Future Dangerousness Revisited

Date01 September 2003
Published date01 September 2003
Subject MatterJournal 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
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
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@
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).
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

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