Professional Documents
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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
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
V. Conclusion................................................................................................. 142
I. Introduction
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,
A. Dangerousness has stretched far beyond that which the Supreme Court
originally approved.
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
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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-
35-2 SHAPIRO EIC 5/10/09 4:52 PM
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)
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
(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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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.
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
35-2 SHAPIRO EIC 5/10/09 4:52 PM
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).
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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
35-2 SHAPIRO EIC 5/10/09 4:52 PM
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)
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
(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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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
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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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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.
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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.
35-2 SHAPIRO EIC 5/10/09 4:52 PM
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.
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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
35-2 SHAPIRO EIC 5/10/09 4:52 PM
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.
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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
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
35-2 SHAPIRO EIC 5/10/09 4:52 PM
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.
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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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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).
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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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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”).
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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:
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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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-
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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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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.
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).
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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
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
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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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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
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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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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
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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.
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).
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
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.
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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V. Conclusion
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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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
35-2 SHAPIRO EIC 5/10/09 4:52 PM
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,
SHAPIRO ME COMPLETE.DOC 5/10/09 4:52 PM
Appendix C:
Future Dangerousness and the Execution of Juvenile Defendants
10. Cannon v. State, 691 S.W.2d 664 (Tex. Crim. App. 1985)
35-2 SHAPIRO EIC 5/10/09 4:52 PM
13. Sellers v. State, 809 P.2d 676, 689 (Okla. Crim. App.
1991) (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).
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)
(statutorily based on future dangerousness).
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.
1996) (based on statutory future dangerousness aggravator).