FOOTNOTES
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The Executive Officer’s Column

What Really Mattered to the Supreme Court

Over the years, ASA has submitted amicus curiae briefs to the U.S. Supreme Court to bring social science data and analysis to the attention of the justices. The most recent was in Michigan v. Grutter, the affirmative action case in which ASA provided sociological research on the impact of race (see www2.asanet.
org/media/amicus.html
). Such “friend of the court” contributions are appropriate for scholarly associations when there is science that can add empirical context to legal arguments. The Court’s interpretations of constitutional concepts often have as much cultural and social meaning as they do legal meaning.

On March 1, 2005, the Supreme Court issued a significant five-four decision in Roper v. Simmons that ruled it unconstitutional to apply the death penalty to defendants under the age of 18. Much of the ensuing public discussion and political debate reported in the media focused on Justice Anthony Kennedy’s use of international law in the majority opinion to reflect the overwhelming sentiment against the death penalty for juveniles. This was despite the assertion by the majority that international views were not a controlling factor in the decision.

Why This Matters to Sociologists

The press gave short shrift to what was controlling in the case’s outcome and to the extremely powerful role of social and behavioral science in the majority opinion and in the critiques by dissenting Justices Sandra Day O’Connor and Antonin Scalia.

To help make our scientific work more relevant to the resolution of key social issues in the legal arena, I urge sociologists and students to read these opinions to see what social and behavioral science was useful, why it was important, and how it was interpreted on both sides. Let me guide you to the sociological highlights.

Concepts, Evidence, and Interpretations

The Court rejected imposition of the death penalty for offenders under 18 based on concepts it used in Atkins v. Virginia to prohibit the execution of a mentally retarded person: that is, capital punishment must be limited not only to offenders who commit the “most serious crimes” but also to those whose “extreme culpability” makes them the most deserving of execution. What is culpability?

Using data from psychology and sociology in an amicus curiae brief by the American Psychological Association, the Supreme Court majority concluded that offenders under the age of 18 are not as culpable or blameworthy as adults by extending to 17-year-olds the reasoning it applied in barring capital punishment for juveniles 16 and under in Thompson v. Oklahoma. The Court said offenders under age 18 cannot reliably be classified among the worst offenders, because their susceptibility to immature and irresponsible behavior means their conduct is not as reprehensible as that of an adult; their relative lack of control over their surroundings means they are more susceptible to negative influences; and their youthful struggle to define their identity means that even heinous behavior cannot be evidence of an irretrievably depraved character. How do we determine culpability?

In this major section of its opinion, the Court explicitly relied upon “the scientific and sociological studies” provided by Roper and his amici. The Court concluded: “The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.” In short, the Court selected age 18 as the developmental dividing line based on the social and psychological evidence. It continued by concluding that this categorical decision was necessary because juries were not able to reliably determine an individual’s degree of culpability: “An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immature, vulnerability and lack of true depravity should require a sentence less severe than death.”

The dissents are equally interesting with regard to the interpretation of scientific data. Justice O’Connor did not challenge the basic data, agreeing that “[a]dolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct than adults.” But she firmly rejected the use of this evidence by the Court in the Roper case. There was no evidence presented, she said, that legislatures could not reach a reasonable conclusion “that at least some 17-year old murderers are sufficiently mature to deserve the death penalty” or that juries could not make a decision about an individual’s degree of culpability. Disputing the use of the scientific evidence to support the Court’s age-18 cut-off for extreme culpability, she argued, “At most, the Court’s argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer.” By contrast, she argued other types of scientific evidence are definitive: “‘Mentally retarded’ offenders, as we understood that category in Atkins, are defined by precisely the characteristics which render death an excessive punishment. A mentally retarded person is, ‘by definition,’ one whose cognitive and behavioral capacities have been proven to fall below a certain minimum.”

Justice Scalia, on the other hand, challenges the scientific evidence itself by saying that what was presented was selective data; that is, the Court was “picking and choosing those [scientific and sociological studies] that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.” But, turning the table on himself, Scalia then argues that the Court has previously recognized the social science research of Kalven and Zeisel in The American Jury (1966) as evidence that juries can indeed make difficult individual judgments.

These fascinating, nuanced discussions should appeal to sociologists wanting to apply their research at the juncture of public policy and appellate courts.

Sally T. Hillsman, Executive Officer