Lawyers Journal

Governor sends mixed signals with courthouse, death penalty plans

Addressing the second announcement first, Gov. Romney has determined that these projects, many of which were well underway, would be put on hold for at least a 60-day time frame. As I understand it, there are two rationales: The first is related to fiscal conservatism and the second is to assess how these projects fit into a long-range facilities plan yet to be developed.

On the fiscal front, concerns have been expressed that the amount of borrowing by the state is jeopardizing our bond rating. If that is the case, the governor has asked the question: Can we afford these projects?

As a second rationale, it has been explained that the two-month stay would permit the governor's office to study the various projects to determine whether they are consistent with the his long-range plan for courthouse facilities. In broad construct, the plan that is in the formative stages looks to a limited number of "regional justice centers" and a move away from community courts. As best as I understand the plan, it is an economically driven model consistent with this administration's overarching theme for increased consolidation and strict financial management.

As one who has practiced my entire professional life in Worcester County, the impact of this determination on the efforts to build a new Worcester Courthouse and refurbish portions of the existing structure is especially distressing. Community and bar leaders have struggled over two decades to upgrade a facility that no one who has been in it would find to be adequate. The inclusion of this project in the 1997 bond bill was followed by a substantial commitment of financial and manpower resources to the design and development phase. Based upon consistent assurances by the previous administration, the city of Worcester took a valuable downtown property by eminent domain. After that, a thriving entertainment establishment was relocated, with the concomitant upheaval and expense. It has been estimated that the state and city have already spent $15 million on this project. The process is well along and an eleventh-hour "pause" is simply not wise, nor is it fair to the many innocent parties or to taxpayers.

Although the Worcester project is near and dear to my heart, my intent in detailing those specifics is not to suggest that the other projects are not equally important. The inclusion of each followed a lengthy coalition effort to educate the legislature about the terrible condition of these buildings. The need for each has been well established and is long overdue.

The fair administration of justice is, at its core, dependent upon the respect given by our citizenry to that system. A courthouse is a powerful symbol by which our government shows its respect for that system and can then fairly ask for public respect in return. In the words of Superior Court Associate Justice Francis R. Fecteau describing the present courthouse in Worcester, "[w]e expect citizens to respect what goes on in this building, but we have a building that doesn't reflect the importance of the judicial process."

Speaking in a context that this administration often uses, a business would not let its facilities fall into visible disrepair. To do so makes an implicit comment upon the ultimate products and/or services provided and sends a distressing message to the people who work in the system about the work they do. As a business must recognize the impact of such a statement, so too must we recognize the impact upon our system of justice when it is carried out in unclean, dysfunctional and inadequate judicial facilities.

Turning back to the first issue, the death penalty is again being trotted out. Its re-emergence comes from the belief that it will be an effective weapon in the battle against crime, particularly heinous crime. In an effort to make this ultimate punishment more palatable, the governor has chosen to try to "fix" one of the opposition arguments - that the risk of putting an innocent person to death is too great. By convening a panel of experts, purportedly uncommitted to a philosophical position on the death penalty, the governor hopes that the use of DNA will permit guilt to be established by a "virtual certainty."

There is, of course, the obvious argument that the science, even if anyone could prove it to be infallible, interacts with fallible human beings throughout the process. Human error may occur in the investigation, the collection, handling and analysis of evidence, the prosecution, the defense and the judging of these cases and can never be eliminated from the process.

For the sake of argument, but without conceding the point, let's assume that the Governor's Commission can become convinced and can convince the legislature and the public that the process can be made immune to human error with the assistance of DNA. Nevertheless, there are a multitude of other equally compelling reasons why our commonwealth should not revert to state-sponsored killing as a means of creating a higher appreciation for life.

First and foremost, the application of the death penalty has never been shown to be a deterrent for the crimes for which it is to be applied. Common sense suggests that few murderers would undertake a thoughtful comparative analysis of life in prison without parole versus execution before committing their crime. Aside from this intuitive reaction, the numerous studies done on the subject do not suggest a different conclusion. Massachusetts, without a death penalty, has one of the lowest homicide rates in the nation. We are significantly better in that regard than capital punishment bellwethers such as Texas and Florida.

As a second argument, it is statistically proven that the death penalty is disproportionately sought against the poor and minorities and where the victim is white. While we can hope that our law enforcement and prosecution forces would not act consistent with those statistics, for what end do we want to take that risk?

Finally, we come to the economic argument against reinstitution of the death penalty. I am loath to make this argument because it suggests that the taking of a human life should be quantified and analyzed versus its opportunity cost. Unfortunately, with this issue returning to the table, the fiscal argument may resonate with some.

Studies conducted since 1975 have proven that a system that provides for the death penalty is enormously more expensive than one in which the harshest penalty is life imprisonment without parole. This arises for a variety of reasons and relates to both obvious and less obvious added expense. Costs for forensic experts, investigators, psychiatrists, attorneys, motions, hearings, jury selection and sequestered juries are magnified by the gravity of sentencing someone to death. The separate penalty phase mandated by the United States Supreme Court puts the defendant's entire life on trial with more judicial, witness, attorney and expert time. Appellate costs add more expense. The incarceration costs to maintain a prisoner on death row also add to the financial burden.

When the death penalty was last seriously considered in the late 1990s, it was estimated that its adoption might mean an additional annual expenditure of $47 million. At that time, figures from New Jersey indicated that the cost of sentencing a single person to death was $7.3 million. I have yet to see any credible study regarding the death penalty that refutes the extraordinary increase in expense and burden placed upon the system from its enactment.

If a new death penalty statute is adopted, where will this additional revenue come from? At a time when funding cuts are the norm for virtually every area of governmental spending, are we prepared to accept this additional drain on resources to have a criminal penalty that has never been proven a deterrent? Should we further reduce our financial commitment to education or police or fire? Should we de-fund rape crisis centers or legal services agencies? Or should those funds come from the judicial system where the hoped-for infallibility will be found?

When we are "pausing" to construct critically needed judicial buildings because we may not be able to afford them, can we afford the death penalty?

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