Many capital punishment statutes permit jurors to consider evidence of a convicted capital murderer’s ‘‘future dangerousness.’’ In those jurisdictions, prosecutors often argue that the defendant should be executed because he is likely to commit more acts of violence and thus poses an ongoing danger to society. Evidence supporting such arguments includes such things as the defendant’s recidivism, prison violence, and lack of remorse. The particular circumstances of the capital crime may suggest future dangerousness as well. But the most controversial evidence of future dangerousness is expert psychological and psychiatric testimony.
The validity of such testimony came under attack in the case of Barefoote v. Estelle, 463 U.S. 880 (1983). What is remarkable about the Supreme Court’s opinion is that it approved of expert testimony on future dangerousness even though the overwhelming consensus among mental health experts regards such predictions as highly dubious. Most notable among the critics of future dangerousness testimony was, and still is, the American Psychiatric Association (APA). Empirical studies indicate that expert predictions of future dangerousness are wrong two out of three times. The Court brushed this and other concerns aside, reasoning instead that so long as future dangerousness is a valid factor for receiving the death penalty, jurors may hear the views of testifying mental health professionals. If lay jurors must assess future dangerousness, the Court explained, then ‘‘it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify.’’
DANIEL R. WILLIAMS
References and Further Reading
See also Capital Punishment; Capital Punishment and Race Discrimination; Capital Punishment and Equal Protection Clause Cases; Capital Punishment: Eighth Amendment Limits; Capital Punishment: Due Process Limits