Legal schol­ar Cass Sunstein and researcher Justin Wolfers recent­ly joined in an op-ed piece in the Washington Post respond­ing to the U.S. Supreme Court’s cita­tion of their work in Baze v. Rees, the deci­sion that approved lethal injec­tion and opened the way to recent exe­cu­tions. Justice Stevens had cit­ed Wolfer’s research as evi­dence of the lack of deter­rence of the death penal­ty while Justice Scalia cit­ed Sunstein’s writ­ings indi­cat­ing a ​“a sig­nif­i­cant body of recent evi­dence that cap­i­tal pun­ish­ment may well have a deter­rent effect, pos­si­bly a quite pow­er­ful one.” Both Sunstein and Wolfers say the Justices ​“mis­read the evi­dence” to ​“sup­port their com­pet­ing con­clu­sions on the legal issue.” They explained the nuances of the evi­dence on deter­rence and the death penal­ty and how no study on the top­ic can sup­port a strong con­clu­sion. ​“The best we can say is that homi­cide rates are not close­ly asso­ci­at­ed with cap­i­tal pun­ish­ment.” They added, ​“In short, the best read­ing of the accu­mu­lat­ed data is that they do not estab­lish a deter­rent effect of the death penalty.” 

This inter­pre­ta­tion of the research is impor­tant, the authors argue, because it is com­mon­ly rea­soned that ​“if cap­i­tal pun­ish­ment fails to deter crime, it serves no use­ful pur­pose and hence is cru­el and unusu­al,” and many, ​“includ­ing President Bush, argue that the only sound rea­son for cap­i­tal pun­ish­ment is to deter mur­der.” Sunstein and Wolfers point out that there is no valid study that con­clu­sive­ly shows deter­rence and ​“the debates over the death penal­ty should not be dis­tort­ed by a mis­un­der­stand­ing of what the evi­dence actu­al­ly shows.”
(C. Sunstein, J. Wolfers, ​“A Death Penalty Puzzle,” Washington Post, June 30, 2008) (empha­sis added). See Deterrence and Supreme Court.

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