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May 13, 2004

Dead on arrival

Opponents of capital punishment have always been concerned about Governor Romney’s support of the death penalty. Mitt Romney promised to reinstate capital punishment for the "worst of the worst" murders. Since Massachusetts is one of the only 12 states with no death penalty, and recent efforts to reinstate the punishment have failed, Romney knew his task would not be easy.

As a first step, Romney appointed an 11-member Governor’s Council on Capital Punishment. This group of scientific and legal experts was charged with the responsibility of establishing a fail-proof capital punishment system to be implemented only for a few especially heinous murders.

Romney called the council’s report issued earlier this month "the gold standard for the death penalty in the modern scientific age." On the basis of the council’s recommendations, Romney plans to introduce enabling legislation later this year. However, the extraordinary expense of implementing all of the safeguards that the council proposes suggests that there might be little enthusiasm in the Legislature for the measure based on fiscal considerations alone.

The council defined capital murder as first degree murder by a defendant 18 years of age or older, for the purpose of political terrorism, intentional interference with the criminal justice system and deliberately killing two or more persons. The offense will also be applicable if the defendant has a prior conviction for first-degree murder or was facing a sentence of imprisonment for life, without the possibility of parole at the time of the murder.

One of the objectives in restricting death eligibility, according to the council’s report, is to restrict the discretion of the prosecutor, the judge or the jury in defining a murder as a capital offense. Such discretion, according to the report, is responsible for the racial disparity in the application of the death penalty.

Once an offense has been defined as a capital murder, an indigent defendant will be assigned not one but two lawyers selected from a list of highly qualified attorneys. A defendant who can afford only one lawyer will also be provided another by the state. Lawyers so appointed will be well paid at prevailing rates. Defense lawyers will also receive adequate funding for investigators and certified experts.

There will be two trials – one to establish the guilt or innocence of the defendant and the second to determine the sentence. The burden of proof in the sentencing stage should be "no doubt" rather than the conventional "beyond a reasonable doubt." If the defendant so chooses, he may opt for a different jury for the sentencing stage. There must be "conclusive scientific evidence" to corroborate the defendant’s guilt.

The council also proposed other safeguards, too complex to mention here, to assure that no innocent defendant suffers execution. However, it seems unlikely that the Legislature will sanction an extremely expensive procedure to allow for executions that will probably never occur. According to Amnesty International over half the countries in the world, including all of the European Union nations, have now abolished the death penalty. Massachusetts would be moving against the tide of history.

By submitting death penalty legislation, Romney will have established his Republican credentials for blood lust. However, the extremely expensive proposals of his council undoubtedly herald the death knell of capital punishment in Massachusetts.

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