MASSACHUSETTS IS ONE of only 12 states without capital punishment, and Governor Mitt Romney came to office pledging to remove it from that list. To his credit, it is a pledge he has taken seriously. In September 2003 he charged a blue-ribbon commission with devising a death-penalty regime that would be virtually foolproof. The commission produced 10 recommendations that it said would, if adopted, make capital punishment in Massachusetts "as infallible as possible." Those recommendations Romney has now filed as legislation, which he describes as "the gold standard for the death penalty in the modern scientific age."
The governor is right to support capital punishment. He is right as a matter of justice: Juries ought to have the option of meting out the very worst punishment to the very worst offenders. And he is right as a matter of democratic governance: Massachusetts voters have long backed the death penalty -- in 1982 they amended their Constitution to say so explicitly -- but their wishes have been thwarted by the state Legislature and Supreme Court. To judge from a poll released by the State House News Service in Boston last week, public opinion hasn't changed: 65 percent of Bay State residents favor Romney's new proposal, against only 33 percent who oppose it.
I support capital punishment. But on this one, I'm with the 33 percent.
Romney's intentions are admirable, but in his quest to make the death penalty infallible, he has offered a bill that would likely do more harm than good. Under its provisions, most vicious murderers would never face execution, victims and their families would be treated with disrespect, and one of the bedrock standards of the American criminal-justice system -- guilt beyond a reasonable doubt -- would be jettisoned. Romney's bill makes the perfect the enemy of the good: By bending over backward to achieve immaculate fairness for killers, it would end up denying fairness to everyone else.
The proposed law would confine capital punishment to just a handful of precisely defined categories of murder. Murder as an act of terrorism would make the cut -- but only if the terrorism was "political." The murder of a police officer, judge, juror, or witness would be death-eligible -- but only if committed for the purpose of obstructing a trial. A murderer who tortured his victim could be sentenced to death -- but only if the torture was intentional, "gratuitous," "depraved," and "prolonged," and only if it occurred "immediately prior to the murder." In the hands of any competent defense lawyer, each of those stipulations would be a potential escape hatch, a reason not to sentence a killer to death -- and Romney's bill mandates not merely competent but "high-quality" defense counsel for every capital murder defendant, at state expense if necessary.
The governor says his legislation is focused on the "worst of the worst," but some of the most infamous killings would not qualify for capital punishment under its terms. In 1997, Salvatore Sicari and Charles Jaynes kidnapped 10-year-old Jeffrey Curley of Cambridge, suffocated him with a gasoline-soaked rag, then raped his lifeless body and threw it into a river. The case ignited a furious outcry; it was said to be a textbook example of a crime deserving death. But even if Romney's bill had been law, the death penalty wouldn't have been available: Its narrow definition of capital murder wouldn't cover Jeffrey's slaying. What good is a law targeting the "worst of the worst" if it can't reach the likes of Sicari and Jaynes?
Among the changes Romney proposes are several that would erode the rights of victims and their loved ones. Section 9(C), for instance, would not permit survivors to testify to the impact of the murder before the jury passes sentence. "In other words," says victims'-rights advocate Michael Paranzino, "it would only allow a victim impact statement after the statement could have no impact." (Paranzino's thoughtful critique of the bill can be found at the web site of his Maryland-based organization, Throw Away the Key.)
By far the most serious problems with Romney's "gold standard" are the requirements that there be "conclusive scientific physical" evidence of the defendant's guilt, and that murderers be found guilty not just beyond a reasonable doubt, but beyond any "lingering or residual" doubt, no matter how unreasonable or frivolous. That sets the bar high, indeed -- so high that it would have kept Timothy McVeigh from being sentenced to death for the Oklahoma City bombing. Never has a state imposed such excruciating criteria, and for good reason: No valuable human enterprise can ever be perfectly flawless. That is as true of criminal law as it is of medicine, police work, and air travel. The benefits of a legal system in which savage murderers can be executed far outweigh the minuscule risk of a wrongful execution.
Romney's goal is a death penalty that can never go wrong, but his bill would guarantee a system so fraught with hurdles that no murderer would ever be put to death. The result would be less justice, not more -- a society in which killers are kept safe, while more innocent lives continue to be lost.
(Jeff Jacoby is a columnist for The Boston Globe).
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