SOCIAL SCIENCE AND DEATH PENALTY CASES: Reflections on Change and the Empirical Justification of Constitutional Policy

Abstract

This article investigates the use of social science and empirical data in the justification for declaring the death penalty unconstitutional. It does so by analysing the use of such materials in the briefs presented to the Supreme Court and the Court's response in major death penalty cases. The article finds that social science played a prominent role in the arguments of both the challengers and defenders of capital punishment. Applying concepts from decision‐making theory, after analyzing the Court's decisions, the article concludes that social science will not provide a justification for the constitutional change requested.