Psychologists Are Allowed To Make Predictions of Future Dangerousness: Barefoot v. Estelle (1983)

Thomas Barefoot's mugshot (1983)

Due To The Testimony From Two Psychiatrists Willing To Say Anyone Is Highly Dangerous, Mental Health Professionals Are Now Allowed to Make Predictions of Future Violence

In the summer of 1978, Thomas Barefoot killed Carl Levin, a police officer from Bell County, Texas. Barefoot told one of his roommates he was going to commit a robbery after setting a fire to divert the attention of the police. On August 7, he set fire to a nightclub, and an eye witness stated he saw Barefoot approach Officer Levin from the bushes some hours later and shoot him at point blank range. Barefoot then went back to his house with a blood splattered shirt and told his roommates he needed to leave because he "wasted a cop."

Barefoot was arrested later that night at a bus station, still carrying the gun he used to commit the murder. In November of 1978, a Texas jury convicted him of murder and the same jury sentenced him to death.

Some of the crucial evidence the jury heard in deciding their sentence came from two psychiatrists, Dr. John Holbrook and Dr. James Grigson. Both psychiatrists had been hired by the prosecution to comment hypothetically on Mr. Barefoot's risk of acting out in a violent manner at some point in the future. Neither doctor had ever met or talked to Mr. Barefoot, but both claimed to be able to make reasonable predictions of future dangerousness based on their knowledge of psychology and their review of case files.

Both doctors testified it was highly likely that Barefoot would act in a violent manner in the future. They stated he was sociopathic and could not be treated for his condition. One went on to say that, on a scale of one to ten, Mr. Barefoot was "above a ten" in terms of his sociopathic problems and level of risk to the community.

Barefoot's attorneys appealed his sentence, arguing the psychiatrists were not competent to predict future dangerousness. They further argued that this incompetence violated the Eighth and Fourteenth Amendments (cruel and unusual punishment & due process). The case made its way to the US Supreme Court, which made its ruling in 1983.

The Court ruled it was not, in fact, unconstitutional for the psychiatrists' testimony to be used in the sentencing hearing. The Court held that "the factfinder" (i.e. the jury) was able to weigh the evidence provided by the psychiatrists and consider its "shortcomings" in a competent manner. It also held that answering hypothetical questions regarding a prediction of risk was fine, as it fit within the rules of evidence for expert witnesses to do so. The Court stated, "The [psychiatrist's] answers to the [hypothetical] questions were so positive as to be assertions of fact and not opinion."

The error rate for predicting future acts of violence in 1983 was about 67%. Two-thirds of the time, psychiatrists were wrong. But, in the Barefoot case, Drs. Holbrook and Grigson were so convinced of Mr. Barefoot's future risk that the US Supreme Court considered their opinions to be "fact."

Thomas Barefoot was executed on October 30, 1984 by lethal injection. In his final statement, he asked forgiveness from Officer Levin's wife and stated the hope that she "drive the bitterness from her heart."

Dr. Grigson testified in hundreds of death penalty cases in his career. He earned the nickname "Dr. Death" for his willingness to testify against capital punishment defendants. Dr. Holbrook, who testified that Jack Ruby was not insane in another famous Texas murder case, also testified against defendants on numerous occasions.

Dr. James Grigson, manspreading in his den

In 1977, both psychiatrists testified at the sentencing hearing for Randall Dale Adams, also convicted of murder. They stated he was so dangerous he would definitely pose a risk to society unless he was executed. Adams was later exonerated because it was discovered he had been wrongfully convicted--he never actually killed anybody and was not dangerous.