Virginia’s Redefinition of the “FutureDangerousness” Aggravating Factor:Unprecedented, Unfounded, andUnconstitutional

Table of ContentsI. Introduction 1888II. Future Dangerousness as a Constitutionally Acceptable Aggravating Factor 1895III. Prison Violence Risk Assessment 1898A. The Prosecution's Methods of Predicting Future Dangerousness 1899B. The Jury's Tendency to Overpredict 1901C. The Defense's Methods of Predicting Future Dangerousness 1903IV. Future Dangerousness and Risk Assessment in Virginia Capital Cases 1906A. In the Beginning: Smith v. Commonwealth 1907B. Abolition of Parole in Virginia Creates a New "Society" 19091. An Attempt to Introduce General Prison Evidence Through a Redefinition of "Society" 19102. An Attempt to Introduce General Prison Evidence as Mitigating Evidence 19113. An Attempt to Introduce General Prison Evidence as Rebuttal Evidence 1912C. Reforming the Defense Strategy 19131. Juniper v. Commonwealth 19142. Porter v. Commonwealth 19143. Morvav. Commonwealth 1916D. Where We End Up: Lawlor v. Commonwealth 19181. Lawlor's Risk Assessment as Rebuttal Evidence 19202. Lawlor's Risk Assessment as Mitigating Evidence 1922V. Argument 1923A. The Realities of Lawlor 19241. Total Exclusion of Base Rate-Focused Risk Assessments 19242. Virginia's Future Dangerousness Aggravating Factor No Longer Requires Juries to Perform Forward-Looking Risk Assessments 19273. Virginia's Redefinition Diverges from Every Other Jurisdiction 1928B. The Troubling Implications of Lawlor 19311. The Redefined Statute Violates the Eighth Amendment's Prohibition Against the Arbitrary Implementation of the Death Penalty 19312. The Redefined Statute Violates the Eighth Amendment's Mandate that the Defendant Has the Right to Present All Mitigating Evidence 1933C. An Alternative Reading of Law lor 1935VI. Conclusion 1937I. IntroductionImagine you are a juror in a Virginia capital murder trial. It has reached the penalty phase of trial, the guilt phase having concluded with a conviction of first-degree murder. There was little question about the defendant's culpability-he had confessed to the killing-and a guilty verdict was a relatively straightforward finding. But now you and your eleven co-jurors must confront a far graver issue than the question of guilt. It is a question of life or death: should the defendant spend the rest of his life behind bars, or face execution?Arguing for a life sentence, the defense describes the defendant's tragic past and reveals the emotional and physical abuse that the defendant endured throughout his childhood. The defendant's mentally ill mother constantly berated the defendant and his sister, screaming at them things such as "I wish I'd never had you" and "you're not worth a shit." She brutally beat the defendant whenever she felt like it, once so uncontrollably that his sister thought their mother was going to kill him. The defendant's father, a serial pedophile, routinely sexually assaulted the defendant's sister and younger cousins. When the defendant gained enough courage to defend his sister against one of their father's attacks, his father forced him at gunpoint to strip to his underwear and kicked him out of the house for good. He was sixteen years old.On the streets with no one to turn to, the defendant fell hard into drug and alcohol addiction. With addiction came a life of crime and impulsive violence-offenses which the defendant committed only when he was under the influence of drugs, alcohol, or both. …