Boston Globe
 October 28, 1980 

 By Joseph M. Harvey, Globe Staff 

 The new death-penalty law that has been in effect in Massachusetts for 
 less than a year is unconstitutional and violates the state constitutional 
 ban on cruel and unusual treatment, the state Supreme Judicial Court (SJC) 
 said today.

 The court's majority decision said the law that was signed into effect on 
 Nov. 14, 1979, by Gov. Edward J. King "is unacceptable under contemporary 
 standards in its unique and inherent capacity to inflict pain" and 
 discriminates against minorities, "particularly blacks.

 The decision, written by Chief Justice Edward F. Hennessey, noted that 
 blacks convicted of murdering whites are more often sentenced to death 
 than are whites found guilty of murdering blacks.

 "We reject any suggestion that racial discrimination is confined to the 
 South or to any other geographical area," Hennessey wrote in support of 
 the court's ruling that the death penalty is applied more frequently to 

 "Moreover," Hennessey added, "the existence of racial prejudice in some 
 persons in the Commonwealth of Massachusetts is a fact of which we take 

 The court's ruling leaves Massachusetts without an effective capital- 
 punishment law, and, in the view of Justice Francis J. Quirico, who 
 dissented, probably bars any passage of the new death penalty statute.

 In a 20-page, strongly-worded dissent, Quirico - the senior justice among 
 the seven high court judges - said the court's ruling "has completely 
 stripped the Legislature of the constitutional power which it has 
 heretofore possessed and exercised for 200 years to determine, in its 
 wisdom and discretion, when and in what circumstances the public good 
 requires the imposition of the death penalty for murder in the first 

 "I believe the present decision constitutionally forecloses any 
 legislative authorization of capital punishment for any crime in this 
 commonwealth," Quirico said. He said the majority of the justices were 
 applying "a moral rather than a legal" standard in deciding the questions 
 involved in the death penalty dispute.

 The new law provides the death penalty for murder in "aggravated 
 circumstances" and requires two separate jury trials in each case, one to 
 decide whether a defendant is guilty and the second to determine when the 
 punishment for conviction should be death.

 The aggravated circumstances as described in the statute, Chapter 488, 
 Acts of 1979 - included murder of a police officer or fireman or in 
 connection with hijacking of an airliner or bus. Death also could be 
 imposed for a death resulting from a wanton shooting in a public place.

 Suffolk County District Atty. Newman Flanagan brought a test case asking 
 the court to make an unprecedented ruling in advance of any court trial in 
 which the new death penalty law would be involved. Four men who presently 
 are under murder indictments and could receive the death sentence were 
 joined as defendants in the unusual case.

 Because of the nationwide dispute concerning capital punishment and the 
 differences of opinion concerning such laws, Hennessey said the court 
 would depart from its usual course of waiting for an appeal in an actual 
 murder trial.

 The court said a ruling on the new capital punishment law also "is of 
 fundamental importance" to Flanagan as well as other district attorneys 
 who, the court said, are "bound by the oath and duties of his office to 
 enforce the law of the commonwealth as enacted by the commonwealth." The 
 case presented "a matter of public importance" beyond the persons named 
 as being involved in the case, Hennessey wrote.

 Hennessey wrote that the framers of the state constitution did not intend 
 its provisions to "be static," but expected them to be "applied 
 consistently with the standards of the age."

 The court said that if the 1979 law "is indeed unacceptable under 
 contemporary moral standards," it violates the state constitution "and it 
 is our responsibility to declare it invalid."

 Hennessey, who was joined by Justices Benjamin Kaplan and Ruth I. Abrams, 
 noted that "there is no unanimity of public opinion either favoring or 
 opposing the death penalty."

 Rather than paying attention to public opinion polls on the subject, 
 Hennessey wrote that "we think what our society does in actuality is a 
 more compelling indicator of the acceptability of the death penalty than 
 the response citizens may give upon questioning."

 The court noted that since 1948 "no person was executed in this 
 commonwealth." Of the 43 persons sentenced to death, all had their 
 punishment either reduced or changed to life imprisonment, the court 

 "The complete absence of executions in the commonwealth through these many 
 years indicates that in the opinion of those several governors and others 
 who bore the responsibility for administering the death penalty provisions 
 and who had the most immediate appreciation of the death sentence, it was 
 unacceptable," Hennessey wrote.

 "In its finality, the death penalty may cruelly frustrate justice. Death 
 is one punishment from which there can be no relief in light of later 
 developments in the law or the evidence," Hennessey said in underscoring 
 the futility of an appeal from an execution.

 Separate concurring opinions were filed by Justices Herbert P. Wilkins, 
 Robert Braucher and Paul Liacos.