Future Dangerousness Predictions Wrong 95% of the Time
New Study on Capital Trials Exposes Widespread Unreliable Testimony
AUSTIN--A new study that examined 155 capital cases where expert witnesses predicted that the defendant would be a future danger found they were wrong 95% of the time. Texas is one of only two states that allows “future dangerousness” to play the critical role in whether an individual receives a death sentence, despite the fact that the practice is rejected by the psychiatric expert community as unreliable.
The study, Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness, was prepared by Texas Defender Service, a non-profit law firm involved in capital litigation, attorney training and research, in collaboration with Dr. John Edens, a psychologist and professor at Sam Houston State University.
Of the 155 inmates examined, including one who was exonerated by the courts after being found to be innocent of the crime, only eight (5%) later engaged in seriously assaultive behavior which resulted in injury requiring treatment more than first-aid. Thirty-one of the 155 inmates (20%) have no records reflecting any disciplinary violations. The remaining 75% of inmates committed disciplinary infractions involving conduct not amounting to serious assaults, including minor infractions such as possessing cash or lotto tickets, food in their cells, or too many sheets. None of the inmates in the study committed another homicide, and only two inmates have been prosecuted for crimes committed while in prison.
During the sentencing phase of a capital murder trial, jurors in Texas are required to answer several questions, including whether there is a probability that the defendant would be a continued threat to society. Only one other state, Oregon, allows this to play a critical role in whether an individual receives a death sentence. 29 of the 38 death penalty states do not allow any evidence on this issue.
“In Texas, the determination of who lives and who dies is based on predictions of future dangerousness that have been renounced as unreliable and without scientific validity by the leading mental health associations,” said Andrea Keilen, Deputy Director of Texas Defender Service. “The integrity of the Texas sentencing scheme is on par with medieval trials by ordeal. We would do just as well to drop people in boiling water to see whether they float.”
The American Psychiatric Association has stated since 1983 that “The unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession.” The Association continues to urge that expert psychiatric testimony on future dangerousness be deemed inadmissible at capital sentencing hearings.
“There are strong reasons to question the accuracy of predictions of violence made by prosecution experts in capital murder trials. It seems impossible to reconcile the glaring inaccuracy of the predictions made by these experts with the requirement that death sentences be meted out in a non-capricious manner,” said Dr. John Edens. “It is incumbent on mental health experts to avoid engaging in fraudulent testimony that is lacking in any meaningful scientific foundation.”
The report cites the case of Randall Dale Adams as the most egregious failure. An expert witness, Dr. James Grigson, who had earned the nickname Dr. Death, testified during the sentencing phase of the trial: “I would place Mr. Adams at the very extreme, worse or severe end of the scale. You can’t get beyond that. There is nothing known in the world today that is going to change this man; we don’t have anything.”
Twelve years after being sentenced to death, Adams was exonerated and released from Texas death row, and it was acknowledged that he has no connection to the crime for which he had been sentenced to death.
Of the 155 inmates identified in the study, 67 have been executed, 40 are currently on death row, and 48 received death sentences that were later reduced to a lesser sentence, including Adams’ exoneration.
The study relied on archival records to identify inmates in the Texas Department of Criminal Justice who were the subject of state expert testimony at trial declaring them a continuing threat to society and received a death sentence in the sentencing phase of the trial. The study includes every case identified as having state-sponsored future dangerousness testimony. There are certainly other cases in which state-paid experts testified on the issue, but these cases were not discovered because of partial or missing documentation in the available records. There was no selection of cases for inclusion in the study; every case identified was included.
“Even with the state-of-the-art techniques available to mental health professionals today, there is a significant degree of error in these predictions of future dangerousness. Given the severity of the consequences, this level of error takes on greater significance,” said Dr. Sol Fulero, President of American Psychology-Law Society. “In the nearly 30 years that have passed since re-introduction of the death penalty, a number of studies demonstrate that many inmates sentenced to death on the prediction of future dangerousness have proven to be non-assaultive, compliant inmates who pose no risk to other inmates or prison employees.”
“Trial judges have a duty to screen out junk science that can mislead the jury and distort its verdict. The absence of any genuine oversight or meaningful guidance by the Texas Court of Criminal Appeals, however, makes it impossible for trial judges to perform this gatekeeper role effectively. Its time to revisit whether this unreliable pseudo-scientific testimony should be allowed at all,” said Rob Owen, an Adjunct Professor at the University of Texas School of Law.
“The alarming error rate in capital sentencing would not be tolerated in any other context. Would you seek life-or-death advice from a physician who misdiagnosed patients 95% of the time?” asked Jim Marcus, Executive Director of Texas Defender Service. “The constitution requires heightened reliability in capital cases. Texas is delivering just the opposite. This problem is endemic to Texas’ unique method for assessing the death penalty and why the Texas statute should be brought into line with the rest of the capital sentencing statutes in the nation.”
The report proposes a range of reforms, including no longer allowing testimony on future dangerousness, changing sentencing procedures to conform with other states, a judicial review process that could take into account actual behavior by inmates sentenced to death on the basis of unreliable predictions, and passage of a life without parole sentencing option.
To date Texas has executed 321 men and women since re-introduction of the death penalty in 1976, more than one-third of all the executions carried out in America. In recent years, between 30 and 40 new death sentences have been handed out by Texas juries annually.
The following people are available for comment regarding Deadly Speculation:
Texas Defender Service
Jim Marcus, Executive Director
(713) 222-7788 (office), (713) 201-4792 (cell)
Andrea Keilen, Deputy Director
(512) 320-8300 (office), (512) 289-3778 (cell)
John Niland, Trial Project Director
University of Texas School of Law
Experts from Scientific Community
Dr. John Edens
Professor of Psychology
Sam Houston State University
Dr. John Monahan
Psychologist and Professor of Law
University of Virginia
Dr. Mark Cunningham
Dr. Sol Fulero
American Psychology-Law Society