A Deadly Question
Have juries sentenced hundreds of people to death by trying to predict the unpredictable?
B
ill Meier says he can’t remember exactly how he arrived at the deadly question, back in 1973.
“I frankly don’t have the kind of memory that would allow me to remember just what was said,” he said.
Meier is a Texas lawyer whose deep drawl makes it easy to imagine him wooing a jury. He now sits as a judge on the Texas Second Court of Appeals, but back in the 1970s, he served as a state senator. He’s a colorful character who’s made Texas Monthly magazine’s top 10 legislators list both as one of the state’s best and as one of its worst. In 1973, the magazine called him open-minded, highly accessible, and never dogmatic. It later panned him as a legislator who “masqueraded as one who would advance the cause of conservatism; in fact, his cause was himself.” Meier holds the record for the nation’s longest filibuster after talking for 43 hours, wearing house slippers to ease his aching feet and an “astronaut bag” to prevent bathroom breaks to try and stop a bill that he believed would erode public records laws.
Back in 1973, Texas legislators were wrestling with how fix one of the state’s most infamous institutions––its death penalty. The previous year, the U.S. Supreme Court had ruled the death penalty unconstitutional, finding it was too arbitrary, too riddled with discrimination and racism. The case put a stop to executions nationwide and sent state legislatures scrambling to write new laws to fix these flaws. Most states passed laws that allowed juries to consider past behavior and crimes, but Texas focused on predicting the future. Before jurors could sentence someone to death, they must first decide if the person will be a future danger.
The precise wording of the question is convoluted, asking jurors “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” At its core, it contains an incredible idea: Can we predict whether or not a killer will kill again?
Meier was one of the key legislators who crafted the law. In the years since, he’s gotten “probably a 100 calls about this” from people asking how he and his colleagues thought it up, he said. But he said he can’t remember the discussion that led to it.
“Imagine trying to remember what you said and did back then,” he said with a chuckle.
Texas holds a unique place in the annals of the American death penalty. It is, by far, the country’s most prolific executioner. Since 1976, when the Supreme Court reinstated the death penalty in a case called Gregg v. Georgia, Texas has executed 538 people. Oklahoma is in second place with a relatively paltry 112 executions. And, more than 30 years later, Meier’s question remains at the heart of this deadly system.
The Supreme Court recently heard arguments in a Texas death penalty case called Buck v. Davis. The defendant, Duane Buck, fatally shot his ex-girlfriend and her friend in July 1995. Two years later, a jury found him guilty and sentenced him to death. The case arrived at the Supreme Court because of a bizarre twist––at the sentencing, Buck’s own lawyer introduced testimony by an expert who said that Buck’s race made him more likely to be a future danger. Buck is black.
Should someone be sentenced to death, in part, because of his race? Should expert witnesses use race to predict whether someone will be violent? Those questions sound shocking, and rightfully so. But the circumstances of Buck’s case––where an expert testified explicitly that race should be a factor for the jury to consider in sentencing––make it an outlier. The framing of the question before the court in Buck’s case is narrow, and doesn’t address whether future dangerousness is the right question to ask.
What if hundreds of people have been sentenced to death using a question aimed at predicting the unpredictable?
I
t’s a tempting notion that we can predict who will live peaceful, productive lives and who will erupt in violence. If we could, it would certainly take some of the arbitrariness out of the death penalty. But how good are we at making those predictions?
The modern age of the death penalty began in 1972. That’s when the Supreme Court heard a Georgia murder case called Furman v. Georgia. The defendant, William Henry Furman, had broken into a home in Savannah and was rummaging around when the homeowner awoke. Furman ran off, but on his way out, he dropped his loaded gun, which fired, killing the homeowner. A jury convicted Furman, who was black, in a one-day trial. In its decision, the Supreme Court held the death penalty, as then applied, was unconstitutional, that it was too haphazardly applied and violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
In his concurring opinion, Justice Thurgood Marshall wrote, “Capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved; and the death penalty wreaks havoc with our entire criminal justice system.”
The decision created a de facto moratorium on the death penalty nationwide as states tried to craft laws that would satisfy the Eighth Amendment. In Texas, Meier and a few other legislators hurried to draft such a bill before the end of the legislative session.
Meier sponsored a Senate bill to revamp the death penalty. A similar bill moved through the Texas House of Representatives called House Bill 200. That bill passed both houses and then was reviewed by what’s called a conference committee, a small group of legislators from both houses. Meier told me that’s where he and another legislator, Terry Doyle, came up with the deadly question, known as the “future dangerousness” question.
At the time, Craig A. Washington Sr., was a state representative. Although he was opposed to the death penalty, he attended the conference committee discussions about the bill because he wanted to hear the debate. But, unlike Meier, Washington told me that he remembers the discussion around future dangerousness, or, rather, the lack of discussion.
“It was made up out of thin air,” said Washington Sr., a Houston lawyer. “Thin air.”
Washington said that the question seemed to be a way for the legislature to create some standard that seemed scientific, while still giving jurors a way to come to arbitrary decisions about life or death.
“If we could figure out who will be a danger, then we wouldn’t have crime,” Washington told me. He scoffed at the idea that even experts could make that prediction. “Experts,” he said.“I call them a guess in an evening gown, a g-u-e-s-s.”
N
o one has embodied the troubling questions embedded in the “future dangerousness” question quite like psychiatrist Dr. James Grigson, who earned the sobriquet Dr. Death because of his willingness to testify in favor of executing the convicted.
After Texas passed its revamped death penalty law with the “future dangerousness” question, prosecutors used expert witnesses to testify about a defendant’s risk for violence. Grigson testified in 167 capital cases. Known for his genial, folksy mannerisms, Grigson frequently claimed certainty in predicting a defendant’s risk for future violence, even if he’d never talked to the person. In 1983, Barefoot v. Estelle, a case involving Grigson’s predictive powers made it to the U.S. Supreme Court, which ruled that experts could testify about a person’s future dangerousness based on hypothetical questions, even if the expert had never talked with the person.
Grigson’s confident predictions led to fame––Vanity Fair chronicled his colorful career––but also made him a pariah to many in his profession. The American Psychiatric Association expelled him from the professional organization in 1995 and sharply criticized Grigson’s methods as junk science. Nowadays, Texas juries rarely hear from such experts. Grigson passed away in 2004, and that type of expert witness, one who relies on hypotheticals, has fallen out of favor.
But the “future dangerousness” question remains.
Dr. Mark Cunningham, a Seattle-based psychologist, and Dr. John Edens, a psychologist at Texas A&M University, have devoted their professional lives to the question of whether we can predict the future dangerousness of those convicted of crimes. Both have published extensively on the topic. And both have reached much the same conclusion.
“Juries show absolutely no predictive ability whatsoever,” Cunningham said. “And, in fact, experts are similar.”
The American Psychiatric Association––the same one that expelled Grigson––has taken a similar position and implored the Supreme Court to ban the future dangerousness question in capital cases, saying in an amicus brief that “[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession.” The APA concluded that the “future dangerousness” question relies on junk science, and found that experts are wrong in two out of three predictions of “future dangerousness.”
Part of the problem, Cunningham explained, is the sample size. Death penalty defendants represent a small sample of people, all of whom have been convicted of a violent act, so there’s some risk for violence for all of them. Trying to predict who will be violent again doesn’t work.
The other part of the problem is the actual circumstance versus the jury’s fears, he said. In Texas, the alternative to the death penalty is life without parole, so the defendant will spend the rest of his life in prison. But jurors can make their decision as if the person would be released back into society.
“It renders this issue much more ambiguous and hard to define and maybe kind of fantastical,” Cunningham said.
Edens agreed. Unlike in Texas, in the federal system and in many other states, a person’s likelihood of future violence is only one of a number of factors that a jury can take into consideration. But the person’s life doesn’t hinge on that single question. And the jury isn’t allowed to talk about hypotheticals, they must focus on the actual circumstances that await a convicted defendant––a life sentence in prison or execution.
“People are supposed to be constrained to what’s really going to happen,” Edens said.
Cunningham and Edens are both skeptical about our ability to predict future danger in society, and they’re even more skeptical about it once someone is confined to prison. “If your goal is ‘let’s put somebody to death before they do something bad in the future,’ then the good news is that our prisons work relatively well at suppressing violence, but trying to pick those needles out of a haystack, we’re not good at doing that,” Edens said.
Their view––that it’s very difficult to predict who will be a future danger, especially in prison––isn’t universally shared. One man who is sharply critical of their findings is Dr. Richard Coons, a psychiatrist based in Austin, Texas, who has testified in dozens of capital cases. Coons himself has faced criticism for his evaluation methods. In 2010, the Texas Court of Criminal Appeals ruled that his methods for predicting future dangerousness were not reliable, but Coons stands by his techniques. When we spoke, he claimed that Cunningham underestimated the likelihood that a defendant would be dangerous in prison.
“[Cunningham and his researchers] talk about how little violence there is in the criminal justice system. Well, hogwash—that’s a good old Texas term,” he said.
Coons, who is now retired, told me that there are a number of factors that he’d use to predict a person’s future danger. He’d look at their history of violence, their attitude toward violence, the facts of the case itself, whether or not the person has a conscience. Then, he’d make his prediction. Unlike the expert in the Buck case, Coons said, he’d never use race as a predictor, although he told me that it was clear to him why blacks were overrepresented in jails and prisons.
“It’s in the papers and the magazines about how prevalent black-on-black violence is,” he told me. “It’s not because they are black; it’s because they’re raised funny.”
Major studies have concluded that both the race of the defendant and the race of the victim play a pivotal role in whether a person is sentenced to death. A study by criminologists that was included in Buck’s appeal examined racial disparity in Harris County, Texas, the county where Buck was sentenced to death. The study found that, from 1992 to 1999, Harris County prosecutors were three and a half times more likely to seek the death penalty against black defendants than white ones. Jurors were more than twice as likely to sentence blacks to death.
Another study of capital cases in Harris County found that juries were more likely to impose a death sentence if the victim was white than if the victim was black, a pattern found in studies of other jurisdictions. Another study led by a Stanford University psychologist found that, in cases that involved a white victim, the more stereotypically black a defendant was perceived to be, the more likely the defendant was to be sentenced to death.
As philosophically at-odds as researchers like Cunningham and Edens are with Coons, surprisingly, they all agreed on one thing: We’re asking jurors the wrong question. Cunningham and Edens, who often testify for the defense, have been open about their belief that the question is flawed, an open invitation to the jury to make a moral judgment on the defendant. But when I asked Coons directly if we’re asking the right question, he came to the same conclusion: “Maybe not.” He added, “There is no credible way of evaluating the situation to a high degree of likelihood.”
Coons, who peppered our conversation with colorful anecdotes and stories, used this analogy when I asked him to explain what he meant about the question’s predictive power. “That’s kind of like saying, “Which of these hummingbirds are going to go to Panama for the winter and which are going to Costa Rica?’” he said. “You can’t know.”
S
o if experts don’t believe we can accurately predict whether someone convicted of a capital crime will be a future danger, is the deadly question on its deathbed?
The answer is likely no.
The reasons, according to mental health experts and lawyers, are two-fold. First, the question is written into the law, and Texas juries have answered it in every death penalty case since 1976. The U.S. Supreme Court upheld a direct challenge to future dangerousness in a 1976 case called Jurek v. Texas, finding that even if an expert is wrong about a person’s dangerousness, the adversarial process of a trial will sort it out. The court added that judges routinely make predictions about people’s future behavior in other contexts, like setting bail or in hospitalizing someone for a mental illness. Experts told me that it’s unlikely the Texas Legislature would change the law. It might be viewed as an admission the question was flawed, which could result in all 244 people on death row challenging their sentences.
“Once a public policy is in place, it’s almost like it takes on a life of its own. It becomes a cherished notion,” Cunningham said.
The second reason is that the way courts deal with the question has morphed. It used to be that prosecutors would bring Grigson, Coons, or some other expert, and the defense would counter with their own expert. Now, though, those types of experts have largely fallen out of favor, said Kase, the defense lawyer. Instead, more and more, it’s left to juries. Prosecutors often present a list of bad acts by defendants––prior convictions and disciplinary problems in prison––and the defense offers mitigating evidence, such as evidence that their client is adjusting well to prison.
Experts and lawyers say that trend makes “future dangerousness” even less of a science and more of a guess or moral judgment. It’s certainly not what Meier envisioned when he wrote the question all those years ago. “The question is not something that’s subject to being answered by a non-expert because it’s predicting future conduct or the chance or danger or likelihood of future action, and that’s something that requires an expert,” Meier told me.
And, for defense lawyers like Kase, it’s seems proof that the Texas death penalty is not about science, but about something much more abstract, a troubling moral judgment about who is too evil, too dangerous to live.
“It is akin to giving jurors two cotton swabs, asking them to look at them and saying, ‘Does the DNA match?’” she said. “If an expert can’t figure it out, then how can jurors do that? It is no accident that African Americans are overrepresented on death row.”