No Doubt?

Mass. Gov. Mitt Romney thinks he’s come up with a foolproof death penalty system.

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Massachusetts Governor Mitt Romney, a Republican, wants his state to re-instate the death penalty. Last week, a commission appointed by Romney said that if its recommendations are fully implemented, “a fair capital punishment statute … that is narrowly tailored and as infallible as humanly possible” will be created.

So persuaded is Romney that the commission’s report delivered a blueprint for a foolproof death penalty system that he told the Boston Globe: “I would be happy to stake my own life on the outcome of a process of this nature.”

The commission—officially the Governor’s Council on Capital Punishment—was co-chaired by Joseph Hoffmann, a law professor at Indiana University and Dr. Fred Bieber, who teaches pathology at Harvard Medical School. It narrowed the application of the death penalty to “the worst of the worst”—offenses such as terrorism, murder of police officers, and serial killings. Scientific evidence, such as DNA, would be required for a conviction. Juries would have to have “no doubt,” as to a defendant’s guilt, as opposed to “reasonable doubt” as to his or her innocence. Each defendant would be represented by two attorneys with a track record of “exemplary performance.” In the case of a guilty verdict, the defendant could choose a different jury to determine sentencing. Independent commissions would examine the forensic evidence and all the convictions would be subject to automatic review.

Massachusetts is one of 12 states that does not have a death penalty, which was overturned by the state’s Supreme Court in 1984. There has been no state execution since 1947.

Romney has widespread public support to change the status quo. A November University of Massachusetts poll found that 54 percent of people in the state want the state’s death penalty reinstated, with 45 percent opposed. Some 62 percent, though, don’t think Romney can create a foolproof system. Massachusetts Senator John Kerry, the Democratic presidential candidate, opposes the death penalty other than for acts of terrorism. President George Bush, on the hand, is a strong proponent of the death penalty. In his previous job as the governor of Texas, Bush presided over 131 executions—the highest number of any state in the country.

Although more than 100 death row inmates nationwide have been exonerated in recent years, in part because of DNA testing, public support for the death penalty has only grown in recent years. Americans who support the death penalty concede that innocent people will be executed, but do not deem this sufficiently troubling to reverse their support. As a 2003 Harris poll found:

…large 69 percent to 22 percent majority of the public still favors capital punishment and this majority is actually somewhat higher than it was in 2001 and in 2000 (when it had fallen to 64 percent to 25 percent).

This majority support for the death penalty holds even though almost everyone (95 percent) believes that innocent people are sometimes convicted of murder. On average they believe that 11 percent of all those convicted are innocent. But the two-thirds of the public who support the death penalty seem to feel that that is an acceptable price to pay.”

Not even Romney himself believes that the reinstating the death penalty will have much of a deterrent effect, since it would be applied to a small spectrum of all homicides. However, the governor insists that:

“If this would deter one heinous crime in a year, it’s certainly worth whatever costs, time and effort by the commonwealth. We have a duty as elected officials to do everything within our power to protect our citizens…”

When it comes to wrongful convictions, the state’s justice system is far from foolproof. The Massachusetts Association of Criminal Defense Lawyers is currently preparing a proposal for the state to form an “Innocence Commission” that would investigate 22 wrongful convictions, including those for rape and murder.

District attorneys are concerned about the cost of implementing Romney’s plan. The state’s forensic labs are overburdened, as are its public defenders. As Boston Channel reported:

“Norfolk District Attorney William R. Keating estimated it would cost the state at least $5 million to prosecute someone in a death penalty case because of the added costs of a review by a death penalty commission, a separate sentencing phase, and appeals. That’s about $4 million more than if the person is incarcerated for life, rather than executed, he said.”

The strongest argument against Romney’s plan is that no guidelines, however well-intentioned and well-funded, can eliminate human error. We also know that the death penalty is disproportionately applied to poor and minority defendants. All of these reasons are why former Illinois Governor George Ryan— like Romney, a Republican—commuted the sentences of the state’s death row inmates when he left office in 2003. As Ryan said then:

“Our capital system is haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die.”

Unfortunately, this is still the case today.

Massachusetts has enough problems with its justice system to take on Romney’s Herculean challenge. As Josh Rubenstein, northeast regional director for Amnesty International, put it: “We have a foolproof system now—we don’t execute anyone.”

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