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30 Law & Psychol. Rev. 57 (2006)
Two-Edged Swords, Dangerousness, and Expert Testimony in Capital Sentencing

handle is hein.journals/lpsyr30 and id is 61 raw text is: Two-EDGED SwoRDS, DANGEROUSNESS, AND EXPERT TESTIMONY IN CAPITAL SENTENCING Robert F. Schopp* I. INTRODUCTION A series of court opinions and a related line of commentary draw at- tention to the need for further inquiry regarding the defensible interpreta- tion and application of dangerousness as a consideration in capital sentenc- ing. The court opinions raise questions regarding the manner in which sentencers should interpret and weigh dangerousness as a factor in capital sentencing. In Penry v. Lynaugh,' the Supreme Court overturned the capital sentence of a mentally retarded offender under the special issue sentencing standard in force in Texas at that time.2 This procedure re- quired that the sentencing jury answer two sentencing questions regarding deliberateness and dangerousness. The Court's reasoning included refer- ence to the possibility that the evidence of mental retardation that Penry offered as mitigating might function as a two-edged sword in that it might be seen as mitigating regarding culpability and as aggravating regarding dangerousness, but the Court's reasoning regarding this matter was not entirely clear.3 The majority opinion in Atkins v. Virginia referred to the Penry con- cern that proffered mitigating evidence regarding mental retardation might function as a two-edged sword.4 The opinion provides no reasoning that explains why such a finding would violate Eighth Amendment doctrine. Rather, the opinion simply refers back to the Penry opinion.5 Similarly, the Supreme Court of Missouri applied an analysis modeled on the Atkins opinion to a juvenile offender.6 The opinion includes reference to the At- kins opinion's concern regarding the possibility that evidence offered as * Professor of Law and Professor of Psychology and Philosophy at the University of Nebraska. I am grateful for thoughtful comments from my colleagues at the University of Nebraska and from participants in annual meetings of the American Psychology-Law Society and of the Western Society of Criminology. 1. 492 U.S. 302 (1989). 2. Id. The holding of this case regarding capital punishment of mentally retarded offenders was overturned in Atkins v. Virginia, 536 U.S. 304 (2002). In this Article, I address the reasoning regard- ing evidence that can constitute a two-edged sword rather than the holding regarding capital punish- ment and mentally retarded offenders. 3. Id. at 322-28. 4. 536 U.S. 304, 321 (2002). 5. Id. at 321. 6. Simmons v. Roper, 112 S.W.3d 397 (2003).

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