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March 13, 2009

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."

March 13, 2009 at 10:59 AM | Permalink


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Who is the author? The only information in the paper is his contact info:

Lester Jackson, Ph.D.
2250 83rd Street (1L)
Brooklyn, New York 11214
(718) 256-2052
(718) 879-0931

and his affiliation is "independent" (as well as using a gmail account!). Aside from the title "Ph.D." (no granting institution), it seems like a (really long) op-ed from a random person.

Posted by: . | Mar 13, 2009 11:07:44 AM

Well, Ann Coulter said this:

"Part of the reason liberals prefer invective to engagement is that – as Richard Nixon said of Alger Hiss – if Americans knew what they really believed, the public would boil them in oil."

So let's not boil liberals in oil, and let's keep the Supreme Court from making choices left to democracy.

Posted by: federalist | Mar 13, 2009 11:20:51 AM

The assertion of the reverse Marshall-hypothesis is very broad, so I did some keyword searches. The article *never* mentions some key western democracies that have abolished the death penalty, such as 'Europe', 'France', 'United Kingdom'/'Britain'. I don't think any of them abolished the death penalty by judicial means so unless the author believes they're 'imperfect' democracies, one would expect their legislators (MPs) to retain the death penalty.

Posted by: . | Mar 13, 2009 11:25:34 AM

addition: Some (most?) European counties abolished the death penalty by entering into European treaties/conventions, whose ratification process is done by legislative voting, not judicial decisions.

Posted by: . | Mar 13, 2009 11:28:28 AM

Another surprise: not even **Canada** gets a mention!

Posted by: . | Mar 13, 2009 11:30:37 AM

Yeah, "Liberals" are little more than a discrete minority deserving of nothing more than pity and protection from the ravages of the majority. How's that McBush/Palin ticket doing for ya?

Posted by: Mark | Mar 13, 2009 11:31:58 AM

Mark, it's doing about as well as the current President is with filling Treasury slots . . . .

I have a feeling that this Administration will hurt us all, with a disproportionate amount of hurt to his biggest fans. A sad irony . . . .

Posted by: federalist | Mar 13, 2009 12:01:23 PM

The Coulter quote above is an odd one to trot out in apparent defense of a piece that, leaving aside the merit (or lack thereof) of its underlying positions, appears to be constructed largely out of "invective".

Posted by: Observer | Mar 13, 2009 2:00:47 PM

It was to contradict Marshall's justification . . . .

Posted by: federalist | Mar 13, 2009 2:19:58 PM

The premise of this opinion piece is faulty. Americans are more than adaquetely informed about the bad facts involved in capital cases. Media coverage of capital trials, for example, focuses almost exclusively on the gory details of the crimes - often to the exclusion of other details, such as the defense presented at trial.

By contrast, the public continues to be underinformed about two facts crucial to understanding the legal debates concerning the death penalty.

First, the quality of appointed lawyers and public defenders provided to indigent defendants is often terrible. Although the media sometimes discusses this problem in a general sense, it rarely discussed contemporaneously with respect to any particular. So, for example, when a particular capital defendant is unable to present an effective defense at trial and is quickly convicted by a jury, the public considers this as proof of his overwhelming guilt, and not as evidence that he had a lousy lawyer. Should that conviction eventually be reversed because of the lawyer's ineffectiveness, it is viewed as a legal technicality, rather than an appropriate remedy.

Second, the public is poorly informed regarding the scope of appellate and habeas review available to convicted persons. Often, the length of the review process and the number of judges involved in various proceedings is taken as proof that the merits of the conviction have been carefully scrutinized by numerous persons. In fact, appellate judges are highly constrained by the necessity to defer to the jury's verdict, to earlier rulings, and (particularly in habeas cases) to numerous arcane procedural rules that prevent them from even reaching the claims of error on their merits.

Posted by: rn | Mar 13, 2009 5:37:58 PM

I just read the SSRN draft; it's perhaps the worst legal article I've ever read. Even if you can overlook the terrible reasoning (such as saying that Breyer et al. voted the way they did in Dretke/Medellin because they wanted to "side with" a rapist-murderer), what's with the constant attacks on Linda Greenhouse? Do you think she's on the Court?

Posted by: what | Mar 14, 2009 1:35:01 AM

I would be interested in the position of Prof. Berman on the death penalty, as a disclosure to students. It is stealthy advocacy to select material that will support mostly one side, and to fail to provide adequate balance. That is not fair in an academic setting if not clearly disclosed and discounted by the students.

I am one of the owners of the law.

Posted by: Supremacy Claus | Mar 14, 2009 11:07:39 AM

The Supreme Court used an outdated definition of mental retardation. It is no longer defined by an IQ score. It is now a functional assessment. Can the person carry out basic skills of living without total supervision?

So the MR murderer ran a good drug business since age 9. By working long hours, he likely made a bigger salary than Prof. Berman. He plotted the assassination of a business rival, and did a good job of it. Since his conviction, hanging out with lawyers, his IQ score has increased to a point where he now qualifies for the death penalty again. This is a significant discovery of a cure for MR, hanging out with lawyers. We should end special ed and place all learning disability students in lawyers' offices.

What more could one want to disprove the validity of the Supreme Court decision?

We could send the Justices to his neighborhood, and see how long they survive and flourish, as he did. That experiment would show, the murderer had more savvy and slickness than a Supreme Court Justice.

Posted by: Supremacy Claus | Mar 14, 2009 11:15:26 AM

Outside of Europe and N.A., Israel is probably the US's BFF. Like the US after Kennedy v Louisiana, Israel doesn't allow the death penalty for crimes against individuals -- since 1954. Their last execution was in 1962. The only modern democracy with numbers of executions on par with the US that comes to mind is Japan. So its almost the exception, rather than the rule, that a democracy would embrace the death penalty.

Posted by: . | Mar 15, 2009 9:17:01 AM

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