Lawyers Journal

MBA opposes Romney’s “foolproof” death penalty bill

In late April, Gov. Mitt Romney unveiled proposed legislation that he touted as establishing an “almost foolproof” death penalty system. The bill would confine capital punishment to a short list of what Romney called “the most heinous of crimes”: multiple murders, murders involving prolonged torture, murders committed as acts of terrorism and murders intended to influence the outcome of a trial.

The bill requires that there be “conclusive scientific evidence” to link the defendant to the crime, that juries be explicitly warned of the limits of eyewitness accounts and the unreliability of jailhouse informants, and that defendants be assured of at least two “capital-case qualified” defense attorneys.

The bill also calls for juries to be instructed to hand down a death sentence only on the basis of a “no doubt” standard of proof rather than the current “beyond a reasonable doubt” standard.

For most of its history, Massachusetts has been a death penalty state. Only in 1980 did the Supreme Judicial Court outlaw capital punishment. Two years later, after voters approved a state constitutional amendment explicitly allowing for the death penalty, the legislature passed a new death penalty bill. But in 1984, the state’s high court struck that down as well. Legislative attempts to reinstate the death penalty since then have failed.

The Massachusetts Bar Association maintains its position against the death penalty, a stand adopted by a Board of Delegates vote in 1990 following a study by the association’s Individual Rights and Responsibilities Section. The study determined that capital punishment is unfairly applied, prone to errors, does not serve as a deterrent and is prohibitively expensive.

Unfair application a problem
Attorney Lee J. Gartenberg, former chair of the Criminal Justice Section and director of inmate legal service for the Middlesex Sheriff’s Department, says unfair application of the death penalty has been a consistent problem nationwide, on both racial and economic grounds.

Romney’s bill does attempt to address the issue by providing for an indigent defendant to have two lawyers provided.

However, Gartenberg noted that, “Defendants get funding to retain experts and accumulate evidence on their behalf, but someone with more resources will still be in a better position to utilize everything available for their defense.”

Process vulnerable to human errors
Science, infallible in the abstract, interacts with fallible human beings throughout the criminal justice process. Death penalty opponents note that human error may occur in the investigation, the collection, handling and analysis of evidence, the prosecution, the defense and the judging of these cases; it can never be eliminated from the process.
In 2001, the Massachusetts House defeated efforts to reinstate the death penalty. Among the reasons cited for voting against bringing back capital punishment were the then-recent exonerations of Peter Limone and Joseph Salvati, both of whom served over 30 years in prison for crimes they did not commit.

“We will never come up with a foolproof method, despite the governor’s task force, and I don’t think we should take a chance,” said MBA President Kathleen M. O’Donnell.
Death penalty not a proven deterrent

The application of the death penalty has never been conclusively shown to be a deterrent for the crimes for which it is to be applied. Common sense suggests that few murderers undertake a thoughtful comparative analysis of life in prison without parole versus execution before committing their crimes.

Furthermore, Massachusetts, without a death penalty, already has one of the lowest homicide rates in the nation. It is significantly better in that regard than capital punishment bellwethers such as Texas and Florida.

“I have yet to hear any convincing evidence that the death penalty is a deterrent,” said Gartenberg. “According to numbers compiled by the FBI since 1990, the murder rate in states that don’t have the death penalty is consistently lower than in states that do have it.”

Death penalty price tag hefty
Studies conducted since 1975 have proven over and over again 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.
In its own report, the Governor’s Council on Capital Punishment noted that their recommendations will come with a hefty price tag, including costs for:
• Providing two counsel to indigent defendants;
• Rigorous training of district attorneys and defense lawyers for certification and continuing legal education to keep that certification current. The proposed legislation lists 18 areas where defense counsel would have to be trained to be certified;
• Extensive pretrial, trial and appellate procedures;
• Laboratory costs for forensic testing and other evidence;
• More investigative resources;
• Provision of experts for both sides for trial;
• Empanelment of two juries;
• The costs of a Scientific Review Advisory Committee in the judicial branch to generally oversee the process, an individual review panel in each case, and a death penalty review commission in the executive branch; and
• Apparatus in the district attorney’s office for setting up and reviewing protocols and in the attorney general’s office for oversight and review.
Norfolk County District Attorney William R. Keating has estimated that using the Romney legislation standards would cost Massachusetts taxpayers at least $5 million per death penalty case, nearly as much as his entire $6.8 million annual budget that funds approximately 19,000 criminal complaints a year.

According to Gartenberg, “Criminal justice resources are inadequate in the commonwealth currently without the death penalty. We have courthouses throughout the commonwealth that desperately need repair. We have insufficient court space; overworked court employees; underpaid bar advocates, public defenders and DAs; overcrowded correctional facilities; inordinate delays in the laboratory testing of evidence; and resource issues in the medical examiner’s office.

“Our priority should be to address the pressing needs we currently have so that our justice system can do its normal business at an acceptable level,” he added.
Doubt and forensic standards raise questions

Some wonder whether, after expending the financial, forensic and attorney resources required to impose the death penalty, a “no doubt” standard can ever be met.
The proposal says the defense can ask that the jury be instructed on the possible unreliability of eyewitness identification, cross-racial witness identification, statements made by the defendant while in police custody and statements made by codefendants or informants.

“I would find it difficult to believe that a jury in a death penalty case would ever feel comfortable saying there is ‘no doubt’ as to the defendant’s guilt, especially because the defendant can ask for the jury to be instructed that certain evidence may be unreliable,” said Gartenberg. “Why expend all those resources if the ultimate imposition of the death penalty is highly unlikely?”

O’Donnell pointed out another perceived hole in Romney’s bill: To impose the death penalty, the jury is required to find that there is “conclusive physical or other associative scientific evidence reaching a high level of scientific certainty.” Therefore, under Romney’s bill, those convicted of the same crime could face different penalties depending on whether there is forensic evidence that meets the standards of the bill.
Traditional considerations when evaluating whether the death penalty should be imposed are the seriousness of the offense, the nature of the defendant’s criminal history, and any aggravating factors about the crime or the defendant — not whether the defendant left any scientific evidence.

“DNA-related murders only make up a small percentage of murders. Is the governor suggesting we have different penalties for people who leave DNA at the scene as opposed to those who don’t?” O’Donnell asked.

Concerns with state-by-state approach
Attorney Gerard T. Leone, Jr., formerly with the U.S. attorney’s office, the Massachusetts attorney general’s office and the Middlesex district attorney’s office, has faced death penalty considerations at the county, state and federal levels.
Leone is concerned about the lack of uniformity and consistency in the application of the death penalty among the states.

“There needs to be a more national contemplative and comprehensive approach to the consideration of this critically important criminal justice issue,” he said. “I’m uncomfortable with arguably the most important criminal justice decision being left up to a state-by-state approach.”

Romney’s capital punishment legislation has been referred to the Judiciary Committee. A hearing is scheduled for July 14 at 11 a.m. in the Gardner Auditorium.

©2014 Massachusetts Bar Association