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In spite of thousands of years of science, humankind is distinctly unable to predict the future. And yet, the judicial system is called upon to do just so daily. In bail considerations, judges predict flight risk. In parole hearings, officials contemplate the likelihood of reoffense. And in three states, a defendant convicted of a capital crime will live or die based on what a judge and jury thinks he will do in an unknown future. It has been observed that “what separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty of heinous crimes. If that process is flawed ... the legitimacy of our legal process is threatened.” When states execute based in part on the defendant’s future actions, the legal process is confronted with several complex questions. If they cannot be satisfactorily answered, the state risks collapsing the distinction between murderer and executioner.

This Comment collects and responds to several of the strongest arguments — stemming from both constitutional objections and more general concerns — against the use of future dangerousness as a consideration in death penalty sentencing. Following this Introduction, Part II provides definitions and basic background information on future dangerousness. Part III compares the use of clinical methods to actuarial methods for determining future dangerousness and advocates for the conclusion reached by other commentators that actuarial methods are preferable. It also briefly reviews the Violence Risk Appraisal Guide (VRAG) and the Classification of Violence Risk (COVR) software, two actuarial tools referenced by example throughout this Comment. Part IV reviews the case law history of future dangerousness and the death penalty. On the foundation laid by Parts III and IV, Part V collects and responds to six of the most potent objections to future dangerousness: (1) relevance and admissibility of evidence, (2) the requirement of an individualized assessment, (3) reliance on factors that do not index blameworthiness, (4) vagueness challenges, (5) predestination considerations, and (6) objections to future dangerousness as nonretributive. Part VI considers generalized and specific arguments for the use of future dangerousness testimony. Part VII makes several specific suggestions as to how future dangerousness evidence should be used by courts. Part VIII concludes with general comments.

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