OSTON, May 2 — A commission appointed by Gov. Mitt
Romney has come up with what it considers the first virtually foolproof
formula for carrying out the death penalty, and Mr. Romney is expected to
use the plan to try to bring back capital punishment to the state, where
it was abolished two decades ago.
One of the major recommendations is raising the bar for a death penalty
sentence from the normal legal standard of guilt "beyond a reasonable
doubt" to a finding of "no doubt about the defendant's guilt." The
commission has also proposed that a defendant in a capital case be given
the option of facing two separate juries: one for trial and, if convicted,
a second for sentencing.
A co-chairman of the commission, Joseph L. Hoffmann, a law professor at
Indiana University, said the idea was to avoid the contradiction that can
arise when a defendant contests his guilt in the first phase of the trial,
but in the sentencing phase, in order to get the lightest sentence
possible, admits guilt and claims to be remorseful. The commission's 10
recommendations are intended to counter increasing skepticism about the
death penalty.
"Taken as a whole, these 10 proposals would create a death penalty
system for Massachusetts unlike any such system that has ever existed, or
even seriously been considered before," the commission said in its report,
which is scheduled to be released on Monday.
A spokeswoman for Mr. Romney, a Republican, said he would not comment
on the report until it was released. Last September, when Mr. Romney
appointed the commission, he said in an interview that he was "looking for
a standard of certainty" to "assure us that only the guilty will suffer
the death penalty."
The proposals, which the commission warned would be expensive, include
several ideas that experts say are unprecedented, and others that have
been tried but not so comprehensively. The plan is sure to be
controversial, and even death penalty supporters said they had concerns
about the viability of some of the ideas. On the other hand, even some
death penalty opponents acknowledged that the plan would reduce the
possibility of wrongful death sentences and racial disparities in
sentencing.
The cornerstones of the commission's recommendations are that the death
penalty be applied only to a narrow list of cases and that each case
include scientific evidence, like DNA, fingerprints or footprints.
The death penalty would be sought only in the "worst of the worst"
murders, the report said: torture murders, political terrorism murders,
murders of police officers or others in the criminal justice system, and
murders of multiple victims.
The physical evidence required would have to "strongly corroborate the
defendant's guilt," connecting the defendant either to "the crime scene,
the murder weapon or the victim's body." An independent board would review
the scientific evidence.
In addition, the judge would be required to give the jury special
warnings that nonscientific evidence, like testimony and witness
identification, can be unreliable.
The commission also recommended that courts get broad authority to set
aside wrongful death sentences, that the state attorney general review
every decision by a district attorney to bring a capital case and that a
separate review board investigate claims of errors in death penalty
cases.
"There's no system that's remotely like this anywhere else," said
Professor Hoffmann, who led the 11-member commission, which included
prosecutors, police officials, forensic scientists and a retired judge.
"The death penalty ought to be reserved for only the most clear-cut,
sure-thing cases."
One expert, Jamie Orenstein, a former Justice Department official who
worked on the death penalty prosecution of Timothy J. McVeigh in the
Oklahoma City bombing, said the recommendations were indeed innovative,
but ran the risk of making the criteria so narrow that "no one is going to
be executed under this law."
"They really seem to be making an effort to have a less bad death
penalty, but in doing that they just show how that's an impossible thing,"
Mr. Orenstein said. "With all the restrictions you need, you wind up
distorting your system."
Massachusetts is one of 12 states without capital punishment, which was
banned there in 1984 and last used in 1947. Since 1991, a series of
Republican governors have tried to reinstate the death penalty. They came
closest in 1997 after the rape and murder of a 10-year-old boy, when a tie
in the Massachusetts House of Representatives defeated a capital
punishment bill.
In recent years, sentiment against capital punishment has increased,
with a bill in 2001 losing by 34 votes in the House. But late last year,
federal jurors in Boston sentenced Gary Sampson to death for killing two
men during a weeklong rampage three years ago. And in November, a poll by
the University of Massachusetts found that 54 percent wanted the death
penalty reinstated and 45 percent did not. Sixty-two percent said they
were skeptical that Mr. Romney could establish a flawless system.
The most powerful Democrat in the legislature, Thomas M. Finneran, the
speaker of the House, is not morally opposed to capital punishment, but is
wary of wrongful convictions, said a spokesman, Charles Rasmussen. He said
that Mr. Finneran was "open to the findings" of the commission. Mr. Romney
is expected to use the capital punishment issue to try to elect more
Republican legislators this year.
Death penalty supporters said the reliance on scientific evidence would
lead to few capital cases. "In the vast majority of murder cases you're
not going to have that kind of evidence," said Joshua Marquis, a pro-death
penalty district attorney for Clatsop County, Ore., and co-chairman of the
National District Attorneys Association's capital litigation
committee.
Mr. Marquis and other experts also said that requiring a standard of
"no doubt" at the sentencing phase would sharply limit the possibility of
a death sentence.
"You're going to have a lot of people who say I'm not 100 percent
certain about anything," Mr. Marquis said.
Death penalty opponents like Elisabeth Semel, director of the Death
Penalty Clinic at the University of California, Berkeley law school, said
the scientific requirements would help "reduce the likelihood of wrongful
capital convictions." "But it's kind of like using seat belts," she said.
"If you use the seat belt, you reduce the chance of a fatality, but using
a seat belt does not prevent accidents."
David M. Ehrmann, chairman and president of Massachusetts Citizens
Against the Death Penalty, and the grandson of the lawyer who defended
Nicola Sacco and Bartolomeo Vanzetti, said the system "will have
safeguards; it will wear a white lab coat." "But all human systems by
definition can have errors in them, regardless of safeguards," he
said.
Mr. Orenstein, the former Justice official, said the two-jury proposal
could introduce more "arbitrariness" into the process, and other proposals
could make for counterintuitive outcomes: for example, if there were two
co-defendants and the one with enough evidence against him to merit the
death penalty had a smaller role in the crime.
But he said that by excluding certain crimes like robbery-murders, the
recommendations would eliminate most racial bias in capital
cases.