The death penalty in Massachusetts
Facts and History

There currently is no state death penalty in Massachusetts, life without the possibilty of parole being the only punishment for first-degree murder. The federal government prosecutes capital cases within Massachusetts, however.

On November 7, 2007, House lawmakers again overwhelmingly rejected a bill to reinstate the death penalty by a vote of 46 - 110. Two years earlier in 2005, the House defeated Governor Romney's legislation 53 - 100. Continue reading for a full Massachusetts history.

The first recorded judicial exection in Massachusetts took place in 1630, when John Billington, who had arrived on the Mayflower, was hanged at Plymouth for the murder of John Newcomen. The last executions were on May 9, 1947 when Phillip Bellino and Edward Gertson, both convicted of murdering Robert William, were electrocuted at Charlestown State Prison. In total, there have been approximately 345 executions within Massacusetts, including 26 convicted of practicing witchcraft.

Until 1951, murder in the first degree called for a mandatory punishment of death. In 1951, the law was changed to allow the jury the discretion to recommend against a death sentence after considering mitigating circumstances - in which case the sentence would be life imprisonment - unless the murder was committed in connection with a rape or attempted rape, in which case the death sentence was mandatory.

Following the executions of Bellino and Gertson, people continued to be sentenced to death, however for thirty years six successive governors routinely granted commutations to life sentences. In 1968, voters expressed disapproval with this trend in a nonbinding referendum, voting 49 to 31 percent in support of continued use of the death penalty.

During the 1970's and 80's, a series of judicial rulings eventually eliminated the death penalty altogether under Massachusetts law:

  • In 1972, the US Supreme Court decision of Furman v. Georgia, threw out Georgia's death penalty as cruel and unusual, citing the arbitrary and capricious manner in which it was administered, and leading to capital statutes throughout the country being overturned. For Massachusetts, this meant that the discretionary death penalty for murder was nullified, but the mandatory death penalty for rape-murder was left intact for the time being (Cf. Commonwealth v. Harrington, 1975).
  • In a 1975 case requiring two separate hearings before the Supreme Judicial Court (Commonwealth v. O'Neal parts I and II), the remaining rape-murder law was voided on the principle that the right to life is fundamental and due process requires that the state bears the burden to demonstrate a compelling interest in execution that could not be served by any less restrictive means (such as life imprisonment). The court concluded that the Commonwealth had not provided adequate justification for capital punishment, and the statute thus violated both the due process and the prohibition of cruel or unusual punishment provisions of the Massachusetts Constitution.
  • In 1976, the US Supreme Court ruled in Gregg v. Georgia that Georgia's revised capital murder statute contained sufficient safeguards to ensure due process and correct the shortcomings that the court had found in Furman. Following the guidelines in Gregg, legislatures around the country began rewriting their death penalty laws.
  • In 1977, the Massachusetts House of Representatives solicited an opinion from the SJC regarding the constitutionality of a proposed capital murder statute. Holding the same view as expressed in O'Neal, the SJC ruled that the Legislature failed to demonstrate that the death penalty contributes more to a legitimate state purpose — e.g., deterring criminal conduct — than life imprisonment. And lacking such a showing, the Article 26 (of the Declaration of Rights) prohibition on cruel or unusual punishment forbids the imposition of a death penalty. read more
  • On October 28, 1980, the SJC ruled in District Attorney for the Suffolk Dist. v. Watson that a new capital statute signed into law by Governor Edward King the previous November (c. 488, Acts of 1979) was unconstitutionally cruel for all the reasons laid out in O'Neal and their opinion of the proposed 1977 bill. read more

On November 2, 1982, voters approved by referendum (54 to 35 percent) an amendment to Article 26. read more The amendment, Article 116 of the Massachusetts Constitution, states that:

No provision of the Constitution... shall be construed as prohibiting the imposition of the punishment of death.

This completed the amendment process which had been initiated in 1980 by legislators concerned that their 1979 statute might not survive SJC scrutiny (which it didn't). read more

The legislature acted quickly to draft another new death penalty bill. On December 15, 1982, the House and Senate passed legislation providing for capital punishment for first-degree murder. The bill was signed into law (c. 554, Acts of 1982) a week later by Governor King and went into effect on January 1. read more

This 1982 statute was invalidated by the SJC on October 18, 1984 in the case of Commonwealth v. Colon-Cruz. While the death penalty per se was no longer forbidden by the Constitution, this particular statute improperly encouraged defendants in murder cases to plead guilty rather than face a jury trial, thus avoiding the possibility of the death sentence, and violating the right against self-incrimination and the right to trial by jury. Massachusetts has remained without a valid death penalty law ever since. read more

Subsequent attempts to reinstate the death penalty have failed:

  • By the time of the Colon-Cruz decision, Michael Dukakis had become governor (again). Throughout these two terms, a nearly evenly divided legislature never passed a bill - which the governor would have certainly vetoed.
  • In 1991, William Weld became governor. He, and every governor since, argued for for death penalty reinstatement.
  • In October 1997, both the House and Senate passed bills to reinstate the death penalty. On November 6, the conference committee bill failed on a tie vote (80-80) in the House after a single legislator switched his position. read more
  • An attempt to reinstate the death penalty failed on a 73-80 vote in the House on March 29, 1999. read more
  • On March 12, 2001, reinstatement bills were rejected in the House with a vote of 60-94. read more
  • Four bills which would reinstate the death penalty were introduced in the 2003-2004 legislative session; hearings were held on March 27, 2003 at which only oppponents of the bills appeared to give testimony, and no vote was ever taken. read more
  • Confronted with a growing number of wrongful murder convictions in Massachusetts as well as in other states, and looking back on the failed attempts of two previous governors to reinstate the death penalty, Governor Romney established a blue-ribbon comission to address legislators' concerns over innocence. On May 3, 2004, the Governor's Council on Capital Punishment issued their Final Report, with recommendations for creating a system "as infallible as humanly possible." Legislation based on these recommendations was finally filed on April 28, 2005, but defeated in the House on November 15 on a vote of 53-100. read more
  • On November 7, 2007, House lawmakers again overwhelmingly rejected a bill to reinstate the death penalty by a vote of 46-110. The vote effectively killed any chance of the bill becoming law for the 2007 session. See the AP article here.