October 28, 1980 SJC RULES DEATH PENALTY IS ILLEGAL 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 minorities. "Moreover," Hennessey added, "the existence of racial prejudice in some persons in the Commonwealth of Massachusetts is a fact of which we take notice." 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 degree." "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 noted. "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.