Inferring and Explaining

118 InferrIng and exPlaInIng I would be happy and indeed proud to lay out for you my reasons for thinking capital pun- ishment is morally wrong, but that is not my intention in this chapter. I will eschew my nor- mative case against the death penalty for three reasons. One is simple pedagogy. Tis is a book about practical epistemology and evidence eval- uation, not contemporary moral controversies. Te second is that I want to explore the death penalty, not as amoral controversy, but as a con- stitutional issue. One where many of the skills we have been discussing in the last few chap- ters are directly relevant. Perhaps my main rea- son for refraining from resting my abolitionist case on basic principles of justice, decency, and integrity, however, is that I have become con- vinced that it would not work. Oh, sure, those of you who already agree with me will applaud my insight, rhetorical skill, and moral vision. But those of you who are in favor of capital punishment are very unlikely to be won over. Te same goes in reverse. Arguments appealing to retributive justice resonate well with death penalty advocates but carry very little persua- sive power with those of us who are opposed on moral grounds. I want to rest my case against the death penalty on a strategy that I have taken from Supreme Court Justice Harry Blackmun, what I have called an “argument from contingent realities.” Blackmun argues that the US Con- stitution may very well permit the use of the death penalty in the abstract, but given certain contingent facts about contemporary society, its current application violates the Constitu- tion. Blackmun’s concern, as we shall see, is that certain facts about the American crimi- nal justice system almost guarantee that it will be administered in such a way that it is infected with “arbitrariness, discrimination, caprice, and mistake.” He places particular emphasis on the notions of arbitrariness and caprice—the fact that the very similar kinds of murders result in wildly diferent crimi- nal sentences. We see very violent multiple murders not even prosecuted as death penalty cases, think of the O. J. Simpson case, while John Spenkelink, claiming sexual assault and self-defense and ofered a plea bargain of a jail sentence on a second-degree murder charge, was executed. I think Blackmun was abso- lutely right that we continue to see arbitrary and capricious administration in capital cases. But I want to extend his argument to focus on other contingent realities. I will argue that the statistics show that a disproportionate number of defendants, and victims, in capital cases are poor and that they are members of racial minorities. Constitutional Texts Te US Constitution is justly heralded as a writ- ten document. Te rules of the game of national government and the rights of the citizens are laid out in a beautiful legal text. Scholars, edi- torial writers, and Supreme Court justices ofen fnd themselves debating what this text means and usually what it means in a specifc and controversial context. In these cases, the simple model from chapter 10 immediately encounters predictable problems. Yes, there is a written text, but this text is maddeningly vague, ambiguous, and unclear, at precisely those places where the scholarly, political, or legal debates are occurring in the frst place.