Citation

Finkel N. Psychol. Public Policy Law 1995; 1(3): 612-642.

Copyright

(Copyright © 1995, University of Arizona College of Law and the University of Miami School of Law, Publisher American Psychological Association)

DOI

unavailable

PMID

unavailable

Abstract

In the Supreme Court's Eighth Amendment jurisprudence, ''community sentiment'' comes to the fore in judging whether a punishment is cruel and unusual, but the Court is sharply divided over whether ''objective indicia'' should be solely determinative, or whether the moral sentiments of the Justices (i.e., a proportionality analysis) should be permitted. Whereas Justices are committed to doing social science to gauge community sentiment, they are also divided over what indicia count. This article analyzes the Court's social science analyses in two juvenile death penalty cases and finds them riddled with error, statistical magic and numerology: The empirical question is transmuted into a categorical one, social science is made to disappear, and the philosopher-king, who was supposed to be on the sidelines, now commands the field. A more defensible analysis is put forth, and a different picture of ''community sentiment'' emerges.

Language: en