Future Dangerousness Revisited

• DOI: 10.1177/0887403403252667
• Date: 01 September 2003
• Published date: 01 September 2003
• Subject Matter: Journal Article

10.1177/0887403403252667ARTICLECRIMINAL JUSTICE POLICY REVIEW / September 2003DeLisi, Munoz / FUTURE DANGEROUSNESS

Future Dangerousness Revisited

Matt DeLisi

Iowa State University

Ed A. Munoz

University of Wyoming

Onerationaleusedintheimpositionofcapitalpunishmentisthepotentialfuturedan-

gerousnessof the most serious offenders.Mostresearchin this areahas focused on the

postcommutation and postrelease behavior of formerly condemned offenders and

foundthatthe majority of them did not pose significantdangerrisks. The current study

examinedthe prison infraction records of1,005Arizonainmatesserving determinate,

life, or death sentences. Zero-inflated negativebinomial regression models indicated

that inmates sentenced to death were more dangerous than noncondemned inmates

were. This effect achieved modest statistical significanceand withstood controls for

demographic characteristics, offense severity and type, criminal history, and diag-

nostic measures. Overall, these findings suggestthat condemned defendants may be

more dangerousthan others, a statement sharply discordant with the extant literature

regarding the future dangerousness of capital defendants. Additional research

employing different samples from different regions of the United States is needed.

Keywords: dangerousness; death penalty; prisoners

One of the most dramatic discretionary processes in criminal justice is the

decision to sentence an offender to death. At the sentencing phase, a pri-

mary concern of jurors or judges is the criminal propensity and risks that an

offender poses. Many questions are considered. If this individual were one

dayreleased from prison, would he likely commit anotherheinous offense?1

Is life imprisonment veracious, or is it likely that this defendant will be

released from prison? Is this offender so volatile that he is a likely danger to

correctionalstaff,medical practitioners, and other inmates?Does the exten-

sive criminal record of this defendant guarantee that he will similarly vic-

timizeothers in the future? In short,is this individual too dangerous to take a

287

AUTHORS’ NOTE: Correspondence concerning this article should be addressed to Matt

DeLisi, 203A East Hall, Iowa State University, Ames, IA 50011-1070; e-mail: delisi@

iastate.edu.

Criminal Justice Policy Review, Volume 14, Number 3, September 2003 287-305

DOI: 10.1177/0887403403252667

© 2003 Sage Publications

chance on his potential future crimes? In more than 20 jurisdictions across

theUnited States, affirmativeanswersto these very questions can be used as

aggravating factors in determining a sentence of death (Cunningham &

Reidy, 1998).

LITERATURE REVIEW

Legal Background

Future dangerousness is not simply a matter of debate during criminal

sentencing for it has generated ample legal discourse. State and federal

courts have grappled over the constitutionality and ethics of forecasting an

individual’s potential future risks to society. It has been suggested that

expert assessments of dangerousness are not actually diagnoses but clinical

impressions of future conduct inferred from prior conduct. Because of this,

legal scholars are usually against the use of expert testimony asserting a

defendant’s future dangerousness (Davis, 2001; Miller, 2001), primarily

because the science of prediction is so inexact (Davis, 2001; Litwack, 2001;

Pearlman, 1998; Wyda & Black, 1989). Not all researchers agree, however

(e.g., Grisso & Appelbaum, 1992; Walker, 1982). For example, Walker

(1982) has argued that most research does not adequately sample the most

dangerous types of offenders for whom risk assessments would be more

meaningful. Citing the large literature on criminal careers, violence pat-

terns, and the incapacitation effects of imprisonment, Walker has suggested

that prior conduct is reason enough to believe that the most serious offend-

ers will (if given the opportunity) recommit serious crimes.

The Supreme Court and lower appellate courts have busily examined

future dangerousness. Estelle v. Smith (1981) established that the state

could not compel a defendant to submit to a psychiatric evaluation from

which a prediction of future dangerousness would be made. Instead, only

when the defendant requests a mental health defense and/or a psychiatric

examinationcanpotentially aggravatingfactorsabout his future dangerous-

nessbe raised (Vanderbiltv. Collins, 1993). Once it is determinedthatfuture

dangerousness will be an issue in sentencing, due process measures still

prevail. For example,Fourth, Fifth, and Sixth Amendment provisions must

be preserved and defendants must be advised of Miranda rights prior to any

questioning germane to future dangerousness (Ake v. Oklahoma, 1985;

Barefoot v. Estelle, 1983; Powell v. Texas, 1989). After learning of a defen-

dant’s future dangerousness, jurors must be informed of parole ineligibility

to avoid de facto death sentences (Simmons v. South Carolina, 1994). In

288 CRIMINAL JUSTICE POLICY REVIEW / September 2003