ABSTRACT
The death penalty has been touted for its ability to permanently incapacitate offenders. The U.S. Supreme Court, in its Eighth Amendment analysis of the constitutionality of the death penalty, confirmed incapacitation as a legitimate penological justification ( Jurek v. Texas, 1976). Some state death penalty schemes are explicitly predicated on the ability of the ultimate sanction to prevent capital defendants from committing “criminal acts of violence that constitute a continuing threat to society” (see Longmire, infra.). Most other states and the federal government allow evidence of a defendant’s potential for violent conduct in the future as a statutory or nonstatutory aggravating circumstance (Shapiro, 2009).
