AuthorCondon, Jenny-Brooke


The persistence of capital punishment as a constitutional form of punishment in the United States reflects deep denialism about the practice and the role of the courts in regulating it. Denialism allows judges to embrace empirically contested narratives about the death penalty within judicial decisions, to sanction execution methods that shield and distort the pain associated with state killing, and to ignore the documented influence of race on the death penalty's administration. This Article draws upon the concept of denialism from the transitional justice context, a theory that explicates denial in responses to mass human rights violations and collective violence. It describes mechanisms of denial in judicial regulation of capital punishment and argues that conditions will not be ripe for judicial abolition of the death penalty until this denialism is better understood and confronted. I identify potential entry points for exposing and overcoming denialism in Eighth Amendment analysis.

TABLE OF CONTENTS INTRODUCTION I. INSIGHTS FROM DENIALISM A. The Meaning and Significance of Denial B. Denialism in the Aftermath of Atrocity C. The Function and Tools of Denial II. CONCEPTUALIZING DEATH PENALTY RETENTION IN THE FACE OF SYSTEMIC FLAWS A. Threads of Denial B. Deliberateness, Ignorance, or Denial C. Implications for Criminal Justice III. THE SUPREME COURT AND THE DEATH PENALTY'S OPEN SECRETS A. Shielding Racial Bias B. The Fallacy of "the Worst C. Judging Cruelty D. Dignity and Death IV. CONFRONTING DENIALISM THROUGH THE EIGHTH AMENDMENT CONCLUSION INTRODUCTION

The death penalty's ineffectiveness and irremediable unfairness will one day lead to its end (1)--or so the theory goes. That assumption animates many contemporary critiques of capital punishment. (2) Notwithstanding the limited audience receptive to such arguments at the current Supreme Court, (3) 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. (4) Important research continues to document the death penalty's many flaws, (5) 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. (6)

This Article sounds a cautionary note to that prevailing account. It argues that America's exceptional retention of capital punishment (7) 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, (8) its sanctioning of execution methods that shield and distort the pain associated with state killing, (9) and its decision to ignore the documented influence of race upon the death penalty's administration. (10) 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. (11)

Empirical arguments against the death penalty have long dominated strategies to invalidate it. (12) 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. (13) LDF teamed up with a social scientist to first show racial disparities in sentencing for rape. (14) Its empirically-focused strategy culminated in Furman v. Georgia, (15) 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, (16) 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. (17) This argument, dubbed the Marshall Hypothesis, (18) 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. (19)

More than forty years later, in his 2015 dissent in Glossip v. Gross, (20) 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." (21)

Meanwhile, an extensive body of evidence continues to grow documenting the death penalty's many problems, including its ongoing geography- and race-based arbitrariness. (22) Researchers predict that the "death penalty's future will turn on the quality and availability" of this data. (23)

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. (24) 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. (25) 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. (26)

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. (27) 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.


    1. The Meaning and Significance of Denial

      What does it mean to be in denial? Denial is a term with varied and complex meanings, including psychological, political, and popular understandings. We speak of people being in denial when they discount facts that make them uncomfortable or which do not conform to their preferred world view. (28) Denialism is commonly used to describe the rejection of facts supported by science, as in the case of climate change, the safety of vaccines, (29) and some governments' denial of a link between HIV and AIDS. (30)

      Science skepticism may reflect its own version of conspiratorial thinking or cynical political strategies, (31) but it also shares dynamics common in post-conflict denialism too. Skepticism of science similarly grows out of cognitive bias (32) and is often inextricably linked with politics surrounding racial injustice. (33) The version of denial that inevitably emerges following episodes of mass atrocity and collective violence provides the most useful lens for assessing the mechanisms of denial evident injudicial regulation of the death penalty. (34) For starters, this version of denialism prompts further reckoning with the ways slavery and racial subjugation have impacted the American criminal justice system. It forces hard questions about whether that history powerfully shapes the death penalty's administration today.

    2. Denialism in the Aftermath of Atrocity

      Following history's most egregious episodes of collective violence, states, perpetrators, and bystanders alike have invariably denied that violence and mass human rights violations occurred. (35) This phenomenon has occurred on an individual and collective level. (36)

      For example, nearly twenty years after the atrocities committed during the 1990s in the former Yugoslavia, many Serbian citizens denied that the Serbs perpetrated most of the mass violence following the breakup of Yugoslavia or were "unwilling to acknowledge what they know." (37) This sentiment was inconsistent with the publicly available evidence of Serb atrocities. (38) As a human rights activist who helped survey Serbian attitudes regarding the work of the International Criminal Tribunal for the Former Yugoslavia ("ICTY") put it, "[t]he question is whether you really don't know or you refuse to...

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