The Supreme Penalty

Finally, largely neglected in recent death penalty jurisprudence is the spate of new research showing that capital punishment works. A 2003 study by Emory economics professor Hashem Dezhbakhsh, for example, projects that each execution prevents, on average, 18 murders; this is only the best known of a growing body of evidence which suggests that the death penalty has a significant deterrent effect. In the formless world of Eighth Amendment balancing tests, such evidence should weigh heavily in support of capital punishment, insofar as it suggests a greater contribution to the "acceptable goals of punishment" than previously supposed.

The justices now have two new opportunities to consider the compelling evidence that the death penalty has a significant deterrent effect. Whether the Court will be as ready to use such nontextual considerations to protect victims as to protect their attackers remains to be seen.

Erin Sheley is a writer and attorney living in Washington, D.C.