An Actuarial Risk of Assessment of Violence Posed by Murder Defendants
Sorensen, Jonathan R., Pilgrim, Rocky L., Journal of Criminal Law and Criminology
The Supreme Court held in Furman v. Georgia(1) that capital punishment was unconstitutional due to the arbitrary nature of then-current sentencing statutes. Citing jury discretion as the cause of inconsistent sentencing practices, the Furman decision invalidated the capital punishment statutes of all retentionist jurisdictions in the United States. In order to address the Court's central concern--whether death sentences were imposed in a uniform and fair manner--state legislatures revamped their capital punishment statutes to limit jury discretion. In the decisions that followed, the Court clarified which procedures would be acceptable, upholding statutes that guided juror discretion,(2) but striking down those that mandated a death sentence for particular types of murder.(3) Since that time, death penalty jurisprudence has focused on how to insure consistency in decision-making while providing fairness to individual defendants.(4)
Concern for fairness led the Court to rule that states must allow evidence of nondangerousness as a mitigating factor in the punishment phase of capital trials.(5) The goal of incapacitating dangerous offenders prompted twenty-one states to include a defendant's potential for future violence among the aggravating circumstances jurors may be directed to consider before reaching a punishment decision.(6) Texas and Oregon, however, are the only two states that require capital juries to predict future conduct before sentencing. Specifically, a jury in these two states must unanimously agree there is "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" before imposing a death sentence.(7) This requirement has thrust death penalty decisions into the realm of the subjective once again.
Studies have found the fate of capital defendants in Texas and Oregon is determined almost entirely by juries' deliberations on, and emotional responses to, the punishment inquiry concerning defendants' future dangerousness. In Texas during 1974 through 1988, jurors returned life sentences in 126 cases. In 85% (107) of these cases, the life sentences resulted from jurors' failure to find evidence that the defendant would pose a continuing threat to society.(8) A study of twenty-seven Oregon jurors from nine capital murder trials found that each of the life sentences issued was due to the inability of jurors to agree on the issue of future dangerousness.(9) The authors of the Oregon study concluded that under the Oregon statute, "the issue of future dangerousness plays a prominent, if not central role. Virtually all disagreements and prolonged discussion concerned only the second question of future dangerousness. Jurors clearly perceived the penalty decision as hinging on this issue."(10)
Narrowing the scope of deliberations to future dangerousness encourages jurors to contemplate their worst fear, that the defendant may kill again, while simultaneously quashing discussions over issues related to deservedness.(11) States in which jurors are directed to weigh specified aggravating and mitigating factors have average jury death sentencing rates ranging from approximately one-fourth to one-half that of life sentences.(12) In Texas, over three-fourths of all capital trials brought before juries during penalty trials between 1974 and 1988 resulted in death sentences.(13) Texas has clearly been the most active capital punishment jurisdiction in the United States, accounting for over one-third of all executions in the past two decades.(14)
Certain theoretical and pragmatic issues are raised by any sentencing system that uses the rationale of offender incapacitation to justify a penalty of death. First, the abstract philosophical question is raised as to whether it is ever acceptable to punish someone for crimes he has yet to commit.(15) Sentencing a defendant to death because of some act he may commit in the future is troubling for those opposed to such teleological forecasting(16) and seems to contradict the "innocent until proven guilty" premise of the American judicial system. …