Empirical Analysis and the Fate of Capital Punishment

In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Supreme Court’s prior command in Atkins v. Virginia that unless the imposition of the death penalty “measurably contributes to one or both of [the legitimate penological goals of deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Justice Breyer’s opinion illuminates the central role that empirical studies have played in death penalty litigation since Furman v. Georgia on issues ranging from the lack of deterrence associated with the death penalty; to racial and ethnic bias in its administration; to the extensive delays, cost, errors, and arbitrary implementation; and to the failure to limit capital punishment to the worst of the worst offenders. Two months after Glossip, the battle over the empirical evaluation of capital punishment played out in the contentious 4-3 decision in State v. Santiago, in which the Connecticut Supreme Court found the death penalty unconstitutional in the wake of the state legislature’s prior prospective abolition. The bitter judicial contention in both Glossip and Santiago over the evaluation of evidence of racial and ethnic bias and an array of other empirical issues highlights both the critical importance of empirical analysis to the fate of the death penalty and the difficulty that many judges have in properly evaluating statistical evidence. The statistically unsupportable attempts by the State’s expert to undermine the overwhelming evidence of racial disparity in capital charging in Connecticut underscores that highly flawed statistical Copyright © 2016 John J. Donohue. ∗ C. Wendell and Edith M. Carlsmith Professor of Law, Stanford Law School. The author wishes to thank Alex Albright, Bhargav Gopal, and Isaac Rabbani for excellent research assistance and Stanford Law School for research support. DONAHUE (DO NOT DELETE) 9/29/2016 4:04 PM 52 DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY [VOL. 11:1&2 evidence will often be pressed upon (or seized upon by) judges who may be ideologically inclined to accept work that true experts would readily reject. If the Supreme Court is able to effectively appraise the best empirical work in applying the Atkins standard, it is difficult to see how the death penalty could be sustained as a constitutional punishment. Unless the imposition of the death penalty “measurably contributes to one or both of these goals [deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” – Atkins v. Virginia, 536 U.S. 304, 318–19 (2002) (emphasis added).