Can Masssachusetts Find The Perfect Death Penalty?


Massachusetts Gov. Mitt Romney wants an airtight, scientifically unassailable death penalty for his state. He has appointed a panel to write a law that would restore capital punishment while requiring physical evidence that would meet “the highest evidentiary standard” before a death sentence could be imposed.

The New York Times says the process is intended to guarantee that Massachusetts never puts the wrong person to death. The Times says Republican Romney “is looking to the broad middle stripe of public opinion, the majority who would accept the death penalty if it could be purged of unfairness and uncertainty.”

“Ten or 15 years ago, to be against the death penalty was to be politically marginal,” said political scientist Austin Sarat of Amherst College. “No longer. One can stand for the death penalty and say, `I’m just against executing the innocent.’ That’s a simple and appealing proposition, and it’s one Romney has come to.”

Death penalt opponents say that no statute can insure that the death penalty is administered fairly. “There’s an arbitrary quality that nobody’s been able to uproot and eliminate,” said Richard C. Dieter of the Death Penalty Information Center. “Questions like whether you killed a black person or a white person, whether the police turned over all the evidence – that’s what determines whether you get the death penalty. What county you live in determines it.” Texas and Oklahoma account for more than half of the nation’s 57 executions so far this year.

James Liebman, death penalty expert at Columbia University law school, says, “You might get a run-of-the-mill 7-Eleven robbery where somebody left his fingerprints on the cash register. Then you’ve got another case where it’s a heinous torture-murder thing but the evidence could be a little unclear.” Under Romney’s proposal, the first would be eligible for a death sentence; the second would not. “That’s not what you want to do,” Liebman said.

Several states have set up “proportionality reviews” to guide appellate courts in making sure that capital punishment is reserved for certain kinds of crimes. New Jersey, which last executed someone in 1963 and has 14 people on death row, has spent years honing its review.

In Illinois, where then-Gov. George Ryan imposed a moratorium on executions in 2000 after 13 death row inmates were found to have been wrongfully convicted, a commission made 85 recommendations. Some were adopted by the legislature, although a forensic laboratory independent of all police agencies was not. The moratorium remains in place as the legislature debate other proposals.

Romney believes the problems are resolvable. “This,” he said in naming his council, “is a new kind of death penalty.”


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