Executing the Innocent: The Next Step in the Marshall Hypotheses


Supreme Court Justices rarely take into account empirical research when making decisions, and they seem particularly opposed to incorporating social scientific scrutiny of the death penalty. The Court dismissed an American Medical Association study indicating a two-thirds error rate in the reliability of psychiatric predictions because the study only showed that the experts are wrong “most of the time,” and failed to prove that experts are not “always wrong.’ This remarkable action leads one to wonder whether empirical evidence plays any role at all in the Court’s decision making. Perhaps even Supreme Court Justices feel a tension between common sense and specialized social-scientific findings. Regardless of the reasons for its approach, the Court continues to express reluctance toward accepting such data. The opposite appears true for social scientists. Social scientists appear eager to embrace testable hypotheses suggested by capital cases in the high court.

Suggested Reading

Andrew Michaels∞ I. Introduction II. The Court’s Death Penalty And Categorical-Exemption Jurisprudence A. Atkins and Roper: The Court’s Articulation of the Two-Part Test for Categorical Exemption  B. Graham: Finding a National Consensus Against a Punishment Based Solely on the Rarity of its Implementation  III. Why