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A (too?) forceful assertion of the reverse-Marshall hypothesis

By Douglas A. Berman

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...continue to full post

Full post as published by Sentencing Law and Policy on March 13, 2009 (boomark / email).