A (too?) forceful assertion of the reverse-Marshall hypothesis
I have been talking to my students about the so-called “Marshall hypothesis,” which is an interesting claim about public opinion on the death penalty (and raises great issues of constitutional theory). The “Marshall hypothesis” is a reference to the opinion of Justice Thurgood Marshall in Furman, where he relied on democratic principles when voting for judicial abolition of the death penalty because he hypothesized that a fully informed electorate would reject capital punishment (see 408 U.S. 238, 360-63, and here and here for more on the “Marshall hypothesis”).
I just noticed this new articleon SSRN, which articulates what might be deemed the “reverse-Marshall hypothesis.” This piece asserts (in quite heated terms) that the public would support capital punishment even more if they really knew all the facts about murderers, victims and the limits placed on capital punishment by the Supreme Court. This piece’s introduction states: “If the public were well informed of case facts and arrogantly imposed disingenuous legal absurdities, abolition would fail.”
This provocative article is titled “Fact Suppression and the Subversion of Capital Punishment: What Death Penalty Foes on the Supreme Court and in the Media Do Not Want the Public to Know,” and here is the abstract:
The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what’s left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon the alleged plight of brutal murderers, while callously withholding compassion, information and even thought about the massive suffering they inflict upon innocent law-abiding victims.
Yet, the public still supports the death penalty with little understanding of the true reasons why it is so rarely enforced. Abolition would fail if the people were well informed of case facts and arrogantly imposed disingenuous legal absurdities, not the least of which is a Supreme Court majority’s ipse dixit that the Constitution gives them the right and power to decide if democratically determined criminal penalties are unacceptable and to reject them. Other absurdities, wholly unrelated to innocence, concocted by judges who aver lack of confidence in decent jurors and the superiority of their own independent judgment include:
A murderer should have a serious chance to succeed with the argument that he would not pose a future threat to society if sentenced to life without parole because he was only dangerous to old ladies. A man can be mentally retarded, yet carefully plan rape and murder calculated to avoid return to prison. Because it is indecent and uncivilized to expect a nearly 18-year-old person to appreciate the wrongfulness of premeditated torture-murder and joyfully boasting about it, he must be allowed to attain a mature understanding of his own humanity. A murderer under 18 is a juvenile, a boy, but a victim of 16 is an adult woman. When a 300-pound man rapes an 8-year-old girl, requiring surgery, this is inadequate moral depravity; so his dignity must be respected to allow him to understand the enormity of his offense, one not enormous enough to justify execution. It is not clear that a rapist really intends to kill a victim he stabs 53 times, including 18 in the genital area. One cannot be expected to foresee new murders when he merely smuggles a gun-filled chest into a prison to help two convicted murderers escape, one serving a life sentence for murdering a guard during a prior escape. In aggregate, the depraved should be rewarded with reduced punishment because their numbers have increased. For individuals, increased depravity qualifies one for a court-created purported constitutional right to commit more without punishment. Rape under threat of death, three weeks after giving birth, is not harmful. Trial judges must mislead juries to save the lives of convicted murderers.
All this is the result of unelected justices imposing, less than honestly, their own unpopular moral values upon the citizenry, raising doubt whether the Supreme Court merits continued respect and legitimacy. This is not a matter solely for legal experts. The death penalty debate should confront the public with critical facts and questions to decide if foes deserve the high ground they claim in what they deem a moral issue.
As this abstract suggests, some may view this piece as a screed against certain recent Supreme Court opinions and the work of the media and death penalty abolitionists. (Kent at C&C has this assessment of this paper: the “points appear to be valid, if expressed in a somewhat overheated style.”) Screed or not, I suspect that this article may provoke the usual capital case commentors and others to respond to what I am calling the author’s “reverse-Marshall hypothesis.”