Is There Such a Thing as “Future Dangerousness”? Examining Capital Sentencing Jurisprudence in India After Anil Anthony

The Supreme Court of India in Bachan Singh v. State of Punjab, listed “future dangerousness” of the accused as one of the factors the court must consider when awarding the death sentence. The burden of proof lies on the State to prove the same. This standard has been inconsistently applied in Indian capital sentencing jurisprudence. In Anil Anthony, the most recent decision on this issue, the Supreme Court held that determination of future dangerousness cannot be based on the facts of the case. However, in earlier decisions such as Gurdev Singh, the court concluded that the brutality of the crime ruled out the possibility of reform. This article argues, drawing on a comparative analysis with the United States, that though future dangerousness is an inevitable “fact in issue” for judges, the evidence that may be adduced does not meet the standards required for the imposition of the death penalty. Thus, future dangerousness as a determining factor during sentencing is a ground for challenging the constitutionality of the death penalty itself. In the interim, Anil Anthony is a better standard to apply, as compared to both Bachan Singh and Gurdev Singh, in principle as well as in practice.

Jury-Eligible Public Attitudes Toward Biological Risk Factors for the Development of Criminal Behavior and Implications for Capital Sentencing

This experiment, utilizing a sample of death-qualified jury-eligible public, examines if and how evidence on biological risk factors for criminality might affect views on the death penalty in four contexts: death penalty support, mitigation, future dangerousness, and cruel and unusual punishment. Results suggest that the presentation of evidence on biological risk factors generally, regardless of the specific risk factor, may not affect views on whether or not the use of the death penalty is appropriate. The presentation of biological risk factor evidence does not appear to be viewed by as strongly mitigating, but biological risk factors generally do have a small, yet statistically significant, impact on perceptions of moral responsibility. The presentation of evidence on certain biological risk factors also may aggravate views of future dangerousness, which could potentially increase the likelihood that the death penalty is supported. Implications of these attitudes for the criminal justice system are discussed.