Capital Punishment and Dangerousness

Abstract:     
This chapter applies principles I have developed elsewhere regarding the state's ability to intervene on the basis of dangerousness to the ultimate form of prevention detention, capital punishment. More specifically, it addresses the following issues: (1) whether dangerousness may be considered an aggravating factor that justifies imposition of a death sentence on a person convicted of capital murder; and, if so, (2) how dangerousness should be defined in that context; and (3) how to resolve the two-edged sword problem (which arises when ostensibly mitigating mental disability is also the cause of an individual's dangerousness). My conclusions on these issues can be sketched out as follows. In theory, dangerousness is a legitimate aggravating factor in capital cases. In practice, however, it should virtually never form the basis for a death sentence, for two reasons: the government will seldom be able to demonstrate the level of risk it must demonstrate to justify the ultimate penalty nor will it usually be able to show that execution is the least restrictive means of achieving harm prevention in an individual case. Furthermore, on those rare occasions when the government is able to meet both of these stipulations, a death sentence might still be barred if serious mental illness contributed to the capital offense. While mental disability can cut both ways - supporting both an argument for reduced culpability and an argument for increased dangerousness - when it significantly impairs the individual's conduct at the time of the offense, retributive and deterrence considerations bar imposition of the death penalty, regardless of how dangerous the individual might be.

Number of Pages in PDF File: 15

Keywords: dangerousness, death penalty, mental disability, violence prediction,

Accepted Paper Series