What is 'future dangerousness'?

As a Reprieve Fellow in Texas, I work with prisoners who - like Willie Earl Pondexter, Jr. - are sentenced to death on the sole basis of 'future-dangerousness'.

The long history of the death penalty is rooted in our belief that the worst of the worst ought to be executed, not only for retribution but for protection. It is because of the latter that capital punishment eligibility in Texas revolves around a single question: does a man who commits a capital crime pose a future danger?

This is the question at the heart of the case of Mr. Willie Earl Pondexter, Jr., who was sentenced to die by lethal injection on March 3, 2009. The jury that sentenced Mr. Pondexter to death was constrained by the mandated statutory questions. One of those questions required the jury to determine that there was a probability Mr. Pondexter would commit criminal acts of violence and pose a continuing threat to society. The jury answered this question affirmatively, forcing the court to impose a sentence of death.

More than 14 years passed after the jury's prediction, during which the State incarcerated him without a single criminal act of violence. At the time the jury made its assessment of the danger posed by Mr. Pondexter, he was a remorseless, unloved young man, who had been involved in a violent and appalling crime. More than a decade later, he was a completely rehabilitated, changed man, who did not engender even an ounce of potential violence. A jury reviewing the vast evidence accumulated since the time of Mr. Pondexter’s sentencing would have concluded that he no longer posed the threat predicted so many years before.

Mr. Pondexter’s case highlights just one of the grave problems associated with the use of prediction-based aggravators: they require a jury to render a determination about the future behavior of a defendant, “as if time froze at the time of sentencing.” In other words, a future-dangerousness determination cannot allow for the inevitable changes that take place with the passage of time. When the State predicates a death sentence solely on predictions of future violence, the United States Constitution prohibits the execution, as the subsequent change in circumstances “casts doubt on whether the sole aggravating factor supporting the death sentence exists.” 

Challenges to these problems must come from the lawyers who handle capital cases on the ground. The Future Dangerousness Project, funded by Reprieve, seeks to advance challenges to the use of the future dangerousness aggravator in Texas’s capital sentencing scheme. Through post-conviction litigation, trial motions practice and regional trainings, the Project gives lawyers the tools necessary to combat the use of this insidious legal instrument, from pre-trial to execution.

In the case of Mr. Pondexter, the Project was able to aid in both clemency and post-conviction proceedings, arguing to both judicial and executive bodies the problems inherent to the future dangerousness factor. Unfortunately for Mr. Pondexter, the non-violent man sentenced to die at the hand of the State of Texas, his case serves as a tragic example of why false predictions of future dangerousness can be fatal mistakes.

Don't miss 'Explorer: Inside Death Row' on National Geographic this Saturday 18 July, where you can watch our efforts to save Willie Earl Pondexter Jr.'s life.

Read an article in the Texas Observer about the environment of intimidation at Willie Earl Pondexter's prison.