Section Review

The death penalty again: The governor proposes, the bar responds

Ann Lambert is a former member of the Individual Rights and Responsibilities Section Council and a lobbyist for the Civil Liberties Union of Massachusetts.
The president of the Massachusetts Bar Association stated it most aptly: "More delays in the trial of criminal and civil cases, further cuts in court personnel available to deliver services to citizens, and a Supreme Judicial Court devoting even more time to the review of first degree murder convictions. These are just some of the consequences that enacting the governor's death penalty legislation will wreak upon the administration of justice in Massachusetts."

Also, the district attorney for Norfolk County spoke out and wrote: "Many of us in the commonwealth have learned about capital punishment. One important demonstration of that understanding is the bar's thoughtful, forthrightly expressed opposition to [the governor's] death penalty proposal. We lawyers who work most closely with the justice system know its abilities and potential, as well as its human foibles and inevitable mistakes."

A partner in a large Boston firm, volunteer counsel to a Florida death row prisoner, observed: "Death in its finality, does differ from all other forms of criminal punishment. The death penalty also imposes devastating burdens on the bar…It is more than doubtful that any death penalty law that relies for its imposition on the infallibility of those humans asked to run the system can ever assure that we, as a body politic created by the social compact of a civilized people, will not kill one of our citizens wrongly or mistakenly."

Yet the governor of Massachusetts called for the reinstatement of the death penalty in our commonwealth. That was almost a dozen years ago, and the statements set out here again are from the MBA's Section News, "A Special Issue on the Death Penalty" (April 1992), sponsored jointly by the Criminal Justice, Delivery of Legal Services, Individual Rights and Responsibilities, and Judicial Administration Sections.

The distinguished commentators then were:

•  Daniel C. Crane ("President's Message: Inaction = Death … and Taxes," page 1), now bar counsel for the Board of Bar Overseers;

•  William D. Delahunt ("A Prosecutor's View on the Death Penalty," page 4), now a United States congressman for the 10th Congressional District; and

•  Allan van Gestel ("A Self-Lacerating Investment of Time and Effort," page 16), now an associate justice of the Superior Court.

The collection of essays in that very "special issue" - and there were many in addition to those from attorneys Crane, Delahunt and van Gestel - had an introduction from then three-years-into-retirement Supreme Judicial Court Chief Justice Edward F. Hennessey, who said, "The essays in this newsletter make a convincing case against the adoption of the death penalty. Every study, every rational approach, supports this position." ("The Death Penalty: A Bad Idea," page 3).

But that "bad idea" has been proposed repeatedly over the last dozen years. It has always been vigorously opposed by the Massachusetts Bar Association - and by many other bar and lawyers' associations in the commonwealth. It was always defeated, most recently in March 2001, by a 94-60 vote in the House of Representatives.

In the current legislative session, on March 27, 2003, the Legislature's Joint Committee on Criminal Justice conducted hearing on four bills that would implement capital punishment in Massachusetts. The bar (Lee Gartenberg for the MBA), legal scholars, citizens and civil rights and community organizations testified over some eight hours. Every person and organization that testified opposed the bills. Not one proponent of the death penalty - including the senators and representatives who had filed the bills, testified in support. Gov. Mitt Romney sent a letter to the committee, which was read into the record, stating that he favored reinstatement of capital punishment and that he planned to have an advisory group assist his administration in preparing the governor's own legislative proposal.

On Sept. 23, 2003, Gov. Romney named an 11-member "Council on Capital Punishment," and charged it with "craft[ing] a proposal to reinstate capital punishment in Massachusetts for a narrow set of crimes." At the press conference announcing his "council," the governor stated that DNA technology and other advances in forensic sciences meant that a death penalty law would be "crafted" that would be "error-free," "air-tight," and not marred by any of the horrific "mistakes" we have read about, particularly in recent years. (Since 1973, 111 individuals in 25 states have been exonerated - their innocence established - and released from death row.)

The members of the governor's council are:

•  Joseph L. Hoffmann, (co-chair) Harry Pratter Professor of Law, Indiana University School of Law-Bloomington, currently a Fulbright Professor at the Universities of Erlangen-Nuremberg and of Jena, Germany;

•  Frederick R. Bieber, PhD. (co-chair) associate professor of pathology, Harvard Medical School;

•  Robert A. Barton, Jr., retired associate justice, Superior Court;

•  Ralph F. Boyd, Jr., partner, Alston & Boyd, Washington, D.C.;

•  Plymouth County District Attorney Timothy J. Cruz;

•  Donald R. Hayes, director, Boston Police Department Crime Laboratory;

•  Henry C. Lee, PhD., chief emeritus, Scientific Services, State of Connecticut and founder (1998) and director of the Henry C. Lee Institute of Forensic Science, West Haven, Conn.;

•  Henry T. A. Moniz, partner, Bingham McCutchen LLP, Boston;

•  Kathleen M. O'Toole, president, O'Toole Associates LLC, Boston & Dublin, Ireland;

•  Carl Selavaka, PhD., director, Massachusetts State Crime Laboratory System; and

•  United States Attorney Michael J. Sullivan, District of Massachusetts (Plymouth County District Attorney, 1997-2001).

Because the council's membership includes only one active Massachusetts practitioner who is not a prosecutor, it is particularly important for the Massachusetts Bar Association and other lawyers' organizations and individual attorneys to continue to speak out. We must continue to bring to bear our in-the-courts, on-the-ground experience with the Massachusetts legal and criminal justice systems. Should - or even could - the commonwealth put its energies and capital into attempting to create ("craft") and implement a perfect death penalty, beyond the possibility of any human error?

Van Gestel's 1992 essay concluded: "Thomas Jefferson, when commenting on the issue of human fallibility, once said: 'Until we can be 100% certain of a man's guilt, 100% of the time, I am opposed to the death penalty.' When the state asks for the power to kill a fellow human being on your behalf, being right most of the time is not enough. There are better and cheaper ways to protect society."

We need to inform and remind the council members, the governor and lieutenant governor, the governor's legal counsel and our senators and representatives that that is still true.

©2017 Massachusetts Bar Association