Dying for Facts Part 2: Same evidence, different conclusion

In my last post, the fate of a cold-blooded killer depended on nine U.S. Supreme Court Justices who could not agree whether his death would deter potential criminals.
It is easy to understand why Supreme Court Justices, forced to make difficult judgments about highly subjective issues, so often disagree with each other. No one knows, for instance, exactly what the authors of The Bill of Rights intended when they chose the words “cruel and unusual.” Indeed, the Founding Fathers themselves may not have agreed upon what these words meant. No surprise, then, that 200 years later, Justices of the Supreme Court would disagree with each other as to whether the death penalty is either cruel or unusual.
But the Justices hearing the Gregg case were not disagreeing with each other over the meaning of these two words. They weren’t divided over some fuzzy issue of semantics or original intent. Instead, they differed with each other over a matter of fact. The judges disagreed about whether the death penalty deters crime. And Gregg’s life hinged on this disagreement, because the justices agreed that if the death penalty did not deter crime, then they would not allow Georgia to execute Gregg.
Indeed, few people on either side of the political spectrum doubt the importance of the deterrence question in deciding the legitimacy of the death penalty. For example, in the 2000 presidential debates, George W. Bush was asked whether he believed the death penalty deters crime. He responded with characteristic confidence: “I do,” he said. “That’s the only reason to be for it. I don’t think you should support the death penalty to seek revenge. I don’t think that’s right. I think the reason to support to the death penalty is because it saves other people’s lives.”
Let’s for a moment try and place ourselves in the situation those Justices found themselves in back in 1976. They did not have any definitive research they could draw upon in order to prove whether the death penalty deterred criminal activity more than alternative penalties, like life without parole. Justices aren’t scientists, after all; they are judges. And because the science of the day wasn’t up to the job, the Justices had to rely on their best judgment in guessing whether the death penalty was, in fact, an effective deterrent.
Fast forward thirty plus years, to 2008, and you will find the Supreme Court once again deciding the fate of a brutal criminal-a whole slew of them, in fact. Death row inmates in Kentucky had petitioned the Court to determine whether lethal injection was cruel and unusual punishment, because the muscle paralyzers used as a part of the drug “cocktail” could potentially mask suffering-if the prisoner’s heart wasn’t stopped by one of the other drugs, then the inmate would effectively suffocate to death, unable to even open his eyes in distress.
Once again, the court found itself divided over the question of deterrence. Antonin Scalia cited what he called “a significant body of recent evidence” which proved “that capital punishment may well have a deterrent effect, possibly a quite powerful one.” Justice Stevens vehemently disagreed: “Despite thirty years of empirical research in the area,” he wrote, “there remains no reliable statistical evidence that capital punishment in fact deters potential offenders. In the absence of such evidence, deterrence cannot serve as a sufficient penalogical justification for this uniquely severe and irrevocable punishment.”
Disheartening isn’t it? Almost forty years after the Gregg case, and the Supreme Court is still divided a matter of fact.
Is there a way out of this intellectual and political stalemate?
Stay tuned for Part 3.
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PeterUbel