Ending Death by Dangerousness

Abstract

The use of the death penalty (both in number of new death sentences and actual executions) has been steadily decreasing in the past decade. This decrease has largely been attributed to two phenomena: (1) the continued discovery of individuals on death row who are actually innocent of the crimes they committed and (2) the increasing use of life without parole as a sentencing alternative to the death penalty. Abolitionists have successfully seized upon the first of these in raising continuing doubts about the use of the death penalty. This article proposes a deeper exploration of the second, the availability of life without parole, to suggest a second line of attack on capital punishment in an effort to further de facto abolition.

While the Supreme Court and the academic literature have and continue to debate whether the purposes of retribution and deterrence justify the use of the death penalty, the practical reality is that the strongest determinant of whether an individual receives the death penalty is his/her perceived future dangerousness to society. Given the overwhelming influence of future dangerousness in death penalty determinations, this article argues that a wholesale removal of the concept of future dangerousness from capital cases, a concept largely irrelevant in light of the availability of life without parole (and solitary confinement), would approach de facto abolition of the death penalty.

Part Two of the article describes the dominant role that future dangerousness plays in capital cases. Part Three explains why dangerousness ought to be excluded from capital cases, as a common-sensical, jurisprudential, and empirical matter. Finally, Part Four outlines the inroads achieved by the widespread implementation of life without parole, and suggests a series of possible attacks on the use of dangerousness in capital cases to continue the move toward de facto abolition.

Keywords: Incapacitation, Future Dangerousness, Death Penalty, Capital Punishment, Eighth Amendment