Preventive detention and execution

In a series of cases decided over the past decade, the U.S. Supreme Court has consistently held that laws providing for both preventive detention and preventive execution do not violate Constitutional guarantees. Preventive detention and preventive execution share a common method and goal: Determine which individuals pose a threat to society and then remove those persons from society (i.e., incarcerate them) or-if they have also been convicted of first degree murder-execute them. In each of these cases, the Court has been presented with behavioral science data indicating that most predictions of dangerousness-anywhere from 51% to 95%-prove to be wrong. This article describes the relevant data and the Court's response to those data, then considers why the Court has responded as it has, what the Court's response may mean with regard to the future role of behavioral science data in Constitutional litigation regarding the rights of those accused or convicted of crimes, and what, if anything, behavioral scientists might do to enhance the utility and influence of empirical data in such litigation.