Abstract

“Future dangerousness” is a very non-technical name for a particularly problematic capital sentencing factor used in nearly every capital jurisdiction in the United States, directly underlying at least half of all modern era executions and likely playing some role in the rest. Despite its popularity, the American Psychiatric Association has maintained for over twenty years that such predictions of future threat are “wrong in at least two out of every three cases.” Thus, while an inquiry into a defendant’s future dangerousness seems to align with a Supreme-Court-approved purpose of capital punishment (“the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future”), in application the incapacitation rationale is severely undermined by alarmingly unreliable predictions of future threat. Of even graver concern should be the effect of future dangerousness to obscure any culpability determination, resulting in a high number of death sentences for vulnerable defendants most people would never consider “deserving of execution,” and undercutting another common rationale for capital punishment: retribution. This should cause us all to pause and, as Justice Stevens recently urged in Baze v. Rees, to question our retention of a system that is “the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits[.]” This article broadly examines future dangerousness’ flawed application and unique ability to distort the constitutional function of capital sentencing hearings, replacing a juror’s duty to consider individual culpability with a fear of responsibility for future violence. It concludes that, while comprehensive reforms might minimize its unsettling and unconstitutional implications, current use of future dangerousness is leading to unnecessary and unconstitutional executions lacking both incapacitation and retributive rationales.