Academic journal article Journal of Criminal Law and Criminology

Protecting the Innocent: The Massachusetts Governor's Council Report

Academic journal article Journal of Criminal Law and Criminology

Protecting the Innocent: The Massachusetts Governor's Council Report

Article excerpt

This is a difficult time for the death penalty in America. The past five years have witnessed the development of a severe "crisis of confidence" in the death penalty that shows few signs of abating. (1) The crisis was initially precipitated by the shocking revelations that at least thirteen persons on Illinois's Death Row, and many more nationwide, were innocent of the crimes for which they were sentenced to die. (2) And it was exacerbated by a major academic study at Columbia University, revealing that more than two-thirds of all death sentences imposed since 1972 eventually have been reversed, either on appeal or in post-conviction hearings. (3) The conclusions of the Columbia study, which were widely reported in the national media, resonated with the Illinois experience, and contributed to a growing national concern that the system of capital punishment in America is not producing, and may even be incapable of producing, acceptably reliable substantive results.

This crisis of confidence has produced a massive shift in the terms of the national death-penalty debate. Ten years ago, that debate was dominated by moral/religious arguments, by disputed claims about the extent of personal moral responsibility and free will manifested by capital defendants, and by concerns about distributional injustice in death sentencing. (4) Today, the debate has re-focused on substantive issues of guilt and innocence: DNA exoneration evidence, mistaken eyewitnesses, lying informants, and the real or perceived risk of executing an innocent person. (5)

Responses to the crisis have varied. In some states, the death-penalty machine marches on as if unaffected by all of the recent concern about substantive errors. (6) Some prosecutors, for example, continue to fight requests for access to DNA testing by death-row inmates, apparently oblivious to the crucial difference between such requests and the traditional technical-procedural-legal arguments that historically have been made by defense lawyers in opposition to a death sentence. (7)

In other settings, however, growing concern about substantively erroneous death sentences has become a potent catalyst for reform of the death penalty in particular, and the criminal justice system in general. A new and powerful constituency for death penalty reform seems to be emerging--one that includes such strange bedfellows as Ted Kennedy and Orrin Hatch. (8)

Finally, in at least a few places, abolition of the death penalty is no longer unthinkable. Courts in New York and Kansas, for example, undoubtedly influenced by the innocence issue, recently struck down their respective state death penalty statutes. (9) Several state legislatures seem poised to take up the question of abolition--either because of the unrelentingly high cost of capital punishment, (10) or because the risk of a substantive mistake no longer seems worth taking. Even prominent conservatives like Pat Robertson (11) and George Will (12) have taken up the anti-death-penalty stance.

Against this backdrop of turmoil and rapid change, a blue-ribbon panel in Massachusetts--of which I was a member--recently issued a major report about capital punishment that is likely to generate even more controversy. In May 2004, the Final Report of the Massachusetts Governor's Council on Capital Punishment (hereinafter Massachusetts Governor's Council Report) outlined ten bold recommendations for the creation of a new kind of death penalty designed to be as accurate, and as fair, as humanly possible. (13)

The Massachusetts Governor's Council Report has already begun to exert a significant influence on the national death penalty debate. (14) And in the coming months, as draft legislation based on the Report is introduced in the Massachusetts Legislature, (15) the provocative ideas contained in the Report seem likely to garner even more public attention--whether or not they are ever adopted in Massachusetts. …

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