Inferring and Explaining

129 several cases where defendants are potentially us believe that demonstrably innocent prisoners liable for capital charges, and in some cases, have actually been executed. 9 Temere possibil- defendants charged and convicted in capital tri- ity that innocent defendants might be executed als have subsequently been shown to be innocent is certainly a worry that the current criminal for the crime they were charged with. 8 Some of justice system invites. exerCIses 1. What do you think is the strongest argument, moral or constitutional, in favor of the death penalty? 2. What do you think is the strongest argument, moral or constitutional, against the death penalty? 3. Why do so many studies show a consistent correlation between race, either of the victim or of the defendant, and capital sentences? CaPItal PunIshment and the ConstItutIon QuIz thIrteen In this chapter, I make a sustained argument that capital punishment, as it is now admin- istered in our country, violates the Constitution. My argument depends on evidence for an interpretation of the Constitution, on evidence provided in a detailed statistical analysis of the death penalty (the Baldus study), and on a causal explanation of that statistical data. Your task is to assess the quality of the evidence that I marshal in defense of my thesis. You will need to utilize the tools of inference to the best explanation for an assessment of my evidence for the constitutional interpretation as well as the inference from a sample to a population and the inference from a correlation to a cause. Notes 1 Callins v. Collins, 510 U.S. 1141 (1994). Justice Black- mun, dissenting. 2 Death Penalty Information Center, “Public Opinion about the Death Penalty, ” https://deathpenaltyinfo .org/public-opinion-about-death-penalty. 3 Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 48–55. 4 Dworkin, 48–55. 5 McCleskey v. Kemp, 481 U.S. 279 (1987). Justice Bren- nan, dissenting. 6 USGeneral AccountingOfce, DeathPenalty Sentenc- ing: Research Indicates Pattern of Racial Disparities (Washington, DC: General Accounting Ofce, 1990), https://www.gao.gov/assets/220/212180.pdf. 7 See, for example, J. Johnson and C. Johnson “Poverty and the Death Penalty,” Journal of Economic Issues 35 (2001): 1–7; and S. Bright, “Counsel for the Poor: Te Death Sentence Not for the Worst Crime but for the Worst Lawyer,” Yale Law Journal 103, no. 7 (1994): 1835–83. 8 See Michael Radelet, Hugo Adam Bedau, and Con- stance Putnam, In Spite of Innocence (Boston: North- eastern University Press, 1992). 9 See John C. Tucker, May God Have Mercy (New York: W. W. Norton, 1997).