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 at www.mas s.gov/portal/govPR.jsp? gov_pr=gov_pr_050428_death_penalty.xml, 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.

Governor Romney's legislation, HB 3834, 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 (discussion of the Commission's thinking may be found at www.cjpc.org/dp_govs_commission.htm), 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.

There is an aphorism making the rounds 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 vexed that Massachusetts law forbad in-state 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--a 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 Gone Boy's 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 of this tragedy--from the gun dealer to college administrators and fellow students to the local law enforcement authorities and reporters in the Berkshires--he ultimately discovers he has a need for information that 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 comprehend 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 between the two, which has continued 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.

Patrice Brymner

CJPC's Annual Meeting, April 20th, featured Sheriff Frank Cousins, Jr. of Essex County. Sheriff Cousins urged support for Commissioner Kathleen Dennehy of the Massachusetts Department of Correction (DOC), and encouraged grass-roots participation in seeing that elements of the Harshbarger Governor's Commission on Corrections Reform (GCCR) Final Report are implemented.

Cousins has participated on the Governor's Commission on Corrections ReformGCCR ("Harshbarger Commission"), the follow-up to that commission's report, the DOC's Advisory Council, and the Lt. Governor's Commission on Criminal Justice Innovation, and he currently serves as Vice Chair for Governmental Relations with the Massachusetts Sheriff's Association. In his talk, Cousins drew on his experience with these commissions, as well as his experience as a State Representative and sheriff to share his insights and concerns regarding county and state corrections in Massachusetts today.

Sheriff Cousins called for continued reform within the DOC and applauded Dennehy's efforts to date, but cautioned that change of the magnitude sought in the GCCR Report takes time. He estimated that for an agency such as the DOC, it could take up to five years to see the type of reform called for in the report and that which Dennehy seeks. In response to an audience question regarding the duration of the DOC's Advisory Council, established last fall for one year, Cousins said that he hopes and expects that the council's time will be extended so that it can continue to assist Dennehy in accomplishing needed reforms. Cousins personally supports Dennehy as she faces resistance similar to that which he has faced as Sheriff.

Cousins identified labor union relations as a major challenge to reform, and stated plainly that dealing with unions has been the toughest part of his job, and is the toughest part of Dennehy's job. The basic problem, as described by Cousins, is that because reform takes time, unions can "wait you out." He cited the Harshbarger Commission'sGCCR review of labor contracts, and suggested that reform will come through "a couple of cycles" of collective bargaining.

As an example of the obstacles created by current collective bargaining agreements, Cousins explained that union contracts can dictate how and which services are available to inmates in state prisons. Specifically, Cousins cited inmate education services, and explained that his department contracts for educational services with North Shore Community College, but that an outside service provider would not be allowed under the union contract for state prisons.

The sheriff also challenged the DOC's current classification system, calling it a "major problem," and advocated for increased use of "step-down" classification and the re-opening of lower security level facilities. He cited the fact that the state prison population has decreased, while the county population has increased, indicating a shift to less violent crime. Given this shift, Cousins argued that it "makes no sense" to close lower (security) class facilities as the DOC has done.

In response to a question, Cousins acknowledged that Dennehy, who last fall claimed to be ready to unroll a new classification system, has not backed down on the new system. Although nothing has been announced, the new system is coming, Cousins explained, and Dennehy has been working on getting other things in order. Specifically, Cousins mentioned the need to clean up disciplinary matters within the DOC.

Regarding classification, Cousins also explained that sheriffs have strong statutory control and can decide how inmates in their custody are monitored once sentenced. As Cousins said, neither the DOC nor any sheriff can change sentences, but they can change classification. Once sentenced to county custody, an inmate may be deemed by a sheriff to be eligible for very low-level supervision. This is true because, according to Cousins, 85% of county inmates are not subject to mandatory minimum sentences. The DOC, on the other hand, has little statutory control, and cannot make use of the same step-down measures, such as GPS tracking that sheriffs can use.

In tandem with classification reform, Cousins called for increased post-release services and supervision. The sheriff believes that use of stepped-down security during incarceration, followed by post-release supervision, will result in less recidivism. His department currently conducts post- release tracking, in which sheriff's department staff attempt to maintain contact with recently released inmates. Cousins likes to see inmates in his custody stepped down in security prior to release, released to halfway houses, then moved to electronic monitoring, as they reintegrate to community life. He also explained that currently in Essex County, inmates released to live in the cities of Lawrence and Lynn are contacted by local police departments. Cousins is also considering other alternatives for Essex County.

Finally, regarding post-release supervision, the sheriff explained that the departments of parole and probation are administered differently. Most inmates following county sentences are subject to probation, whereas state inmates are released to parole. Because parole is under the direction of the Executive Office of Public Safety and probation is under the judiciary, these agencies function much differently. Cousins sees a strong advantage to the fact that probation departments are local to a given court and are actually present and involved at sentencing.

Cousins called for reform of internal affairs at the state prison level, again citing collective bargaining as a key problem. Cousins also urged the centralization of investigation of complaints against correctional officers, which are currently handled within individual facilities. The basic problem with internal affairs, according to Cousins, stems from the fact that people working under the same collective bargaining agreement are policing each other. In Essex, Cousins has hired retired police officers who report directly to the sheriff. This approach, according to Cousins, along with a strong human resources staff, has worked very well. Cousins also cited the State Police use of a similar approach, ensuring that those investigating officer conduct are under a different collective bargaining agreement than those being investigated. Cousins explained that he has long been concerned with how people are affected by substance abuse and estimates that 90 percent of the inmates in his county are addicts, and 70 percent are sentenced for drug crimes. This, Cousins said, is about double what it had been in the past, and he urged increased services for addicts and alcoholics, citing the success of on-demand treatment in Essex County.

The sheriff referred to the lack of women and people of color in law enforcement a "disgrace" and a "disaster." Cousins relayed his recent attendance at a police academy graduation in which of 143 graduates only three or four were women.

Cousins also stressed the need for increased educational requirements and promotional exams for correctional officers, and suggested that new officers need good mentors. He further called for increased substance abuse treatment. Regarding mandatory minimum sentences, Cousins acknowledged that part of the problem stems from over- enforcement. In response to an audience question, he specifically cited school zone drug possession as an offense that some local police can and do over-enforce. He further acknowledged that given the density of school zones in urban areas, the result can be racist.

When asked how grass-roots groups can work with sheriffs for reform, Cousins explained that district attorneys fear being seen as soft on crime, and suggested that reaching out to these elected officials could be effective. He explained that sheriffs, working through the Massachusetts Sheriffs' Association, are working with several groups, including the district attorneys. Regarding sex offenders, Cousins expressed frustration, specifically in cases involving over-enforcement and the associated risks of stigma concerning sex offender registration. Cousins was also very frank in stating that in other cases he finds it hard to strike a balance, and does not have many answers on how to deal with and treat sex offenders.

Cousins was appointed Sheriff of Essex County in 1996 by Governor Weld. He has been re-elected twice since then, most recently in 2004. Prior to this office, Cousins served four years as a State Representative, four years as Newburyport City Councilor, and has a background in retail management and owned an auto dealership. Cousins holds a bachelor's degree in Human Services and a master's degree in Criminal Justice, both from Springfield College.

Dorothy Weitzman

The Governor's Commission on Corrections Reform (GCCR) issued its Final Report on June 30, 2004. The report included in its eighteen recommendations, "an external advisory board on corrections to monitor and oversee the Department. This board should work cooperatively with the Commissioner to develop concrete goals for the future of the department."

In response to this recommendation, Governor Romney issued an Executive Order on September 15, 2004, creating a Department of Correction Advisory Council that would operate until September 15, 2005. The order authorized a 17 member council and specified that it would include the Commissioners of the Department of Public Health and the Department of Mental Health, www.cjpc.org/doc_order_creates_board.htm, for the text of the executive order; you can also reference www.cjpc.org/GovCommission_Corrections_Re fo rm.pdf for the text of the Governor's Commission on Corrections Reform.). The Governor charged the Council with advising the Department of Correction (DOC) on matters of concern, and monitoring the progress of the implementation of the Commission's eighteen recommendations, which may be found at on the second page of the CJPC commentary on the final report, at www.cjpc.org/doc_harshbarger_commentary .htm.

The Governor initially intended to reappoint the members of his Corrections Reform Commission to be the Advisory Council. Many advocacy organizations had wanted a longer mandate, and had urged the Governor to consider appointing representatives from the public; neither of these urgings were acted on. The Council is operating on a budget of $100,000 from the DOC.

The Council began monthly meetings in the first week of December. The Executive Order required a six month report, which was due March 15th; a two month extension for issuing that interim report has been requested. DOC Commissioner Kathleen Dennehy and members of her staff have attended all meetings. The Council has requested a written report on each of the eighteen recommendations as a basis for the interim report.

The Commission's final report included, as recommendations 12 and 13, that "there should be a dedicated external review of inmate health and mental health services" and "a dedicated external review of issues pertaining to female offenders in the Department's custody." Task forces in these two areas have been operating under leadership of the DOC with select members of the Council. Many who have been interested in follow-up of the Commission's work had hoped that these two task forces would operate as truly external to the DOC (as the original Commission did), that they would be more visible to the public, and that each would have a representation of service providers and advocacy groups in the areas being considered. Council staff has indicated that written statements or phone calls to share information and concerns in these areas are welcome and would be circulated to Council members. Several other task forces were operating even while the GCCR was taking testimony. The DOC had constructed a task force on classification; another focused on disciplinary proceedings. Last December the Commissioner announced that a prototype classification system was to be put in place in January of this year; it appears that model system is still awaiting a trial run. The Commission has two part time staff members, both of whom were staff to the previous Commission: Carolyn K. Walsh and Rebecca Webb. Eight of the members of the original Commission continue to serve on the Council and six new persons have been added (see the lists below). Two members of the House of Representatives are still to be appointed to the Council, and suggestions for an attorney with experience in prisoner litigation or criminal defense can be made.

Carry-over Members Scott Harshbarger, Chair Senator Jarrett Barrios (D. Cambridge) R. Michael Cassidy, Assoc. Prof., Boston College Law School Elyse Clawson, Ex. Dir., Crime and Justice Institute Sheriff Frank G. Cousins, Jr. Michael V. Fair, Security Response Technologies, Inc. former DOC Commissioner Joyce Murphy, Pres., Caritas Carney Hospital, Pres. Douglas H. Wilkins, Partner, Anderson and Kreiger, LLP, Partner

Members of the Council who did not serve on the Commission Paul Cate, Commissioner, Dept of Public Health Elizabeth Child, Commissioner, Department of Mental Health Timothy Cruz, District Attorney, Plymouth County Ed Davis, Superintendent, Lowell Police Department Senator Robert Hedlund (R. Weymouth) Robert Watson, CEO/Chair, LPM Holding Company

Information of use to the review of the recommended changes can be directed to the Department of Correction Advisory Council, Exec. Office of Public Safety, 1 Ashburton Place, Rm. 2133, Boston, MA 02108. The Council may be emailed at rebecca.w [email protected] a.us or carolyn.wal [email protected]; its staff phone number are (617) 727-7775 ext. 25506 (for Rebecca Webb) or ext. 25520 (for Carolyn Walsh).