If a jury convicts a defendant of capital murder in Texas, state law requires the trial court to conduct a separate sentencing proceeding before that same jury. This proceeding is generally referred to as the “sentencing phase” of the trial. This phase allows both the prosecution and defense to present any relevant evidence in support of or in opposition to the death penalty. The jury is then presented with two—sometimes three—questions that must be answered before it can impose a death sentence.


In 1972, the U.S. Supreme Court in Furman v. Georgia effectively declared the death penalty unconstitutional as it was then administered. Furman was a complex decision—all nine justices issued their own written opinions. None of the opinions issued by the five majority justices concurred for the same reasons. This lack of constitutional consensus ultimately proved difficult for the states that wanted to create new, constitutionally acceptable death penalty statutes in the wake of Furman.


For example, two of the majority justices found the death penalty violated Eighth Amendment provisions of the U.S. Constitution prohibiting cruel and unusual punishment. Three of the justices stopped short of making that finding but found that the arbitrary and capricious manner in which juries were allowed to reach a death penalty verdict was unconstitutional.


Most states, including Texas, concluded from Furman that at least seven justices (the four dissenters and the three in the majority) believed the death penalty was constitutional so long as the statutes permitting it were properly fashioned. Furman was a constitutional license to restore the death penalty.


Texas rather quickly enacted two statutes—Arts. 12.31 and 37.071 of the Texas Code of Criminal Procedure—to reform the state’s use of the death penalty in compliance with Furman.


Article 12.31 defines the different types of murder, the circumstances under which they are committed, and the penalty available for each type of murder. Article 37.071 defines the mandates of the sentencing phase of a capital murder trial. Regarding the latter, the trial judge conveys to the jury three issues that it must unanimously answer “yes” to before a death penalty verdict can be reached.


Those issues are: 1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; 2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and 3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.


In April 1975, the Texas Court of Criminal Appeals upheld the provisions of both article 12.31 and 37.071. That decision was affirmed by the U.S. Supreme Court in March 1976. Four months later, the Supreme Court in Gregg v. Georgia specifically and quite unequivocally upheld the post-Furman death penalty statutes and their sentencing schemes in several states, including Texas.


The Gregg decision officially ended the quasi-official moratorium on the death penalty that had been in place since 1968. The first post-Gregg execution was carried out in Utah against Gary Gilmore on January 17, 1977.


Since the Gilmore execution, there have been nearly 1600 more executions carried out in 34 death penalty-approved states (and the federal government), with Texas leading the way with 590 of those executions. In each of those 590 Texas executions, juries had to make, without any actual scientific data, an explicit finding that the defendants in those cases posed “future dangerousness” to either or both the free world and prison society.


Because the prediction of future dangerousness is the worst of the worst junk science evidence, defense attorneys have railed against this issue since Texas carried out its first post-Furman execution in December 1982. Because there is no standard, not even a semblance of a criteria, Texas prosecutors have been able to convince juries, especially those in rural counties, that such acts by a defendant as “tearing things up” or “destroying a mattress” were “acts of violence” sufficient to prove future dangerousness warranting the death penalty.


Beyond the lack of any support from scientific data, the Texas Coalition to Abolish the Death Penalty has for years pointed to the irrefutable correlation between “race and future dangerousness” in the state’s death penalty sentencing scheme. There is no question that race is a driving force behind the death penalty in Texas, with predominantly white jurors seeing Black or Brown defendants as those who most surely pose a “future dangerousness” threat.


On June 26, 2024, Texas executed Ramiro Gonzales, who was convicted of capital murder in 2006 and sentenced to death based primarily on a “future dangerousness” opinion given to the jury by a psychiatrist named Dr. Edward Gripon. The doctor, a “future dangerousness” bounty hunter for state prosecutors with at least 25 “future dangerousness” proclamations to his credit, told Gonzales’ jury that the defendant “would pose a risk to continue threats or acts of violence” either in a free or imprisoned society.


Gonzales, however, became one of Texas’ most rehabilitated inmates from the daunting confines of death row. In fact, two years ago, even Gripon conceded that his 2006 “future dangerousness” diagnosis was no longer applicable to Gonzales.


“At the time of the commission of this offense,” Gripon explained, “Gonzales was barely 18 years old. With the passage of time and significant maturity he is now a significantly different person both mentally and emotionally. This represents a very positive change for the better.”


Gripon then concluded that Gonzales’ death sentence could be commuted to life imprisonment without any problem.


That changed diagnosis, however, did not save Gonzales from execution. But it does prove the fallacy of “future dangerousness” testimony in capital murder trials.


Ramiro Gonzales, 41, was executed by lethal injection at 6:50 p.m. CT, according to the Texas Department of Criminal Justice. He became the second inmate put to death in the state this year and the eighth in the nation.”