28 Aug

Risk Assessment of Future Dangerousness in Death Penalty Cases

Kelly A. Burton

Walden University



Forensic Psychologists are utilized in death penalty cases to conduction risk assessments for future violence in offenders in order to aid the jury in making their decision to give a death sentence or life in prison.  However the methods utilized for risk assessment are found to be invalid and should be utilized.  This article covers current risk assessment methods and suggest methods for conducting risk assessments that are based in empirical research and areas of the law process that forensic psychologists should focus their attention.

Risk Assessment of Future Dangerousness in Death Penalty Cases

In the early years of psychology Dr. Benjamin Rush, one of the founding fathers, was a strong opponent of the death penalty who worked with the early leaders of the United States to abolish this method of punishment. The current field of psychology has overturned Dr. Rush’s earlier work by providing testimony on risk assessment of future dangerousness to the courts in order to aid them in sentencing criminals to death (Osborne, 2003).  The field of forensic psychology provides this testimony for the courts utilizing assessment methodologies that are not proven reliable and often times are based merely on opinion.

This article will look at the history of the death penalty and how it intermingles with the field of forensic psychology.  There are some criminals that commit violent crimes and have no hope of rehabilitation, a system of punishment seems like the only viable option.  However, there are no methods of assessment that have a high enough accuracy rate (100%), and therefore should not be utilized as the basis of expert opinion in the courtroom.  This article will outline the methods utilized to determine the violence capabilities of the criminal (risk assessment), errors of the court system where the United States have executed criminals who were later to be found innocent of their accused crimes.

The main focus of this article reviews the fallacy of risk assessments of future dangerousness and the lack of a proven methodology, and how psychologists are unable to accurately measure criminal intent.  The United States system of law guarantees the rights of the accused to be considered innocent until proven guilty, therefore we cannot change our system of law into one that prosecutes based on an individuals potential for criminal behavior.

If we are able to perfect our methods of risk assessment with results that are valid, verifiable and based in empirical data, and our legal system is able to maintain a level of no reasonable doubt in a death penalty case, then punishment of death would be an option, as the decision would be backed in empirical evidence.  However the focus of psychology should remain in aiding the mentally ill, and not used as a witness in punishing human beings.  The main focus of psychologists is and should remain to help people that have aliments that cause them to demonstrate non-standard behavior and make them productive members of society, much like a medical doctor who per the Hippocratic oath, is charged with helping people.

Background on Death Penalty

While the death penalty for certain crimes goes back into the B.C. Years of the world, the main focus of this article starts when the death penalty started in the United States (See Appendix – A for a complete timeline).  According to Death Penalty Info, the first execution under the death penalty in the United States was in 1608 in Virginia when Captain George Kendall was executed for being a spy (DPIC, 2012).  Early on there were opponents to the use of the death penalty for criminals.  One early influence comes from Cesare Beccaria, in his 1767 essay titled “On Crimes and Punishment”, which Beccaria pointed out that there was no crime severe enough to justify the state’s taking a life as punishment (Schabas, 1997, as cited by DCIP 2012).  The work of Beccaria prompted death penalty reform in American, when Thomas Jefferson tried to revise Virginia’s death penalty law to limit the use of the death penalty for murder and treason cases only, he lost by one vote and the law did not change (DCIP, 2012).  Early on the field of psychology was intertwined with the death penalty.  Benjamin Rush, one of the founding fathers of psychology was an opponent of the death penalty.   Rush, argued against the death penalty being a deterrent to crime, rather it produced a brutalization effect that actually increased violent crime.  Rush obtained the support of William Bradford the Philadelphia Attorney General who led Philadelphia to be the first state to create levels of criminality and abolished the death penalty for all crimes except first degree murder  (Bohm, 1999; Randa, 1997; and Schabas, 1997 as cited by DCIP, 2012).

During the next couple hundred years the death penalty was utilized with varied levels of public support.  However it was not until early 1970s that true reform was realized with the death penalty.   In 1972, Furman V. Georgia (408 U.S. 238) brought to the Supreme Court the issue of cruel and unusual punishment in death penalty cases.  According to this case it was argued that cruel and unusual punishment is defined as too severe for the crime, arbitrary, offended society’s sense of justice, or too severe for the nature of the crime.  The opinion of the higher court was due to the jury having complete control over sentencing in these cases, it could result in an arbitrary sentence, which under this definition would be cruel and unusual, a violation of the eighth amendment. The Supreme Court voided death penalty statues nationwide after this decision was made. (DCIP, 2012).

The abolishment of the death penalty was short lived in the United States, only 5 years later most states had found ways around the 1972 decision and changed their laws to get around the Supreme Court’s decision and reinstate the death penalty.  In 1977 Gary Gilmore was executed in Utah, the first to be executed with the reestablishment of the death penalty in America (DCIP, 2012).

Psychologists again were involved with the death penalty, this time not as opponents but part of the process that would determine if someone would get life in prison, or the death penalty, based on a risk assessment on the defendants’ future dangerousness.   The first landmark case on using risk assessment to determine a death or life sentence is Jurek v. Texas (1976), where the supreme court upheld death penalty statues, but added that during the sentencing phase, the jury was to consider special issues, one of them being the future dangerousness (Jurek, 428 U.S. at 269, 1976). The second landmark case on the validity of risk assessment for further violence added to the Jurek decision and added the ability for the use of expert testimony from psychologists and psychiatrist in the punishment process was in Barefoot v. Estelle (1983) (Vitacco, Erickson, Kurus & Apple, 2012).  This case was the first to challenge the use of psychiatrists and psychologists and their ability to accurately predict future violence in a person.  The case argued that because there is no validity to risk assessment, it was against the eighth and fourteenth amendments.  The court however struck down the argument, pointing out that many aspects of the court are involved in risk assessment and future prediction of criminal behavior in defendants, for example sentencing, parole, probation, and bail amounts, etc.   The court recognized that while future predictions of criminal behavior are not exact in nature, they are a solid basis of mental health law and are valid for use in the court (Vitacco, et al., 2012).  These landmark cases of Jurek v. Texas (1976) and Barefoot v. Estelle (1983) were the catalyst for Texas to become the first state to implement the use of risk assessment of future dangerousness as a mandatory process for the penalty phase of the trial (Conroy & Murrie, 2007).

The process of a death penalty case is conducted in two parts, the first is the determination of guilt verses innocence, and the second part of the process is the determination of the punishment phase.  The punishment phase is where the forensic psychologist should be utilized to conduct the risk assessment for future dangerousness.  In the punishment phase, evidence that is allowed during this phase is not as restrictive in nature as the normal trial proceedings, possibly because the process of risk assessment is speculative in nature and not as solid as other types of evidence such as DNA. Because of this most states that have a death penalty offer the jury the option of giving life in prison without parole in lieu of the death penalty (Conroy & Murrie, 2007).

The Jurek case was the catalyst for the field of forensic psychology to start working on risk assessments that would produce consistent results that could be utilized in the court room to prove to the juries the future dangerousness or non dangerousness of the defendant in order to give them a life in prison sentence or the death penalty (Vitacco, et al., 2012).

Cases that brought The Death Penalty

Landmark cases for the death penalty in ordered by date:

⁃         1972 – Furman v. Georgia (408 U.S. 238)

⁃         1976 – Jurek v. Texas (428 U.S. at 269)

⁃         1983 – Barefoot v. Estelle (463 U.S. 880)

Twenty-one states allow the future dangerousness of the defendant to be utilized in the sentencing phase of a capitol murder case, with Oregon and Texas having this risk assessment as mandatory for the sentencing (Sorenson & Pilgrim, 2000).  This was enacted as a way for the jury to decide on whether a death sentence is justified to prevent the criminal from committing any future violence.  This method however is based on the fallacy that prediction of future violence is accurate, when in fact the risk assessment for future violence is not a proven methodology.  This is stipulated by Sorenson & Pilgrim (2000), in their article “An Actuarial Risk Assessment of Posed by Capitol Murder Suspects”, by stating that punishing anyone for future crimes uncommitted goes against our legal system that allows all those committed of a crime to be considered innocent until proven guilty.  However, even with this obvious flaw in risk assessment to predict future behavior of criminals, the United States Supreme Court upheld these decisions of Texas Statues, regardless of the fact that the recidivism rate of murders in a study was found to be only one percent (Sorenson & Pilgrim, 2000).

Death Penalty by State

Currently 33 states support the death penalty and allow if for punishment in certain crimes, while 17 states have abolished this type of punishment, as shown in the data below from the deathpenaltyinfo.org (2012) web site.

Alabama Delaware Kentucky Missouri North Carolina South Carolina Virginia
Arizona Florida Kansas Montana Oklahoma South Dakota Washington
Arkansas Georgia Louisiana Nebraska Ohio Tennessee Wyoming
California Idaho Maryland Nevada Oregon Texas
Colorado Indiana Mississippi New Hampshire Pennsylvania Utah

Figure 1 -States with the Death Penalty – DeathPenaltyInfo.org (2012)


Alaska (1957) Massachusetts (1984) North Dakota (1973)
Connecticut (2012) Michigan (1846) Rhode Island (1984)
Hawaii (1957)  Minnesota (1911) Vermont (1964)
Illinois (2011) New Jersey (2007) West Virginia (1965)
Iowa (1965) New Mexico (2009) Wisconsin (1853)
Maine (1887) New York (2007)

Figure 2 – States without death penalty and year abolished – DeathPenaltyInfo.org (2012)

Risk Assessment

The process of a death penalty case

The process of a death penalty case is conducted in two parts, the first is the determination of guilt verses innocence, and the second part of the process is the determination of the punishment phase.  The punishment phase is where the forensic psychologist should be utilized to conduct the risk assessment for future dangerousness. However during the punishment phase, evidence that is allowed during this phase is not as restrictive in nature as the normal trial proceedings, possibly because the process of risk assessment is speculative in nature and not as solid as other types of evidence such as DNA. Because of this most states that have a death penalty offer the jury the option of giving life in prison without parole in lieu of the death penalty (Conroy & Murrie, 2007).

The most important factor in conducting a risk assessment is the base rate (Cunningham & Goldstein, 2003, as cited by Conroy & Murrie, 2007), and ensuring that the base rate is factored off the demographic where the defendant is going to be located.   This factor has many areas for confusion and misuse.  For a death penalty case, the risk assessment should be conducted based on the prisoner serving a term in prison, and whether or not they will be a risk in the prison system towards the staff or other inmates (Conroy & Murrie, 2007).  If the defendant is a first time offender, the level of risk assessment data is limited, reducing the ability for forensic psychologists ability to determine an effective risk assessment, as the member has never lived among the base demographic.  Even when conducting the risk assessment utilizing the prison system as the base rates, there is a common misconception, due to movies and television, that prisons are a system of constant violence and mayhem, this of course carries over to the jury box, as most Americans watch movies and television (Conroy & Murrie, 2007).  The reality of prisons is that there is much less violence than we are lead to believe from movies and television, and if compared to other populations in the United States, the rates of crime are much lower per capita.   Studies show that improvements in the operation of prisons has led to a drastic reduction in prison violence from 1980 to 2002 by 93% (Cunningham & Sorensen, 2006a as cited by (Conroy & Murrie, 2007).  There is also the misconception that those that are murderers are violent people who will kill again at first chance, which is a complete fallacy, according to inmates and prison staff, murderers in prison for the most part are model prisons, who are docile and trustworthy (Sorensen & Pilgrim, 2000).

Assessments utilized

The first method of assessment is from a study conducted by Sorensen & Rocky in 2000, which utilized statistics from over ten thousand inmates.  Normally risk assessment is done on an individual basis, however, this study has a higher degree of validity utilizing a larger amount of data and the inclusion of an age variable.

This study looked at factors of the types of crime committed by the individual in addition to the crime of murder, as opposed to a person who just committed murder, this factor of additional criminal activity raises the chances of recidivism.  Gang memberships, along with age at time of imprisonment, were also considered.  Gang membership and age are factors, as they are likely to raise the chance of more violent behavior while in prison.  While age is important in considering the possibility of violence, is offset by the amount of time in prison.  This study points out that while younger people are more likely to commit violent crimes, it can be offset by the length of prison term, which actually lowers their percentage.  The authors of this study point out that the normal term for a life in prison term is 40 years, so even a younger offender will be on a declining level of risk during their prison stay.


The results of this study found that violence among murderers in prison is very low, in the single digit percentages, while juries in capitol murder cases estimate future violence of the offenders in much higher double-digit percentages.  These study’s variables and time decay methodology seems quite sound in conducting risk assessment for death penalty eligible defendants.

According to DeMatteo, Murrie, Anumba & Keesler (2011), the best way to measure risk assessment is in large amounts of data such as the one conducted of over 51,000 Florida inmates in 2010.  This study showed that rates of violence was nearly the same (2% to 3%) for all inmates, including first degree murders, whom it was assumed would have a higher rate, but were no more likely to commit violence in prison than less criminals convicted of property offenses (Sorensen & Cunningham as cited by Dematteo, et al., (2011).

In order for risk assessments to be valid the following empirical data must be addressed as stated in the reference book, “Forensic Mental Health Assessments in Death Penalty Cases” and condensed in the bullets below (DeMatteo, et al., 2011):

  • Defining the question of risk – what risk is being assessed, what is the context and over what span of time.
  • Consider normative data and population base rates – basically knowing what your base rates of violence are for your context.
  • Access empirically demonstrated risk and protective factors – basing your risk assessment study on empirically sound data.  The amount of data for the last two decades has grown dramatically.
  • Risk Communications – The evaluator must be able to demonstrate their findings and how their opinion relates to the empirical data utilized in the research.

The types of studies and guidelines mentioned above are more reliable and provide a higher validity for risk assessment of future dangerousness than traditional type of assessments.  According to the Brief Amicus Curiae of the American Psychological Association, 2005 as cited by (DeMatteo, et al., 2011), the use of traditional forms of future dangerousness predication and violence risk assessments are inappropriate for conducting assessments.  These traditional assessments include the PCL-R, Hare’s Psychopathy Checklist revised, and the Antisocial Personality Disorder (APD).  These types of assessments are utilized based on the following fallacies as noted by Cunningham (2006), in his article, “Dangerousness and Death: A Nexus in Search of Science and Reason”, condensed in the bullets below:

  • Parole Eligibility may occur in 10-15 years after a capital conviction – This simply not true, those given life in prison without eligibility for parole will never be let out of prison.
  • A history of serious criminal violence in the community and an associated record are reliably predictive of future violent acts in all settings – As noted earlier in this paper, context is the key to violence prediction, and the fact that those in prison settings commit less violence than those outside of prisons makes this assumption in invalid.
  • Capital offenders will be disproportionately violent in the future – Again listed in the studies above, backed with empirical data, those in prison do not commit more violence in prison.
  • Reliable identification of capital defendants who are at high risk for future violence can be accomplished by applying common sense − Only assessments backed by empirical data can be deemed reliable, common sense is not based in scientific methodology.
  • Mental health experts can reliably identify capital defendants who have high probabilities for future serious violence – Because most current risk assessments are conducted utilizing individual assessment methods, they are not valid, therefore mental health expert that utilize this methods are not basing their opinions to the court utilizing methods backed by empirical data.
  • Probability of criminal acts of violence that would constitute a continuing threat to society is synonymous with future dangerousness – This is not valid as the criminal is not being considered for release back into society, rather, they are being confined in the controlled system of a prison where they are segregated from society.  While they may be considered dangerous while in society, removed from the community they are no longer a danger to society.
  • Security resources are unavailable to closely supervise, control, or safely contain dangerous capital offenders in prison – Modern prisons have prisoner classification systems along with initiatives that have lowered prison violence by 93%.

These fallacies along with APA weighing in with it’s 2005 Brief Amicus Curiae, any traditional singular based risk assessment utilized in death penalty cases does not provide enough validity due to lack of empirical data, therefore should not be allowed as methods for risk assessment in these cases.

Validity of Risk Assessments

The main problem with utilizing risk assessments for future dangerousness in death penalty cases is the lack of any valid methods for conducting the assessments.  There seems to be the misguided notion that basing a violence risk prediction by method of intuition is a valid measure of assessment, which is the result of various studies (Cunningham & Reidy, 1998).   In fact it has been noted by several researchers that the use of mental health experts in the risk assessment process for these cases is controversial and prone to under estimating, over estimating, and just going on gut instinct for determining the future violence potential of an offender  (Davis, 1978; Dix, 1981; Ewing, 1983;

Appelbaum, 1984; Worrell, 1987; Kermani & Drob, 1988; Leong, Weinstock,

Silva, & Eth, 1993 as cited by Cunningham & Reidy, 1998).

Additionally there is the subject of context, the risk assessment, which can be based on the prison system or in free society (Cunningham & Reidy, 1998).  This line is often misused towards the jury, where the jury is thinking about the offender being released if they do not give a death sentence, and how they might be a danger to the community, instead of looking at what the offender’s dangerousness would be living in a prison system (Shapiro, 2007 & Cunningham & Reidy, 1998).  This must be clarified by the mental health expert during their testimony, noting that there assessment is focused on the offender living in a prison system, as even with a sentence of life, the average length of sentence is 40 year before ever being eligible for a parole.   This time basis is an important issue as the risk for violence works on a declining scale for most prisoners, declining in that as one gets older their risk for violence dramatically decreases (Schopp & Patry, 2003 & Cunningham & Reidy, 1998).

Another area to consider is the racial bias and disparity in the assignment of a death sentence to an offender.  In a study conducted of the southern United States, the lives of black offenders were considered to be of less value than white offenders and where more likely to be given death penalties than white offenders (Unah & Boger, 2002).  Any system that allows for racial bias in the proceedings cannot be valid, even if these proceedings utilize mental health professionals to provide expert risk assessment testimony.

The separation of duties is another concern in death sentence risk assessments; unfortunately there have been cases in the past where the same psychologist is utilized in different parts of the trial process for and against the offender.  James Grigson in the Estelle v. Smith (1981) case was utilized in the competency to stand trial and then again called by the prosecutors for the punishment phase of the trial.  Utilizing material from the competency assessment, Grigson testified to the dangerousness of the offender in the trail for the prosecution (Cunningham, 2006).  This breech of ethics on Grigson’s part violated the rights of his client, and lessened any validity his risk assessment might have had due to his violation of ethics, additionally his personal bias tainted his objectivity of the risk assessment.

A fallacy in the risk assessment of future dangerousness is the use of the anamnestic method of risk assessment in where the best predictor of violence is looking at the past behavior of the person.  This method is useful when there is sufficient data to analyze and the context does not change, it is for this reason the court believe it is a reliable method that the jury would understand (Cunningham, 2006).    The problem with this method is the context, in that the context will change once the person is in prison.  This method relies on the person remaining in the environment that they committed the crime in, if the person was not going to prison but back to the community, it would be valid.   However prisoner’s convicted of murder are not going to their old context, they are going to a new context that is strictly controlled.  This invalidates this methodology of assessment, as there is no longer sufficient data to base any future dangerousness predictions on.   The other flaw in this type of risk assessment is for the first time offender, who due to circumstances at the time involved themselves in a crime.  Because this is their first offense, there is not enough past data to look at to determine if they are habitually dangerous or merely a victim of circumstance.  Because the death penalty is designed to be for the most dangerous criminals who commit the most heinous crimes, first time offenders should rarely fit into this category.

Cunningham (2006), points out psychological research that is reliable is based on controlled collection and analysis of group statistical data, and risk assessment to determine future dangerousness of a person should be conducted in the same manner in order to be valid and maintain validity of the assessment methods.  Basically he is pointing out that individual assessments conducted with limited data utilizing assessment tools like the PCL-R cannot be reliable.

Examples of misuse

Texas has a long history of utilizing the death penalty for punishment of crimes, for this reason Texas is one of the states with the highest rate of inmates on death row.  However Texas is not a model state to consider when looking for death penalty guidance.  The following example outlines procedural errors committed in Texas in its death penalty court methods.   In a local case in San Antonio, Adrian Estrada, murdered his underage girlfriend, Stephanie Sanchez (“Sanchez”) and their thirteen-week-old unborn child on December 12, 2005 (Estrada v. Texas, 2005, Case 2006-CR-2079, TX).   Estrada was found guilty and sentenced to death, based on the evidence presented in the trial and the risk assessment testimony from A.P. Merillat, a prison investigator utilized by prosecutors on the future dangerous of Estrada.  This evidence was not given by a licensed psychologist after a risk assessment, but by an untrained individual, additionally this evidence was misrepresented to the jury as those who serve in prison are classified under a G system of rating and those on good behavior could be classified as a G3 and eligible for parole in 10 years.  Yet this information was false, those who are serving life in prison with out parole will never reach a G3 level of classification (Case 2006-CR-2079, TX).  Additional finding of the appellate review for this case points out that the risk assessment was not conducted for risk assessment in prison, but risk assessment for the defendant in the outside world.  The appellate review pointed out that Estrada was only dangerous towards teenage girls, who would not be in present in the prison if given life without parole.

While this case does not specifically point out a failed risk assessment from a psychologist, it does point to the fallacy of utilizing a risk assessment in the determination of a death sentence, which the appellate court has agreed and reduced Estrada’s sentence to life in prison with out possibility of parole (TCADP, 2010).

Forensic psychologist misconduct in a death penalty is proven in Estelle v. Smith (1981) as covered by Charles Ewing (1983) in his journal article, “Dr Death” and The Case for an Ethical Ban On Psychiatric and Psychological Predictions of Dangerousness in Capitol Sentencing Proceedings, in this case Smith was convicted of killing a grocery store clerk during a robbery, prior to his court hearing he was evaluated by a psychiatrist for competency to stand trial.  During the penalty phase of the court proceedings the same psychiatrist that was utilized for the competency hearing was called to testify for the prosecution.  During his testimony this psychiatrist provided damning information to the jury that Smith was a dangerous sociopath who had no value of human life and would kill again as soon as he was given the chance.  This testimony was completely out of scope for what the psychiatrist was to assess, and violated the rights of Smith, as he was falsely believed that that information given during the competency evaluation was to remain between himself and the psychiatrist.  Currently the APA has guidelines to cover responsibilities and ethics, however in 1983 they were possibly not in existence, regardless, the psychiatrist in this situation should have known that he was not qualified to testify in the risk assessment of Smith, merely due to the fact that he was utilized in the competency assessment and was hired by the defense.  Even if the psychiatrist was able to dual hat this role and work both assessments, per the United States Supreme Court, any information that was obtained during the competency assessment is not allowed to be utilized in a risk assessment against them unless there is an equivalence of a Mirada rights read to them prior to answering any questions in the assessment (Ewing 1983).  There is clearly also the ownership of the information in this case.  If the psychiatrist was initially hired by the defense, then the defense owns the information and it can only be given to the prosecuting side by the defense, not the psychiatrist.  Forensic psychologist have a set of guidelines covering ethics and guidelines for working with the law in these types of cases, however this psychiatrist declined to follow standard APA guidelines to the detriment of the individual on trial. The checks and balances of the legal system were able to rectify this situation with the Supreme Court recognizing the misconduct and ruling accordingly.

Forensic psychologist opinions are based in scientific fact, however the courts of law do not always follow this system of utilizing empirical data for decisions.  Fields v. Brown (2007), Fields after being released from prison went on a weeklong crime spree, including the crimes of rape, robbery and murder.  The question of his guilt is not a matter of contention, the matter that the jury utilized in determining the death sentence is however.  The jury in this case was allowed to utilize the bible as a basis for the law in determining if this person deserved the death penalty, quoting “an Eye for an Eye”.  Even on appeal the 9th circuit court upheld the punishment phase stating there was no jury misconduct and that the bible was allowed for them to utilize (Baron, 2009).  However in another case the use of the bible was the basis for the case to be declared as a mistrial for jury being influenced by outside sources, see case United States v. Lara-Ramirez (2008) as cited by (Liu, 2012).  The court of law requires juries to utilize evidence presented during the case disregarding any outside influences and to a jury of the defendant’s peers. The inclusion of the bible in the cases above violates the rules of evidence, as it was not part of the court proceedings.  The inclusion of any religious materials into the court would require the defendant and the jury to be of the same religious beliefs, something that is not validated in a court case.

The examples of misuse solidify the need to redefine the courts methodology of administering the law and methods of punishment, with the option of removing punishment from the equation and focusing on rehabilitation.  The first step to correcting the system is to remove risk assessment from the punishment phase of the trial, which would completely remove the need for forensic psychologists in the punishment phase of any trial.

Elimination of Risk Assessment in Death Penalty Cases

Until the standards for risk assessment adopt the research methodology utilizing large sets of data and only bases the findings on the actual context of future dangerousness while in prison, forensic psychologists should not conduct risk assessments for sentencing portions of a death penalty.  Too many studies have shown that the current methodology of conducting individual assessments are not valid, and are based more on examiners tuition or the individual’s history, which have been proven to be inaccurate.   These same methods are utilized for sexual predators before they are released from prison, however these individuals are found to be violent they are committed to a mental health facility for treatment, while those in death penalties are murdered by the state, with the forensic psychology community being an accessory to the murder.   If we are not to conduct risk assessments for death penalty cases, what areas can the psychology community work with the courts in a positive manner?

Suggested Focus of Forensic Psychology

The field of psychology should be focused on saving lives and bettering humanity, in the field of forensic psychology we should focus on efforts on working towards ensuring that the mentally ill are not prosecuted by the law, but offered treatment to make them well.  Recently in Texas, Marvin Wilson was executed, even though psychologists testified that he had an I.Q. Score of 61 which is in the thresh-hold for mentally retarded, according to the clinical neuropsychologist of 22 years of experience who was the assessor for the court of Wilson’s mental capability (Moye, 2012).  This goes against the 2002 decision in Atkins v. Virginia where the court ruled that execution of a mentally retarded offender was against the eighth amendment, and violated the cruel and unusual punishment rule (Moye, 2012).

This is an area that the field of forensic psychology should focus its attention on, working towards legislation that strengthens the testimony of the field in the courtroom.  The APA needs to fortify its stance of allowing psychologists to testify in the court as being experts in their field and demanding that the courts either use the testimony wisely or not allow any forensic psychologist participate in any death penalty sentencing proceedings.  Decisions like the Wilson case dilute our standing in the court rooms as the courts in Texas do not seem to put value in the expert opinions offered by forensic psychologists, this should not be tolerated, as it weakens our ability to help the mentally ill.   The Wilson case relied more on information and character definition of a fictional character from a John Steinbeck novel of Mice and Men, to evaluate the mental capabilities of a mentally retarded offender (Moye, 2012). This is a dangerous precedent when we take value of a fictional work over the expert opinion of a forensic psychologist whose base of knowledge comes from empirical data.


Many people in the United States are for the death penalty, however most people do not look at the research and background data available on the death penalty to make an informed decision. Many in the world assume that if our courts were willing to put someone to death, there is a methodology for evidence and procedural law that is not error prone.  This is a logical assumption as the death penalty is final and there should be no room for error in executing the wrong person.  An integral part of the death sentencing comes from the testimony of forensic psychologists, and their expert opinion must be sound in order to condemn a person to death.  However research shows that the field of forensic psychology is conducting risk analysis for future dangerousness utilizing methodologies that numerous studies have been found to be unreliable.  Additionally further research into this subject matter reveals many areas of the law and forensic psychology that are deficient.  The law is deficient in that they the death penalty has fallen under constitutional scrutiny and that is irreversible if an error is found.  The field of psychology is deficient in that we have moved away from what Benjamin Rush started (against capital punishment), to aiding the courts in this form of punishment as opposed towards working on rehabilitation.  The participation of psychologist in the death penalty goes against what psychology is designed to do, help those that are mentally ill get better, and if not treatable work towards enriching their life.

It is for these reasons the field of forensic psychology should eliminate the risk analysis for future dangerousness from the sentencing portion of capital cases.  The APA should work with organizations like the Texas Coalition to Abolish the Death Penalty, and Amnesty International on ending this form of punishment, until we have better laws and stricter guidelines for conducting risk assessments.



Barefoot v. Estelle, 463 U.S. 880 (1980).

Baron, C. R. (2009). An eye for an eye leaves everyone blind: Fields v. brown and the case for keeping the bible out of capitol sentencing deliberations. Northwestern University School of Law, Northwestern University Law Review, 103(1), 369-399.

Cunningham, M.D. (2006). Dangerousness and Death: A Nexus in Search of Science and Reason. American Psychologist, November, 2006, 828-839.

Cunningham, M. D. (2006). Informed consent in capital sentencing evaluations: Targets and content. Professional Psychology: Research and Practice, 37(5), 452.

Cunningham, Mark D., & Reidy, T. J. (2001). A matter of life or death: special considerations and heightened practice standards in capital sentencing evaluations. Behavioral Sciences & the Law, 19(4), 473–490. doi:10.1002/bsl.460

Deathpenaltyinfo.org. (2012, July 20). States with and without the death penalty. Retrieved from http://www.deathpenaltyinfo.org/states-and-without-death-penalty

DeMatteo, D., Murrie, D. C., Anumba, N. M., & Keesler, M. E. (2011). Forensic mental health assessments in death penalty cases. New York, N.Y.: Oxford Univ Pr.

DPIC. (2012). Part I:  The History of the Death Penalty.  Retrieved from http://www.deathpenaltyinfo.org/part-i-history-death-penalty

Estrada v. Texas, 2005, Case 2006-CR-2079.

Ewing, C. P. (1983). “Dr. Death” and the case for an ethical ban on psychiatric and psychological predictions of dangerousness in capital sentencing proceedings. American Journal of Law & Medicine, 8(4), 407–428.

Furman v. Georgia, 408 U.S. 238 (1972).


Jurek v. Texas, 428 U.S. at 269 (1976).

Liu, T. (2012). The use of religious material by juries in capital sentencing deliberations: Coping with religion in the jury room. University of Detroit Mercy Law Review Online, 1(1), 1-17.

Moye, L. (2012, August 08). Supreme court must not allow executions of the mentally impaired. Retrieved from http://www.cnn.com/2012/08/08/opinion/moye-execution-mentally-disabled/index.html?hpt=hp_t3

Osborne, J. (2003, September 24). Rush, Benjamin. essays, literary, moral & philosophical. Retrieved from http://deila.dickinson.edu/theirownwords/context/0021.htm

Schopp, R. F., & Patry, M. W. (2003). The guilty mind and criminal sentencing: integrating legal and empirical inquiry as illustrated by capital sentencing. Behavioral Sciences & the Law, 21(5), 631–651. doi:10.1002/bsl.551

Shapiro, M. (2007). Overdose of Dangerousness: How Future Dangerousness Catches the Least Culpable Capital Defendants and Undermines the Rationale for the Executions It Supports. Am. J. Crim. L., 35, 145.

Sorenson, J. R., & Pilgrim, R. L. (2000). An actuarial risk assessment of violence posed by capital murder defendants. Criminology, 90(4), 1251-1270.

TCADP. (2010, June 17). Texas death sentence overturned. Retrieved from http://tcadp.org/2010/06/17/texas-death-sentence-overturned/

Unah, I., & Boger, J. C. (2002, October). Race and the process of capital punishment in the new south. Paper presented at American Political Science Association American political science association, Boston, MA.


Appendix A – DeathPenaltyInfo.org (2012)




Eighteenth Century B.C. First established death penalty laws.

Eleventh Century A.D. William the Conqueror will not allow persons to be hanged except in cases of murder.

1608 Captain George Kendall becomes the first recorded execution in the new colonies.

1632 Jane Champion becomes the first woman executed in the new colonies.

1767 Cesare Beccaria’s essay, On Crimes and Punishment, theorizes that there is no justification for the state to take a life.

Late 1700s United States abolitionist movement begins.

Early 1800sMany states reduce their number of capital crimes and build state penitentiaries.

1823-1837Over 100 of the 222 crimes punishable by death in Britain are eliminated.

1834Pennsylvania becomes the first state to move executions into correctional facilities.

1838 Discretionary death penalty statutes enacted in Tennessee.

1846 Michigan becomes the first state to abolish the death penalty for all crimes except treason.

1890William Kemmler becomes first person executed by electrocution.

Early 1900sBeginning of the “Progressive Period” of reform in the United States.

1907-1917 Nine states abolish the death penalty for all crimes or strictly limit it.

1920s – 1940s American abolition movement loses support.

1924 The use of cyanide gas introduced as an execution method

1930s Executions reach the highest levels in American history – average 167 per year.

1948 The United Nations General Assembly adopts the Universal Declaration of Human Rights proclaiming a “right to life.”

1950-1980 De facto abolition becomes the norm in Western Europe.

1958Trop v. Dulles. Eighth Amendment’s meaning contained an “evolving standard of decency that marked the progress of a maturing society.”

1966 Support of capital punishment reaches all-time low. A Gallup poll shows support of the death penalty at only 42%.

1968 Witherspoon v. Illinois. Dismissing potential jurors solely because they express opposition to the death penalty held unconstitutional.

1970 Crampton v. Ohio and McGautha v. California. The Supreme Court approves of unfettered jury discretion and non-bifurcated trials.

June 1972Furman v. Georgia. Supreme Court effectively voids 40 death penalty statutes and suspends the death penalty.

1976 Gregg v. Georgia. Guided discretion statutes are approved and the death penalty is reinstated.

January 17, 1977 Ten-year moratorium on executions ends with the execution of Gary Gilmore by firing squad in Utah.

1977 Oklahoma becomes the first state to adopt lethal injection as a means of execution.

1977 Coker v. Georgia. The death penalty is an unconstitutional punishment for the rape of an adult woman when the victim is not killed.

December 7, 1982 Charles Brooks becomes the first person executed by lethal injection.

1984 Velma Barfield becomes the first woman executed since the reinstatement of the death penalty.

1986 Ford v. Wainwright. Execution of insane persons banned.

1986 Batson v. Kentucky. Prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for his or her strikes.

1987McCleskey v. Kemp. Racial disparities not recognized as a constitutional violation of “equal protection of the law” unless intentional racial discrimination against the defendant can be shown.

1988 Thompson v. Oklahoma. Executions of offenders age fifteen and younger at the time of their crimes is unconstitutional.

1989 Stanford v. Kentucky, and Wilkins v. Missouri. Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.

1989Penry v. Lynaugh. Executing persons with “mental retardation” is not a violation of the Eighth Amendment.

1993 – Herrera v. Collins. With the absence of other constitutional grounds, new evidence of innocence is no reason for a federal court to order a new trial.

1994 President Clinton signs the Violent Crime Control and Law Enforcement Act expanding the federal death penalty.

1996 President Clinton signs the Anti-Terrorism and Effective Death Penalty Act restricting review in federal courts.

1998Karla Faye Tucker and Judi Buenoano executed. 

November 1998 – Northwestern University holds the first-ever National Conference on Wrongful Convictions and the Death Penalty. The Conference brings together 30 inmates who were freed from death row because of innocence.

January 1999 Pope John Paul II visits St. Louis, Missouri and calls for the end of the death penalty.

April 1999 U.N. Human Rights Commission Resolution Supporting Worldwide Moratorium On Executions.

June 1999 Russian President, Boris Yeltsin, signs a decree commuting the death sentences of all convicts on Russia’s death row.

January 2000 – Illinois Governor George Ryan declares a moratorium on executions and appoints a blue-ribbon commission on capital punishment to study the issue.

2002Ring v. Arizona. A death sentence where the necessary aggravating factors are determined by a judge violates a defendant’s constitutional right to a trial by jury.

2002Atkins v. Virginia. The  execution of “mentally retarded” defendants violates the Eighth Amendment’s ban on cruel and unusual punishment.

January 2003 – Gov. George Ryan grants clemency to all of the remaining 167 death row inmates in Illinois because of the flawed process that led to these sentences.

June 2004 – New York’s death penalty law declared unconstitutional by the state’s high court.

March 2005
Roper V. Simmons. The death penalty for those who commit crimes under 18 years of age is cruel and unusual punishment.

December 2007 – The New Jersey General Assembly votes to become the first state to legislatively abolish capital punishment since it was re-instated in 1976.

February 2008 – The Nebraska Supreme Court rules electrocution, the sole execution method in the state, to be cruel and unusual punishment, effectively freezing all executions in the state.

June 2008Kennedy v. Louisiana. Capital punishment cannot apply to those convicted of child rape where no death occurs.

March 2009 – Governor Bill Richardson signs legislation to repeal the death penalty in New Mexico, replacing it with life without parole.

March 2011 – Governor Pat Quinn signs legislation to repeal the death penalty in Illinois, replacing it with life without parole.

No CommentsForensic Psychology, Mental Health Law

No comments

You must be logged in to post a comment.