Execution Watch: Mitt Romney's "Foolproof" Death Penalty Act and the Politics of Capital Punishment

By Murphy, Russell G. | Suffolk University Law Review, Winter 2011 | Go to article overview

Execution Watch: Mitt Romney's "Foolproof" Death Penalty Act and the Politics of Capital Punishment


Murphy, Russell G., Suffolk University Law Review


PREFACE

Execution Watch, KPTF 90.1 FM, Houston, Texas, is a Public Radio program that only broadcasts when the State of Texas is executing one of its death-row inmates. Hosted by a former prison inmate and providing live coverage at Huntsville Prison, Execution Watch promotes political accountability and responsible social change through legal and political commentary on each case.

On February 15, 2011, the author of this article appeared on Execution Watch to comment on the execution of Michael Wayne Hall. Hall's case presented troubling issues of mental retardation and Texas standards and procedures for determining whether a defendant is mentally retarded. At the time of his crime--participation in the kidnapping, torture, and murder of a young girl--Hall's IQ was 67, he had trouble reading the hands of a clock and making monetary change, and he exhibited marginal adaptive skills. The prosecution's expert characterized Hall as "borderline" mentally retarded, but evidence was admitted showing that Hall could function in society, including a TV interview with Fox News that was shown during the sentencing phase of the case.

The unique nature of Execution Watch is, of course, the fact that the show airs simultaneously with the beginning of the execution process. The Execution Watch discussion of Michael Hall's case began at 7:00 PM EST. When the author joined the discussion from his law school office in Boston, Massachusetts, the conversation turned to the status of Texas as the single greatest executing state in this country, in comparison to abolitionist states in the Northeast, like New York and Massachusetts. Participants were interested to hear that in relatively recent times a serious and sustained effort had been made to restore capital punishment as a sentencing option in Massachusetts.

This article tells the story behind Mitt Romney's campaign to enact a "foolproof" capital punishment law in Massachusetts. (2) It is told, however, in the shadow of Execution Watch. Although the author did not know it at the time, it was disclosed the next day that Michael Wayne Hall's execution was started, by lethal injection, at almost the exact moment that the author began his commentary. Mr. Hall was dead by the time the show ended.

INTRODUCTION

Mitt Romney was elected the 70th Governor of Massachusetts in the fall of 2002. He served one term, from January 2003 to January 2007. Mr. Romney was a candidate for the Republican nomination for President of the United States during the 2008 primary season. He ultimately lost the nomination to John McCain. Mr. Romney is, once again, a candidate for President, and is a frontrunner for the 2012 Republican nomination. (3)

Mr. Romney's record as Governor of Massachusetts will undoubtedly be carefully scrutinized during the campaign that lies ahead. His spending cuts, increases in fees, and signing into law of universal healthcare coverage for all Massachusetts citizens will be widely discussed. (4) However, it is unlikely that much attention will be given to the Governor's efforts to reinstate capital punishment in the Commonwealth of Massachusetts.

This article describes Governor Romney's plan to make the death penalty available as a sentencing option in Massachusetts, a state that, historically, has been strongly opposed to it. It asks the question: Was this plan about good public policy, or was it more about creating a "tough-on-crime" image that would counteract the impression that Mr. Romney's Republican credentials were suspect? Was it about politics or law?

Part I of the article describes the legal and political context in which the Romney death penalty proposals were made. Parts II and III explore the Governor's Council on Capital Punishment--its mandate, the recommendations of its final Report in 2004, and legislative attempts to enact those recommendations into law. Part IV describes public, media, and academic reactions to the proposals. …

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