Stuart Taylor on the death penalty, deterrence, and abolition

Given the recent posts about the death penalty and deterrence, MOJ readers might want to check out this essay by Stuart Taylor.  A bit:

[I] suspect that the abolitionist justices may have been right in their perception that the death penalty is in tension with the "evolving standards of decency that mark the progress of a maturing society." . . .

They were wrong, however, to take this perception as a mandate to abolish the death penalty, for at least three reasons.

First, the recent history sketched previously shows that the trend toward less enthusiasm for executions is not linear, and that well-intentioned judicial efforts to speed up the evolution process can backfire.

Second, judicial abolition of the death penalty would usurp powers assigned by the Constitution to the legislative and executive branches. In this sense, Furman had less to do with the progress of a maturing society than with what Justice William Brennan, when breaking in new law clerks, introduced semi-facetiously as "the rule of five."

"You got five votes," he would explain with mock professorial gravity, "you can do anything you want." So you can, for a while. But in the long run, societies mature better when they do it the old-fashioned way, without the help of judicial fiats.

Third, while the justices know a lot about the social costs of the death penalty, they know very little about whether and to what extent these costs may be offset by the very considerable benefit of saving innocent lives.  . . .

[A]t this point most of us can only speculate about which side has the better of the inherently conjectural arguments about deterrence. The same is true of the justices. And speculation is not a firm foundation on which to build constitutional law.

I am definitely with Taylor on the first two points.  As for the third -- As I have indicated before, it seems to me that the question whether the death penalty deters matters, really, only once we've identified a class of cases in which it is, or could be, morally permissible.  It does not seem to me that deterrence helps us to identify this class of cases as an initial matter.  (Whether the death penalty's deterrent effect, or lack thereof, of relevant to the constitutional question whether its use violates the Eighth Amendment is, I assume, a different matter.)

UPDATE:  Here's a death-penalty-and-deterrence post by Jack Balkin.  I have some thoughts in the comments box.