Founded in 1928, MCADP is the oldest active anti-death penalty organization in the United States.

GOVERNOR ROMNEY'S IMPERFECT "PERFECT" DEATH PENALTY BILL

On April 28, 2005, Governor Mitt Romney introduced a death penalty bill that he described as "the gold standard for the death penalty in the modern scientific age." His evident intent in the bill is to address the doubts of those who oppose the death penalty because of the all too frequent instances that have come to light in the last ten years of innocent people having been sentenced to death. He claims to have met the concerns about possible wrongful executions by limiting the scope of the bill to the "worst of the worst" killers, requiring scientific proof of guilt, and requiring that a jury be convinced of that guilt beyond any doubt before it imposes a death sentence.

Massachusetts Citizens Against the Death Penalty opposes the Governor's bill. The present system in which those convicted of first degree murder are sentenced to life imprisonment without the possibility of parole satisfies the need for punishment and deterrence without the moral or financial cost (as yet unspecified) of the Governor's complicated effort to achieve perfection. No system can be devised that separates the guilty from the innocent one hundred percent of the time. To the extent the Governor is claiming his bill would prevent an innocent person from being executed, he is holding out a false hope. Scientific evidence, on which he relies heavily, is not infallible. It is gathered and interpreted by fallible humans. Adding a requirement that the jury of laypersons find that scientific evidence proves the defendant's guilt and that guilt be beyond any doubt does not thereby make the evidence any better or the result any more certain. Just as importantly, no scientific evidence can help answer whether a particular killer should be punished by death or life imprisonment.

Racial Disparities would Remain

Before getting to the specifics of the Governor's bill, it is well to remember what it does not do. There is more to making any system of justice fair than just ensuring that the guilty alone are punished. For any system to be just, punishment meted out should not depend on the race of the defendant or the victim or the location where the crime occurred. But the death penalty as it is practiced in the United States suffers from all these problems. A recent study by the Associated Press of capital punishment in Ohio revealed that death sentences were handed out twice as often when the victim was white than when the victim was black.1 The AP also found tremendous regional variation in Ohio. In Cuyahoga County, which includes Cleveland, 8.5% of capital cases ended in a death sentence, but in Hamilton County, which include Cincinnati, 43% of capital cases ended in a death sentence.

The Governor's bill would do nothing to eliminate any of the racial disparities associated with the death penalty. There is simply no basis to assume that Massachusetts could avoid the racial problems that have plagued the death penalty everywhere else in this country, and we see no reason to think the Governor is so naive as to believe the contrary. Indeed, his Council on Capital Punishment stated that it was aware of the problem, but thought that safeguards such as a "narrow definition of capital murder" would address it. How limiting the types of murders that would be subject to the death penalty would change the bias toward more frequent imposition of the death penalty when the victim is white, the Council did not explain. Ultimately, the

Governor's failure to address coherently the issue of race in the application of the death penalty must mean that he has no real answer to this problem. That alone condemns his bill.

The Death Penalty would not be Applied Uniformly

The Governor does take a stab at trying to create a death penalty that would apply uniformly throughout the state. He would require district attorneys to sit down and develop a "uniform set of protocols for the exercise of prosecutorial discretion in potential capital murder cases in the commonwealth." The attorney general would also "review all exercises of prosecutorial discretion by district attorneys in potential capital murder case, and shall take appropriate action to ensure consistent application of the death penalty throughout the commonwealth."

The governor has given no indication what he thinks should be the uniform protocols district attorneys should use in trying to figure out whether to seek the death penalty, so, for the moment, he is asking us to accept on faith that workable standards can be developed and implemented. But there is no reason to believe that any scheme likely to come out of this proposal would create results any different than Ohio's. District attorneys can sit down and come up with standards that they all agree on, and then apply them differently in practice. District attorneys have nearly complete discretion to decide whether to prosecute a case at all or to charge a capital offense or a lesser crime. They can plea bargain or not as they choose. And, even if they did approach cases with relative uniformity, juries in different parts of the state may have a different reaction to the same set of circumstances that might cause a jury in one part of the state to vote for death and in another part of the state to vote for life imprisonment.

The bill gives the attorney general the responsibility to ensure uniform application of the death penalty, but it gives him no authority to do so. The attorney general may take "appropriate action," but the only powers Massachusetts law currently provides the attorney general is to call a conference of district attorneys or take over a capital prosecution, neither of which guarantee uniformity.2 Even in the federal system, in which the US Attorney General has authority over US attorneys and uses it to decide whether they may seek the death penalty, the result has not been uniformity. Federal death penalty prosecution are weighted heavily toward regions where states actively pursue the death penalty.3

Limiting the List of Death Penalty Eligible Crimes is Unworkable and will not Limit Error

The governor attempts to limit the possibility of wrongful sentence of death by limiting the crimes to which the death penalty could apply. His bill would make murders punishable by death if the murder
(1) was an act of political terrorism,
(2) was designed to influence the justice system by killing a police officer, judge or witness, or involved
(3) torture,
(4) multiple victims, or a defendant who
(5) had already been convicted of first degree murder or
(6) was already serving a life sentence.
But limiting the types of murders to which the death penalty might be applied does not necessarily change the rate of error in capital prosecutions. Indeed, if the Governor is right that these crimes are the worst sorts of murders, then, with all the emotion generated by atrocious crimes, there may well be a higher rate of error in their prosecutions. District attorneys would feel compelled to bring prosecutions and seek death for particularly heinous crimes even if the evidence was thin. Jurors faced with an horrific evidence would also be more likely to vote for death. We can only hope that, after emotions have cooled, any errors would be sorted out. But that is hardly a hallmark of a perfect death penalty regime.

Moreover, if a death penalty bill were enacted, the Governor's effort to limit the number of crimes eligible for death would not likely last long. All murder is heinous. While throughout the country there is general agreement as to what constitutes first degree murder, there is no agreed upon definition of which types of murders are so much worse than the rest that they should be subject to capital punishment. Any effort to sort out the worst of the worst is bound to fail because as soon as any particular category of murder is focused on, arguments can readily be made that this form of killing is so horrible that those who commit it should be put to death. That is how death penalty regimes end up with long lists of capital crimes. The worst offender in this regard is the federal government which has kept adding to its list so that now 43 separate offenses are capital crimes under federal law.

There is every reason to believe the Governor's bill would head in this direction. His version of the "worst of the worst" leads off with two types of crimes -- terrorism and the murders of judges, police officers and witnesses -- that are doubtless there because they have been of great concern of late. But other types of murders will come into focus over time. The Governor has already been criticized by a pro-death penalty group for failing to make rape-murderers or child killers specifically eligible for death. He has indicated that he would be amenable to the legislature adding additional crimes to his bill. In the end, what you would get is just another bloated death penalty bill that would undermine the very effort at selectivity the Governor claims to be making.

Science Cannot Save the Death Penalty

The Governor has made much of how he is seeking to use science to eliminate the possibility of error in death penalty cases. But for all the Governor‚s words, in his 33 page bill there is only one sentence describing the role of science in the trial of a capital case. It reads, "[a]t the sentencing phase of the capital murder trial, as a prerequisite to the imposition of the death penalty ... the jury is required to find that there is conclusive scientific physical or associative evidence reaching a high level of scientific certainty." This approach is wrongheaded for a number of reasons.

First, it would work no change whatsoever in the guilt phase of a capital trial. The Governor's bill divides a capital trial into two phases, as the U.S. Supreme Court say it must, the first to decide whether the defendant is guilty, and the second to decide whether a defendant who has been found guilty should receive a sentence of life imprisonment without the possibility of parole or death. Under the Governor‚s bill, the prosecution could base its case in the guilt phase on eyewitness testimony or statements made by jail house informant or the defendant ˆ types of evidence the bill treats as less reliable "human evidence," just so long as it stuck in a little bit of scientific evidence that ties the defendant to the crime scene, the murder weapon, or the victim's body that it could refer to later in the sentencing phase.4 The jury could find the defendant guilty without relying on scientific evidence at all.

Then, after the jury has already found the defendant guilty, the jury in the penalty phase is supposed to look closely at the scientific evidence and figure out "to a high level of scientific certainty" that this evidence ties the defendant to the crime. This looks like a guilt determination, so what is it doing in the penalty phase? Presumably, it relates to the requirement that the jury have no doubt before it imposes a death sentence. It is that much easier to eliminate doubt if something as certain as science ties the defendant to the crime.

Scientific evidence is not so certain that it should be made to bear this weight. Human error can creep into the collection and analysis of any kind of scientific evidence. Examples from around the country abound. The Houston Police Department‚s DNA lab was shut down in December 2002 after an independent audit revealed shoddy science and an undertrained staff.5 Recently, Virginia's governor called for a review of that state's nationally recognized central crime lab's handling of 150 cases after it twice botched DNA tests in a capital case, in part because lab technicians felt pressured to produce quick and conclusive results despite muddled evidence.6 In this state, Stephen Cowans spent six an one half years in prison because a misinterpretation of a thumbprint mistakenly tied him to the shooting of a police officer.

Massachusetts, where a lengthy wait for DNA analysis delayed an arrest for the murder of Christy Worthington, is hardly in a position to ensure that evaluation of scientific evidence will be timely and up to standards until it implements improvements in the agencies tasked with handling evidence. Governor Romney implicitly recognized this when he recently proposed that the state borrow $125 million to rebuild the State Police Crime lab and $15 million to improve the medical examiner's office in Boston.

Moreover, even if scientific evidence is handled accurately, it will not necessarily help determine whether a defendant is guilty, which the Governor's Council on Capital Punishment recognized. It said:

The bill itself makes no mention of this limitation on the usefulness of scientific evidence.

What it does do is include a long list of the types of evidence that could count as scientific evidence. DNA is of course included, but so are many others, including "photographs, video and audiotapes, fingerprints, and ... footwear impression, tire impression, tool marks, firearms-related impressions, and other physical pattern matches." It is hard to see this as anything but bootstrapping. DNA matching has a remarkably low error rate, but it is not available in many cases ˆ a drive-by shooting may leave no DNA to be analyzed, for example. Other types of evidence, of far less reliability, are added on simply so that more death penalty prosecutions can be made and surrounded with the aura of science that DNA evidence has.

The Capital Punishment Commission claimed that "[n]ot all Œphysical or associative evidence‚ will be capable of satisfying the requirement of conclusive scientific evidence, reaching a high level of certainty, that adequately connects the defendant to the crime." But the laundry list of types of scientific evidence included in the bill seem to be virtually all the types of physical evidence now relied on by prosecutors. So, in the final analysis, from an evidentiary perspective, prosecutions under the Governor's bill would not be any different than murder prosecutions now, except that in the sentencing phase, the prosecutor would simply have to point out to the jury what scientific evidence, broadly defined, linked the defendant and the crime. This is hardly a change sufficient to demonstrate that the death penalty has been made scientifically accurate.

Instead, the requirement that the death penalty cannot be imposed unless some scientific evidence links the defendant to the crime will create two classes of murders, ones with scientific evidence and ones without it. This is utterly inconsistent with the Governor's sensible goal of uniformity for it means that situations will arise in which prosecutors have solid evidence against defendants in similar killings, but the cases will be treated differently if one case includes scientific evidence and the other does not.

The bill also includes a provision for review of scientific evidence, but only after a defendant has been sentenced to death. According to the Council on Capital Punishment, an independent scientific review panel is "to review all issues relating to the collection, analysis, and presentation of scientific evidence," which the bill spells out in some detail, but without clarifying how broad the scope of this panel's review is supposed to be. Is it simply to examine, for example, whether DNA evidence was properly handled and tested or is to comment on conclusions drawn from that evidence? It is one thing to conclude that DNA was the defendant's, but it may be far more tenuous to conclude that he was there when the murder occurred or that he pulled the trigger. It is simply not clear whether it will be the panel's role to point that out.

If the focus of this panel is to be only on the basic handling of evidence, and there is, as there ought to be, a genuine concern that botched handling may lead to erroneous conclusions and a wrongful conviction in a capital case, then the appropriate thing would be to require review by the panel before a prosecution could proceed. As it is, the panel's review not only comes after a defendant has been convicted, it is simply untethered to the legal system. The panel prepares a report and simply sends it to the parties and the court. The panel has no authority to implement any of its conclusions and there is no obligation on any of the recipients of the report to do anything with it either.

No Doubt will make No Difference

Much has been made of the bill's requirement that the sentencing jury find the "there is Œno doubt' about the defendant's guilt of capital murder." Because it has been consistently the standard throughout American history that the guilt of a defendant in a criminal trial must be proved beyond a reasonable doubt, this appears to be a major innovation in the law and practice of capital punishment. But in fact it is not and it would not serve to make the result of capital trials any more accurate or fair.

The Governor's Council on Capital Punishment identified six states in which juries in capital cases are permitted even now to consider any lingering doubt about the defendant's guilt at the sentencing stage of a capital trial. The Council did not assert that these states' capital trials were free of error because of this.

Even when jurors are not told they make act on their lingering doubts, it is already likely that jurors who have such doubts will be far less inclined to impose a death sentence. Take the case of Kristin Gilbert, the nurse at the Veterans Affairs Medical Center in Northampton accused of killing four of her patients, who was convicted of capital murder and sentenced to life imprisonment. The jury deliberated for 12 days before convicting her, but quickly deadlocked on what the sentence should be. Three jurors favored life imprisonment because the evidence, while sufficient to convince them of her guilt, was not so certain as to warrant the death penalty.7

The irony is that the Governor's proposal may make it more likely that jurors would vote for death. As the U.S. Supreme Court conceives of it, the two phases of a capital trial are completely separate. Once a defendant is convicted, his guilt of murder is no longer an issue; the penalty phase can focus solely on whether aggravating or mitigating circumstances warrant a life or a death sentence. Indeed, under current constitutional law, the mere fact the defendant has committed a capital murder is not enough to warrant a death sentence. But the Capital Jury Project, which interviewed 1,555 capital jurors found that in the sentencing phase "jurors overwhelming continue to dwell on how convincing they found the evidence of the defendant's guilt of the crime.8" A Kentucky juror explained that the jury arrived at a death sentence because "[w]e thought with all the evidence presented there was no doubt that he did it." A South Carolina juror reported that during deliberations a juror said that "the evidence pointed to [the defendant] being guilty and the only thing I can say is, you know, if he's guilty he should get the death sentence."

It is hard enough for jurors under existing capital punishment regimes to stop focusing on guilt during the sentencing phase and instead shift their focus to aggravation and mitigation. It will be that much harder if jurors are instructed that they must make a finding during the sentencing phase that they have no doubt as to the defendant's guilt as a prerequisite to imposing a death sentence. Putting this question to jurors will simply reinforce their tendency to decide what sentence to impose based on how sure they are the defendant is guilty. If they find there is scientific evidence proving the defendant's guilt, that will make it easier to find there is no doubt as to his guilt, which in turn will make it easier to impose a death sentence.

Endnotes