UPDATE: Prof. Berman correctly points out that I have neglected to discuss the economic concerns surrounding the re-instatement of the death penalty in MA. Certainly, there are many studies [pdf] out there that analyze and discuss the cost of imposing the death penalty, which I won’t rehash here. Prof. Berman does make an interesting observation:
Consider also the fact that, according to statistics I found on the
web, alomst twice as many people are killed in Massachusetts by drunk drivers than by murderers, and the data
on rape and other violent crimes suggest that Romney’s bill may
distract from more pressing criminal justice issues in Massachusetts.
This is certainly a compelling economic argument against the death penalty. Here’s what stood out to me – In CT, in 2000, there were 98 murders, 678 forcible rapes, 3832 robberies and 6450 aggravated assaults. In CT, as of 2002, it cost the PD’s office an average of $380,000 per case for the 7 men on death row, totalling $2,659,921. By comparision, those sentenced to life after being charged with the death penalty cost an average of $202,365, totalling $2,630,745. Those who weren’t charged with the death penalty, but were sentenced to life after a trial cost an average of $79,777. Full report of the CT Commission on the Death Penalty here. The 2003-2004 cost of providing capital defense in CT was $1,959,523. That’s a lot of money that could be saved.
Original Post: Thanks to Injustice Anywhere, I just read this NYT article about MA seeking to reinstate the death penalty (well, it’s mostly the Governor). Gov. Romney calls it, rather unabashedly, as foolproof as humanly possible. Here are a few of his proposed features:
- It would require that there be "conclusive scientific evidence," like DNA or fingerprints, to link a defendant to a crime.
- It would allow a death penalty to be imposed only if a sentencing jury
finds there is "no doubt" about a defendant’s guilt, a standard that is
stricter than "beyond a reasonable doubt."
- It would restrict capital punishment to murders involving terrorism, prolonged torture, multiple killings or murder of someone involved in the criminal justice system.
- Defendants who had previously been convicted of first-degree murder or
were serving life sentences without parole would also be eligible.
- Another unprecedented provision would give the defendant the option of
having two juries – one for the trial and one for the sentencing.
- It also includes a requirement that defendants get at least two and
possibly three lawyers, that scientific evidence be examined by a
review board, that every death sentence be reviewed by the state’s
highest court, and that a special panel be set up to handle complaints.
Romney calls it a model for the entire nation. Heh. RIght off the bat, I see good things and bad things about this proposed legislation.
The requirement that there be atleast two lawyers for a capital defendant. Everyone who follows capital litigation knows that there is a terrible need to skilled and experienced lawyers and that one lawyer simply cannot adequately represent a capital defendant. By mandating that there be two, perhaps three, the bill is providing for effective representation.
Also, at first glance, the requirement that there be two juries is interesting and has potential to be a good provision. When there is one jury, it is difficult to plead not guilty – go through a trial, present (usually) horrific evidence and get convicted – and then turn around at sentencing and provide mitigating circumstances to that same jury. Perhaps the requirement that the sentencing jury be new and look at the aggravating and mitigating factors with untainted eyes might provide a better process.
Finally, the DNA evidence. Over the years, the stories of those who have been exonerated based on DNA evidence is growing. To see a bill that has DNA evidence built in to the process that triggers the death penalty is uplifting. I’m not sure what the "review board" is that is supposed to review scientific evidence, or who it will be composed of, so I’m not going to comment on that.
The requirement that death be found "beyond all doubt" instead of beyond a reasonable doubt. If my memory serves me correctly, Illinois has attempted to introduce similar legislation. I’d love to see it pass, but somehow I don’t think it will.
Finally, we come to the problem with this bill. Point 4. above. Defendants who have previously been convicted of first-degree murder and are serving life without parole would be eligible. Huh? Perhaps Gov. Romney should be reminded of a little clause called the Ex-Post Facto clause [Article I, Section 9]. Why would he even consider putting that in? Doesn’t he have lawyers working on this with him? Why wouldn’t they tell him?
Anyway, it certainly is an interesting bill. Let’s see where this goes. Also, Prof. Berman at SL & P has a roundup of other death penalty news in the country.