Empirical Evidence and the Death Penalty: Past and Future

Abstract

The Supreme Court in recent decades has been increasingly receptive to social science evidence in a variety of contexts and appeared poised in the early 1970s to employ such evidence in its consideration of the death penalty. This expectation was not fulfilled, and majorities in most death penalty cases since Gregg v. Georgia (1976) have shown little interest in such evidence. For example, although the Court often cites public sentiment as the basis for decisions about evolving standards for what is cruel and unusual punishment, it has not appreciated the measurement issues associated with gauging such sentiment. We discuss a variety of reasons why the Court may have eschewed social science evidence in death penalty litigation, and suggest an agenda for future research that is driven not simply by litigation prospects but also by more general questions about jury decision making.