The Commonwealth of Massachusetts
Executive Department
State House Boston, MA 02133
(617) 725-4000



April 28, 2005

Shawn Feddeman
Felix Browne
(617) 725-4025

Death penalty applies to narrow set of crimes, requires higher standard of proof

Governor Mitt Romney today filed a bill enabling Massachusetts prosecutors to seek the death penalty in cases that include terrorism, the assassination of law enforcement officials and multiple killings.  The legislation is the first of its kind in the nation in that it calls for corroborating scientific evidence, multiple layers of review and a new “no doubt” standard of proof.

Romney said the proposal is the “gold standard for the death penalty in the modern scientific age.”

Governor Romney invokes "science" as a sort of legal panacea. But no amount of science will eliminate the possibility of human error or malfeasance, nor make executions any less morally repugnant.

“In the past, efforts to reinstate the death penalty in Massachusetts have failed.   They have failed because of concerns that it would be too broadly applied or that evidentiary standards weren’t high enough or proper safeguards weren’t in place.  We have answered all those concerns with this bill,” said Romney.

Those were certainly concerns, but by no means all of the concerns. Governor Romney fails to satisfactorily answer these two concerns and overlooks the others altogether.

Lieutenant Governor Kerry Healey noted that Massachusetts is one of only 12 states that do not have a capital punishment sentencing option.

Fourteen, actually. The Supreme Courts of Kansas and New York invalidated their states' death penalty laws in 2004. In Kansas, the legislature has not drafted a new statute, and in New York, a new statute died in committee. And the vast majority of executions in the United States take place in a small number of states. There hasn't been an execution in all of New England since 1960.

“Massachusetts should no longer be in the minority of states when it comes to deterring first-degree murder,” said Healey.  “The death penalty should be available for a narrow set of crimes that we all can agree deserve the ultimate punishment.”

This is a strange argument. Massachusetts has one of the lowest murder rates in the nation, much lower than states that actively execute murderers. We are one of the few states already doing a good job of deterrence. Isn't that a good minority to be in? And her "we all can agree" rhetoric is simply untrue. We don't all agree on what punishment is appropriate.

Romney’s bill is based on the recommendations of the 11-member Governor’s Council on Capital Punishment, which issued its findings last year.

Specifically, the legislation will allow a jury to impose the death penalty for first-degree murders that were committed as an act of political terrorism or against a law enforcement officer, a judge, a juror, a prosecutor, an attorney or a witness for the purpose of obstructing an ongoing criminal proceeding; that involved prolonged torture or a murder spree; or where the defendant had already been convicted of first-degree murder or was serving a life sentence without parole.

Romney spokewoman Shawn Feddeman told the Boston Herald that the Governor would support an expansion of death-eligible crimes, so this short list is misleading and claims that the death penalty will be narrowly applied are disingenuous.

To ensure that only the guilty are put to death, the proposal mandates an unprecedented level of scientific evidence.  Before the death penalty can be imposed, conclusive scientific evidence must link the defendant to the crime scene, the murder weapon or the victim’s body.

In addition, an independent scientific review of the physical evidence must be completed before any capital sentence is carried out.   This review should ensure that the evidence is collected, handled, evaluated, analyzed, interpreted and preserved according to the highest standards of the medical and scientific community.

“Just as science can free the innocent, it can also identify the guilty,” Romney said.

Tell that to Stephan Cowans, who spent over six years in prison for a crime he did not commit, thanks to "science." Boston Police, either through incompetence or wilful fabrication and perjury, used bogus fingerprint evidence to convict Cowans of the attempted murder of a police officer. Governor Romney's bill allows a wide variety of "scientific" evidence to be used - not just DNA - including photographs (which can easily be "photoshopped" or otherwise altered) and fingerprints, which are fundamentally much less reliable than DNA.

The Governor’s bill will also establish a first-in-the-nation “no doubt” standard for juries.  This means that even after finding the defendant guilty beyond a reasonable doubt, a jury may not impose the death penalty if one or more jurors harbor any residual doubt about the defendant’s guilt.  If a jury becomes deadlocked and cannot decide whether to impose a death sentence, the court will dismiss the jury and issue a sentence of life in prison without the possibility of parole.

The Governor does not tell you that the defense may not argue "residual doubt" unless the defense agrees to allow a "death-qualified" jury (composed of jurors more likely to convict) to determine guilt or innocence.

Romney’s legislation also includes a number of additional safeguards, including:

  • A bifurcated trial process with one trial to determine an individual’s guilt and a separate one for sentencing.  The defendant could request a different jury for each stage of the process;

    A bifurcated trial is not an innovation of this bill. It has been required of all capital trials by the United States Supreme Court since 1972. And the option of requesting a second jury for the sentencing stage of the trial comes at the cost of waiving the "no doubt" standard.

  • An automatic review of any death sentence by the state Supreme Judicial Court; and

    Again, nothing new. This has been a requirement in all capital cases since 1972.

  • The creation of a Death Penalty Review Commission to review any complaints filed by individuals on death row and to investigate any errors that may have allegedly occurred during the trial.

    One wonders how the Commission would respond to the very legitimate complaint of those on death row that the state is trying to kill them.

The proposal also emphasizes the importance of providing high quality defense representation and recommends developing a list of “capital case qualified” defense lawyers.  The defendant will be afforded two attorneys for the trials and a third for the mandatory review by the Supreme Judicial Court.

This is great. But let's take the money we would spend on implementing capital punishment and use it to improve our criminal justice system in general, reducing errors and speeding prosecutions in all criminal cases.

Similar to the requirements for seeking a first-degree murder conviction, prosecutors attempting to prove capital murder must establish that defendants acted with premeditated malice and were at least 18 years of age at the time of the crime and not mentally retarded.

These are requirements for all capital cases, per United States Supreme Court decisions.

In 2003, Romney appointed the Governor’s Council on Capital Punishment, a high-level panel made up of some of the world’s foremost experts in the use of forensics in homicide cases, and tasked them with using the latest advances in science to design a death penalty that meets the highest evidentiary standards to ensure that no innocent person could be wrongly put to death in Massachusetts.

The panel was not asked to determine whether the death penalty was sound public policy or whether citizens of Massachusetts would be safer or better off with it. They concluded that they had drafted guidelines for a death penalty that was "as infallible as humanly possible." Perhaps they have, but this begs the questions of whether this level of (un)certainty is acceptable or whether the government should be executing people at all - innocent or not. The fact is that Massachusetts already has a system in place which eliminates entirely the possibility of sending an innocent person to the execution chamber. Why replace it with a system which introduces risk?

The panel issued its report in May 2004.   However, because of the shortened legislative session that year, Romney waited until this year to file the bill so it could receive full consideration.