The Road to Abolition?: The Future of Capital Punishment in the United States

2. Blinded by Science on the Road to Abolition?

46 2 Blinded by Science on the Road to Abolition? Simon A. Cole and Jay D. Aronson The central conceit of this essay is that the rhetorical invocation of science has been crucial to whatever recent progress the United States has made along the “road to abolition.” Here we focus on three important milestones . First is what has been called the “innocence revolution,” the harnessing of public awareness of wrongful convictions to stir up opposition to capital punishment based on the possibility of executing the innocent.1 This trend has rested heavily on the “epistemological certainty” of DNA evidence.2 Second was the recent (but temporary) de facto moratorium on executions generated by legal challenges to lethal injection protocols. Such challenges have rested heavily on appeals to medical knowledge about the possibility of causing unnecessary pain in the condemned. Third is the progress in what death penalty proponents suspect (and perhaps not without reason) is what Justice Antonin Scalia has called the “incremental abolition” of the death penalty, the winning of favorable Supreme Court judgments for categorical exemptions from the death penalty, thus chipping away at capital punishment.3 Over the past several years, the Court has outlawed capital punishment for juveniles and the mentally retarded, and, to Scalia’s consternation, these decisions are probably irreversible. Although the Court’s opinions were not laden with scientific discourse in either case, the legal debates that led to these decisions drew heavily on scientific evidence to support claims of diminished moral culpability among these categories of offenders. In this chapter, we examine three case studies of rhetorical appeals to the authority of science along the road to abolition. On innocence, we focus on the case United States v. Quinones, in which Federal District Judge Blinded by Science on the Road to Abolition? 47 Jed Rakoff, before being overruled by the Second Circuit Court of Appeal, found for the first time that the possibility of innocence rose to the level of a constitutional violation in imposing the death penalty. Next, we discuss the use of medical knowledge in recent legal challenges to lethal injection protocols, especially the challenges by Michael Morales in California and the case Baze v. Rees. Finally, we discuss the appeal to neuroscientific evidence in support of the argument that juveniles have diminished culpability for impulsive violent acts. On this issue, we focus on the case Roper v. Simmons, in which the Supreme Court ruled the death penalty unconstitutional for individuals who were juveniles at the time they committed their crimes.4 What these three developments have in common, we suggest, is the rhetorical invocation of the cultural authority of science in legal attacks on capital punishment. Although these attacks met with limited legal success —only the attack on the juvenile death penalty was ultimately successful , and, even then, the neuroscientific evidence was apparently not crucial to the outcome—it may reasonably be argued that the attacks themselves have helped sow in the public consciousness the idea that capital punishment is somehow incompatible with science. We suggest that, taken together, these rhetorical appeals to science signal something new in abolitionist discourse. In place of moral or pragmatic arguments, the abolitionist movement has invoked the cold rationality of science. The appeal of shifting toward the invocation of science is obvious. By the 1990s, capital punishment was on the rise. Although popular support for the death penalty could be eroded somewhat through the morally problematic strategy of embracing and promoting sentences of life without parole, the prospects for a major shift in American public opinion against capital punishment seemed grim.5 Since the mid-1990s, however, what we might call “science-based” arguments against capital punishment began to gain traction: first, the innocence argument; then, categorical exemptions for the mentally retarded and juveniles; finally, challenges to lethal injection. Abolitionists began to see in these new arguments, especially innocence, the potential to significantly shift the balance of public opinion against capital punishment. Specifically, this might be done by reframing capital punishment in terms that would provoke revulsion among most citizens: the execution of the innocent, the punishment of purportedly less culpable individuals, or inhumane execution methods. As death penalty proponent Joshua Marquis complained in his testimony before the Senate Judiciary Committee in June 2000: 48 Simon A. Cole and Jay D. Aronson There is a concerted campaign in this country to shift the debate about capital punishment from a legitimate issue...