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Issues: Death Penalty

CJPC Statement opposing the Death Penalty
and also Life Without Parole

The CJPC regards both the Death Penalty and also Life Without Parole as antithetical to a just society. Instead, the CJPC affirms Life With the Possibility of Parole After 25 Years as the most severe sentence for Massachusetts (CJPC Statement on the Death Penalty).

Gov. Romney introduces
"the gold standard for the death penalty"

By Lloyd Fillion

On Thursday, April 28th, Governor Mitt Romney unveiled his death penalty legislation at a press conference at the state house. According to his press release , Romney describes this bill as having higher standards than any bill proposed heretofore, having been influenced by the recommendations of a death penalty commission Romney chartered last year. The Governor suggests that his bill has tighter evidentiary standards, a narrower set of death penalty qualified murders, and sufficient safeguards against wrongful convictions.

House Bill 3834, Governor Romney's legislation, relies on many procedures that are standard for capital trials in this country. Trials are bifurcated, with the guilt-innocence decision separate from the sentencing decision. A list of aggravating circumstances is provided; these circumstances are argued within the guilt-innocence phase. Mitigating conditions are the only conditions to be argued during the sentencing phase and the defense may present any evidence relevant to mitigation including reliable hearsay evidence. This procedure is unique in that most states include consideration of aggravating and mitigating circumstances within the sentencing portion of the trial. Appellate review is mandatory and cannot be waived. Specifications for qualifying capital case defense counsel are set forth. A second unique factor is that the witness list for the execution does not explicitly give the victim's family or associates the right to view the execution.

The bill excludes persons under the age of 18 at the time of the murder from facing a sentence of death; those who are mentally retarded are also precluded from the death penalty. Also, pregnant women may not be executed until after they are no longer pregnant.

The proposed legislation does address the ten recommendations of the Governor's Commission on the Death Penalty final report, though not as conclusively as might be hoped for:

1) a narrowly defined list of death-eligible murders. Capital murders are first degree murders which a) are acts of political terrorism, b) are committed to impede a criminal proceeding, c) involve torture, d) involve two or more victims, e) are committed by someone who has already been convicted of first degree murder, or f) are committed by someone incarcerated for life as a result of such a conviction ( 2 (D)).

The Governor's commission decided that no category of first-degree murders should be placed on this narrow list, unless the overwhelming majority of such murders are among the most heinous of all crimes. They acknowledged that there would be some first-degree murders that should be death-penalty eligible but would not be, because they lie outside the list of eligible murders. They decided that it was more important to narrow the scope of potential categories of murders than to consistently execute the worst of the worst; the Governor's statute reflects that thinking.

2) appropriate controls over prosecutorial discretion in potentially capital cases. The bill stipulates that the district attorneys will establish a set of protocols governing the exercise of prosecutorial discretion over what substantive factors impact such discretion and what procedures are to be followed. The Attorney General is also directed to develop a protocol to review each exercise of discretion by the county district attorneys ( 4(A) and (B)). The bill does not address the substance of this issue, but rather leaves the protocols to be developed after the bill becomes law; further, it entrusts their creation to those the protocols are intended to limit.

3) system to ensure high-quality defense representation in potentially capital cases. The commonwealth will provide two death penalty certified defense lawyers to all indigent defendants, and one co-counsel to any defendant who can only afford one attorney ( 5). There is no provision for funding for properly certified experts to assist the defense, a provision that bills submitted by Romney's predecessors included and that Romney's commission expressly called for.

4) new trial procedures to avoid the problems caused by the use of the same jury for both stages of a bifurcated capital trial. The right to a distinct jury for the sentencing phase is afforded to all defendants who are convicted of death penalty eligible murders ( 7). However, if the right is exercised, the defendant waives his right to argue the presence of "residual or lingering doubt about guilt." This is critical for condition #7 below.

5) special jury instructions concerning the use of human evidence to establish the defendant's guilt. The defense may request that the either of the juries be given instructions regarding the limitations of a) eyewitness testimony, b) cross racial identification, c) defendant's statements made while in police custody, particularly in the absence of any video or audio recording of same, and d) testimony from potential co-defendants or informants ( 8). While the Commission recommended these instructions be an absolute part of the jury instructions, Romney's bill gives the trial judge the right to decide whether to act upon the request by defense and how to word such instructions.

6) a requirement of scientific evidence to corroborate the defendant's guilt. The sentencing jury must find the presence of "conclusive scientific physical or other associative evidence reaching a high level of scientific certainty" to impose a sentence of death ( 10(B)). The Commission urged that the evidence must "strongly corroborate" the defendant's guilt; the proposed legislation does not include that as a requirement.

7) a heightened burden of proof to enhance the accuracy of jury decision-making. The sentencing jury may not impose the death penalty unless there is "no doubt" in any one juror's mind ( 10(A)). However, if the defendant requests a new jury impaneled for the sentencing phase, he will have waived his right to raise the issue of lingering doubts, and the decision to request separate juries for the separate parts of the trial must be made before impaneling the first jury ( 7). Further, the state has no higher burden of proof to meet within the guilt-innocence portion of the trial.

8) independent scientific review of the collection, analysis, and presentation of scientific evidence. Under this bill, an independent scientific review advisory committee is established. Their duties include oversight of the state's forensic laboratories and appointing an independent panel for every death sentence pronounced. The panel will review all evidence to ensure that it is without flaw regarding its integrity, handling, and preservation ( 11). Though the bill suggests that the commonwealth will adhere to the highest and most rigorous standards, it is silent regarding funding for this panel. It is not so silent regarding the funding and resources available to the death penalty review commission (see #10 below).

9) broad authority for trial and appellate courts to set aside wrongful death sentences. Both trial judge and the Supreme Judicial Court have the authority to set aside the death penalty if either believes that the sentence is inappropriate based on law or fact, or if the sentencing jury's exercise of discretion in its determinations was inappropriate ( 12 ). In addition, the Superior court may dismiss the capital portion of the indictment upon a finding that the commonwealth's aggravating factors aren't supported by legally sufficient evidence. ( 6(A)(1)).

10) the creation of a death-penalty review commission to review claims of substantive error and study the causes of such error. A death penalty review commission, comprised of eleven members, is empowered to investigate claims of substantive by the defendant. Upon a finding of legitimacy in such a claim, the commission will report preliminary findings to the DA and to the defense counsel who may use this finding to petition the court and its final report will be made public and given to the appropriate superior court. ( 23).

The bill does not address the cost of instituting capital punishment within the commonwealth, whereas Senate Bill 987 (Brian Lees, R, First Hampden, Hampshire), requires DAs, police, courts and the committee for public counsel services (public defenders) to tabulate and publicly report such costs annually. It does not address the other potential impacts on the commonwealth, such as examining whether executions increase the homicide rate. Romney's press release speaks of the deterrence effect on murders that capital punishment will have, though that deterrent effect is far from settled factually. A number of researchers report that data suggests that executions may actually increase the murder rate through a brutalizing factor.

Also the Governor has consistently called for this penalty to be reserved for the worst of the worst, for committers of the most heinous crimes. This clearly suggests a small subset of the total first degree murder convictions. It would not seem too burdensome to provide an analysis of those convictions in the past decade, suggesting how many of the convicts would have qualified, under this bill's aggravating conditions, to be tried as capital murders. This would be one means of demonstrating to the voters the possible impact of this statute on the criminal justice system.

Finally, introducing the death penalty suggests a failure by the government committed to rehabilitation. It sets the wrong moral standard for its citizens by affirming a role for vengeance. The Governor's bill will likely be the major legislative vehicle for consideration of this issue, which has not come before the General Court since 2001, when the issue was defeated by a margin of 34 votes.

Legislative Status - Dealing with Murder

By Lloyd Fillion

Three bills introduced in 2005 intend to reintroduce the death penalty, while a fourth bill contents itself with stiffening the penalties for murder and a fifth bill approaches separating murder from manslaughter using a wholly different legal paradigm from current legislation.

The three bills seeking to reinstitute capital punishment all share the standard framework of 1) providing for a well funded defense, 2) separating the trial to determine guilt or innocence from the sentencing process, 3) providing lists of mitigating and aggravating factors to help direct the sentencing process, and 4) involvement of the Supreme Judicial Court in determining a "Unified Review" procedure to assure that all of the defendant's rights have been available. H.884 , sponsored by Rep. Bradley Jones (R-Middlesex) is the one bill to include a majority of the recommendations of the Governor's Council on Capital Punishment (the Council) including the review of all physical evidence for scientific certitude by an Independent Scientific Review panel. Rep. Jones failed to include a number of the Council's recommendations, including the call for special instructions to the jury regarding the questionable nature of certain kinds of evidence, and a limitation on prosecutorial discretion regarding who gets charged with a capital murder case. Further, while the Council calls for a narrow list of death penalty eligible murders, an argument could easily be made that Rep. Jones' list of murders punishable by death is more expansive than narrow. Finally, the Council recommended that there must be physical evidence tying the convicted to the murder for the case to be death penalty eligible; this restriction is also not present in H.884.

Senator Brian Lees (R- W. Springfield) is sponsor of the other two bills - S.987 and S.988. Both bills are similar and contain the same procedures as death penalty bills introduced in past years, none of which have been successful. S.987 includes a section stipulating that persons convicted of first degree murder while incarcerated will be ordered to pay restitution to victim's families, both from existing assets and from wages earned in prison. This would also apply to those under sentence of death. It also provides an exemption to capital punishment for the mentally challenged.

The fourth bill seeks to modify existing law. H. 915 , introduced by Rep. Ronald Mariano (R-Quincy) argues for the following adjustments: limiting those with life sentences to maximum security prisons, changing parole eligibility for second degree murder from 15 years to 25 years, requiring any commutation of sentences to occur after 40 years for first degree and 25 years for second degree sentences Finally there are minimum sentences to be served before those with 2nd degree convictions may participate in employment and training and furlough programs, either 13 years according to Section 6 of the bill, or 22 years according to section 7. (This appears to be a drafting error as both sections modify the same section of the Mass. General Laws.)

A unique approach to restructuring the murder statute is found in a bill by Sen. Cynthia Creem (D. Newton). First degree murder is an intention to kill or cause grave bodily harm, and is "premeditated" murder "with malice aforethought." Absent those qualities, the homicide is labeled second degree. If there is no intention to kill, the homicide slips to manslaughter. How these qualitative phrases are defined by courts, and how they work in the offices of district attorneys is often at variance with how they are perceived in the minds of the public when it considers an actual homicide. How long a period of time is required for a thought to be the basis for "premeditation"? Courts have ruled that it could be a matter of seconds to a matter of days. Or, how much anger constitutes malice?

Sen. Creem has reintroduced S. 934, An Act Relative to the Crime of Murder, which attempts to address this issue by defining murder without recourse to either premeditation or malice. This bill codifies conditions, similar to the listing of "aggravating factors" attached to all death penalty bills for use in the sentencing phase as a guide to the jury (see the bills reviewed above). In the forementioned instances, the presence of these conditions must outweigh whatever mitigating conditions are present for a jury to find execution warranted. In the instant bill, certain conditions must be present to determine that a killing is murder, rather than manslaughter or some other action. For example, if the defendant specifically intended to kill the victim, or recklessly created a substantial risk of death or great bodily injury under circumstances indicating extreme indifference to the value of human life, then the killing is a murder, and can not be the basis for a conviction of manslaughter.

Further, if the murder was committed in fulfillment of a second series of conditions, that murder becomes punishable by life without parole. That second set includes murder a) for the purpose of financial gain, b) by the use of explosives or torture, c) to obstruct the judicial system, or d) in the commission of any one in a series of felonies including arson, rape, trafficking, armed robbery or burglary. This approach relieves the court and jury from trying to discern the thinking process that the accused underwent. It also attempts to quantify the qualitative concept "with extreme cruelty" in an effort to further eliminate another elusive variable.

All murders which do not meet the criteria in the preceding paragraph carry a sentence of 20 years to life, with no possibility of parole before 20 years. The evaluation of evidence supporting these secondary factors is by the judge who makes the final determination regarding their presence or absence, thereby determining the punishment.

One important part of this bill is the elimination of the sentence of life with the possibility of parole after 15 years for "second degree" murders in exchange for a determinate sentence. Frequently those persons convicted of second degree murder find the parole board turning down applications for parole over and over again, turning such sentences into 25-30 year sentences. This bill places the length of sentence in the hands of the judge, who is asked to provide a definite length to the sentence, thereby allowing the parole board some, but not unlimited authority. This thoughtful approach can be a tool for reconsideration of murder and how society responds to it.

(A full description of the background for this bill is found in Boston University's Public Interest Law Journal, vol. 10, #2, "Hunting the Dragon; Reforming the Massachusetts Murder Statute", Sean Kealy, Spring, 2001. Mr. Kealy serves on Sen. Creem's staff.)

Gone Boy- a Walkabout: A Father's Search for the Truth in His Son's Murder

By Lloyd Fillion

There is an aphorism making the rounds currently in a number of permutations- In Brazil, a butterfly flaps its wings, setting off a chain of events that ends with a tornado in Texas.

Gone Boy a Walkabout begins with a more immediate version. In 1990, two hunters in Massachusetts, one a state legislator, were inconvenienced that Massachusetts law forbad instate gun dealers from selling ammunition or guns to non-residents. They worked the system to legislatively bring Massachusetts in line with 1986 federal law permitting any gun dealer in any state to sell to an individual who would be authorized to purchase in his home state. In 1992, one such non resident college student purchased a gun and ammunition, returned to his campus in Great Barrington, Massachusetts and went on a rampage, wounding four people and killing two, one of them the son of the author.

This short volume tracks the exploration of Gregory Gibson as he seeks answers to the murder of his son, Galen Gibson. While Mr. Gibson can discover much from the various observers to this tragedy, from the gun dealer to college administrators and fellow students to the local law enforcement authorities and reporters in the Berkshires, ultimately he discovers that he has a need for information only the offender can provide. One is unlikely to read this book and fail to understand the instant connection that evolves from violent tragedies, or fail to have a comprehension that without dialogue across the divide that murder can create, the communities of both the victim and the murderer end up with emptiness.

In a short epilogue to the paperback edition, Mr. Gibson reveals that the initial publication in 1999 provoked reflections by the murderer, now in prison for life. Those reflections led to a correspondence continuing at least to the date of publication of the paperback one year later. So this second set of butterfly wings flapping has set off a second chain of consequences with an entirely different end. Gone Boy, A Walkabout, Gregory Gibson, Anchor Books edition, 2000, 215 pages.

Death Penalty Statement
Death Penalty Orgs
Green River Killer
Bibliography
Steve Saloom Article