Governor
Romney's Council on Capital Punishment has issued a report that says
what it was expected to say all along: science coupled with more legal
process can create a "fair and accurate" death penalty.
The Governor, touting his own report, referred to it as "the
gold standard for the death penalty in the modern scientific age."
This belief in the infallible truth-detecting power of science is
oddly juxtaposed with the recent release from prison of Anthony Powell,
who was convicted of shooting a Boston police officer based on fingerprint
evidence, the gold standard of 19th century forensic science, and
the decision of the Suffolk District Attorney's office to drop charges
against Revere resident William Leyden, who was accused of killing
his brother based on DNA evidence, the gold standard of 20th century
forensic technology.
Yet even
in those cases in which science can definitively identify a killer,
science does not answer all the other vexing questions about why society
should be in the business of executing people. To its credit, the
Governor's Council recognizes that there is more to capital punishment
than just a scientific sorting of the guilty from the innocent. Society
must make a number of other potentially fallible judgments before
imposing the ultimate sanction, none of which can be improved by science.
It must
first decide which killings are capital offenses. That, as the Council
acknowledged, is an overtly political process, one that has tended
to create laundry lists of "aggravating circumstances" warranting
death as public outcry over particularly nasty murders leads legislatures
to lengthen the list of capital crimes. The Council warns against
this eventuality because it fears that if the list of capital offenses
"is overly broad, then the discretionary decisions of prosecutors,
judges and juries must carry the entire burden of ensuring that the
death penalty is applied narrowly and reasonably fairly." Exactly
how shortening the list of capital offenses will avoid inconsistent
results among the cases that remain, the Council does not explain.
And the Council's list of six capital offenses hardly provides a bulwark
against adding the crime of the moment to the list of capital crimes,
the very trend it decries. In the post-9/11 world, terrorism doubtless
will rise to the top of any list of the most serious offenses. But
what is terrorism doing leading the way on a list of proposed state
capital crimes? This is one crime that should be handled by the federal
government and, unless I've missed something, Al Quaeda is targeting
all Americans, not citizens of Massachusetts or any other state specifically.
The Council's
solution to excesses of prosecutorial discretion fares no better.
Left unconstrained, local prosecutors are likely to make very different
decisions about which defendants deserve death, which the Council
recognizes would be inconsistent with fundamental fairness. The Council's
solution is to have the Attorney General review all proposed capital
prosecutions.
The U.S.
Justice Department already does this, and the results of its system
are hardly proof that uniform application of the death penalty can
be achieved. The vast majority of federal death penalty prosecutions
occur in jurisdictions that actively pursue the death penalty at the
state level. Even In Massachusetts, the federal government's decisions
have not been a model of consistency. The U.S. Attorney's Office here
sought the death penalty for Gary Sampson and VA nurse Kristen Gilbert,
but allowed gangster Steven Flemmi to avoid the death penalty although
he had killed ten people over the course of ten years, including witnesses
to his crimes, a girlfriend, and the daughter of another girlfriend.
Flemmi even pulled the teeth of some of his victims to prevent their
identification.
Finally,
there is the 400 pound death penalty gorilla whose discretionary decisions
determine who lives and who dies: the jury. The Council on Capital
Punishment wants each jury to find that there is scientific evidence
proving the defendant's guilt before it considers the death penalty,
but it has nothing to say about how a jury should ultimately decide
whether a defendant should die. Jurors are somehow supposed to make
this decision by coolly weighing factors that aggravate or mitigate
a crime. There is no science that can assist them in making this essentially
emotional decision. Robert Saulnier, a juror in the Gary Sampson trial,
noted that the jury voted to execute Sampson in part because no one
other than an ex-wife and a family friend testified on his behalf.
He said that if Sampson had "more people show up for him, it
might have been a different story." Saulnier's comments accurately
reflect a system that makes the impact of the defendant's death on
others a mitigating factor, but can it really be that a death penalty
decision should turn on whether a defendant is loved by others or
not?
Ultimately
the Council's emphasis on science serves only to underscore what should
have been evident all along: the death penalty does not hold up to
scientific scrutiny.
It's
About Politics, Not Science
Last
September, Governor Mitt Romney established the Governor's Council
on Capital Punishment charged with the task of crafting a "scientific"
death penalty. The governor and lieutenant governor assembled
eleven "foremost experts in the use of forensics in homicide
cases," to insure that the Commonwealth erases "the concerns
that now hinder the appropriate use of the death penalty." Clearly,
however, the governor's council has nothing to do with "science,"
and everything to do with politics.
United
States Attorney General John Ashcroft had been making headlines,
in Massachusetts and elsewhere, demanding the death penalty, under
the federal statutes, in a range of cases already adjudicated under
state law or appropriate for trial under state law. Buoyed by
the successful federal death penalty case against Gary Sampson earlier
this year, the Justice Department, represented by U.S. Attorney Michael
Sullivan is planning to renew its efforts in local youth gang slayings
as well as the previously adjudicated seven-year old Jeffrey Curley
case. (Jeffrey Curley's convicted slayer is serving life in
prison without parole.)
Under
the protective mantle of forensic technology the governor is merely
following the dictates of his party. Ashcroft has declared war on
the twelve non-death penalty states – and on those, like New
York, that seldom impose death. Perversely citing fairness as his
motive, the death-obsessed attorney general has even usurped the role
of his own federal prosecutors in deciding who should face capital
punishment.
Governor
Romney is supplying the multiplier affect, announcing the council's
formation and producing a "scientific report" in conjunction
with Ashcroft's initiatives.
On
its face, the Council's charge is specious. DNA traces are only available
in a fraction of homicide cases; therefore, forensic technology would
only apply to a tiny subset of cases. Further, DNA is only as
good as the people collecting it at the crime scene and the people
testing it in the laboratory. State and local forensic laboratories
are woefully antiquated. Moreover, human error and or malicious intent
in both is high and even notorious in places like Texas, Oklahoma,
New York and, yes, even at the FBI labs, proving there is no way to
protect against human error.
Massachusetts Medical Examiner's Office has been irreparably damaged
through grisly error and colossal unreliability. In fact, the
governor's appointed Medical Examiner search committee was itself
deficient in qualified professional forensic pathologists, because
none were readily available in the Commonwealth, according the committee's
chair. Although publicly proclaiming forensic science as the infallible
tool in reinstating the death penalty, Romney dashed and gutted an
attempt to strengthen the Commonwealth’s forensic capabilities
in the current budget allocations.
Moreover,
according to members of the governor's staff, the Death Penalty Committee’s
report has been ready since January, only four months after its formation.
A similar committee, established by then-Governor George Ryan (R,
Illinois) deliberated for two years and unanimously concluded there
was no fool-proof way to impose the death penalty.
Selecting
this time for their death penalty initiatives, Governor Romney and
Attorney General Ashcroft are replacing bad national and local economic
budget policies with high profile sensationalism.
While
the federal and state government are cutting millions of dollars in
programs which extend the benefits of science – stem cell research,
well child care for poor children, prescription drugs and prostheses
for poor adults, drug treatment and prevention programs – they
are determined to spend more millions in needlessly pursuing
the execution of a few individuals when Massachusetts already has
a fool-proof method for punishing convicted murderers: life in prison
without the possibility of parole.
Martina
Jackson, Executive Director
Massachusetts
Citizens Against the Death Penalty, Inc.
