Empirical Evidence and the Death Penalty: Past and Future (original) (raw)

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 fuljilled, and majorities in most death penalty cases since Gregg v. Georgia (1976) have shown little interest in such evidence. For example, although the Court ofen 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. Nearly a century ago, a number of prominent judges and legal scholars envisioned a significant role for empirical social science evidence in legal decision making (e.g., Holmes, 1897; Muller v. Oregon, 1907; Pound, 1909). Although social science findings have been cited by courts with increasing frequency in the past 100 years, their influence on legal decision making has been This research was supported by the American Bar Foundation, the Law and Social Sciences Program of the National Science Foundation (SES-8922582). and the Center for Urban Affairs and Policy Research of Northwestern University. We are indebted to Cami Heiert and Anna-Marie Marshall for their assistance with this article. Correspondence regarding this article should be sent to Shari Seidman Diamond or Jonathan D.