Ending Death by Dangerousness: A Path to the De Facto Abolition of the Death Penalty

The use of the death penalty—both in number of new death sentences and actual executions—has been steadily decreasing during the past decade. Two phenomena largely explain this decrease: (1) the continued discovery of individuals on death row who are actually innocent of the crimes they allegedly committed, and (2) the increasing use of life without parole as a sentencing alternative to the death penalty. Abolitionists have successfully seized upon the first of these in raising continuing doubts about the use of the death penalty. This Article proposes a deeper exploration of the second—the availability of life without parole—to suggest a second line of attack on capital punishment in an effort to further de facto abolition.

While the Supreme Court and the academic literature continue to debate whether the purposes of retribution and deterrence justify the use of the death penalty, the practical reality is that the strongest determinant of whether an individual receives the death penalty is his perceived future dangerousness to society. Given the overwhelming influence of future dangerousness in death penalty determinations, this Article argues that a wholesale removal from capital cases of the concept of future dangerousness, a concept largely irrelevant in light of the availability of life without parole (and solitary confinement), would approach de facto abolition of the death penalty.

Part I of the Article describes the dominant role that future dangerousness plays in capital cases. Part II explains why dangerousness ought to be excluded from capital cases as a commonsensical, empirical, and jurisprudential matter. Finally, Part III outlines the inroads achieved by the widespread implementation of life without parole, and suggests a series of possible attacks on the use of dangerousness in capital cases to continue the move toward de facto abolition.