To The Readers Of The Metropolitan Corporate Counsel:
I regret that the Boston Bar Association must once again invest resources to oppose reinstating the death penalty at a time when so many other routine problems persist in the justice system. Sentencing policies result in unacceptably high rates of incarceration, the corrections system is in crisis and lacks comprehensive transitional services for released inmates, lawyers who represent indigent defendants do not receive adequate compensation, funding for civil legal services is precarious, and management and funding challenges impair the efficiency of the court system. Other social issues - such as access to quality health care and public education - need attention.
The federal government aggressively uses, and seeks to expand its authority to impose, the death penalty. Last fall, Governor Romney created a Council on Capital Punishment "to craft a proposal to reinstate capital punishment in Massachusetts" stating that "latest advances in forensic science will enable the council to design death penalty legislation that meets the 'highest evidentiary standards.'" These policies are inconsistent with global standards and the determinations by several states that numerous wrongful convictions have occurred.
Lawyers, while valuing the high quality of adjudication produced by the Massachusetts courts, are acutely aware of the opportunities for, and the actual occurrence of, error in this system. Discussing the death penalty on the WGBH program Greater Boston, Lieutenant Governor Healey stated that those kinds of errors "don't happen in Massachusetts." Massachusetts headlines prove otherwise.
Authorities recently revealed that four men were tried and convicted for a murder they did not commit because the FBI protected the real murderers who were also FBI informants. Two of the men died in prison. Joseph Salvati, whose death sentence was commuted to life without parole, and the other man recently were freed after serving 30 years in prison.
Last fall, Shawn Drumgold, convicted in 1989 for murdering a child in a drive-by shooting, was released after prosecutors asked the judge to vacate the conviction because of unfairness in the investigation and prosecution of his case. He served 15 years in prison.
Some prosecutors, unlike the Suffolk County District Attorney's office which reopened the Drumgold case, will be more interested in protecting their conviction rates than in fulfilling their ethical duty to pursue justice. While more than 130 prisoners have been freed because of DNA testing, prosecutors in some states are resisting efforts to reopen cases.
Salvati and Drumgold are alive to see their rights vindicated. In Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty, lawyer and writer Scott Turowconcludes "that capital punishment and the promise of due process of law are incompatible" because it is doubtful that "a system of justice can be constructed that reaches only the rare, right cases, without also occasionally condemning the innocent or the undeserving." In addition to the problem of innocent people being executed, as former Chief Justice Edward F. Hennessey stated in testimony before the Legislature in 2000, the death penalty is arbitrarily sought by prosecutors, imposed by judges and juries, and carried out by authorities. Corruption and incompetence in forensic laboratories, and poorly compensated and incompetent defense lawyers are responsible for errors. Turow demonstrates that geography, race, gender, and economic discrimination taint application of the death penalty. Administering the death penalty involves the exercise of judgment and discretion at every stage from investigating crimes to executions. Science is not capable of eliminating judgment from the operation of the justice system.
Consider questions Turow poses: "Is it the law, alone, that has failed when a murder takes place? Or is the responsibility a far broader one that reaches to all the institutions in our society - schools, churches, towns, and families? "
In May 1995, the Boston Globe presented a photo essay depicting the new Nashua Street Jail and one of the Boston high schools attended by a large proportion of the persons incarcerated in the jail. The photos contrasted the "daily assault of peeling paint, broken glass, dim, dirty corridors and inadequate library, lab and gym facilities" of the school with the immaculate and well-lit facilities of the jail, including bright classrooms, donated library and computer lab materials and a state-of-the-art gym. Four photographs portrayed what pages of policy analysis could not adequately communicate - "without a shift in local and national priorities, the American dream may forever be deferred." Deferral continues. A 2003 study by the Massachusetts Taxpayers Foundation showed that the state in 2004 will spend more on prisons and jails than on public higher education.
The death penalty will, at best, involve great cost and risk fatal mistakes. Because the ultimate punishment Massachusetts courts may impose is a sentence of life without possibility of parole, the death penalty will not enhance public safety. Reinstating the death penalty, however, will distract leaders and defer progress on constructive policies.Focusing on different priorities, rather than "tinkering with the machinery of death," will produce a legacy of justice and equal opportunity worthy of democratic ideals.