Vanderbilt Law Review

First Page



In light of the Court's recent holding in Gregg v. Georgia, future death penalty challenges almost certainly will focus upon the type and quality of evidence available to serve as "objective indicia that reflect the public attitude toward a given sanction."'" Unfortunately, the "objective indicia" that can be relied upon and the manner in which they are to be weighted is not altogether clear. In Gregg, for example, the Court emphasized such traditional considerations as legislative enactments, decisions rendered by juries, and the single post-Furman referendum on the death penalty.'" Additionally, evidence pertaining to the determinants of public support for capital punishment, as opposed to simpler assessments of the amount of support existing at any point in time, also was viewed as relevant.' The willingness of those concerned with eighth amendment capital punishment challenges to consider behavioral scientific research on determinants of public support for the death penalty provides the stimulus for the analysis presented in this Article. The thesis to be advanced may be summarized simply: there is ample reason to believe that public support for capital punishment is associated with two pervasive beliefs. The first is a belief that some kinds of behavior are sufficiently offensive to fundamental moral standards that death is an appropriate punishment, regardless of whether it serves any other end. Although philosophers make finer distinctions, this justification for capital punishment essentially is retributive. The second justification, which places less emphasis on whether a sanction is just or unjust in some abstract sense, reflects a belief that the death penalty serves to deter potential offenders from engaging in criminal behavior. This perspective on punishment can be viewed as utilitarian.