Texas Capital Sentencing Procedures: The Role of the Jury and the Restraining Hand of the Expert

TLDR: 'In capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

Abstract: precludes imposition of the death penalty (vithout an individualized judgment that it is "appropriate".' Thus, "in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."2 It follows that capital sentencing procedures must "allow consideration of particularized mitigating factors,"3 for

Full text

Journal of Criminal Law and Criminology
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9901-4169/
78/6903-0300$02.00/0
TtIE
JOURNAL
OF
CRIMINAL
LAw
&
CRIINOLOGY
Vol.
69.
No.
3
Copyright
©
1978
by
Northwestern
University
School
of
Law
Printed
in
US.A.
TEXAS
CAPITAL
SENTENCING
PROCEDURES:
THE
ROLE
OF
THE
JURY
AND
THE
RESTRAINING
HAND
OF
THE
EXPERT
PEGGY
C.
DAVIS*
It
has
been
held
that
the
level
of
our
civilization
precludes
imposition
of
the
death
penalty
ivithout
an
individualized
judgment
that
it
is
"appropri-
ate".'
Thus,
"in
capital
cases
the
fundamental
respect
for
humanity
underlying
the
Eighth
Amendment
...
requires
consideration
of
the
char-
acter
and
record
of
the
individual
offender
and
the
circumstances
of
the
particular
offense
as
a
consti-
tutionally
indispensable
part
of
the
process
of
in-
flicting
the penalty
of
death.",
2
It
follows
that
cap-
ital sentencing
procedures must
"allow
considera-
tion
of
particularized
mitigating
factors,"
for
[a]
process
that
accords
no
significance
to
relevant
facets
of
the
character
and
record
of the
individual
offender
or
the
circumstances
of
the
particular
of-
fense
excludes
from
consideration
in
fixing
the
ul-
timate
punishment
of
death
the
possibility
of
com-
passionate
or
mitigating
factors
stemming
from
the
diverse
frailties
of
humankind.
It
treats
all
persons
convicted
of
a
designated
offense
not
as
uniquely
individual
human
beings,
but
as
members
of
a
faceless,
undifferentiated
mass
to
be
subjected
to
the
blind
infliction
of
the
penalty
of
death.
4
Death
sentences
are
imposed
in
Texas
whenever
a
jury
determines
that
the
defendant
(a)
was
con-
victed
of
a capital
crime
committed
deliberately
and
unreasonably
(in
view
of
any provocation)
and
(b)
is
dangerous.
5
In
Jurek
v.
Texas,
6
the
United
*
Associate
Professor,
Rutgers
University
School
of
Law
at Newark.
Research
assistance
was
provided
by
Norman
Epting,
a
second
year
student
at
Rutgers-New-
ark
School
of
Law.
'Woodson
v.
North Carolina,
428
U.S.
280, 304
(1976).
(Powell,
Stevens
&
Stewart,
J.
J.,
plurality
opin-
ion).
2
id.
3
Jurek
v.
Texas,
428
U.S.
262,
272
(1976).
4
428
U.S.
at
304.
5
(b)
...
the
court
shall
submit
the
following
issues
to
the
jury:
(1)
whether
the
conduct
of
the defendant
that
caused
the
death
of
the
deceased
was
committed
deliberately
and
with
the
reasonable
expectation
that
the
death
of
the
deceased
or
another
would
result;
(2)
whether
there
is
a probability
that
the
de-
fendant
would
commit
criminal
acts
of
violence
that
would
constitute
a
continuing
threat
to
society;
and
(3)
if
raised by
the
evidence,
whether
the
conduct
States
Supreme Court
considered
the
constitution-
ality
of
this sentencing
scheme.
The
Court
could
not approve
a
scheme,
which
sent
to
death
all
persons
guilty
of
deliberate
and
unreasonable cap-
ital
crimes.
(Indeed,
it
is
arguable
that
all
contem-
porary
capital
crimes,
by
Texas'
definition
or
any
other,
are
deliberate
and
unreasonable.)
7
Further-
more,
in
a
society
which,
by the
use
of
an insanity
defense,
protects
many
of
its
most
dangerous
mem-
bers
even from
judgments
implying
blameworthi-
ness,
the Court
apparently
could
not rule
that
the
finding
of
dangerousness
necessarily
took
sufficient
account
of
"the
character
and
record
of
the
of-
fender"
8
to
qualify
as
an
individuating
judgment
that
the death
penalty
was
"appropriate.
"
9
It
was
able,
however,
to
uphold
the
Texas
statute
on
the
theory
that
the
Texas
Court
of
Criminal
Appeals
had
construed
the
dangerousness
question
such
that
the defendant
could
bring
to
the
jury's
atten-
tion
whatever
mitigating
circumstances
he
could
show.
The
Court
recognized
that:
In
determining
the
likelihood
that the
defendant
would
be
a
continuing
threat
to
society,
the
jury
could consider
whether
the
defendant had
a
signifi-
cant
criminal
record.
It
could consider
the
range
and
severity
of
his
prior criminal
conduct.
It
could
further
look
to
the
age
of
the defendant
and
whether
or
not
at
the
time
of
the
commission
of
the
offense
he
was
acting
under
duress
or
under
the
domination
of
another.
It
could
also
consider
whether the
de-
fendant
was
under
an
extreme
form
of
mental
or
emotional
pressure,
something
less,
perhaps,
than
insanity,
but
more
than
the
emotions
of
the
average
man,
however
inflamed,
could
withstand.'o
of
the
defendant
in
killing
the
deceased
was
unrea-
sonable
in
response to
the
provocation,
if
any,
by
the
deceased....
(f)
If
the
jury
returns
an
affirmative finding
on
each
issue
submitted under
this
article,
the
court
shall sentence
the
defendant
to
death.
TEX.
CODE
CRIM.
PROC.
ANN.
art.
37.071
(Vernon
Supp.
1978).
6
428
U.S.
262.
7
See
BLACK,
CAPrITAL
PUNISHMENT:
Tl-E
INEVI
rA-
BI.rrY
OF
CAPRICE
AND
MISTAKE
57-62
(1974).
8
428
U.S.
at
287
n.7.
9
Id.
at
304.
to428
U.S.
at
272-73
(quoting
Jurek
v.
State,
522
S.W.2d
934,
939-40
(Tex.
Crim.
App.
1975)).

TEXAS CAPITAL
SENTENCING
PROCEDURES
The
determination
of
dangerousness
therefore
developed
a
mixed
use:
it
was
to
satisfy
the
legis-
lative
requirement
that
only
dangerous
offenders
be
executed,
and
it
was
to
satisfy
the
constitutional
requirement
that
the
sentencing
decision
involve
"consideration
of
particularized
mitigating.circum-
stances.""
Since
the
jury
is
to
consider
"whatever
mitigat-
ing
circumstances
[the
defendant]
may
be
able
to
show,
'
1
2
we
must
assume
that
it
may
act upon
mitigating
evidence which
is
neutral
or
positive
on
the
question
of
future
dangerousness.
To
assert
the
contrary,
one
must
be
willing
in
effect
to
preclude
individualized
judgments
and
to
preordain
execu-
tion
of
any capital
offender
who
does
not appear
innocuous.
13
There
is
an
irresistible
speculation
that
the
mixed
use
is
forced
and that
only
a
forth-
right
granting
of
authority
to
preclude
execution
on
the
basis
of
mitigating
evidence
will
meet
the
constitutional
need.
Nonetheless,
if
the
Jurek
Court's
refusal
to
approve
the
Texas
statute
on
its
face
and
its
commitment
to
particularized
capital
sentencing
judgments
are
to
have
meaning,
we
must
assume
that
the
dangerousness
determination
affords
flexibility.
We
must
assume
that
danger-
ousness
is
a
relative concept,
better
understood
perhaps
by
the
phrase
"intolerable
threat,"
so
that
mitigating
evidence
might
lead
a
jury
to find
the
risk
of
declining
to
execute
acceptable
to
a
humane
and
advanced
society.
1
4
If
this
flexibility
is
necessary
to
the
constitution-
ality
of
the
statute,
there
is
danger
in any practice
which
inhibits
the
jury
from
voting
consistently
with
its
ethical
and
social
judgment.
The
delega-
tion
to
psychiatric
experts
of
the
function
of
deter-
mining
dangerousness
is
such
a
practice.
A
DESCRIPTION
OF
THE
PRACTICE
In
its decision
upholding
the
Texas
statute,
the
Jurek
Court noted
that
the
highest
criminal
court
of
Texas
had,
in
Smith
v.
State,'
5
based
affirmance
of
a
death
sentence
upon
factors
revealed
during
the
trial
and
"the
conclusion
of
a
psychiatrist
that
he
[the
defendant]
had
a
sociopathic
personality
" Id
at
272.
1
2
Id.
13
Statutory
and
case
law
leave
it
altogether
unclear
how
dangerous an
offender
must
be
before
execution
is
permissible
under
art.
37.071
(b)
(2)
of
the
Texas
statute.
See discussion
at
notes 30-41
and
accompanying
text
infra.
4
The
alternative
notion
that
the presentation
of
mit-
igating
evidence
is
to
invite
jury
nullification presents
its
own
constitutional
problems,
See
428
U.S.
at
302-03.
"
540
S.W.2d
693
(Tex.
Grim.
App.
1976).
and
that
his
patierns
of
conduct
would
be
the
same
in
the
future
as
they
had
been
in
the
past."'
6
Analysis
of
capital
cases
reviewed
by
the Texas
Court
of
Criminal
Appeals
suggests-that
the
State
frequently
introduces psychiatric
evidence
at the
penalty
phase
of
a
capital
trial,
7
and
that
the
expert typically
presents
a
diagnosis
of
sociopath'
8
or
an
equivalent term'
9
and
an
unqualified
char-
acterization
of
dangerousness.
20
Particular
experts
appear
to
testify
regularly
for
the
State
in
these
matters.
2
'
The
psychiatric
evidence
at
times
con-
16
428
U.S.
at
273.
Smith
was
a
non-triggerman
in
a
robbery
convicted
under
the
felony
murder
rule.
He had
been
intermittently
unemployed
since
a
conviction
for
marijuana
possession,
which
had
been
his
first offense.
There
was
evidence
that
he
did,
and
evidence
that
he
did
not,
attempt
to
kill
the
victim
himself.
For
full
accounts
of
the
case,
see
Dix,
The
Death
Penalty,
"Dangerousness,"
Psychiatric
Testimony,
and
Professional
Ethics,
5
Am.
J.
GRIM.
L.
151,
153-68
(1977);
Black,
Due
Processfor
Death:
Jurek
v.
Texas
and
Companion
Cases,
26
GAutii.
U.
L.
Ri-v.
1,
14-16
(1976).
Smith's death
sentence
was
vacated
by a
federal
district
court
on
the
grounds
that
he
was
denied
due
process,
effective
assistance
of
counsel,
the
right
to
present
evidence
and
the
right
not
to
incriminate
himself
by
circumstances
surrounding
the
presentation
of
psychi-
atric
testimony
at
the
sentencing
hearing.
Smith
v.
Es-
telle, No.
CA
3-77-0544-F,
sl (N.D.
Tex.
Dec.
30,
1977).
'7
Shippy
v.
State,
556
S.W.2d
246,
253
(Tex.
Crim.
App.
1977);
Granviel
v.
State,
552
S.W.2d
107, 114
(Tex.
Grim.
App.
1977);
Battie
v.
State,
551
S.W.2d
401,
406-07 (Tex.
Grim.
App.
1977);
Moore
v.
State,
542
S.W.2d
664,
675-76
(Tex. Crim.
App.
1977);
Livingston
v.
State,
542
S.W.2d
655,661-62
(Tex.
Grim.
App.
1976);
Gholsorf
v.
State,
542
S.W.2d
395,
399-401 (Tex.
Grim.
App.
1976);
Smith
v.
State,
540
S.W.2d
693,
696
(Tex.
Grim.
App.
1976).
18
Battie
v.
State,
551
S.W.2d
at
407;
Moore
v.
State,
542
S.W.2d
at
676;
Livingston
v.
State,
542
S.W.2d
at
661;
Gholson
v.
State,
542
S.W.2d
at
399;
Smith
v.
State,
540
S.W.2d
at
696.
'
Granviel
v.
State,
552
S.W.2d
at
123
(antisocial
personality).
20
In
Shippy
the
psychiatric expert
was
unable
to assert
"a
reasonable
medical
probability"
of
dangerousness.
556
S.W.2d
at
256.
However,
in
Moore,
the
defendant
was
termed "an
absolute
threat,"
542
S.W.2d
at
676;
in
Livingston
the
testimony
was
that
the
defendant
"would
remain
a continuing threat
to
society,"
542
S.W.2d
at
661;
and
in
Gholson
the
experts'
conclusion
was
that
both
defendants
"would
continue
to
be
a danger
to
society,"
542
S.W.2d
at
399.
2'
Granviel
v.
State,
552
S.W.2d
at
114
(Dr.
Holbrook);
Moore
v.
State,
542
S.W.2d
at
676
(Drs.
Grigson
and
Holbrook);
Livingston
v.
State,
542
S.W.2d
at
661
(Drs.
Grigson
and
Holbrook);
Gholson
v.
State,
542
S.W.2d
at
399-400
(Drs.
Grigson
and
Holbrook);
Smith
v.
State,
540
S.W.2d
at
696
(Dr.
Grigson).
Even
before
the
enactment
of
the
present
Texas
capital
sentencing procedure
with
its
requirement
that
the
jury
determine
dangerousness,
the
State had
used
Dr.
Grig-
son's
testimony
that
the
defendant
was
a
sociopath
with
19781

stitutes
the
State's
entire presentation
at
sentenc-
ing.
22
Prior
convictions
are,
of
course,
introduced,
and
on
occasion
testimony
is
presented
that the
defendant's
reputation
for
being
a
peaceable
and
law
abiding
citizen
is
"bad.2
''
There
is
no
indication
in
the appellate
opinions
that
defense
counsel in
capital
cases
have
made
use
of
psychiatric
experts
at
the penalty
phase,
but
the
Texas
Court
of
Criminal
Appeals
has
reversed
a
capital
conviction
for
the
trial
judge's
failure
to
permit
the
defense to
present
a
psychiatric
wit-
ness.
24
There
is
evidence
that
the
resources
of
the
defense
are
so
limited
that
the
use
of
such
evidence
might
be
foreclosed.25
The
introduction
of
other
kinds
of
mitigating
evidence
may
also
be
signifi-
cantly
limited. For example,
as
the Court
of
Crim-
inal
Appeals
held
in Hovila
v.
State,
the
statute
"allows
a
trial
judge
broad
discretion
in
determin-
ing
just
what constitutes 'relevant
[and
therefore
"no
regard
for
societal rules,
familial
rules,
moral rules
and
legal
rules"
and
could
not
be
rehabilitated,
to
influ-
ence
a
jury
sentencing
decision.
The
testimony
was
of-
fered
to
counter
testimony
at
the
penalty
hearing
by
defendant's mother and
sister
that
they
thought
he could
be
rehabilitated.
The
jury
sentenced
him to
death.
Arm-
strong
v.
State,
502
S.W.2d
731,
735
(Tex.
Grim.
App.
1973).
In Bruce
v.
Estelle,
536
F.2d
1051
(5th
Cir.
1976),
a
homicide
conviction,
upheld
in
the
district court
by
reliance upon
the
testimony
of
Dr.
Grigson
that
the
defendant
was
a
sociopath
and
had
been
competent
to
stand
trial,
was
reversed.
The
circuit
court declared
the
"finding
that
Bruce
is
a
sociopath
clearly
erroneous"
and
noted:
Except
for
Dr.
Grigson,
all
the
physicians
who
examined
Bruce
detected
an
underlying
schizo-
phrenic
disorder....
[T]he only
dissenting expert,
Dr.
Grigson,
conducted
his
first
examination
three
and one-half
years
after
trial....
Nor
did Dr.
Grig-
son
keep
Bruce
under
lengthy
observation....
When
asked how
it
was
possible
that
the
other
experts
who
had
examined
Bruce over
a
nine-year
period
had
arrived
at
a
radically
different
diagnosis,
Dr.
Grigson's
sole
explanation
was
that
he
was
better
qualified
than
they to
determine
Bruce's
condition,
a
fact
not
established
in
the
record.
Id.
at
1060-61.
2
Moore
v.
State,
542
S.W.2d
at
676;
Livingston
v.
State,
542
S.W.2d
at
663.
2
Shippy
v.
State,
556
S.W.2d
at
256;
see
Jurek
v.
Texas,
428
U.S.
at
267.
24
Robinson
v.
State.
548
S.W.2d
63, 66
(Tex.
Grim.
App.
1977)
("Testimony
to
the contrary
on
behalf of the
State
has
been
held
admissible
at
the
punishment
stage
of
the
trial.
A
good
rule
of
evidence
works
both
ways.").
25
Freeman
v.
State,
556
S.W.2d
287,
303
(Tex.
Grim.
App.
1977)
(upholding
a
8500
expense
limit
for
investi-
gation
and
e,:perti
in
the
case
of
a
defendant
charged
with
two
counts
of
capital
murder).
admissible]
evidence'
at
the
punishment
stage.""
In
upholding
the
Texas
statute,
the
Supreme
Court
in
Jurek
seemed
to
rely
upon the
ability
of
the
Texas
Court
of
Criminal
Appeals
to
provide,
by a
process
of
review,
"a
means
to
promote
the
evenhanded,
rational,
and
consistent imposition
of
death
sentences
under
law."
2 7
However,
the
suffi-
ciency
of
the
evidence
supporting
a
death
sentence
has
been
reviewed
only
in
those
cases
in
which
the
issue
has
been
raised
by
counsels
and
the
evidence
has
never
been
found
wanting.
More
than
ten
capital
convictions have
been
affirmed
with
only
cursory
appellate
review
of
the
issue.2s
These
results
have occurred
even
though
members
of
the court
have
twice expressed
the
view
that
findings
of
dangerousness
may
not
rest exclusively
upon
psy-
chiatric
evidence
of
the
kind
typically
offered
by
the
state,s3
and
Judge
Phillips
has
announced
his
belief
that
a
review
of
the
sufficiency
of
the
evi-
26
Hovila
v.
State,
No.
56,989,
slip
op.
at
9
(Tex.
Grim.
App.
Feb.
8,
1978)
(quoting
Robinson
v.
State,
548
S.W.2d
at
65).
Hovila's
death
sentence
was
affirmed
despite
the
trial
judge's
refusal
to
permit
his
mother
to
testify
that
after
his
mistaken
release
from
custody
pend-
ing
trial he
had
returned
to
her
home
and had
stayed
out
of
trouble
and
that
four
days
later
"when
he
discovered
his
release was
a
mistake
he
returned
to
Dallas
with the
intention
of
surrendering
to
the authorities."
Id.
The
evidence ...
that
Hovila
did
not
murder
or
commit
other
criminal
acts
during
a
four-day period
would
not
show
that
he
probably
would
or
would
not
be
a continuing threat
to
society-the
trial
court's
error,
if
any,
in
refusing
to
admit
this
evi-
dence
was
not
so
harmful
as to
require
us
to
reverse.
Id.
at
10.
2'428
U.S.
at
276.
28
Shippy
v.
State,
556
S.W.2d
246, 256
(rex.
Grim.
App.
1977);
Burns
v.
State,
556
S.W.2d
270,
281
(Tex.
Grim.
App.
1977);
Brock
v.
State,
556
S.W.2d
309,
317
(Tex.
Grim.
App.
1977);
Granviel
v.
State,
552
S.W.2d
107, 123
(Tex.
Grim.
App.
1977);
Smith
v.
State,
540
S.W.2d
693, 696
(rex.
Grim.
App.
1977);
Moore
v.
State,
542
S.W.2d
664, 676
(Tex.
Grim.
App.
1976).
2
These
include Denney
v.
State,
558
S.W.2d
467
(Tex.
Grim.
App.
1977);
Freeman
v.
State,
556
S.W.2d
287
(Tex.
Grim.
App.
1977);
King
v.
State,
553
S.W.2d
105
(Tex.
Grim.
App.
1977);
Battie
v.
State,
551
S.W.2d
401
(Tex.
Grim.
App.
1977);
Collins
v.
State,
548
S.W.2d
368
(Tex.
Grim.
App.
1977);
White
v.
State,
543
S.W.2d
104
(Tex.
Grim.
App.
1977);
Woodkins
v.
State,
542
S.W.2d
855
(Tex.
Grim.
App.
1976);
Boulware
v.
State,
542
S.W.2d
677
(Tex.
Grim.
App.
1976);
Livingston
v.
State,
542
S.W.2d
655
(rex.
Grim.
App.
1976);
Gholson
v.
State,
542
S.W.2d
395
(rex.
Grim.
App.
1976).
30
Livingston
v.
State,
542
S.W.2d
at
663
(Roberts,
J.,
dissenting).
See
also
Smith
v.
State,
540
S.W.2d
at
693
(Odom,
J.,
dissenting),
withdrawn
before
publication,
reproduced
in
part
in
Dix,
The
Death
Penalty,
"Dangerous-
ness,"
Psychiatric
Testimony,
and
Professional
Ethics,
5
AM. J.
GRIM.
L.
151,
163-65.
[Vol. 69
PEGGY
C
DA
VIS

TEXAS
CAPITAL
SENTENCING
PROCEDURES
dence
supporting
a
death
sentence
is
constitution-
ally
required.
1
The
Court
of
Criminal
Appeals
has
declined
to
-refine
the
rather
vague
statutory
language
setting
forth
the
concept
of
dangerousness.
Instead,
the
jury
is
typically
asked
to
determine
"whether
there
is
a
probability
that
the defendant
would commit
criminal
acts
of
violence
that
would
constitute
a
continuing
threat
to
society.
'
32
For instance,
in
King
v. Statess
the court
was asked
to
set
aside
a
death
sentence
for
the
trial
judge's
refusal
to
define
the
terms
"deliberately,"
"probability,"
"'criminal
acts
of
violence,"
and
"continuing
threat
to
soci-
ety."
''
The
court
noted
that
"the
definition
of
common
terms
and
phrases"
is
not
required
in
a
charge
to
the
jury
and
that
"[i]nJurek
v.
Texas
....
the
Supreme
Court
of
the
United
States concluded
that
the
submission
of
the
issues
provided
by
Art.
37.071,
supra,
constitutionally
guided
the
jury's
determination
of
the
punishment
issues.
No
special
definitions
of
the
terms
of that
statute
were re-
quired.
'' a
s
The
court
therefore held
"that
[it] ...
need
not
provide
special
definitions
for
these
terms
in
its
charge
to
the
jury
during
the
punishment
stage
of
a
capital
murder
trial.
'' a6
The
court
had
held
similarly
with
regard
to
the
term
"probabil-
ity"
and
defined
it
as
follows:
"Likelihood"
is
one
of
the
definitions
for
"probabil-
ity"
in
Webster's
Unabridged
Dictionary,
2d
Ed.
(1948).
Other
definitions
of
the
word
probability
include "reasonable
ground
for
presuming,"
"true,
real,
or
likely
to
occur,"
"a
conclusion
that
is
not
proof
but
follows
logically
from
such
evidence
as
is
available,"
[and]
"in
the
doctrine
of
chance,
the
likelihood
of
the
occurrence
of
any
particular
form
of
an
event."37
31
King
v.
State,
553
S.W.2d
105,
108
(rex.
Crim.
App.
1977)
(Phillips,
J.,
concurring).
Judge
Phillips
re-
viewed
the
evidence
here
and
found
it
sufficient;
he
has
not conducted
such
a
review
in
subsequent
capital
cases
affirmed
by
the
court.
32TEx.
CODE
CRIM.
PROc.
ANN.
art.
37.071
(b)
(2)
(Vernon
Supp.
1978).
3
553 S.W.2d
105.
4Id.
at
107.
35
Id.
36Id.
3
Granviel
v.
State,
552
S.W.2d
at
117
n.6.
The
failure
to
iarrow
these
terms
presents
independent
constitu-
tional
problems.
The
United
States
Court
of
Appeals
for
the
District
of
Columbia
has
noted
that
"when
a
deter-
mination
of
'dangerousness'
will
result
in
a
deprivation
of
liberty,
no
court can
afford
to
ignore
the
very
real
constitutional
problems
surrounding
incarceration
pred-
icated
only
upon
a
supposed
propensity
to
commit
crim-
inal
acts."
Cross
v.
Harris,
418
F.2d
1095,
1101
(D.C.
Cir.
1969)
(emphasis
added).
The
court
found
it
necessary
to'
Relying
upon
the
Kingjudgment
that
the
language
of
the
statute
is
"simple"
and
uses
terms
the
jury
is
"supposed
to
know,
'
38
the
Texas
court
has
held
that
the
defense
has
no
right
to
inform
its
judgment
regarding
the
use
of
peremptory
challenges
by
asking
prospective
jurors
such questions
as
whether
they
would
deem
a
crime
against
property an
"act
of
violence.,
3
9
The
jury
which
must
decide
the
dangerousness
question,
and
with it
the
fate
of
the capital
defend-
ant,
is
purged
of
individuals
unable
to
swear
that
"the
mandatory
penalty
of
death
or
imprisonment
for
life
will
not
affect
[their]
deliberations
on
any
issue
of
fact."
°
It
is,
then,
to
a
jury
sworn
to
dispassionate
objectivity
that
the
medical
expert
presents
testimony
that
the
defendant
is
a
socio-
path
and
the
ominous
conclusion
that
he
will
"constitute
a
continuing
threat
to
society."
This
expert testimony
is
suspect
on
three
grounds. First,
mental
health
professionals
are
no-
toriously
bad
at
predicting
dangerousness
and
in-
variably
err
on
the
side
of
overinclusion.
5
Al-
construe
a
statute
requiring
commitment
of
dangerous
sex
offenders to
"provide
an
analytical
framework
to
guide
lower
courts
in
applying
the
conclusory
term
'dan-
gerous
to others'." For,
[w]ithout some
such
framework,
"dangerous"
could
readily
become
a
term
of
art
describing anyone
whom
we
would,
all
things
considered,
prefer not
to
encounter
on
the
streets.
We
did
not suppose
that
Congress
had
used
"dangerous"
in
any
such
Pick-
wickian
sense.
Rather,
we
supposed
that
Congress
intended
the
courts
to
refine
the
unavoidably
vague
concept
of
"dangerousness"
on
a
case-by-case
basis,
in
the traditional
common-law
fashion.
Ia
at
1099.
38
Battie
v.
State,
551
S.W.2d
at
404.
9
I
at
405.
"°TEx.
PENAL
CODE
ANN.
tit.
3,
§
12.31
(Vernon
1974).
The
Court
of
Criminal
Appeals
regards
inability
to
take
this
oath
an independent
ground
for
exclusion
of
a
prospective
juror.
This
would
seem
to
violate
the
prin-
ciple,
established
in
Witherspoon
v.
Illinois,
391
U.S.
510
(1968),
that
exclusion
of
a
juror
opposed
to
the
death
penalty
is
constitutionally
impermissible
absent
an
un-
mistakably
clear
expression
of
an inability
to
follow
the
law.
Freeman
v.
State,
556
S.W.2d
at
297;
Bums
v.
State,
556
S.W.2d
at
275-79;
Shippy
v.
State,
556
S.W.2d
at
251;
Moore
v.
State,
542
S.W.2d
at
667-72.
"'The
evidence
is
reviewed
in
SrONE,
MENTAL
HEALTH
AND
LAW:
A
SYSTEM
IN
TRANSfrION
25-40'
(1975),
with
the
conclusion
that
"[t]he
mental
health
professionals
...
simply
have
no
demonstrated
capacity
to
generate
even
a
cutting
line
that
will
confine
more
true
than
false
positives."
Ia
at
33.
See
also
Ennis
&
Litwack,
Psychiatry
and
the
Presumption
of
Expertise:
Flipping
Coins
in
the
Courtroom,
62
CALIF.
L.
REv.
693
(1974);
Dershowitz,
The
Law
of
Dangerousness:
Some
Fictions
About
Predictions,
23
J.
LEGAL
EDuC.
24
(1970).

Frequently asked questions

Q1. What is the definition of a person who is unable to feel guilt or learn from experience?

They are grossly selfish, callous, irresponsible, impulsive, and unable to feel guilt or to learn from experience and punish, ment. 

Q2. What is the common term used in psychiatric terms?

The terms sociopath, psychopath and antisocial personality are used interchangeably in psychiatric and psy-versial and perhaps the least precise in psychiatric nomenclature. 

Q3. What is the need for judicial supervision in insanity cases?

The need for judicial supervision is particularly urgent in insanity cases, where the adversary system may malfunction because of the inexperience of counsel, the complexity of the issue, or both. 

Q4. What did the authors suppose Congress intended the courts to refine?

the authors supposed that Congress intended the courts to refine the unavoidably vague concept of "dangerousness" on a case-by-case basis, in the traditional common-law fashion. 

Q5. What is the evidence to a jury sworn to dispassionate objectivity?

It is, then, to a jury sworn to dispassionate objectivity that the medical expert presents testimony that the defendant is a sociopath and the ominous conclusion that he will "constitute a continuing threat to society. 

Q6. How many of the sociopaths in this study have been convicted?

6 7If psychiatric experts in Texas capital sentencing proceedings believe, as they seem to,6 that all "severe" sociopaths are dangerous, they may, then, overpredict simple recidivism in one out of four cases. 

Q7. what is the reason the court decided to hang the defendant?

What The authorcannot understand is how the Court could first decide-as it did-that [the defendant's] mental disorder should be considered in mitigation of punishment, and that he should not be hanged; and then sentence him to be hanged anyhow, not for his crime, but because the penitentiary is the only place to which he could be committed.