Copyright (c) 2000 Northwestern School of Law
Journal of Criminal Law & Criminology
CRIMINOLOGY: AN ACTUARIAL RISK ASSESSMENT OF VIOLENCE POSED BY CAPITAL MURDER DEFENDANTS
90 J. Crim. L. & Criminology 1251
JONATHAN R. SORENSEN, PH.D.* & ROCKY L. PILGRIM**
The Supreme Court held in Furman v. Georgia 1 that capital punishment was unconstitutional due to the arbitrary nature of then-current sentencing statutes. Citing jury discretion as the cause of inconsistent sentencing practices, the Furman decision invalidated the capital punishment statutes of all retentionist jurisdictions in the United States. In order to address the Court's central concern - whether death sentences were imposed in a uniform and fair manner - state legislatures revamped their capital punishment statutes to limit jury discretion. In the decisions that followed, the Court clarified which procedures would be acceptable, upholding statutes that guided juror discretion, 2 but striking down those that mandated a death sentence for particular types of murder. 3 Since that time, death penalty jurisprudence has focused on how to insure consistency in decision-making while providing fairness to individual defendants. 4
Concern for fairness led the Court to rule that states must allow evidence of nondangerousness as a mitigating factor in the punishment phase of capital trials. 5 The goal of incapacitating dangerous offenders prompted twenty-one states to include a defendant's potential for future violence among the aggravating circumstances jurors may be directed to consider before reaching a punishment decision. 6 Texas and Oregon, however, are the only two states that require capital juries to predict future conduct before sentencing. Specifically, a jury in these two states must unanimously agree there is "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" ...
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