Sudden Death: The Legislative History of Future Dangerousness and the Texas Death Penalty

Abstract

This Note concerns the past and present of the Texas death penalty's "future dangerousness" standard. One of three "special questions" in Texas's original death penalty bill, the future dangerousness question asks "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." An affirmative vote, under almost all circumstances, results in a death sentence. And as many have recognized, the ambiguities in the question pose enormous problems for judges and juries seeking to answer it in a principled way. At the same time, the apparently predictive nature of the inquiry has invited into the courtroom a kind of "expert testimony" on future criminal behavior so discredited that its practitioners have been expelled from the governing bodies of American psychiatry. These criticisms of the future dangerousness standard are not new, and indeed, they have failed to impress majorities of the highest courts of both Texas and the United States. Yet even with repeated stamps of court approval, the problems of future dangerousness remain and continue to contribute to judicial uneasiness with the Texas death penalty. The unique problems of the future dangerousness question are thus a special part of the drive for capital punishment reform in Texas. This Note seeks to add a new voice, sounding in historical concerns about democratic legitimacy and the legislative process that produced future dangerousness, to the chorus already calling for reform.