Death penalty is a costly mistake

Issue June 2004 By Richard C. Van Nostrand

Here we go again.

In September 2003, Governor Mitt Romney appointed a panel of experts who were charged with creating a forensically flawless approach to the death penalty. As citizens, we were promised this commission, which was reported as having been assembled without regard to its members' positions on the death penalty, would not recommend the reinstitution of a death penalty in the commonwealth unless it could "guarantee that only the guilty will be executed."

At his press conference announcing the formation of the panel, Romney said that no death penalty would return without "a standard of proof that is incontrovertible." We all hoped that Romney meant it when he said the Governor's Council on Capital Punishment truly was without preconception and would issue a fair and balanced report.

There had been precedent for this approach of a special study commission. Illinois has had a death penalty since 1977, under which 12 people have been executed. A blue ribbon panel was formed in early 2000, which included the former Chief U.S. District Court Judge for the Northern District of Illinois, former U.S. Senator Paul Simon, former CIA and FBI Director William Webster, several prosecutors, including the prosecutor of serial killer Richard Speck, the former Chief of Staff for the Chicago Police Department, a former U.S. Attorney, and the former Deputy Governor for Criminal Justice and Public Safety, to whom the Illinois State Police and the Illinois Department of Corrections reported.

This panel was tasked to research the issue of capital punishment in depth and answer the following question: "What reforms, if any, would make application of the death penalty in Illinois fair just, and accurate?"

Over the following two years, this commission undertook a truly in-depth analysis. Among other things, it conducted several public hearings; intensively studied the cases of the 13 men who were then on death row; reviewed the more than 250 cases in Illinois in which the death penalty had been initially imposed; reviewed prior studies that had been conducted in Illinois, several other states and Canadian provinces; met with the families of victims and the individuals on death row; and met with experts on police practices and eyewitness testimony.

The commission's 207-page report, issued in April 2002, identified numerous problem areas, including that the system can not handle numerous capital cases without breaking down; that police lack the training to properly handle homicide cases, especially line-ups, confessions (coerced and otherwise) and informants; and that the capital litigation system is dramatically under funded.

In response to those and other problems, the panel suggested 85 recommendations for improvement. Most telling, however, is that this balanced panel of attorneys and judges unanimously concluded that "no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death."

After just seven months, Romney's commission has now issued its report. The allegedly neutral commission has recommended the passage of a death penalty bill. In previewing the report, commission co-chairman Dr. Frederick R. Bieber has conceded the reality that "(w)e're humans, and you're not going to find anybody who can tell you that humans could never make a mistake." Despite this concession, there is a recommendation that Massachusetts get back into the business of executing human beings after a 56-year hiatus.

Somewhat prophetically, Romney acknowledged in September that if the panel reported it could not fashion a foolproof system of determining guilt in capital cases, he would be "wise to take heed," but insisted it would not shake his support for the death penalty. As reported, Romney believes the death penalty will be an effective deterrent to heinous crime.

Unfortunately, the obvious argument is missed: that the science, even if it is infallible in the abstract, 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. One need not look far for examples of the human element in the criminal process. Witness the exonerations here in Massachusetts in the last several months of Shawn Drumgold, Anthony Powell, Stephan Cowans and Pasquale Barone, Jr., exonerations that came after these men had served a combined 49 years in prison.

The Barone case is particularly noteworthy. In that case, U.S. District Court Judge Mark L. Wolf, a judge rarely accused of being soft on crime, ruled that the prosecution illegally withheld from the defense a statement by the chief witness against Barone that he had lied on the witness stand. In commenting upon the prosecutor's misconduct, Wolf found it "disturbing and dishonorable."

To an argument that this would not happen in a capital prosecution, one need only look to the case of Jonathan Gregory Hoffman. Hoffman, who had been on death row in North Carolina since 1996, was granted a new trial in late April 2004, when it was revealed that the prosecutor had withheld evidence at his trial.

The possibility of human error alone is not the only reason to resist the re-imposition of 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 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 crime. Aside from this intuitive reaction, the numerous studies done on the subject do not suggest a different conclusion.

Furthermore, Massachusetts without a death penalty already 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?

There also is a compelling economic argument against reinstitution of the death penalty. While 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 the fiscal argument may resonate with some. It is surprising that it does not resonate with a fiscal conservative such as Romney.

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. 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 U.S. 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 Massachusetts 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 the cost of sentencing a single person to death was $7.3 million. In the few years that have passed, that figure is certainly much higher. There are no studies regarding the death penalty that refute 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 conclusively proven to be 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 already financially strapped judicial system, where the hoped-for infallibility will be found?

For any number of reasons, the re-institution of the death penalty in the commonwealth of Massachusetts may well be a most costly mistake.


Richard C. Van Nostrand is president of the Massachusetts Bar Association. He is a partner in the Worcester firm of Mirick, O'Connell, DeMallie & Lougee, where he concentrates on business and employment litigation.