26 N.Y.U. Rev. L. & Soc. Change 309 (2000-2001)
Executing the Innocent: The Next Step in the Marshall Hypotheses

handle is hein.journals/nyuls26 and id is 317 raw text is: EXECUTING THE INNOCENT:
THE NEXT STEP IN THE MARSHALL HYPOTHESES*
ALAN W. CLARKE,t ERIC LAMBERT' & LAURIE ANNE WHITT
I.
INTRODUCTION
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.1 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.'2
This remarkable action leads one to wonder whether empirical evidence plays
any role at all in the Court's decision making.3 Perhaps even Supreme Court
Justices feel a tension between common sense and specialized social-scientific
findings.4 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.5
* The authors would like to thank James Acker, Peter Erlinder and Samuel Gross for their
helpful comments. Any errors are ours alone.
I Assistant Professor of Criminal Justice, Department of Criminal Justice, University of
Wisconsin-Parkside. J.D., William and Mary; LL.M., Queen's University (Canada).
I Assistant Professor of Criminal Justice, School of Criminal Justice, University of Toledo.
Ph.D., University at Albany.
§ Associate Professor of Philosophy, Michigan Technological University. Ph.D., University
of Western Ontario.
1. See James R. Acker, A Different Agenda: The Supreme Court, Empirical Research
Evidence, and Capital Punishment Decisions, 1986-1989, 27 LAW & Soc'y REv. 65, 81-82 (1993)
([S]ocial science evidence had little influence on the Court's death penalty decisions. Lead
opinions brushed aside convincing empirical evidence.., and refused to consider social-scientific
evidence relevant to capital punishment .... Nevertheless, by producing systematic empirical
research evidence that bears on important issues of capital punishment administration, and thus
compelling the justices to explain their decisions against this revealing factual background, social
scientists at the very least are making a real contribution to the integrity of the Supreme Court's
decisional process').
2. Barefoot v. Estelle, 463 U.S. 880, 901 (1983).
3. Id. at 900-01.
4. David Baldus, The Death Penalt, Dialogue Between Lat, and Social Science, 70 INM. LJ.
1033, 1034 (1995) (citing CHARLES E. LINDBLOM & DAviD Y, COHEN, USABLE KNOvWEDGE:
SOCIAL SCIENCE AND PROBLEM SOLVING 10 (1979)).
5. See, e.g., U.S. GEN. ACCOUNTING OFFICE, DEATH PENALTY SENTENCING: RESEARCH
INDICATES PATrERN OF RACIAL DISPARITIES, GGD-90-57 (1990) (counting twenty-eight studies of
race and capital sentencing); JAMES NV. MARQUART Er AL, THE ROPE, THE CAIMR, AND THE NEEDLE:
309

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