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Publication Date

12-2021

Abstract

Since the beginning of the modern Death Penalty Era, one of the most important—and fraught—areas of capital punishment has been the so-called “future dangerousness” determination, a threshold inquiry that literally rests the defendant’s life or death on jurors’ predictions of the future. An overwhelming majority of capital executions have occurred in jurisdictions that embrace the perceived legitimacy of the future dangerousness inquiry, despite its obvious flaws and potential connection to the age-old racial disparities that continue to plague capital punishment. This Article presents, and empirically tests, the hypothesis that jurors’ future dangerousness assessments cannot be separated from their racial and ethnic biases held against Black and Latino defendants. It does so by examining two pathways whereby future dangerousness judgments may function in inappropriately racialized ways: First, it studies the domain of implicit bias and investigates, using Implicit Association Tests (IATs) we designed, whether jurors implicitly and automatically associate future danger with Black and Latino men, and conversely, associate future safety with White men. Second, it considers the domain of explicit bias and measures whether jurors’ self-reported racial animus may function as a driving force in future dangerousness judgments. The results of the studies show that, indeed, both implicit and explicit biases are inexorably linked with future dangerous determinations. After presenting the studies in detail, the Article situates the findings within death penalty jurisprudence and concludes that future dangerousness can no longer pass constitutional muster as a mandatory or permissible factor in capital cases.

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