Death Penalty Facing Crisis of Confidence With American Public, New Poll Finds In Furman V. Georgia, Justice Marshall opined that if the public were better informed about how the death penalty is applied and actually works, support for its use would drop. This bit of conjecture came to be known as the Marshall Hypothesis. As one would expect, social scientists attempted to test the hypothesis, but soon realized that the hoped for drop in support as knowledge increased did not materialze. In one study, the participants became even more polarized in their opinions about the death penalty.
As we gained a better understanding of death penalty attitudes, we realized that many people did not oppose or support the death penalty because of utilitarian reasons, like general deterrence, or concerns over fairness. One common factor stands out that explains a great deal about both support and opposition to the death penalty - many peole on both sides of this issue believe that killing is wrong. Supporters of capital punishment cite revenge and retribution as justifications for their support, while many who oppose death sentences do so in the belief that any killing by the government is wrong.
Yet, for decades, the evidence has been accumulating that the death penalty is plagued with a host of problems. If the death penalty was held to the same standard of success and failure and cost/benefit ratios as other public policies, would it be retained in light of the vast amount of evidence? But national polls continued to reveal strong support for the imposition of death sentences (the flaws and limitations of the questions are well noted), which in turn has had an impact on the decisions of prosecutors to seek and on judges to impose death sentences.
The U.S. Supreme Court has addressed some of these issues in its recent decisions, such as banning the execution of juveniles and the mentally retarded, which finally brings us into compliance with international treaties and evolving standards of decency (to use the phrase from Tropp v. Dulles). The decision in Roper and Atkins were based, in part on the impact of public opinion, domestic and international, and the diminished use by a significant number of states. My fear, however, was that the Court was simply removing barriers in order to make it easier to conduct,and perhaps even increase, the number of executions.
Yet something changed starting around 2000. After reaching a high of 98 executions in 1999, the number of executions began to decline and has hovered in the 50-60 per year range. The population of death row has also decreased during the same time period. We speculated that perhaps the issue of innocence was undermining support, but still feared that this issue could not overcome the desire for revenge and retribution, especially after 9/11, that fuels a great deal of support for the death penalty.
Now we have evidence that the stories of individuals confined to death row for decades, along with near-death experiences, seems to be having an impact on public support. While some individuals are attacking the Death Penalty Information Center and its count of individuals exonerated from death row, the public is fairly convinced that innocent people have been sentenced to die and have been executed. Does the number really matter? How many wrongfully convicted does it take to shock and appall us? Evidently a significant proportion of the public have become sufficiently concerned over the issue and may have grown weary of the millions of dollars spent will little to show in terms of crime control. So, perhaps there might be some validity to the Marshall Hypothesis after all. On the other hand, since 1976, 1078 individuals have participated in America's experiment with the death penalty. Too bad we did not listen to Justice Blackmun or follow the lead of most of the rest of the world and stop tinkering with the machinery of death.