EDWARD P. SCHWARTZ

Death comes to town

By Edward P. Schwartz, 9/19/2003

IN THE LAST few years, there has been a flurry of legal and political activity concerning the death penalty. Consider:

The US Supreme Court has grappled with such issues as the execution of minors and the mentally retarded. The justices have also ruled that a defendant's eligibility for the death penalty must be resolved by a jury, causing the Court of Appeals for the Ninth Circuit to invalidate the judge-determined death sentences of 119 convicts in several Western states. The court has also wrestled with the thorny issues of what constitutes competent representation at the sentencing stage of a capital trial and what to do about apparently racially discriminatory jury selection practices by state prosecutors.

The availability of DNA-matching techniques has resulted in several death row inmates being freed from prison. The Florida Legislature has passed a law offering DNA tests to most inmates on death row, and there is a race on to complete the tests before the program's deadline. In a remarkable development, then-governor of Illinois George Ryan declared a moratorium on all executions and then commuted all the death sentences in the state on the grounds that the criminal justice system was too plagued by error, corruption, and arbitrariness to have confidence in those sentences.

The capital punishment debate has also taken on an international dimension, both with respect to the aftermath of Sept. 11 and also the reluctance of nations to sign treaties with the United States because of its continued use of the death penalty.

Finally, after decades of intense debate about whether capital punishment deters murder, fueled on both sides by old studies that used ancient data and questionable statistical techniques, a handful of new studies, using recent data and state-of-the-art statistical analysis, has derived a substantial deterrent effect.

For example, a study conducted by three researchers at Emory University found that at the margin, each additional execution deters approximately 18 murders. So death penalty opponents can no longer smugly declare that capital punishment is ineffective and end the debate there. We must once again wrestle with the question of whether the death penalty is ethically justified given that it might actually be working.

Most of us in Massachusetts have been living in blissful ignorance of this recent turmoil. Since state law does not permit capital punishment, there have been no death penalty cases to incite passions or generate debate. We did get close once, in 1997. After a strong majority of the voters of the Commonwealth supported a ballot initiative in favor of capital punishment, the measure failed in the Legislature by one vote when Representative John Slattery, a Peabody Democrat who had initially supported the bill, changed his mind and voted against the final version. As such, we have not been forced to confront the realities of the death penalty head-on as jurors. Until now.

Gary Lee Sampson recently confessed and then pleaded guilty to the murders of two Massachusetts men. Since the crime involved kidnapping, Sampson was charged in federal court. While he has pleaded guilty, his sentence has yet to be determined. For our purposes, two facts are paramount: Under federal law, Sampson can receive the death penalty, and the sentencing hearing is being held in US District Court in Boston using local jurors. This means that 12 Massachusetts citizens will have the awesome responsibility of deciding whether Gary Sampson should be executed for his crimes.

We owe it to ourselves to have an open and informed public debate about capital punishment; Sampson will not be the last murderer whose fate is resolved by the citizens of the Commonwealth.

Over the last decade, and accelerated under the current administration, the federal government has steadily been expanding the set of crimes for which one can receive the death penalty. In addition, Attorney General John Ashcroft has been aggressively seeking the death penalty for federal crimes whenever possible, even overruling decisions of US attorneys to the contrary. The recent Patriot Act and proposed amendments further expand the set of capital offenders, even to some individuals who do not themselves participate in murder.

These developments will eventually lead to future capital cases being tried before Massachusetts juries. We should be ready.

Edward P. Schwartz teaches about capital punishment and juries at the Boston University School of Law.

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