A Different Agenda: The Supreme Court, Empirical Research Evidence, and Capital Punishment Decisions, 1986–1989

Abstract

This article examines the Supreme Court's use of social science research evidence in 28 capital punishment cases decided between 1986 and 1989. The study describes the frequency and major correlates of the justices' citation of social science authorities in the 1986–89 sequence of cases. Social science evidence figured significantly in several death penalty cases, although a majority of the justices were more eager to discredit and discount research conclusions than to use them as premises for their decisions, and prevailing case opinions generally promoted principles that had little to do with empirical evidence concerning the administration of capital punishment. Social science citation patterns in majority and dissenting opinions, and in the opinions of “liberal” and “conservative” Supreme Court justices, in significant respects parallel the Court's shifting doctrinal premises in capital punishment decisions.

Capital punishment, the moratorium movement, and empirical questions: Looking beyond innocence, race, and bad lawyering in death penalty cases.

“…Hard facts about the death penalty will not silence an essentially endless debate about its propriety (Kalven, 1968) but should prove valuable to help inform the related policy judgments that must inevitably be made (Acker, 1993). The business of death penalty commissions or, in their absence, of independent researchers and policymakers should be to carefully map the full roster of issues relevant to the practice of capital punishment, systematically collect reliable information about those issues, and make the resulting information available for use in the policy arena.…”

Recounting the Courts? Applying Automated Content Analysis to Enhance Empirical Legal Research

“…Such approaches involve the use of predefined dictionaries or search expressions in order to take a first cut at coding a set of documents (e.g., Coffey 2005) or to select desired documents from a database, such as Lexis‐Nexis. Such dictionaries and search expressions can be used to identify several theoretically important aspects of legal documents, such as the theories of interpretation (e.g., Benesh & Czarnezki 2006), “jurisprudential regimes” (Richards & Kritzer 2002), or extra‐legal sources (e.g., Bernstein 1968; Acker 1993) used by judges. The terms selected for such dictionaries and search expressions are obviously important in these types of studies.…”

Broken Promise: The Supreme Court's Response to Social Science Research on Capital Punishment

“…Whether or not the Court's recent handling of death penalty cases signaled "the end of an era" (Burt, 1987(Burt, , p. 1741, it seemed clear as the second decade since Furman came to a close that the present Court not only placed increasingly less reliance on social science in its capital jurisprudence but also had rendered its death penalty decisions in ways that would limit the use of broad-based socialfact data in the near future (e.g., Acker, 1993). One death penalty scholar has perceived a kind of silver lining in the Court's antiempirical capital jurisprudence, namely that a "new regime" of death penalty researchers will be ushered in whose work is more "theory driven" and "stands apart from the courts in deciding both the questions to be asked and the most plausible conclusions to be drawn from current evidence" (Zimring, 1993, p. 12).…”