Leonardo Angiulo: Why They Don’t Have The Death Penalty in Mass.

Monday, September 30, 2013

As the prosecution of Boston Marathon Suspect Dzokhar Tsarnaev moves forward, federal prosecutors weigh the decision to seek the death penalty. If this defendant is ultimately found guilty for the atrocities of last April then there are likely many who believe capital punishment would be just. Some might even say that an execution would be too humane an end for such an inhuman actor. The nature of the act, the hideous intent and results, as well as the malicious ideology resulting in the bombings incur the deepest wrath from all of us.

That the United States Attorney General has the power to seek the death penalty and State Prosecutors do not is a direct result of thoughtful rulings by the Supreme Judicial Court (“SJC”) of Massachusetts. Underlying the precedent are facts including historical observations, decades of effort by social justice groups and the cruel, crushing, finality of death sentences in a world otherwise devoid of clear endings.

If you really want to understand how the SJC came to their conclusion, it is essential that you do some research. A good place to start is the Massachusetts Trial Court Law Library online database, which organizes issues of law by topic. The page on the death penalty in Massachusetts provides links to several resources that are very thorough. In particular, the link to Alan Rogers' history of the death penalty from the Boston College website connects the present state of our law all the way back to activists in 1928 in a way that I wouldn't be able to here.

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In addition, the 1980 case of District Attorney for the Suffolk District v. James Watson & others is an important read because it outlines the arguments for why the death penalty, as an idea, represents cruel and unusual punishment in violation of Art. 26 of the Massachusetts Declaration of Rights. The Watson case ruled that, therefore, the then existing version of the death penalty statute was unconstitutional. That finding stood until voters of Massachusetts approved Article 116 as an Amendment to the state constitution. When they did so, they made it so “[n]o provision of the Constitution . . . shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death."

As a result of that constitutional amendment the present day version of Massachusetts General Laws chapter 265, section 2 exists. Anybody who reads that law is in for a shock because the first sentence clearly states in relevant part “[w]hoever is guilty of murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty, and who had attained the age of eighteen years at the time of the murder, may suffer the punishment of death . . .” Now this leads to the question, if state prosecutors have the legal authority to pursue the death penalty, why don't they?

The answer is found in the second half of the first sentence of MGL c. 265, section 2, which reads “. . . may suffer the punishment of death pursuant to the procedures set forth in sections sixty-eight to seventy-one, inclusive, of chapter two hundred and seventy-nine. ”

When we look at Massachusetts General Laws c. 279 we see the statutory structure by which crimes get punished. In particular, sections 68, 69, 70, and 71 lay out strict guidelines for the jury findings that must occur before a death sentence may be imposed.

The rigidity of this statutory structure, which was likely designed to prevent arbitrary application of the laws, also contributed to the SJC finding this version of the death penalty unconstitutional in the 1984 case of Commonwealth v. Colon-Cruz. This case came from Worcester County and has some particularly difficult facts. The defendants were charged with the shooting death of a Massachusetts State Police Trooper on Rt. 20 in Auburn, Massachusetts. Any time members of law enforcement are injured or killed in the line of duty we, as a society, are faced with defendants that have not only broken the law, but have done so in a way that indicates a disregard for the role of police as armed guards of public well-being. Defendants willing to cross that line present a fundamental danger to the safety of our society because in difficult situations the police are really the only ones standing between lawful citizens and those willing to engage in mayhem.

Notwithstanding the particularly difficult facts, and unpopular nature of the defendants, the SJC found in Colon-Cruz that the way the current death penalty statutes get implemented is unconstitutional. In its ruling, the court highlighted that, in accordance with Art. 116 they were not saying death sentences themselves are unconstitutional. Instead, the court focused on the practical reality that all a person charged with first degree murder had to do to avoid a risk of death was to either plead guilty or choose to have a jury waived trial. The effect, therefore, of such a rule is that people were being discouraged from exercising their right to remain silent and their right to a jury trial guaranteed by the Federal and Massachusetts Constitutions. The majority opinion concluded that there can be no rule in our laws that unnecessarily chills the rights that serve as the foundation for our system of justice. No matter how atrocious the underlying crime is.

Remember that arguments against the death penalty should not be conflated with approval of murderous, or other heinous, acts. It is no surprise that if we, as a society, experience an inhumane offense we respond with a justifiable demand for vengeance ten times what we suffered. An eye for an eye is one of the oldest laws in our land. We also, however, need to acknowledge the inherent flaws of any human endeavor, not because of intentional wrongdoing, but because of the fallible nature of human beings. These flaws can be present in criminal investigations, or in defense counsel's conduct at trial, and even in the closing arguments of a prosecution. When balancing our desire for revenge and our knowledge that the death penalty is a permanent outcome in a fallible system, we, as a society, need to decide what justice means to us.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

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