An Uncertain Future for Future Dangerousness: Texas Death Penalty Statute Under Review

Last month, the Supreme Court granted certiorari in Buck v. Stephens [1], a case centering on a highly controversial provision of Texas’s death penalty law – the so-called “future dangerousness” inquiry.  The provision requires capital juries, during the capital sentencing phase, to first consider the likelihood that a particular defendant will commit future crimes of violence prior to consideration of any mitigating information. The seemingly straightforward sentencing inquiry is somewhat anomalous among capital jurisdictions.  In fact, only Texas and Oregon require any inquiry into future dangerousness as part of the capital punishment analysis.  And that may be for good reason.  The future dangerousness standard has been widely criticized for facilitating the introduction of junk science into courtrooms and further reinforcing the racial disparities already endemic to capital punishment.

Indeed, the constitutional error alleged in Buck is the introduction of expert testimony by a psychologist who claimed that the Defendant, as an African American male, was likely to commit future crimes of violence.  “He said flatly that his studies had shown that black people and males were more likely to be a danger to the public.” [2]  The case strikes at the heart of the capital punishment debate.  Is the Texas law, as its proponents claim, a legitimate means of eliminating arbitrariness in death penalty sentencing? Or is it, as many commentators have argued, an open door to racially prejudiced sentencing, masquerading as science?

Bobby Moore (left) and Duane Buck (right), petitioners in consolidated appeal. Source.

In the University of Denver Criminal Law Review’s Fourth Volume, Ana M. Otero takes the latter position.  In her article The Death of Fairness: Texas’s Future Dangerousness Revisited[3]  Otero argues that the Texas law is subject to invalidation based on both constitutional and evidentiary grounds.  She concludes that “future dangerousness is neither reliable, nor constitutional,” and serves to undermine our “most basic of moral and social values.” For now, we can only speculate as to whether that view will find a receptive audience in the Court.  Be sure to check back for more analysis from The Criminal Law Review when the decision comes down.

[1] 136 S. Ct. 2409 (2016)


[3] Read Professor Otero’s article, and the entire Fourth Volume of University of Denver Criminal Law Review here: