|
|
|
|
Report of the Governor’s Council on Capital Punishment The Governor’s Council on Capital Punishment, created in September, 2003, was charged with determining how to create a death penalty statute which would take full advantage of contemporary science in order to make error-proof the execution of certain murderers. The Report was issued on Monday, May 3rd. The 11 person council included 4 members from the field of forensic investigations, a judge, a law professor, and five attorneys from both sides of the bar. One of those identified as an attorney is the Boston Police Commissioner; another is the general counsel for the Federal Home Loan Mortgage Corporation. What the Governor did not require was a cost analysis, nor any examination of what benefits the Commonwealth would expect to reap from enacting these proposals. The first should have been a part of this study—its recommendation as are already being criticized by some Massachusetts DAs and being too expensive and not feasible. The legislature should require both cost estimates and a consideration of benefits before deliberating the merits of these proposals. What the Council Recommended The 29 page report, found at http://www.mass.gov/Agov2/docs/5-3-04%20MassDPReportFinal.pdf , makes ten recommendations. The Council believes that all ten, “…if adopted in their entirety, can allow creation of a fair capital punishment statute for Massachusetts that is as narrowly tailored, and as infallible, as humanly possible.” Those recommendations provide for 1) a narrow list of murders death penalty eligible; 2) limiting DA discretion in determining who is charged with a capital murder; 3) adequate resources for the defendant, including two experienced attorneys and expert witnesses; 4) the defendant given the right to require a second jury at the sentencing part of the trial, if found guilty in the first phase; 5) special instructions to death penalty juries regarding the questionable nature of certain kinds of testimony: eyewitness reports, statements made while in police custody without recording equipment, and testimony from informants; 6) the absolute presence of “scientific” evidence(photographs, DNA, finger or shoe prints, etc.) to cooberate guilt for the death penalty to be imposed; 7) within the sentencing phase, the burden of proof is the more stringent “no doubt” rather than “beyond a reasonable doubt” in order to impose the death penalty; 8) independent scientific review of evidence after the imposition of the death penalty sentence, before the sentence is carried out; 9) broad authority for every judge involved to set aside the death penalty, including pre-trial judicial review of evidence to determine if the death penalty is permissible; and 10) the creation of a post-trial review commission to examine claims of substantive error, with power to reduce sentence or order a new trial. IssuesThe above recommendations, if enacted and/or created before the operation of any death penalty statute, may reduce the number of points of error, depending, upon the intentions and responses of the separate agencies required to fulfill the several requirements. For instance, it is the district attorneys who are called upon to determine how to limit their own discretion. Unfortunately, the Report gives them no guidance, other than to require that whatever “…substantive factors [and procedures] that should influence this exercise of prosecutorial discretion…” are required to bring about a death penalty sentence be uniformly applied throughout the state. It is unlikely that the District Attorneys will remove all discretion and reduce their role to counting pluses and minuses. Will prosecutors be able to eliminate all class and race biases as they exercise any remaining discretion? A review of the race of the majority of wrongfully convicted in Massachusetts must raise serious doubt. The history of death penalty legislation, drawn narrowly to capture only a very few of the most egregious murderers, demonstrates that legislatures are unable to resist adding just one more offense, after one more offense, until after some period of time, “narrowly drawn” becomes clearly a misnomer. The federal death penalty statute is one such example. From its original construction in the 1988 as a penalty for drug king pins, it was broadened in the 1994 to cover over 60 different offenses. With the arrival of “scientific” evidence, society appears to be comfortable with imbuing science laboratories with unerring accuracy. Whether by coincidence or not, law enforcement now acknowledges the not infrequent inaccuracy of human memory upon which depends the testimony of eyewitnesses, or of people with whom the accused has had revealing conversations. Thus in several places the recommendations weight scientific evidence and reasonably require the state to ensure that the jury understands the foibles of memory. We know that memory is influenced by many factors, some of them unidentified. Science remains uncontaminated. Earlier this year one methodology used by the FBI’s labs for testing bullets was found to be flawed, resulting in the reopening of hundreds of cases. The intentional alteration of evidence by law enforcement before evidence reaches forensic laboratories, and/or mistreatment of evidence by these same labs occasionally makes the front page of newspapers, as in the present case of the Boston Police fingerprinting lab, but then too quickly is forgotten. Yet the significant number of such cases in state after state over the past decades- Connecticut and W. Virginia come to mind - should compel judges to issue warnings about the treatment of such evidence in much the same way it requires warnings about human memory evidence. “It is not possible to have a death penalty system that is both inexpensive, and at the same time capable of being relied upon to produce accurate and fair results.” With the high costs associated with this proposal acknowledged in the Report’s overview, will any legislature considering this proposal require a cost-benefit analysis of the entire package which the Governor failed to require, in order that all have a clear understanding of what executions will cost under its provisions? And will today’s legislators include language making the death penalty statute inoperative should future legislators shave some of the safeguards due to budgetary constraints? The Report notes that this death penalty proposal can provide a death penalty as “…infallible as humanly possible.” The Council thereby acknowledges that errors will occur;. unfortunately the they walked away from confronting this issue. The Report also ignored completely the impact that carrying out an execution has on the prison personnel required to carry out the sentence. And what of the impact on the executioners when it is discovered that an innocent person has been executed? Donald Cabana, a Massachusetts native who rose up in the ranks to become superintendent of Parchman (MI) Penitentiary, has written of the mental cost that the strap down teams pay. (Death at Midnight, 1996, Northeastern U. Press) Even the correction officers responsible for those on death row and on occasion can see the transformation of these individuals experience a loss. Is it likely that the legislature will require a review of these human costs? Fundamentally, any death penalty system is based on a presumption that there is a cohort of individuals so damaged and so unredeemable that the community is better served by eliminating them entirely, regardless of the trauma visited upon the circles of families and friends of the condemned, and those involved in the execution on behalf of the state, and even occasionally the family and friends of the victim. Extending this premeditated violence onto these innocent members of our community is clearly a part of the means which must be found acceptable in order to accomplish the unclear ends not addressed by this Report.
|
|
For More Information Contact: Fax: 617-236-4399 Send mail to tech@dreemweavers.com with
questions or comments about this web site.
|
