Friday, August 4, 2017
Chance Meyer (Nova Southeastern University, Shepard Broad College of Law) has posted The Newly Informed Decency of Death: Hall V. Florida Endorses the Marshall Hypothesis in Eighth Amendment Review of the Death Penalty (Stetson Law Review, Vol. 45, No. 2, 2016) on SSRN. Here is the abstract:
The Supreme Court has long determined what criminal punishments violate the Eighth Amendment by asking whether they fall short of the American people’s standard of decency. And it has relied mostly on state legislation to reflect what people think is decent. In 1972, Justice Marshall suggested the Court should factor expert knowledge of the actual workings of death penalty systems into its analysis. I refer to this approach as “informed decency.” Marshall believed doing so would make death unconstitutional, because the American people would reject it if better informed. This has come to be known as “the Marshall Hypothesis.” Some forty years later, in Hall v. Florida, the Court finally did something akin to what Marshall suggested, with regard to a particular feature of the death penalty. The Court relied on the knowledge of professional psychological organizations to find unconstitutional the manner in which Florida determined ineligibility for the death penalty based on intellectual disability. If such an informed decency is adopted on a larger scale, and applied to the death penalty itself, current views of experts in science and law would provide strong evidence to find the death penalty violates the American standard of decency and, as a result, the Eighth Amendment.