Do not laugh when I say this, but my judge in the middle of a death case has decided he wants to limit future danger to prison society. He is trying to say because when LWOP started it made the future danger issue mean only prison society. Any new cases interepreting society after LWOP became law ......

Well, in Berry the Court chastised the prosecutor for arguing that society mean free world society, if I recall correctly.

You might remind that judge that, just because someone is sent to prison for life does not mean they won't leave TDCJ and murder a police officer in Dallas County. A particular inmate named George Rivas comes to mind.

I also don't recall any testimony surrounding the bill that would indicate the Legislature intended a modification of the meaning of society. Instead, they used the same term even after the courts had construed it to mean society both in and out of prison. That is generally taken as an accession to the courts' construction of the term.

Berry is an abomination and not likely to be repeated (weird set of facts involving a mom who killed her two infants on separate occasions; strange decision announcing that could only mean that she was a danger only to her unborn children).

Seems to me if you have evidence from an expert that prisoners are capable of escape (as happened very recently for a murder case), then society includes the world.

Isn't it time to abandon the unnecessary special issue regarding future dangerousness?

Agree

Me too.

It is a constitutional requirement of capital sentencing schemes that they "perform a narrowing function with respect to the class of persons eligible for the death penalty." To survive a facial challenge under the Eighth Amendment, a special circumstance that makes a defendant eligible for the death penalty must meet two requirements: (1) the circumstance must apply only to a sub-class of defendants convicted of murder, not to every defendant convicted of murder; and (2) the circumstance may not be unconstitutionally vague.

Do I understand you all to be saying that our scheme would survive without any finding of future danger (societal threat)? I.e., that it is superfluous so far as the Constitution is concerned? I guess the moral blameworthiness issue would sufficiently narrow eligibility anyway (as each juror gets to act as his own little legislature).

One other question. Can't everyone agree that the "inside" folks are the most likely to be threatened? Fortunately escapes are not an everyday occurrence. I would not personally make a future danger finding based on assumption of escape, unless perhaps there were evidence of special risk of that occurring.

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Originally posted by Martin Peterson:
It is a constitutional requirement of capital sentencing schemes that they "perform a narrowing function with respect to the class of persons eligible for the death penalty."
Do I understand you all to be saying that our scheme would survive without any finding of future danger (societal threat)? I.e., that it is superfluous so far as the Constitution is concerned?

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The Constitution does not require a finding of future danger, that is only part the Texas legislature's method of narrowing the class of death eligible defendants. So yes, we could do away with that and still have a constitutional statue. In fact, not all states even require that finding.

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One other question. Can't everyone agree that the "inside" folks are the most likely to be threatened? Fortunately escapes are not an everyday occurrence. I would not personally make a future danger finding based on assumption of escape, unless perhaps there were evidence of special risk of that occurring.

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That would be your prerogative as a juror. However, that is only one interpretation of our statute. Note that our "future danger" question does not ask whether the defendant "will" commit future acts of violence, but rather whether the defendant "would" commit them. According to Merriam-Webster, �would� is �used in auxiliary function to express probability or presumption in past or present time,� as in �I would have won if I had not tripped.� �Will,� in this context, is �used to express futurity,� for example, �Tomorrow morning I will wake up in this first-class hotel suite � Tennessee Williams.�

So perhaps the question is not what will he do in the future, but is he the type of person that would commit such crimes if not prevented? In other words, is he a violent person aside from the single incident of violence for which he has been convicted? If so, he is more worthy of a death sentence than the person whose character indicates that his crime is an aberration for him. Not only does this intepretation narrow the death-eligible defendants as the Constitution requires, but it also gives effect to the idea in the special issue that we are concerned about the present "threat" represented by the defendant, not the unknowable future.

After all, assuming we could strap the defendant down and keep him in a drug-induced coma the rest of his life, does that make him a better person, or less culpable for his crime? Of course not. We don't execute people because we failed to protect the victim, we execute defendants because they chose to commit the crime. So why should our ability or inability to prevent future crimes act as a mitigating factor in the sentence he or she deserves?

I guess only because the Legislature irrationally chose to make it a mitigating factor. Somewhat interesting that the execution "capital" of the U.S. has perhaps the most restrictive of the death penalty statutes.

I guess in theory people like Karla Tucker (who somehow arguably reformed to present no or at least less of a future threat) are clearly put to death based very much on their prior conduct (which is immutable in character).

Future dangerousness is not constitutionally required. And the practice of figuring out which defendants are a future danger has been criticized as irrational far more than the Legislature's original choice of including it as a special issue. [Most of that criticism has come from those opposing the death penalty, but I'm guessing they now prefer the existence of the special issue and would want it written even more narrowly now that it prevents at least some defendants from being placed on death row.]

The moral culpability that justifies being sentenced to death is not related to future danger. So, we mix moral culpability with a form of social self defense. Sort of retribution + prevention = death.

[This message was edited by JB on 09-17-08 at .]

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Originally posted by Martin Peterson:
I guess only because the Legislature irrationally chose to make it a mitigating factor.

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Why do you find it irrational? Certainly people who have a propensity for violence are more deserving of the death penalty than people who commit a single act of violence that is totally out of character for them.

The statute is not a problem. One judge's reading appears to be the problem. There are 437 district judges in the State (so far). Do you really want to tinker with settled law every time one of them goes off on a tangent?

Isn't that what makes this Forum fun?

WHM, I took you to pose the question of why not relate the penalty to the conduct without worrying so much about protecting the next victim. There is no doubt that people who have a propensity for violence are more deserving of the death penalty than people who commit a single act of violence that is totally out of character for them. But, if the penalty is appropriate in spite of the added comfort of a threat of future danger, then why add that element? I agree that propensities can be proved, but to me proving a probability is perhaps different. And proving a probability beyond reasonable doubt to the satisfaction of 12 persons seems a difficult concept (enmeshing two levels of certainty). Maybe not an irrational choice; but close to nonsensical as worded?

While I am suggesting a shift of focus away from the next victim, I'm not suggesting relating the penalty to the conduct alone, as much as relating the penalty to the perpetrator. In other words, the question is not "Will he commit further violent crimes?" but rather, "Is he the kind of person who would commit further violent crimes, but for our concerted effort to prevent him from doing so?" I think that interpretation makes more sense, since it is a question more liable to proof than trying to prove a crime that hasn't happened yet. What he will do in the future may depend on what we do to control it; what he would do is entirely up to him. He should be punished for things over which he has control, not for things over which we have control.