Execution Watch: Mitt Romney's 'foolproof' death penalty act and the politics of capital punishment.

• Author: Murphy, Russell G.

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. Part V comments on the proposed legislation in the light of current understandings about capital punishment. The article concludes with an invitation to voters to consider how Governor Romney's campaign to reinstate the death penalty in Massachusetts should be weighed in his current effort to become the Republican nominee for President in 2012.

PART I. LEGAL AND POLITICAL CONTEXT.

Massachusetts's reputation as a progressive, liberal state is well known. However, these labels overlook the fact that, in recent years, Massachusetts's government has been divided between a conservative-to-moderate Republican Governor, a more liberal Democratic legislature, and a very progressive Supreme Judicial Court (SJC). Mitt Romney's election to Governor in 2002 reflected a trend in voter preference for Republican governors that started with the election of 1990. Republicans held the Governor's office from January 1991 (William Weld) through January 2007 (Mitt Romney), until the election of Democrat Deval Patrick. Governor Weld was succeeded by Republicans A. Paul Cellucci in 1999, Jane Swift in 2001, and Mitt Romney in 2003.

Mr. Romney's successful gubernatorial campaign stressed a number of "big" issues. (5) What some might call "flexibility" on these issues (as, for example, declaring himself "pro-life" but supporting a right to abortion in cases of rape, incest, or where the life of the mother was threatened; or arguing for a right to "recognize the Creator" at public school events but stating later in his term that public schools should not approve or support specific religious beliefs or prayers in schools) raised doubts at various times about Romney's adherence to core Republican values. (6) Supporting capital punishment was a position that Romney could easily adopt and use to allay those doubts. (7)

However, one thing was clear in the fall of 2002 and the spring of 2003. Massachusetts was, at least from the standpoint of the judiciary and the legislature, an anti-capital punishment state. Massachusetts had gone without the death penalty on the books for eighteen years. During that long period there were occasional struggles over the idea of reinstating the death penalty. Proponents came close to passing capital punishment legislation in 1997 and 1999; in 2001, reinstatement bills were rejected by a large margin. (8) The electorate was generally split on the issue; for example, a 2003 survey revealed 53% support for the death penalty. (9)

Historically, these votes and accompanying public opinions were framed by a vote in 1982 approving a referendum to prevent the state constitution from being construed to bar the death penalty. That action resulted in the passing of reinstatement legislation and its subsequent invalidation by the SJC. (10) Even though pro-death penalty governors would be regularly elected, rulings by the state's highest court in 1980 and 1984 invalidated death penalty statutes and seemed to establish that Massachusetts would permanently remain among the minority of states rejecting capital punishment. (11)

Two pivotal cases, District Attorney for Suffolk District v. Watson (12) and Commonwealth v. Colon-Cruz, (13) presented significant obstacles to the passage of a new, Romney-sponsored capital punishment law for Massachusetts. In Watson, a majority of the SJC ruled that the death penalty law in effect in 1980 was per se unconstitutional under article XXVI of the Massachusetts Declaration of Rights, the state's cruel-or-unusual-punishments clause, (14) because capital punishment was impermissibly cruel in all cases. (15) Two years later, Massachusetts voters approved a referendum amending article XXVI to provide: "No provision of the Constitution shall be construed as prohibiting the imposition of the punishment of death." (16) As a result, in December of 1982, the Massachusetts legislature passed chapter 554 of the 1982 Acts and Resolves, restoring the sentence of death for certain first-degree murders. (17)

The Colon-Cruz decision confronted the state constitutionality of this new capital punishment statute. (18) It answered a certified question from a trial judge presiding over the death-eligible trial of a defendant accused of murdering a Massachusetts State Police Officer. (19) The court answered "no" to the question of whether the new capital punishment law was constitutional under the Declaration of Rights, but did so in less than absolute terms. (20) The majority explained that the new law "impermissibly burden[ed] a defendant's right against self-incrimination and right to trial by jury." (21) The court focused on provisions in the 1982 death penalty statute that permitted a death sentence only after a jury trial. (22) A defendant who entered a guilty plea in a case in which death was a possible sentence after trial could avoid the risk of being put to death. (23) The inevitable result was that defendants were discouraged from asserting their right not to plead guilty and their right to demand a trial by jury. (24) The result was a "Catch-22" that made the law unconstitutional because, in essence, it penalized a first-degree murder defendant for asserting the constitutional rights of trial by jury and the privilege against self-incrimination by imposing a potentially harsher sentence--death rather than life imprisonment--for the exercise of those rights. (25)

The SJC's decision left open the possibility that future legislatures could pass a constitutional death penalty statute. (26) It took the same approach to capital punishment as that taken by the United States Supreme Court under the Eighth Amendment's cruel-and-unusual-punishments clause. (27) That is, today, as in the 1980s, the death penalty is a constitutional punishment (at both the state and federal level) so long as the United States Supreme Court's requirements for a lawful Eighth Amendment capital sentence are met. (28) Individual cases and individual defendants, under specific and distinct capital punishment laws, can raise the claim that...