Proofiness - Charles Seife [85]
Scalia, for his part, remains unmoved by additional data. If anything, his defense of the death penalty has gotten more strident—and more dependent upon proofiness than ever.
Twenty years after McCleskey v. Kemp, Scalia had outlasted all of his peers except for his liberal rival John Paul Stevens. In those years, Scalia used phony mathematical arguments a number of times. In 2008, two researchers caught Scalia in the act. They publicly castigated him for misusing their work in his opinion in Baze v. Rees.
In Baze v. Rees, convicted murderer Ralph Baze sued to stop his execution on the basis that lethal injection was cruel and unusual punishment. (If so, it would violate the Eighth Amendment.) By a vote of seven to two, the Court rejected the claim. However, it sparked an argument between Scalia and Stevens. Even though the two justices both were in the majority and agreed that lethal injection didn’t violate the Eighth Amendment, they fought about whether capital punishment had a deterrent effect—whether the specter of the death penalty keeps some criminals from committing capital crimes.
Stevens was skeptical that capital punishment was an effective deterrent. “The legitimacy of deterrence as an acceptable justification for the death penalty is also questionable, at best,” he wrote. “Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.” To Scalia, these were fighting words. Quoting a recent article in the Stanford Law Review, he wrote that “Justice Stevens’ analysis barely acknowledges the ‘significant body of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one.’”
In my opinion, Scalia was cherry-picking data; he seems to have ignored that there was plenty of contrary evidence presented as well. In the very same issue of the journal, the authors of the study acknowledged that they couldn’t conclude that capital punishment has in fact been shown to have a deterrent effect. The case for deterrence was at best ambiguous. However, Scalia chose to spin the data to make it look as if the preponderance of the evidence showed a deterrent effect. Shortly after the Baze v. Rees decision, one of the article’s authors called him out. Cowriting a Washington Post op-ed, he accused Scalia of misrepresenting his research: “In short, the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.”82
It was a rare humiliation for Scalia. He was caught red-handed, picking cherries—by the authors of the study he had raided, no less. But Baze v. Rees is not the most egregious example of Scalia’s tendency toward proofiness. His opinion in another death penalty case, Kansas v. Marsh, is a stunning example of judicial nonsense—a case where a big honking numerical lie was used to send a prisoner to his death.
Michael Lee Marsh was convicted of a particularly brutal crime. He entered the home of Marry Ane Pusch and lay in ambush, waiting for her to return home. When she did, he shot her and slit her throat. Upon leaving, he set the house on fire, leaving Pusch’s toddler to be burned alive. He was convicted and sentenced to death.
Marsh’s case hinged upon a technicality about sentencing guidelines—how the state of Kansas, where Marsh was convicted, weighed mitigating and aggravating circumstances to the crime. In 2006, the Supreme Court reversed a lower court