASES, 1973-1995, at App. E-12 and E-37 (2000), available at
http://www2.law.columbia.edu/instructionalservices/liebman/liebman2.pdf.
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are theoretically available through existing legal framework, only those

with the most limited application ever seem to be used. In review of insuf-
ficiency of evidence claims, the Courts of Criminal Appeals of both Texas
and Oklahoma have granted relief for incorrect dangerousness findings.193
This is exceedingly rare, based on very unique and fact-specific rulings, and
distinct from a new dangerousness assessment, which is simply “not cogni-
zable” in collateral proceedings.194 Executive commutation is also sought
and has on two occasions been granted for “rehabilitated” defendants,195
implying reassessment of their risk for dangerousness; clemency proceed-
ings, entirely discretionary and sometimes quite mysterious, are not re-
quired to consider dangerousness.196 And the Supreme Court has suggested
that the possibility of commutation should not substitute judicial considera-
tion of genuine Eighth Amendment claims;197 if it is unconstitutional to
193 See Berry v. State, 233 S.W.3d 847, 864 (Tex. Crim. App. 2007) (“We rarely reverse a judg-
ment on a claim of insufficient evidence to support a finding that the defendant will be a danger in the
future, and we do not do so lightly. In this case, we understand the jury’s decision in response to the
death of one infant and the abandonment of another, even if that decision is not supported in law. . . .
The evidence indicates that appellant has been dangerous only toward those of her own children whose
existence she wanted to hide from her favored mate, that there is a very low probability that, if sentenced
to life in prison, she will have any more children, and that therefore it is unlikely that she would be a
danger in the future.”); Malone v. State, 876 P.2d 707, 718-19 (Okla. Crim. App. 1994) (“The Informa-
tion, without more, fails to establish that Appellant has any history of criminal conduct that will likely
continue in the future. The State presented no evidence that Appellant was criminally active from 1971
to 1989 nor any facts surrounding the 1971 charge which would show that Appellant has a history of
violent crimes that is likely to continue in the future. There also was no evidence Appellant sought out
his victim or engaged in any calculated planning to kill Gleason to support a finding that the murder was
committed in a particularly brutal or calloused manner. It is our affirmative obligation to keep the appli-
cation of aggravating circumstances within constitutional bounds, and to prevent ‘continuing threat’
from becoming a ‘catch-all’ for capital cases which do not fit any other statutory aggravating circum-
stance.”).
194 See Ex parte Henderson, 246 S.W.3d 690, 692 (Tex. Crim. App. 2007) (“We dismiss her third
claim—that she is no longer death eligible—because it is not legally cognizable under [Texas Code of
Criminal Procedure] [a]rticle 11.071, § 5.”); Id. at 698 (Keasler, J., dissenting) (“Finally, the Court
brushes aside Henderson’s third claim—that she is no longer a future danger.”).
195 Ronald Smothers, A Day Short of Death, a Georgia Killer is Given Life, N.Y. TIMES, August
22, 1990, at A1,
http://query.nytimes.com/gst/fullpage.html?res=9C0CEEDA103EF931A1575BC0A966958260 (report-
ing the commutation of William Neal Moore by the Georgia Board of Pardons and Paroles due to his
religious conversion in prison and subsequent history as an exemplary inmate); Death Penalty Informa-
tion Center, Clemency, http://www.deathpenaltyinfo.org/article.php?did=126 (noting William Saunders’
commutation by Virginia’s governor due to his rehabilitation and the recommendation of mercy from
the trial judge and prosecutor).
196 Clemency decision makers are not required to consider anything at all. See Ohio Adult Parole
Auth. v. Woodward, 523 U.S. 272, 280-81 (1998) (“Respondent’s claim of a broader due process inter-
est in Ohio’s clemency proceedings is barred[.]”). Clemency procedures differ from state to state and
are not regulated by the Supreme Court, and their decisions are not reviewable. For examples of state
clemency mechanisms, see TEX. CONST. art. IV, § 11; TEX. CODE CRIM. PROC. ANN. art. 48.01 (Vernon
2008); VA. CODE ANN. § 53.1-229 (2007) (“In accordance with the provisions of Article V, Section 12
of the Constitution of Virginia, the power to commute capital punishment and to grant pardons or re-
prieves is vested in the Governor.”).
197 See Solem v. Helm, 463 U.S. 277, 303 (1983) (“The possibility of commutation is nothing
more than a hope for ‘an ad hoc exercise of clemency.’ It is little different from the possibility of execu-
tive clemency that exists in every case in which a defendant challenges his sentence under the Eighth
execute a person for whom the State’s death penalty justification is incor-
rect or has been disproved, then the availability of executive clemency is an
insufficient remedy.
Other potential opportunities for reassessment of dangerousness are
direct review, state post-conviction review, and the underused writ of
audita querela—none of which are being used for this purpose. Because
audita querela offers the best match of these three options to dangerousness
reassessment, the rest of this section explores this possibility.
i. Audita Querela: a means of reassessing dangerousness?
The writ of audita querela (“the complaint having been heard”) was
introduced during the time of Edward III as a remedy where important mat-
ters concerning a case had arisen since the judgment.198 Differing from the
writ of coram nobis, which is used to attack a judgment that was infirm
when rendered (for reasons that later surfaced), audita querela is a way to
attack a judgment that was just when rendered.199 It is a writ “of a most re-
medial nature, and invented lest in any case there should be an oppressive
defect of justice, where a party who has a good defense is too late in mak-
ing it in the ordinary forms of law[.]”200 “[A]n audita querela is founded
upon facts not appearing on the record and not before the Court who ren-
dered the judgment.”201
In modern times, audita querela has been abolished in the federal
system with respect to civil cases202 (but not criminal)203 and in some states
Amendment. Recognition of such a bare possibility would make judicial review under the Eighth
Amendment meaningless.”). See also Ford v. Wainwright, 477 U.S. 399, 416 (1986) (holding it uncon-
stitutional to execute the insane and noting that the existence of executive clemency is not a sufficient
safeguard because “history affords no better basis than does logic for placing the final determination of a
fact, critical to the trigger of a constitutional limitation upon the State’s power, in the hands of the
State’s own chief executive. In no other circumstance of which we are aware is the vindication of a con-
stitutional right entrusted to the unreviewable discretion of an administrative tribunal.”). Some Justices
have, however, included the possibility of clemency into their constitutional calculus. See, e.g., Kansas
v. Marsh, 548 U.S. 163, 193 (2006) (Scalia, J., concurring) (“Reversal of an erroneous conviction on
appeal, or on habeas, or the pardoning of an innocent condemnee through executive clemency, demon-
strates not the failure of the system but its success. Those devices are part and parcel of the multiple
assurances that are applied before a death sentence is carried out.”); Herrera v. Collins, 506 U.S. 390,
415 (1993) (describing executive clemency as the desirable “fail safe” of our criminal justice system);
Gregg, 428 U.S. at 168 (opinion of Stewart, Powell, & Stevens, JJ.) (noting, in review of Georgia’s en-
tire new capital procedure, that “[i]n cases in which the death sentence is affirmed there remains the pos-
sibility of executive clemency.”).
198 L.B. CURZON, ENGLISH LEGAL HISTORY 103 (2d ed. 1979).
199 See United States v. Reyes, 945 F.2d 862, n.1 (5th Cir. 1991) (citing Balsley v. Common-
wealth, 428 S.W.2d 614, 616 (Ky. 1967) & Keith v. State, 163 So. 884, 885 n.* (Fla. 1935)).
200 Humphreys v. Leggett, 50 U.S. 297, 313 (1850).
201 Stone v. Seaver, 5 Vt. 549, 552 (1833).
202 FED. R. CIV. P. 60(b).
203 United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam) (Audita querela is
“available in limited circumstances with respect to criminal convictions.”).
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entirely (though neither in Texas nor Virginia).204 The Second, First, Ninth,
Fifth and Seventh Circuits, at the least, have recognized its availability
“where there is a legal, as contrasted with an equitable, objection to a con-
viction that has arisen subsequent to the conviction that is not redressable
pursuant to another post-conviction remedy.”205 The writ “survive[s] only
to the extent that [it] fill[s] ‘gaps’ in the current system of post-conviction
relief,”206 and has been successfully used most recently in cases of impru-
dent deportations following minor criminal convictions.207
Audita querela also presents a suitable avenue for relief to
dangerousness-based death-sentenced inmates. A death row inmate may be
unable to prove that error infected the original prediction, however false it
turned out to be; instead, matters arising after the final judgment—his
proven lack of violent risk—provide a defense unavailable at the time of his
trial. It does not appear, however, that a writ of audita querela (or even a
hearing) has ever been granted for this purpose.
Wilbert Evans’ claims that “the Eighth and Fourteenth Amend-
ments prohibit the execution of a defendant when his behavior subsequent
to sentencing casts doubt on whether the sole aggravating factor supporting
the death sentence exists,” and that “the Commonwealth of Virginia vio-
lated his Eighth and Fourteenth Amendment rights by failing to provide a
process to hear and decide his claim that new evidence relating to his con-
204 See Lyon v. State, No. 06-05-00142-CV, 2006 WL 397944, at *1 (Tex. App.—Texarkana Feb.
22, 2006) (“Although the antique remedy was formally abolished in the civil federal system . . . no such
formal action has been taken in Texas.”) (internal citations omitted); Commonwealth v. Sharma, 58 Va.
Cir. 460, 461 (Va. Cir. Ct.—Fairfax County 2002) (explaining that audita querela has been abolished in
civil cases but not criminal).
205 United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995) (citing United States v. Holder, 936
F.2d 1, 5 (1st Cir. 1991)). See also United States v. Johnson, 962 F.2d 579 (7th Cir. 1991) (audita
querela is available to vacate an otherwise valid conviction but not for solely equitable reasons); United
States v. Reyes, 945 F.2d 862 (5th Cir. 1991) (same); United States v. Holder, 936 F.2d 1 (1st Cir. 1991)
(same); United States v. Fonseca-Martinez, 36 F.3d 62 (9th Cir. 1994) (not ultimately ruling, but
strongly indicating that audita querela is not available for purely equitable reasons); United States v.
Ayala, 894 F.2d 425, 427 (D.C. Cir. 1991) (same).
206 See United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001) (per curiam). The
Fifth Circuit has denied petitions for audita querela writs where habeas proceedings under 28 U.S.C. §
2255 were available. United States v. Garza, 185 F. App’x. 430 (5th Cir. June 21, 2006) (unpublished
opinion); United States v. Mason, 131 F. App’x 440 (5th Cir. May 13, 2005) (unpublished opinion). Just
this year the Second Circuit Court of Appeals heard an appeal from denial of a petition for writ of audita
querela in a criminal appeal. United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam). A
per curiam opinion for a panel including Judge Calibresi explained “if the absence of any avenue of col-
lateral attack would raise serious constitutional questions about the laws limiting those avenues, then a
writ of audita querela would lie.”). Id. “We have previously indicated that a writ of audita querela
‘might be deemed available if [its] existence were necessary to avoid serious questions as to the consti-
tutional validity of . . . § 2255[.]’” Id. (quoting Triestman v. United States, 124 F.3d 361, 380 n.24 (2d.
Cir. 1997)). The Second Circuit would potentially, therefore, entertain a writ of audita querela in a fed-
eral capital case where “future dangerousness” was found at sentencing if it believed the inability of §
2255 claims to recognize “dangerousness” reassessments to have a constitutional dimension.
207 Ira P. Robbins, The Revitalization of the Common Law Civil Writ of Audita Querela as a Post-
conviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 GEO. IMM. L. J. 643,
673 (1992).
duct while incarcerated demonstrates that he should not be executed,”208 for

example, presented a perfect case for audita querela’s application. The writ
should have been utilized by the Virginia courts209 because no other state
forum was available, and the claims did not constitute grounds for federal
habeas relief. As the Fourth Circuit found,
[w]here a conviction has no constitutional infirmity and where a

sentence has been lawfully imposed, a federal habeas court
should be loathe to overturn it. We may not . . . throw into ques-
tion every capital conviction resting on the aggravating circum-
stance of future dangerousness.210
State courts should provide some avenue for relief in cases like Evans’s
where all other relief is inappropriate despite the clear injustice of a
dangerousness-based execution. Audita querela, a firmly-established yet
under-utilized legal proceeding, could easily fill the role.
And yet, audita querela cannot fix future dangerousness on its own.
What an incredible waste of time, energy, and resources it would be to pro-
vide a remedy so reminiscent of an afterthought to a legal practice so ini-
tially unreliable. Additionally, all of the problems identified with the in-
trial dangerousness prediction could further infect reassessment in audita
querela unless the underlying methodological flaws of dangerousness pre-
diction were addressed first. Audita querela should therefore be considered
as part of a broader reform effort lest it serve only to further legitimize an
unreliable legal practice.
C. Do future dangerousness-based executions have a legitimate

penological rationale?
As the Gregg211 Court explained, and Justice Stevens recently re-

minded us in his Baze v. Rees212 concurrence, unless a criminal sanction
serves a legitimate penological function, it constitutes “gratuitous infliction
of suffering” in violation of the Eighth Amendment.213 If executions based
on future dangerousness have questionable incapacitative or retributive ra-
tionales, they are left with only the highly contentious deterrence function214
208 See Evans v. Muncy, 916 F.2d 163, 165 (4th Cir. 1990).
209 Id. (“On June 26, 1990, Evans filed petitions for a writ of audita querala [sic] . . . in the Circuit
Court of Alexandria, Virginia. The circuit court dismissed these petitions and entered an order setting
Evans’ execution[.]”).
210 Id. at 167.
211 Gregg, 428 U.S. 153.
212 120 S.Ct. 1520 (2008).
213 Id. at 1546-47 (Stevens, J., concurring in the judgment).
214 Justice Stevens recently argued against the deterrent rationale, but in doing so noted the recent
“surge in scholarship asserting the deterrent effect[.]” Id. at 1547, n.13 (Stevens, J., concurring in the
judgment).
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in support. Whether this rationale, by itself, can constitutionally support a

death sentence is an open question.
V. Conclusion
As Chief Justice Burger held in Lockett v Ohio,215 adjudicating a

capital system that prevented a jury from giving effect to a defendant’s
mitigating evidence, “[t]here is no perfect procedure for deciding in which
cases governmental authority should be used to impose death.”216 But the
Ohio statute Burger was analyzing created a “risk that the death penalty will
be imposed in spite of factors which may call for a less severe penalty[,]
[and] [w]hen the choice is between life and death, that risk is unacceptable
and incompatible with the commands of the Eighth and Fourteenth
Amendments.”217 Burger accordingly invalidated Ohio’s death penalty sys-
tem,218 forcing a reformulation of its statutes if it wished to proceed with
capital cases.
Some of the objections collected in this article cannot be cured by
even comprehensive reform because mere mention of a defendant’s
dangerousness can be enough to shift a jury’s entire focus from culpability
to fear. Future dangerousness may further have the innate ability to enter a
jury room even without explicit mention by any party in the courtroom, an
occurrence observed by both the Supreme Court and social science re-
searchers.219 Any effort to avoid the many pitfalls attendant to capital fu-
ture dangerousness predictions therefore has to be able to proactively and
prophylactically address the problems raised in this article.
215 438 U.S. 586 (1978).

216 Lockett, 438 U.S. at 605.
217 Id.
218 Id. at 608-9.
219 In 2005, Justice Breyer—writing for a seven member majority in Deck v. Missouri—described
“danger to the community” as “nearly always a relevant factor in jury decision[-]making, even where the
State does not specifically argue the point.” Deck, 544 U.S. 622, 633 (2005). This was found to be the
case in Deck, even though no courtroom actor even suggested the issue of “dangerousness” to the jury.
Brief of Respondent at *25, Deck v. Missouri, 544 U.S. 622 (2005) (No. 04-5293), 2004 U.S. Briefs
5293 (2004) (“Nothing in the prosecutor’s closing argument suggested that Deck was a future danger or
that the jury should consider future dangerousness in imposing its sentence.”). A study of capital jurors
in Florida—a state that purports to forbid “future dangerousness” from inclusion in the prosecutor’s case
for death (See Miller v. State, 373 So.2d 882, 886 (Fla. 1979) (“The legislature has not authorized con-
sideration of the probability of recurring violent acts by the defendant if he is released on parole in the
distant future.”) See also Perez v. State, 919 So.2d 348, 382 (Fla. 2006) (Pariente, C.J., concurring) (“A
sentencing court is limited to the statutory aggravating circumstances listed . . . . Future dangerousness is
not on the list.”)), and the fifth-highest executing state (See Death Penalty Information Center, Fact
Sheet (2009), http://www.deathpenaltyinfo.org/factsheet.pdf)—evidences the accuracy of the Court’s
observation. See Jonathan Amsterdam & William Geimer, Why Jurors Vote Life or Death: Operative
Factors in Ten Florida Death Cases, 15 AM. J. CRIM. L. 1 (1987/1988) (indicates that regardless of
whether “future dangerousness” is even raised, jurors will include it in their consideration.). See also
John H. Blume & Stephen P. Garvey, Future Dangerousness in Capital Cases: Always “At Issue”, 86
CORNELL L. REV. 397 (2001) (finding future dangerousness “at issue” in virtually all capital trials, based
on data collected from South Carolina capital juror interviews).
The first thing that must change is states’ reluctance to focus on a

realistic view of future risk. Jurors should be basing dangerousness predic-
tions on true assessment, not on hypothetical scenarios or a legally invented
psychological classification of “dangerousness.” In this vein, a capital de-
fendant should be permitted to provide his jury with a factual understanding
of life without parole. This includes not just the length of confinement (un-
ending), but the prison’s security measures, true rates of escape and inmate
violence, and the actual population the State seeks to protect from the de-
fendant (“prison society”). Judges would therefore need to provide limiting
instructions about both life without parole and “society,” as well as admit
evidence beyond that which relates to the personal character of the defen-
dant, regardless of whether the State affirmatively claims future
dangerousness.220
Judges also have to break with current practice and exclude several
types of evidence. Dangerousness diagnosticians should categorically be
barred—a result that could potentially be reached through Daubert mo-
tions.221 But other types of evidence that may have relevance to legitimate
culpability inquiries—remorse, mental illness, or criminal history, for ex-
ample—may nonetheless have to be excluded due to their highly prejudicial
nature with respect to future dangerousness.222 This would be more diffi-
cult to accomplish, as judges may be more likely to choose less drastic
remedies (curative or limiting jury instructions, for example). And three
further measures would meet even more resistance: proactive instructions
about the overriding importance of culpability; a structural bifurcation of
the moral death-deservedness deliberation from the pragmatic necessity-of-
execution deliberation; and a mandatory reassessment of necessity, based
on current future risk, prior to any execution (through audita querela or a
reliable State-created alternative).
220 This is contrary to the Supreme Court’s limitation of the Simmons right to cases where the
State argues dangerousness. See Ramdass v. Angelone, 530 U.S. 156 (2000).
221 Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993) (“under the [Federal Rules of Evi-
dence] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.”). For an application of the Daubert standard to psychiatric predictions of future
dangerousness, see Thomas Regnier, Barefoot in Quicksand: The Future of “Future Dangerousness”
Predictions in Death Penalty Sentencing in the World of Daubert and Kumho, 37 AKRON L. REV. 469,
494-95 (2004). But see id. at 504 (“The ability of future dangerousness testimony to survive seemingly
radical changes in evidentiary policies demonstrates the lack of rigor in the new approaches. The
[Daubert] rule is so flexible that it allows loopholes which admit even the testimony of a Dr. Grigson,
despite his expulsion from the [American Psychiatric Association].”). See also Edmonds v. Common-
wealth, 329 S.E.2d 807, 813 (Va. 1985) (rejecting a claim that future dangerousness expert testimony is
unreliable).
222 This type of exclusion is permitted by evidentiary rules like Federal Rule of Evidence 403
(relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.”). It has been categorically applied to
polygraph test results. See Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of
Expertise: Flipping Coins in the Courtroom, 62 CAL. L. REV. 693, 736 (1974) (cited in Barefoot, 463
U.S. at 930 (Blackmun, J., dissenting)). See also Amicus Brief, supra note 6, at 9 (“The use of psychiat-
ric testimony on the issue causes serious prejudice to the defendant.”).
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All of these measures would diminish the risks associated with

capital future dangerousness; whether they would reliably be minimized to
a constitutionally permissible level is a matter for another day. And none of
these proposals even begin to address the glaring elimination of any retribu-
tive rationale for executions based on future dangerousness. For now, leave
it to say that future dangerousness is an exceedingly problematic, and pres-
ently unconstitutional, capital sentencing factor—however widespread its
use or long its tolerance by the legal community. As it is currently used, it
should not be a basis for one more execution.
Appendix A: Oklahoma and Future Dangerousness
Oklahoma has executed sixty-five people based in whole or in part on

its optional future dangerousness aggravating factor:
See Terry Lynn Short v. State, 980 P.2d 1081, 1109 (Okla. Crim.
App. 1999) (executed June 17, 2008); Darwin Demond Brown v.
State, 989 P.2d 913, 919 (Okla. Crim. App. 1998) (executed Jan.
22, 2009); Stephen Wood v. State, 959 P.2d 1, 5 (Okla. Crim. App.
1998) (executed Aug. 5, 1998); Steven Keith Hatch v. State, 924
P.2d 284, 287 (Okla. Crim. App. 1996) (executed Aug. 9, 1996);
Thomas Grasso v. State, 857 P.2d 802, 809 (Okla. Crim. App.
1993) (executed March 20, 1995); Roger Dale Stafford v. State,
853 P.2d 223, 225 (Okla. Crim. App. 1993) (executed July 1,
1995); Tuan Anh Nguyen v. State, 844 P.2d 176, 179 (Okla. Crim.
App. 1992) (executed December 10, 1998); Sean Richard Sellers v.
State, 809 P.2d 676, 689 (Okla. Crim. App. 1991) (executed Feb. 4,
1999); John W. Castro v. State, 749 P.2d 1146, 1148 (Okla. Crim.
App. 1987) (executed Jan. 7, 1999); Scotty Lee Moore, 736 P.2d
161, 168 (Okla. Crim. App. 1987) (executed June 3, 1999); Olan R.
Robison v. State, 677 P.2d 1080, 1088 (Okla. Crim. App. 1984)
(executed March 13, 1992); Charles Troy Coleman v. State, 668
P.2d 1126, 1136 (Okla. Crim. App. 1983) (executed Sept. 10,
1990); Norman Lee Newsted, 720 P.2d 734, 738 (Okla. Crim. App.
1986) (executed July 8, 1999); Cornel Cooks v. State, 699 P.2d
653, 661 (Okla. Crim. App. 1985) (executed December 2, 1999);
Bobby Lynn Ross v. State, 717 P.2d 117, 123 (Okla. Crim. App.
1986) (executed Dec. 9, 1999); Malcolm Rent Johnson, 731 P.2d
993, 1002 (Okla. Crim. App. 1987) (executed Jan. 6, 2000); Gary
Alan Walker v. State, 795 P.2d 1064, 1065 (Okla. Crim. App.
1990) (executed Jan. 13, 2000); Michael Donald Roberts v. State,
868 P.2d 712, 719 (Okla. Crim. App. 1994) (executed Feb. 10,
2000); Kelly Lamont Rogers v. State, 890 P.2d 959, 976 (Okla.
Crim. App. 1995) (executed Mar. 23, 2000); Ronald Keith Boyd v.
State, 839 P.2d 1363, 1370 (Okla. Crim. App. 1992) (executed Apr.
27, 2000); Charles A. Foster, 714 P.2d 1031, 1040 (Okla. Crim.
App. 1986) (executed May 25, 2000); James Glenn Robedeaux v.
State, 866 P.2d 417, 434 (Okla. Crim. App. 1993) (June 1, 2000);
Roger Berget v. State, 824 P.2d 364, 374 (Okla. Crim. App. 1991)
(executed June 8, 2000); Gregg Francis Braun v. State, 909 P.2d
783, 798 (Okla. Crim. App. 1995) (executed July 20, 2000); George
Kent Wallace v. State, 893 P.2d 504, 514 (Okla. Crim. App. 1995)
(executed Aug. 10, 2000); Eddie Leroy Trice v. State, 853 P.2d
203, 220 (Okla. Crim. App. 1993) (executed Jan. 9, 2001); Wanda
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Jean Allen v. State, 871 P.2d 79, 100 (Okla. Crim. App. 1994)
(executed Jan. 11, 2001); Floyd Allen Medlock v. State, 887 P.2d
1333, 1346 (Okla. Crim. App. 1994) (executed Jan. 16, 2001);
Mark Andrew Fowler v. State, 779 P.2d 580, 588 (Okla. Crim.
App. 1989) (executed Jan. 23, 2001); Billy Ray Fox v. State, 779
P.2d 562, 576 (Okla. Crim. App. 1989) (executed Jan. 25, 2001);
Loyd Winford LaFevers, 819 P.2d 1362, 1368 (Okla. Crim. App.
1991) (executed Jan. 30, 2001); Robert William Clayton v. State,
840 P.2d 18, 31 (Okla. Crim. App. 1992) (executed Mar. 1, 2001);
Terrance James v. State, 736 P.2d 541, 546 (Okla. Crim. App.
1987) (executed May 22, 2001); Vincent Allen Johnson v. State,
911 P.2d 918, 929 (Okla. Crim. App. 1995) (executed May 29,
2001); Jack Dale Walker v. State, 887 P.2d 301, 323 (Okla. Crim.
App. 1994) (executed Aug. 29, 2001); Sahib Al-Mosawi v. State,
929 P.2d 270, 274 (Okla. Crim. App. 1996) (executed Dec. 6,
2001); David Wayne Woodruff v. State, 846 P.2d 1124, 1143
(Okla. Crim. App. 1993) (executed Jan. 31, 2002); Randall Eugene
Cannon v. State, 904 P.2d 89, 93 (Okla. Crim. App. 1995) (exe-
cuted Jul. 23, 2002); Earl Alexandria Frederick, Sr., v. State, 37
P.3d 908, 919 (Okla. Crim. App. 2001) (executed Jul. 30, 2002);
Jerry McCracken v. State, 887 P.2d 323, 331 (Okla. Crim. App.
1994) (executed Dec. 10, 2002); Ernest Marvin Carter, Jr., v. State,
879 P.2d 1234, 1250 n.13 (Okla. Crim. App. 1994) (executed Dec.
17, 2002); Daniel Juan Revilla v. State, 877 P.2d 1143, 1156 (Okla.
Crim. App. 1994) (executed Jan. 16, 2003); Bobby Joe Fields v.
State, 923 P.2d 624, 637 (Okla. Crim. App. 1996) (executed Feb.
13, 2003); John Michael Hooker v. State, 887 P.2d 1351, 1365
(Okla. Crim. App. 1994) (executed Mar. 25, 2003); Scott Allen
Hain v. State, 919 P.2d 1130, 1148 (Okla. Crim. App. 1996) (exe-
cuted Apr. 3, 2003); Don Wilson Hawkins v. State, 891 P.2d 586,
596 (Okla. Crim. App. 1994) (Apr. 8, 2003); Robert Wesley Knigh-
ton v. State, 912 P.2d 878, 897 (Okla. Crim. App. 1996) (executed
May 28, 2003); Kenneth Chad Charm v. State, 924 P.2d 754, 763
(Okla. Crim. App. 1996) (executed Jun. 5, 2003); Lewis Eugene
Gilbert v. State, 951 P.2d 98, 117 (Okla. Crim. App. 1997) (exe-
cuted Jul. 1, 2003); Robert Don Duckett v. State, 919 P.2d 7, 13
(Okla. Crim. App. 1995) (executed Jul. 8, 2003); Bryan Anthony
Toles v. State, 947 P.2d 180, 184 (Okla. Crim. App. 1997) (exe-
cuted Jul. 22, 2003); Harold Loyd McElmurry v. State, 60 P.3d 4,
93 (Okla. Crim. App. 2002) (executed Jul. 29, 2003); Tyrone Peter
Darks v. State, 954 P.2d 152, 164 (Okla. Crim. App. 1998) (exe-
cuted Jan. 13, 2004); Norman Richard Cleary v. State, 942 P.2d
736, 753 (Okla. Crim. App. 1997) (executed Feb. 17, 2004) (“future
dangerousness” was the sole aggravating factor); David Jay Brown
v. State, 871 P.2d 56, 77 (Okla. Crim. App. 1994) (executed Mar. 9,
2004) (“future dangerousness” was the sole aggravating factor);

Robert Leroy Bryan v. State, 935 P.2d 338, 361 (Okla. Crim. App.
1997) (executed June 8, 2004); Windel Ray Workman v. State, 824
P.2d 378, 384 (Okla. Crim. App. 1991) (executed Aug. 26, 2004);
George James Miller v. State, 977 P.2d 1099, 1115 (Okla. Crim.
App. 1998) (executed May 12, 2005); Michael L. Pennington v.
State, 913 P.2d 1356, 1371 (Okla. Crim. App. 1995) (executed Jul.
19, 2005); Kenneth Eugene Turrentine v. State, 965 P.2d 955, 977
(Okla. Crim. App. 1998) (executed Aug. 11, 2005); Richard Alford
Thornburg, Jr. v. State, 985 P.2d 1234, 1247 (Okla. Crim. App.
1999) (executed Apr. 18, 2006); John A. Boltz v. State, 806 P.2d
1117, 1124 (Okla. Crim. App. 1991) (executed June 1, 2006);
James Patrick Malicoat v. State, 992 P.2d 383, 398 (Okla. Crim.
App. 2000) (executed Aug. 31, 2006); Corey Duane Hamilton v.
State, 937 P.2d 1001, 1014 (Okla. Crim. App. 1997) (executed Jan.
9, 2007); Jimmy Dale Bland v. State, 4 P.3d 702, 724 (Okla. Crim.
App. 2000) (executed Jun. 26, 2007); Frank Duane Welch v. State,
2 P.3d 356, 377 (Okla. Crim. App. 2000) (executed Aug. 21, 2007).
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Appendix B: Virginia and Future Dangerousness
Virginia has executed twenty-four people based on future

dangerousness alone:
1. Edward Nathaniel Bell v. True, 413 F. Supp.2d 657, 691-96

(W.D. Va. Feb. 7, 2006); Bell v. Commonwealth, 563
S.E.2d 695, 700 (Va. 2002); (executed February 19, 2009)
(thirty-three-year-old defendant convicted of shooting of a
police officer; mitigation included evidence of mental re-
tardation);
2. John Yancy Schmitt v. Commonwealth, 547 S.E.2d 186,

193-94 (Va. 2001) (executed November 9, 2006) (twenty-
six-year-old defendant convicted of murder during armed
robbery of a bank; mitigation included evidence of drug
addiction, and testimony that his violent act was a product
of addiction);
3. Dennis Orbe v. Commonwealth, 519 S.E.2d 808, 811-12

(Va. 1999) (executed March 31, 2004) (thirty-three-year-
old defendant convicted of murder during armed robbery of
a convenience store; mitigation included evidence of alco-
holism, and a link between alcohol abuse and violence);
4. Marlon Dwayne Williams v. Commonwealth, 472 S.E.2d

50, 50 (Va. 1996) (executed August 17, 1999) (twenty-
year-old defendant convicted of murder-for-hire for $4,000;
mitigation included evidence of severe child abuse and ne-
glect);
5. Steve Edward Roach v. Director, 468 S.E.2d 98, 101 (Va.

1996) (executed January 13, 2000) (seventeen-year-old de-
fendant convicted of armed robbery resulting in the death
of a seventy-year-old friend and neighbor);
6. Thomas Lee Royal, Jr. v. Commonwealth, 458 S.E.2d 575,

577 (Va. 1995) (executed October 19, 1999) (twenty-six-
year-old mentally retarded defendant convicted of murder
of a police officer);
7. Lance Chandler v. Commonwealth, 455 S.E.2d 219, 221

(Va. 1995) (executed August 20, 1998) (twenty-year-old
defendant convicted of murder during armed robbery of a

convenience store; Chandler’s jury asked about the avail-
ability of parole, which the judge did not address; Chan-
dler’s Simmons claim was barred, however, because his
trial counsel did not object, see id at 225-26);
8. Jason Matthew Joseph v. Commonwealth, 452 S.E.2d 862,

864 (Va. 1995) (executed October 19, 1999) (twenty-year-
old defendant convicted of murder during armed robbery of
a Subway sandwich shop);
9. Carl Hamilton Chichester v. Commonwealth, 448 S.E.2d

638, *314 (Va. 1994) (executed April 13, 1999) (twenty-
eight-year-old defendant convicted of murder during armed
robbery of a pizza restaurant; Chichester’s main claim
throughout trial and appeal was actual innocence);
10. Thomas Beavers v. Commonwealth, 427 S.E.2d 411, 421

(Va. 1993) (executed December 11, 1997) (nineteen-year-
old defendant convicted of murder of 60-year-old woman
during course of burglary and rape);
11. Bobby Lee Ramdass v. Commonwealth, 437 S.E.2d 566,

568 (Va. 1993) (executed October 10, 2000) (remanded for
consideration under Simmons v. South Carolina; death sen-
tence reaffirmed by Virginia Supreme Court, and the U.S.
Supreme Court in Ramdass v. Angelone, 528 U.S. 1068
(2000), finding that Ramdass was not entitled to answer his
jury’s question about his parole ineligibility because he
could not establish ineligibility conclusively at the time of
sentencing; a pending judgment against him would have
made him parole ineligible under Virginia’s 3-strikes law,
but the judgment was not yet final) (twenty-year-old defen-
dant convicted of murder during armed robbery of a con-
venience store);
12. Dwayne Allen Wright v. Commonwealth, 427 S.E.2d 379,

383 (Va. 1993) (executed October 14, 1998) (seventeen-
year-old defendant convicted of the murder of a woman
during an armed car theft and attempted rape);
13. Johnile DuBois v. Commonwealth, 435 S.E.2d 636, 637

(Va. 1993) (executed August 31, 1998) (twenty-four-year-
old defendant pled guilty to murder during armed robbery
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150 AM. J. CRIM. L. [Vol. 35:2
of a convenience store; the judge sentenced DuBois to

death despite the fact that the State, pursuant to terms of the
plea agreement, did not request it);
14. Dennis Wayne Eaton v. Commonwealth, 397 S.E.2d 385,

387 (Va. 1990) (executed June 18, 1998) (thirty-two-year-
old defendant caused the shooting deaths of two friends and
a state trooper in one day, engaged the police in a high
speed chase, and then after crashing into a lamp post shot
his girlfriend in the head and then himself; his girlfriend
died, but Eaton survived; mitigation evidence included Ea-
ton’s low intelligence; after two hours of deliberation as to
sentence, the jury asked the judge what the result of a dead-
lock would be; the judge refused to answer, and three and a
half hours later, the jury returned with a unanimous death
verdict, see id. at 390);
15. Joseph Savino v. Commonwealth, 391 S.E.2d 276, 282

(Va. 1990) (executed July 17, 1996) (twenty-nine-year-old
defendant convicted of murdering homosexual lover with a
hammer and knife in some kind of jealous rage while high
on cocaine and/or heroin; mitigation included a long history
of serious drug abuse);
16. Ronald Dale Yeatts v. Commonwealth, 410 S.E.2d 254,

256 (Va. 1991) (executed April 29, 1999) (twenty-eight-
year-old, mentally retarded defendant, convicted of murder
of a seventy-year-old woman in the course of a robbery);
17. David Lee Fisher v. Commonwealth, 374 S.E.2d 46, 47

(Va. 1988) (executed March 26, 1999) (forty-one-year-old
defendant convicted of murder of a friend for life insurance
policy during a hunting trip);
18. Tony Mackall v. Commonwealth, 372 S.E.2d 759, 762 (Va.

1988) (executed February 10, 1998) (twenty-one-year-old,
mentally retarded defendant convicted of murder during
armed robbery of a convenience store);
19. Joseph O’Dell v. Commonwealth, 364 S.E.2d 491, 494

(Va. 1988) (executed July 23, 1997) (forty-three-year-old
defendant convicted of rape-murder of woman leaving a
bar; O’Dell went pro se at trial; based on the Virginia Su-
preme Court’s opinion, it appears that O’Dell submitted ir-
relevant or inaccurate motions and instructions, and raised

many points on appeal that were similarly irrelevant; the
Supreme Court, however, used O’Dell’s case to announce
that Simmons was a new rule under Teague). O’Dell later
discovered that initial DNA results linking him to the vic-
tim were in fact “inconclusive.” See American Civil Liber-
ties Union of Virginia, Unequal, Unfair and Irreversible:
The Death Penalty in Virginia” at 7 n.13 (2000), available
at
http://www.acluva.org/publications/deathpenaltystudy.pdf;
20. Carlton Jerome Pope v. Commonwealth, 360 S.E.2d 352,

354 (Va. 1987) (executed August 19, 1997) (twenty-four-
year-old defendant, engaged in robbery of two female ac-
quaintances, resulting in the death of one);
21. Gregory Warren Beaver v. Commonwealth, 352 S.E.2d

342, 344 (Va. 1987) (executed December 3, 1996) (nine-
teen-year-old defendant convicted of shooting a state
trooper during a traffic stop; Beaver pled guilty and was
sentenced by the judge; mitigation included evidence of
drug abuse);
22. Richard Townes, Jr. v. Commonwealth, 362 S.E.2d 650,

652 (Va. 1987) (executed January 23, 1996) (thirty-four-
year-old defendant convicted of murder in the course of
armed robbery of gas station; Townes went pro se at trial);
23. Wilbert Lee Evans v. Commonwealth, 323 S.E.2d 114, 116

(Va. 1984) (executed October 17, 1990) (thirty-five-year-
old defendant; trying to escape from an insecure transport
from prison van to courthouse for purposes of testifying in
another offender’s trial, Evans grabbed the marshall’s gun
and shot off his handcuffs, shooting the marshall in the
stomach with a single bullet in the process. Evans always
claimed this was accidental. In his original capital sentenc-
ing hearing, the State knowingly introduced a false criminal
record; in the year in which his resentencing was pending,
the prosecuting assistant attorney general successfully had
Virginia’s law changed to permit a second death sentence
in such situations. While on death row, Evans saved the
lives of several guards during an escape by other death row
inmates; after denying Evans’ role in quelling the violence
of the escape, it was revealed on the eve of Evans’ execu-
35-2 SHAPIRO EIC 5/10/09 4:52 PM
152 AM. J. CRIM. L. [Vol. 35:2
tion that the State was in possession of affidavits from

guards crediting Evans with saving their lives; no court—
state or federal, including the Supreme Court—could or
would revisit Evans’s future dangerousness finding. See
Stewart Taylor, Jr., We Will Kill You Anyway, THE AM.
LAWYER, December 1990, at 55-62);
24. Derek Lynn Peterson v. Commonwealth, 302 S.E.2d 520,

529 (Va. 1983) (executed August 22, 1991) (twenty-one-
year-old defendant convicted of murder during armed rob-
bery of a store with multiple eye witnesses).
Virginia has executed forty-nine people in part based on future

dangerousness:
Christopher Scott Emmett v. Commonwealth, 569 S.E.2d 39, 43

(Va. 2002) (executed July 24, 2008); Kevin Green v. Common-
wealth, 580 S.E.2d 834, 837 (Va. 2003) (executed May 17, 2008);
Michael W. Lenz v. Warden, 544 S.E.2d 299, 301 (Va. 2001) (exe-
cuted July 27, 2006); James Hudson v. Commonwealth, 590 S.E.2d
362, 364 (Va. 2004) (executed August 28, 2004); Daniel Lee Zirkle
v. Commonwealth, 551 S.E.2d 601, 605 (Va. 2001) (executed April
2, 2002); James Earl Patterson v. Commonwealth, 551 S.E.2d 332,
335 (Va. 2001) (executed March 14, 2002); Thomas Wayne Akers
v. Commonwealth, 535 S.E.2d 674, 676 (Va. 2000) (executed
March 1, 2001); Dexter Lee Vinson v. Commonwealth, 522 S.E.2d
170, 173 (Va. 1999) (executed April 27, 2006); Earl Conrad Bram-
blett v. Commonwealth, 513 S.E.2d 400, 403 (Va. 1999) (executed
April 9, 2003); Eric Christopher Payne v. Commonwealth, 09
S.E.2d 293, 296 (Va. 1999) (executed April 28, 1999); Bran Lee
Cherrix v. Commonwealth, 51 S.E.2d 642, 647 (Va. 1999) (exe-
cuted March 18, 2004); Bobby Wayne Swisher v. Commonwealth,
506 S.E.2d 763, 765 (Va. 1998) (executed July 22, 2003); Christo-
pher Beck v. Commonwealth, 484 S.E.898, 900 (Va. 1997) (exe-
cuted October 18, 2001); Christopher C. Goins v. Commonwealth,
470 S.E.2d 114, 119 (Va. 1996) (executed December 6, 2000);
Derek Rocco Barnabei v. Commonwealth, 477 S.E.2d 270, 272
(Va. 1996) (executed September 14, 2000); Walter Mickens, Jr., v.
Commonwealth, 478 S.E.2d 302, 303 (Va. 1996) (executed June
12, 2002); Michael David Claget v. Commonwealth, 472 S.E.2d
263, 265 (Va. 1996) (executed July 6, 2000); Everett Lee Mueller
v. Commonwealth, 478 S.E.2d 542, 545 (Va. 1996) (executed Sep-
tember 16, 1999); Andre L. Graham v. Commonwealth, 459 S.E.2d
97, 98 (Va. 1995) (executed December 9, 1999); Dana Ray
Edmonds v. Commonwealth, 329 S.E.2d 807, 814 (Va. 1985)

(January 24, 1995); Kenneth L. Wilson v. Commonwealth, 452
S.E.2d 669, 671 (Va. 1995) (executed November 17, 1998); Mark
A. Sheppard v. Commonwealth, 464 S.E.2d 131, 134 (Va. 1995)
(executed January 20, 1999); Russel William Burket v. Common-
wealth, 450 S.E.2d 124, 126 (Va. 1994) (executed August 30,
2000); Angel Francisco Breard v. Commonwealth, 445 S.E.2d 670,
673 (Va. 1994) (executed April 14, 1998); Timothy Wilson Spencer
v. Commonwealth, 393 S.E.2d 609, 611 (Va. 1990) (executed April
27, 1994); Mario Benjamin Murphy v. Commonwealth, 431 S.E.2d
48, 49 (Va. 1993) (executed September 17, 1997); Arthur Ray Jen-
kins, III v. Commonwealth, 423 S.E.2d 360, 363 (Va. 1992) (exe-
cuted April 20, 1999); Danny Lee King v. Commonwealth, 416
SE.2d 669, 670 (Va. 1992) (executed July 23, 1998); Michael Char-
les Satcher v. Commonwealth, 421 S.E.2d 821, 824 (Va. 1992)
(executed December 9, 1997); Thomas David Strickler v. Com-
monwealth, 404 S.E.2d 227, 230 (Va. 1991) (executed July 21,
1999); Michael Carl George v. Commonwealth, 411 S.E.2d 12, 14
(Va. 1991) (executed February 6, 1997); George A. Quesinberry, Jr.
v. Commonwealth, 402 S.E.2d 218, 228 (Va. 1991) (executed
March 9, 1999); Dennis W. Stockton, 402 S.E.2d 196, 207 (Va.
1991) (September 27, 1995); Roy Bruce Smith, 389 S.E.2d 871,
885 (Va. 1990) (executed July 17, 1997); Albert J. Clozza v. Com-
monwealth, 321 S.E.2d 273, 282 (Va. 1984) (executed July 24,
1991); Dawud Majid Mu’Min v. Commonwealth, 389 S.E.2d 886,
893 (Va. 1990) (executed November 13, 1997); Ronald Lee Hoke,
377 S.E.2d 595, 602 (Va. 1989) (executed December 16, 1996);
Larry Allen Stout, 376 S.E.2d 288, 292 (Va. 1989) (executed De-
cember 10, 1996); Ronald Watkins v. Commonwealth, 385 S.E.2d
50, 51 (Va. 1989) (executed March 25, 1998); Coleman Wayne
Gray, 356 S.E.2d 157, 179 (Va. 1987) (executed February 26,
1987); David Mark Pruett v. Commonwealth, 351 S.E.2d 1, 13-14
(Va. 1986) (executed December 16, 1993); Johnny Watkins, Jr. v.
Commonwealth, 331 S.E.2d 422, 437 (Va. 1985) (executed March
3, 1994); Syvasky Lafayette Poyner v. Commonwealth, 329 S.E.2d
815, 830 (Va. 1985) (executed March 18, 1993); Roger Keith
Coleman v. Commonwealth, 307 S.E.2d 864, 876 (Va. 1983) (exe-
cuted May 20, 1992); Earl Clanton, Jr. v. Commonwealth, 286
S.E.2d 172, 180 (Va. 1982) (executed April 14, 1988); James Dyral
Briley v. Commonwealth, 273 S.E.2d 57, 65 (Va. 1980) (executed
April 18, 1985); Morris Odell Mason v. Commonwealth, 254
S.E.2d 116, 121 (Va. 1979) (executed June 25, 1985); Charles
Sylvester Stamper, 257 S.E.2d 808, 820 (Va. 1979) (executed Janu-
ary 19, 1993); Michael Marnell Smith v. Commonwealth, 248
S.E.2d 135, 151 (Va. 1978) (executed July 31, 1986).
35-2 SHAPIRO EIC 5/10/09 4:52 PM
154 AM. J. CRIM. L. [Vol. 35:2

Appendix C:
Future Dangerousness and the Execution of Juvenile Defendants
The following is a list of juvenile defendants executed since 1976.

Those defendants whose death sentences rested in whole or in part on future
dangerousness determinations, as noted in their opinions or required by the
Texas statute, are in bold. A total of 18 out of 22 total executions of juve-
niles were based at least in part on future dangerousness. List of executed
juveniles comes from Death Penalty Information Center, Execution Data-
base, http://www.deathpenaltyinfo.org/executions.php (last visited Jan. 20,
2009).
1. Rumbaugh v. State, 629 S.W.2d 727 (Tex. Crim. App.

1982) (statutorily based on future dangerousness).
2. State v. Shaw, 255 S.E.2d 799 (S.C. 1979).
3. Pinkerton v. State, 660 S.W.2d 58 (Tex. Crim. App. 1983)

(statutorily based on future dangerousness).
4. State v. Prejean, 379 So.2d 240, 248-49 (La. 1979)

(“Whether this evidence was considered mitigative by the jury
is questionable. Voluntary intoxication does not excuse. The
combination of dull mentality, alcohol and handguns could rea-
sonably be said to increase the probability of tragic repeti-
tion.”).
5. Garrett v. State, 682 S.W.2d 301 (Tex. Crim. App. 1984)

6. Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989)

7. State v. Lashley, 667 S.W.2d 712 (Mo. 1984).
8. Cantu v. State, 738 S.W.2d 249 (Tex. Crim. App. 1987)

9. Burger v. State, 265 S.E.2d 796 (Ga. 1980).
10. Cannon v. State, 691 S.W.2d 664 (Tex. Crim. App. 1985)
35-2 SHAPIRO EIC 5/10/09 4:52 PM
156 AM. J. CRIM. L. [Vol. 35:2
11. Carter v. State, 717 S.W.2d 60 (Tex. Crim. App. 1986)

12. Wright v. Commonwealth, 427 S.E.2d 379, 383 (Va.

1993) (based on statutory future dangerousness aggravator).
13. Sellers v. State, 809 P.2d 676, 689 (Okla. Crim. App.
14. Thomas v. Commonwealth, 419 S.E.2d 606 (Va. 1992).
15. Roach v. Commonwealth, 468 S.E.2d 98 (Va. 1996)

(based on statutory future dangerousness aggravator).
16. McGinnis v. Johnson, 181 F.3d 686 (5th Cir. 1999) (no
published Texas state court opinion) (statutorily based on future
dangerousness).
17. Ex Parte Graham, 853 S.W.2d 565 (Tex. Crim. App.

1993) (statutorily based on future dangerousness).
18. Mitchell v. Johnson, 252 F.3d 434 (5th Cir. 2001) (unpub-
lished opinion) (no published Texas state court opinion) (statu-
torily based on future dangerousness).
19. Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) (no pub-
lished Texas state court opinion) (statutorily based on future
dangerousness).
20. Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996)
21. Patterson v. Texas, 536 U.S. 984 (2002) (Stevens, J., dis-
senting to denial of certiorari) (statutorily based on future
dangerousness).
22. Hain v. State, 919 P.2d 1130, 1146 (Okla. Crim. App.

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35-2 SHAPIRO EIC 5/10/09 4:52 PM

II. Overinclusiveness of Dangerousness Predictions Undermines the

III. Dangerousness Obscures Culpability, Undermining the Retributive

Electronic copy available at: http://ssrn.com/abstract=1402362

102 AM. J. CRIM. L. [Vol. 35:2

with Reality. .............................................................................................. 131

Appendix A: Oklahoma and Future Dangerousness ............................................. 145

Appendix B: Virginia and Future Dangerousness................................................. 148

Appendix C: Future Dangerousness and the Execution of Juvenile Defendants .. 155

“Future dangerousness” is a very non-technical1 name for a particu-

Electronic copy available at: http://ssrn.com/abstract=1402362

2008] Future Dangerousness 103

popularity (U.S. Attorneys raised future dangerousness claims in 77% of

http://www.deathpenaltyinfo.org/article.php?scid=8&did=1110); 74 of Virginia’s 103 (including 24

104 AM. J. CRIM. L. [Vol. 35:2

constitutional implications, current use of future dangerousness is leading to

II. Overinclusiveness of Dangerousness Predictions Undermines the

The incapacitation rationale for executions rests on an under-

Future dangerousness was born in the 63rd Texas Legislature,

2008] Future Dangerousness 105

106 AM. J. CRIM. L. [Vol. 35:2

2008] Future Dangerousness 107

court judge interrupted defense counsel’s closing argument to correct coun-

108 AM. J. CRIM. L. [Vol. 35:2

that incapacitation is not a sufficient justification for a death sentence based

B. Over-prediction, inherent to the science of dangerousness prediction, is

The accuracy of dangerousness predictions has an inverse relation-

25 See text accompanying note 13, supra.

2008] Future Dangerousness 109

i. Common evidentiary rulings and refusals to provide limiting

State courts regularly admit certain types of dangerousness evi-

110 AM. J. CRIM. L. [Vol. 35:2

none of this evidence is actually correlated to future violent prison activ-

2008] Future Dangerousness 111

cords,41 property crimes,42 nonviolent disciplinary problems in school,43 or

112 AM. J. CRIM. L. [Vol. 35:2

prejudicial that even some states allowing it in capital sentencing strin-

2008] Future Dangerousness 113

114 AM. J. CRIM. L. [Vol. 35:2

dant53 (despite a public stance by the Virginia Department of Corrections

2008] Future Dangerousness 115

statistically highly unlikely and even fanciful in most cases.60

ii. Current use of future dangerousness experts contributes to

Overprediction of dangerousness is amplified by questionable use

would testify to the following:

116 AM. J. CRIM. L. [Vol. 35:2

But risk assessors’ role in capital sentencing is far from secure;

2008] Future Dangerousness 117

cuts the legitimacy of future dangerousness diagnoses. Strong criticism be-

Psychiatrists should not be permitted to offer a prediction con-

The extensive, peer-reviewed research of several widely respected

118 AM. J. CRIM. L. [Vol. 35:2

tions,70 academics appear to have unanimously accepted that such profes-

2008] Future Dangerousness 119

alone committed another homicide.77 Although these results must be quali-

120 AM. J. CRIM. L. [Vol. 35:2

Whether characterized as making a prediction or identifying a mal-

2008] Future Dangerousness 121

C. Overinclusion undercuts the Supreme Court’s original affirmation of

Not only does future dangerousness’ current evolution make reli-

122 AM. J. CRIM. L. [Vol. 35:2

2008] Future Dangerousness 123