Barefoot v. Estelle, a death penalty appeal arising from a case decided by the Texas Court of Criminal Appeals,[200] represents an extreme case of restricting an individual's liberty for the safety of society.[201] Barefoot is a prevention case because the underlying substantive issue was whether Texas had proved that Thomas Barefoot was so dangerous to society as to merit the death penalty.[202] The trial court used the "beyond a reasonable doubt"' standard, which is constitutionally required in *360 criminal adjudications.[203] However, this provided scant protection for Barefoot because the state was only required to prove that there was some "probability"' that Barefoot posed a risk of future dangerousness.[204] In effect, the state's burden of proof was so slight that Barefoot could have been put to death as a regulatory restriction.[205]

Barefoot had burned down a bar and then shot and killed a police officer investigating the arson. The jury convicted him of capital murder of a police officer. After the conviction phase of the trial, the same jury heard evidence on the question of whether Barefoot should be put to death.[206] To sentence a person to death in Texas, the state must show: 1) that the killing was intentional;[207] 2) that it was without reasonable provocation;[208] and 3) that the defendant poses a threat of future dangerousness.[209] The state must prove each of these elements beyond a reasonable doubt to satisfy traditional procedural due process concerns.[210]

The state relied on psychiatric testimony to establish future dangerousness, calling two psychiatrists, Drs. John Holbrook and James Grigson, to testify at the punishment stage of the trial. Each doctor was posed a hypothetical fact situation based on the evidence in the case and asked if the individual described in that question would probably commit future acts of violence that would constitute a continuing threat to society. Each doctor testified that, in his opinion, the hypothetical criminal would continue to be dangerous.[211] In addition to this expert testimony, numerous lay witnesses testified that "'appellant's reputation in their *361 communities for being a peaceful and law-abiding citizen was bad."'[212] The judge then sentenced Barefoot to death.

In his appeal to the Court of Criminal Appeals, the defendant raised several questions about the conduct of his trial.[213] The issue that is central to the jurisprudence of prevention is the effect of the term "probability"' in the test for future dangerousness. Defendant argued that thisterm should have been defined in the jury instructions.[214] In addition, defendant asserted that, since they had not examined him, the psychiatrists should have been precluded from testifying in response to a general hypothetical.[215] He also questioned the qualifications of psychiatrists as a group to predict dangerousness.[216] The Court of Criminal Appeals rejected all of appellant's points of error.[217]

The United States Supreme Court also rejected the defendant's challenge that psychiatrists as a group are incompetent to determine dangerousness to a sufficient degree of certainty.[218] The Court reasoned that psychiatrists are no less reliable than laypersons, and that lay testimony is sufficient to establish future dangerousness.[219] The Court addressed the issue of the degree of accuracy necessary for determining dangerousness:

Dr. John Monahan, upon whom one of the State's experts relied as "the leading thinker on this issue"' concluded that "the 'best' clinical research currently in existence indicates that psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period among institutionalized populations that had both committed violence in *362 the past . . . and who were diagnosed as mentally ill."'[220]

The Court pointed out that Dr. Monahan did believe there were circumstances in which prediction is "empirically possible and ethically appropriate,"'[221] but it is difficult to accept that the determination in Barefoot would fit these circumstances.[222] The experts did not even examine defendant, but instead rendered their opinions based on hypothetical questions.[223] The Court held that the use of hypothetical questions to establish future dangerousness is proper[224] because the admissibility of such testimony is supported by the Federal Rules of Evidence.[225] The Court refused to find that death penalty cases pose special evidentiary problems.[226] The Court's approach imposed upon the defendant the harsh burden of convincing a lay jury[227] to disregard the expert testimony of the state's psychiatrists.[228]

*363 Barefoot is an extreme example of judicial deference to expert decisionmaking. The Texas legislature avoided due process challenges to its death penalty guidelines by preserving the facade that a jury may only recommend death after determining beyond a reasonable doubt that the defendant posed a future danger,[229] while, in reality, an expert determines "whether there is a probability"' that the defendant will be dangerous in the future.[230] Since, on the face of the statute, any probability would do, it is the expert who effectively decides whether the defendant is dangerous enough to die. The jury only decides whether it believes the expert. Thus, "beyond a reasonable doubt"' is transformed into an "any evidence at all"' standard.[231]

Putting aside the policy that death penalty cases deserve special standards,[232] Barefoot allows a person to be put to death on little more[233] than a chance that he or she poses a threat to society.[234] While this is an extreme result, it may nonetheless be rational. The issue of future dangerousness is not reached until the defendant is convicted with full due process protections of capital murder. Constitutionally, Texas could sentence the defendant to death without further findings. Instead, it requires the defendant's life to be balanced against the potential threat that he or she poses to society. Balancing individual liberty against potential *364 harm to society is the fundamental expert determination in public health jurisprudence.

Harsh as the result in Barefoot is, the expert decision making occurred only after a full criminal trial. In the subsequent prevention cases, beginning with Schall v. Martin, the Supreme Court extended the role of the expert to the determination of whether a person should be confined at all. These cases have erased the bright line between dangerousness based on criminal activity and dangerousness based on health and safety concerns. The Supreme Court based its abandonment of this traditional distinction on the application a societal self-defense analysis.

[199] 463 U.S. 880, reh'g denied, 464 U.S. 874 (1983).

[200] Barefoot v. State, 596 S.W.2d 875 (Tex. Crim. 1980), reh'g denied. At the time this case was heard, the Court of Criminal Appeals was the court of last resort for criminal cases in Texas.

[201] This discussion is not meant to endorse the Supreme Court's decision in Barefoot.

[202] Barefoot v. State, 463 U.S. at 888.

[203] Texas Code Crim. Proc. Ann. art. 37.071 (Vernon 1981), requires that the jury find: "(c) The state must prove each issue submitted beyond a reasonable doubt, and the jury shall return a special verdict of 'yes' or 'no' on each issue submitted."

[204] "Appellant contends that the trial court erred by refusing to define 'probability' in its charge to the jury at the punishment stage of the trial. This Court has previously held that such a definition is not required."' Barefoot v. State, 596 S.W.2d at 887.

[205] This case only applies to persons convicted of capital murder. Conversely, under Texas law a capital murderer may not be put to death unless the state can establish future dangerousness. By allowing Texas to use a regulatory standard of proof for this determination, the Supreme Court is endorsing regulatory executions.

[206] Barefoot v. Estelle, 463 U.S. at 883-84 & n.1.

[207] Texas Code Crim. Proc. Ann., art. 37.071 (Vernon 1981), requires that the jury find: "(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."

[208] Texas Code Crim. Proc. Ann., art. 37.071 (Vernon 1981), requires that the jury find: "(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."

[209] Texas Code Crim. Proc. Ann., art. 37.071 (Vernon 1981), requires that the jury find: "(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society"'.

[210] See supra note 138 and accompanying text.

[211] Barefoot v. State, 596 S.W.2d at 887.

[212] Id. at 888.

[213] The Texas Court of Criminal Appeal noted:

Appellant contends that the trial court erred by failing to instruct the jury at the guilt-innocence stage of the trial on the law of circumstantial evidence, denying his motion for change of venue, overruling his challenges for cause of three prospective jurors, refusing his request for additional peremptory challenges, admitting evidence of extraneous offenses, failing to define "probability"' in the charge at the punishment stage, and overruling his objections to the testimony of two witnesses as to the probability he would commit acts of violence in the future. Appellant also contends that art. 37.071, V.A.C.C.P., is unconstitutionally vague.

Id. at 878.

[214] The Court of Criminal Appeals, relying on King v. State, 553 S.W.2d 105 (Tex. Crim. App. 1977), affirmed the trial court's refusal to give an instruction defining probability. 596 S.W.2d at 878.

[215] Id. at 887. In his appeal to the U.S. Supreme Court, the defendant also attacked the authority of psychiatrists to determine future dangerousness. See Barefoot, 463 U.S. at 896-97.

[216] Id.

[217] Id. at 889: "The evidence that we have already summarized in this opinion is amply sufficient to support the jury's verdict and the court did not err in overruling appellant's motion for an instructed verdict."

[218] Id. at 896-97.

[219] Id. (citing with approval Jurek v. Texas, 428 U.S. 262, 274-76 (1976)).

[220] Barefoot, 463 U.S. at 899-900 n.7 (citing "Tr. of Hearing"' at 195 (quoting J. MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAVIOR 47-49 (1981) (emphasis in original). The United States Supreme Court found the issue of the proper standard of proof for future dangerousness to be of secondary importance. In the Court's view, the primary issue was whether the handling of the habeas corpus petition in this death penalty case had been proper. Most of the Supreme Court's opinion is concerned with "the question presented by the application, namely, the appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death-sentenced federal habeas corpus petitioner . . . . " Id. at 887 (quoting Barefoot, 459 U.S. 1169 (1983)).

[221] Barefoot, 463 U.S. at 889-901 n.7.

[222] "Doctor Grigson . . . has been used by the state of Texas for dozens of sentencing hearings in death penalty cases and virtually each time had testified that the defendant was incorrigibly dangerous, thus permitting them to be sentenced to death. Texas newspapers have labeled him 'Doctor Death."' Reuters News Service, May 18, 1981.

[223] Barefoot, 463 U.S. at 885.

[224] Id. at 903 (citing Spring Co. v. Edgar, 99 U.S. 645, 657 (1879) (use of hypothetical questions in place of testimony based on expert's personal evaluation of evidence is proper)).

[225] 463 U.S. at 904.

[226] "Although cases such as this involve the death penalty, we perceive no constitutional barrier to applying the ordinary rules of evidence governing the use of expert testimony."' Id.

[227] Texas provides indigents $500 for the costs of investigation and engaging expert witnesses. Id. at 899 n.5. At the time the Barefoot case was originally tried, the "going rate"' in Texas for preparation and trial testimony exceeded $1500 for a physician expert.

[228] See Justice Blackmun's dissent for a detailed analysis of the problems in refuting pseudo-scientific testimony. Id. at 916-38. The United States Supreme Court acknowledged the danger of expert testimony in Satterwhite v. Texas, 108 S. Ct. 1792, 1796 (1988):

The controversy in Estelle v. Smith [451 U.S. 454 (1981)] also centered on the expert testimony of Dr. James P. Grigson. In that case, as in this, Dr. Grigson appeared as a witness for the State in a capital sentencing proceeding and testified that the defendant was a severe sociopath who would continue to commit violent crimes in the future. He based his testimony upon a psychiatric examination of the defendant that he had conducted pursuant to court order. The problem in the case was that defense counsel were not given advance notice that Dr. Grigson's psychiatric examination, encompassing the issue of their client's future dangerousness, would take place. We recognized that, for a defendant charged with a capital crime, the decision whether to submit to a psychiatric examination designed to determine his future dangerousness is "literally a life or death matter"' which the defendant should not be required to face without "the guiding hand of counsel."

Id. (quoting Estelle v. Smith, 451 U.S. at 471 (quoting Smith v. Estelle, 602 F.2d 694, 708 (5th Cir. 1979) and Powell v. Alabama, 287 U.S. 45, 69 (1932))).

[229] Texas Code Crim. Proc. Ann., art. 37.071 (Vernon 1981), quoted in Barefoot, 463 U.S. at 883-84 n.1.

[230] Barefoot, 416 U.S. at 916-19.

[231] Barefoot had not been convicted of any crimes of violence in the past. There was testimony that he had broken out of jail in New Mexico where he was being held on charges of sexual assault. The state also presented witnesses to his bad character, but they testified as to general character, rather than specific events that would allow the jury to independently evaluate Barefoot's proclivities. Barefoot, 463 U.S. at 917 (Blackmun, J., dissenting.)

[232] Justice Blackmun's dissent refers to Woodson v. North Carolina, 428 U.S. 280, 305 (1976) as a statement of the traditional policy for death penalty determinations:

Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Id. at 924 (Blackmun, J., dissenting (quoting Woodson, 428 U.S. at 305)).

[233] While the jury must answer yes to three special issues to trigger the imposition of the death penalty, two of these issues are also elements of capital murder. These elements would already have been established in the determination of guilt phase of the trial. See Barefoot, 463 U.S. at 916-17 n.l (Blackmum, J., dissenting).

[234] "In a capital case, the specious testimony of a psychiatrist, colored in the eyes of an impressionable jury by the inevitable untouchability of a medical specialist's words, equates with death itself."' Id. at 916.