Tuesday, October 27, 2009
Carol S. Steiker (Harvard Law School) has published The Marshall Hypothesis Revisited in the Howard Law Journal, assessing Justice Thurgood Marshall's claim that citizens would oppose the death penalty if fully informed about it. Here is an excerpt from the introduction:
In what follows, I will review the empirical studies, the more general changes in death penalty attitudes and practices from 1972 until today, and the changes in the views of individual members of the Supreme Court over the same period. These different grounds of assessment, considered together, do not by any means lead to an unqualified endorsement of Marshall’s argument in its entirety. However, they do suggest that there is more to say on behalf of the Marshall hypothesis than the easy dismissal it sometimes invites. Moreover, these assessments may not only help to explain some of the developments in death penalty attitudes and practices from Furman to the present, but they may also offer some direction to the Court in its continuing role of regulating capital punishment practices under the Eighth Amendment.