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Two-Edged Swords, Dangerousness, and Expert Testimony in Capital Sentencing

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Two-Edged Swords, Dangerousness, and Expert Testimony in Capital Sentencing University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln College of Law, Faculty Publications Law, College of 2006 TWO-EDGED SWORDS, DANGEROUSNESS, AND EXPERT TESTIMONY IN CAPITAL SENTENCING Robert F. Schopp University of Nebraska-Lincoln, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/lawfacpub Part of the Legal Studies Commons Schopp, Robert F., "TWO-EDGED SWORDS, DANGEROUSNESS, AND EXPERT TESTIMONY IN CAPITAL SENTENCING" (2006). College of Law, Faculty Publications. 109. https://digitalcommons.unl.edu/lawfacpub/109 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in College of Law, Faculty Publications by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Schopp in Law & Psychology Review (2006) 30. Copyright 2006, Law & Psychology Review. Used by permission. Two-EDGED SwoRDS, DANGEROUSNESS, AND EXPERT TESTIMONY IN CAPITAL SENTENCING Robert F. Schopp* I. INTRODUCTION A series of court opinions and a related line of commentary draw at- tention to the need for further inquiry regarding the defensible interpreta- tion and application of dangerousness as a consideration in capital sentenc- ing. The court opinions raise questions regarding the manner in which sentencers should interpret and weigh dangerousness as a factor in capital sentencing. In Penry v. Lynaugh,' the Supreme Court overturned the capital sentence of a mentally retarded offender under the special issue sentencing standard in force in Texas at that time.2 This procedure re- quired that the sentencing jury answer two sentencing questions regarding deliberateness and dangerousness. The Court's reasoning included refer- ence to the possibility that the evidence of mental retardation that Penry offered as mitigating might function as a two-edged sword in that it might be seen as mitigating regarding culpability and as aggravating regarding dangerousness, but the Court's reasoning regarding this matter was not entirely clear.3 The majority opinion in Atkins v. Virginia referred to the Penry con- cern that proffered mitigating evidence regarding mental retardation might function as a two-edged sword.4 The opinion provides no reasoning that explains why such a finding would violate Eighth Amendment doctrine. Rather, the opinion simply refers back to the Penry opinion. 5 Similarly, the Supreme Court of Missouri applied an analysis modeled on the Atkins opinion to a juvenile offender. 6 The opinion includes reference to the At- kins opinion's concern regarding the possibility that evidence offered as * Professor of Law and Professor of Psychology and Philosophy at the University of Nebraska. I am grateful for thoughtful comments from my colleagues at the University of Nebraska and from participants in annual meetings of the American Psychology-Law Society and of the Western Society of Criminology. 1. 492 U.S. 302 (1989). 2. Id. The holding of this case regarding capital punishment of mentally retarded offenders was overturned in Atkins v. Virginia, 536 U.S. 304 (2002). In this Article, I address the reasoning regard- ing evidence that can constitute a two-edged sword rather than the holding regarding capital punish- ment and mentally retarded offenders. 3. Id. at 322-28. 4. 536 U.S. 304, 321 (2002). 5. Id. at 321. 6. Simmons v. Roper, 112 S.W.3d 397 (2003). Law & Psychology Review [Vol. 30 mitigating at sentencing could function as a two-edged sword as part of the reasoning supporting the conclusion that the Eighth Amendment cate- gorically precludes capital punishment of offenders who commit capital crimes as juveniles. The Simmons opinion resembles the Atkins opinion, however, in that it provides no clear explanation why it would violate con- stitutional doctrine for a sentencer to conclude that evidence offered as mitigating regarding culpability also carries aggravating weight regarding dangerousness.7 In short, the Peny, Atkins, and Simmons opinions raise concerns regarding the possibility that evidence relevant to mental retarda- tion or youth offered in mitigation might serve as a two-edged sword in that a sentencer might interpret it as aggravating regarding dangerousness, but these opinions do not clearly explain why this would raise a constitu- tional concern. The related line of commentary addresses the appropriate role of ex- pert testimony regarding dangerousness as a consideration in capital sen- tencing. Recent articles raise a series of questions regarding the appropri- ate range and content of expert testimony applying risk assessment in capi- tal sentencing hearings. These articles address concerns including but not limited to the following: (1) the application of the Psychopathy Checklist- Revised (PCL-R) or other risk assessment instruments to risk assessment for the purpose of capital sentencing; (2) the significance of base-rates of violence for assessment of risk in prison; (3) the relevance of prior vio- lence in the community to the risk of violence in prison; (4) the signifi- cance of altered circumstances in the form of high security prison settings such as supermax or lock down facilities for the reliability of risk assess- ments based on prior conduct in different circumstances.8 The questions raised in these articles are related to the previously identified court opinions in that the appropriate range and form of expert testimony depends partially upon the most defensible interpretation of the significance of dangerousness in capital sentencing. How should sen- tencers and courts address proffered mitigating evidence that might rea- sonably be interpreted as a two-edged sword in that a reasonable sentencer could consider it mitigating because it renders the offender less culpable than other offenders who commit similar offenses but aggravating because it supports the conclusion that the offender presents a substantial threat of 7. Id. at 411-13. In Roper v. Simmons, the U.S. Supreme Court upheld the decision of the Missouri Supreme Court in precluding capital punishment of juvenile offenders, but the Court did not explicitly address the two-edged sword concern. 543 U.S. 551 (2005). The majority opinion men- tioned the prosecutor's argument that referred to Simmons' age as "scary" (558) and characterized this argument as "overreaching" (573). The opinion provides no reasoning that explains why such argu- ment is overreaching. Some language suggests that the majority understood this argument as suggest- ing that the jury should consider Simmons's age as aggravating and not as mitigating. This interpreta- tion resembles the Penry opinion in that it raises the concern that the evidence was not an effective two-edged sword because it prevented the jury from applying the mitigating edge. See Lncf1Part n1. 8. See mfm Part VA discussing these objections and sources. 20061 Capital Sentencing further violence? What is the justificatory function of dangerousness in capital sentencing under current legal doctrine, and what type of psycho- logical expert testimony regarding risk assessment falls within the range of appropriate testimony as defined by this function? This Article presents an analysis intended to advance our understanding of these questions. It does not purport to provide complete resolution, but it suggests a framework for further inquiry. As is often the case regarding capital punishment, specific questions reveal underlying concerns involving the intersection of constitutional interpretation, moral justification, empirical premises, and the relationships among these three domains. The analysis presented here pursues clarification of some aspects of this integrated inquiry. The analysis proceeds in the following manner. Part II examines the Supreme Court opinions addressing the two-edged sword concern, and Part III discusses this concern in context of the more general doctrine re- quiring that punishment serve some legitimate penal purpose. Part IV raises some central questions regarding dangerousness as a sentencing factor, and Part V examines a more general legal conception of danger- ousness. Part VI applies this conception of dangerousness to capital sen- tencing. Part VII examines the appropriate form and range of expert tes- timony regarding dangerousness in this context, and Part VIII concludes the analysis. II. THE COURT OPINIONS ADDRESSING THE TWO-EDGED SWORD The Penry opinion was the only opinion of the aforementioned three that provided any relevant reasoning regarding the two-edged sword con- cern. In that opinion, the Court addressed a sentencing procedure in which the sentencing jury was asked to answer two special issues, formu- lated as questions regarding deliberateness and dangerousness, addressing respectively the offender's culpability for the offense and the risk the of- fender would continue to pose. 9 The Court recognized that reasonable jurors might have believed that Penry's retardation rendered him less cul- pable than other offenders who committed otherwise comparable offenses but conclude that they were precluded from giving effect to that mitigating evidence in their response to the deliberateness special issue because Penry acted deliberately as that term is ordinarily understood.10 The Court also recognized that reasonable jurors might conclude that the dangerousness special issue provided no opportunity to give effect to the mitigating sig- nificance of mental retardation.1" Furthermore, those
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