In recent years, the Supreme Court has narrowed both the relevance and the applicability of empirical evidence in deciding capital punishment cases. Trends in death penalty litigation suggest that the Supreme Court is simply fine- tuning the "death program," focusing on fairness of procedures and deferring the more difficult moral questions to State legislatures. A brief historical analysis of death penalty cases offers guidance to those interested in empirically examining nuances of the death penalty program. The Supreme Court's opinion in Gregg v. Georgia demonstrated that the death penalty is constitutional, while the McCleskey v. Kemp opinion all but closed the door to arguments that death penalty implementation is flawed. The case of Ford v. Wainright argued unsuccessfully that certain death row inmates should not be executed. In Penry v. Lynaugh, the Supreme Court determined that the execution of mentally retarded persons is not unconstitutional. The Supreme Court decision in Stanford v. Kentucky ruled that the death penalty can be applied to juveniles. The author concludes that the collection of empirical data to challenge the death penalty's constitutionality is largely relegated to State legislative reform or State constitutional challenges. 2 references