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Excerpted From: Jenny-Brooke Condon, Denialism and the Death Penalty, 97 Washington University Law Review 1397 (2020) (312 Footnotes) (Full Document)


JennyBrookeCondonThe death penalty's ineffectiveness and irremediable unfairness will one day lead to its end so the theory goes. That assumption animates many contemporary critiques of capital punishment. Notwithstanding the limited audience receptive to such arguments at the current Supreme Court, critics continue to cite evidence of the death penalty's race-based arbitrariness in death sentences, excessively long and expensive delays from sentence to execution, and the number of innocent persons convicted of capital crimes. Important research continues to document the death penalty's many flaws, reinforcing the perception that the more information that is available about how the death penalty really functions in practice, the sooner capital punishment will be abolished.

This Article sounds a cautionary note to that prevailing account. It argues that America's exceptional retention of capital punishment is not based upon ignorance of the death penalty's worst problems; it is sustained through choices that ignore those problems in the face of overwhelming evidence. As explained below, denialism captures a complex set of factors that defines judicial regulation of the death penalty as a constitutional form of punishment in the United States. This includes the Court's embrace of dominant, yet empirically contested, narratives about the death penalty within judicial decisions, its sanctioning of execution methods that shield and distort the pain associated with state killing, and its decision to ignore the documented influence of race upon the death penalty's administration. This Article conceptualizes and begins to troubleshoot the denialism that characterizes judicial regulation of the American death penalty, which it pinpoints as a formidable and under-appreciated barrier to judicial abolition.

Empirical arguments against the death penalty have long dominated strategies to invalidate it. During the 1960s and 70s, the NAACP Legal Defense Fund (“NAACP-LDF” or “LDF”) methodically litigated challenges to capital punishment based upon statistical evidence of racial disparities in death sentencing. LDF teamed up with a social scientist to first show racial disparities in sentencing for rape. Its empirically-focused strategy culminated in Furman v. Georgia, the Court's 1972 decision holding that the death penalty could not, in the cases before it, be fairly administered without arbitrary results. The decision effectively invalidated the death penalty, but LDF's victory was short-lived: four years later, the Court reinstated capital punishment in Gregg v. Georgia, after states enacted new capital statutes in response to Furman.

Following this turnaround, many opponents retained their faith in the power of the empirical case against the death penalty. Scholars and advocates continued to use research-based evidence to question the fairness and utility of capital punishment. Justice Thurgood Marshall also famously contended that greater knowledge and understanding of capital punishment's flaws would eventually lead to its repudiation. This argument, dubbed the Marshall Hypothesis, posited that average citizens would be shocked and reject capital punishment as unjust if they knew more about racial disparities in capital sentences and the number of innocent people wrongly convicted.

More than forty years later, in his 2015 dissent in Glossip v. Gross, Justice Breyer similarly questioned the death penalty's sustainability based upon empirical evidence. He concluded that the death penalty likely no longer serves any valid penological purposes that could withstand Eighth Amendment scrutiny and expressed interest in full briefing on “whether the death penalty violates the Constitution.”

Meanwhile, an extensive body of evidence continues to grow documenting the death penalty's many problems, including its ongoing geography- and race-based arbitrariness. Researchers predict that the“death penalty's future will turn on the quality and availability” of this data.

Judicial decision making that minimizes, disregards, and distorts the brutality, arbitrariness, and inequality that defines capital punishment in the United States, however, complicates the empirical case against the death penalty. This Article draws upon the literature assessing denial in the aftermath of collective violence and mass atrocity to conceptualize and describe these patterns as denialism. The point is not that two dissimilar contexts are neatly analgous. Rather, the project draws on understandings of denial in other contexts to spark further reflection and study on why constitutional regulation of the death penalty appears to habitually manifest elements of denial.

In Part I, I define the concept of denialism, drawing upon the literature addressing mass atrocity and collective violence.

In Part II, I identify the need for a theory to capture a complex set of factors relevant to the persistence of the death penalty in spite of its overwhelming flaws.

Part III identifies facets of denialism in our current system of capital punishment. I show that this includes willful blindness about capital punishment's systemic failings, as well as denialism about the judiciary's own place in the system of state killing. Though there are many, I focus on four areas where I argue that denialism infects judicial regulation of capital punishment: assessing the role of race, the fallacy of reserving this punishment for the worst-of-the-worst, the Supreme Court's assessment of the cruelty of execution methods, and the more fundamental refusal to question the disconnect between a justice system that values human dignity and requires judges to closely regulate state killing. I identify some of the tools that fuel denialism including secrecy and state distortion. Ultimately, this Article identifies entry points in Eighth Amendment analysis where courts can better confront hard truths about the death penalty.

[. . .]

The concept of denialism described in this Article illuminates patterns in judicial regulation of the death penalty that facilitate uncritical acceptance of capital punishment as a constitutional form of punishment. Removing denialism will not alone produce a more just Eighth Amendment analysis, but that does not excuse reliance upon it as a justification for willful blindness. Ultimately, acknowledging and naming denialism can help clear the space within our Eighth Amendment jurisprudence for a more rigorous and honest confrontation with hard truths about the death penalty. Doing so inevitably provokes further exploration of a proposition only surfaced in this Article, but which deserves further attention: whether judicial regulation of capital punishment is compatible with a legal system that purports to value human dignity and charges the judiciary with protecting those values under the Constitution.

Professor of Law, Seton Hall Law School.

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