Protecting the innocent: the Massachusetts Governor's Council Report.

• Author: Hoffmann, Joseph L.

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.

How did the Massachusetts Governor's Council Report come about? What made it possible for the Council to take such a bold stand on so many significant death penalty issues? And how should the Council's recommendations be evaluated--in Massachusetts and elsewhere around the nation? The remainder of this article seeks to address these questions.

THE POLITICS OF DEATH PENALTY REFORM AND THE ILLINOIS EXPERIENCE

As noted above, the opening stages of the current capital punishment crisis unfolded in Illinois, where, in the 1990's, revelations began to surface about innocent men on Death Row. (16) These revelations led then-Governor George Ryan first to declare a moratorium on executions, (17) eventually to be followed, on the Governor's last day in office in January 2003, by the commutation of the death sentences of every person on Death Row in Illinois. (18) Former Governor Ryan's subsequent public statements have made it clear that--for a variety of reasons--he now supports the abolition of capital punishment. (19)

In the interim, the same revelations about mistaken death sentences in Illinois also provoked a vigorous effort to reform the Illinois death penalty. In 2002, a special Commission appointed by Governor Ryan proposed eighty-five specific reforms. (20) Although many of the Commission's proposals were rejected by the Illinois Legislature, on November 19, 2003, the Legislature did enact a wide-ranging death-penalty reform bill. (21) Most of those reforms became effective in January 2004.

Despite the reforms, however, the death penalty in Illinois continues to teeter on the brink of de facto abolition. Current Governor Rod Blagojevich has thus far declined to lift the moratorium on executions, and public debate over the issue rages. (22) Although new death sentences are now being imposed in Illinois capital trials, (23) it remains unclear whether there will ever again be another execution in Illinois.

The recent Illinois experience amply illustrates the three divergent paths that characterize modern death-penalty law and policy. The first of these is the path of the status quo, a path that would preserve the death penalty system, for the most part, largely as it has operated in this country for the past three decades. (24) The Republican-led Illinois Senate tried to follow this path for most of 2002 and early 2003, (25) before ultimately recognizing that faltering public support for the death penalty effectively had eliminated the status quo as a politically viable option in Illinois. In many other states, however, the status quo remains viable. (26)

The second path is the one ultimately taken by ex-Governor Ryan himself. This is the path of abolition. Its adherents believe that the system for administering capital punishment in America is "broken" and cannot possibly be fixed, and that the system itself therefore must be abandoned. Ex-Governor Ryan is in good company on the path of abolition. Recent U.S. Supreme Court Justices Powell, (27) Blackmun, (28) Brennan, (29) and Marshall, (30) as well as most of the other participants in this Conference, have traveled, or are now traveling, along the same path. (31)

The third path is the path of real reform, in pursuit of the Holy Grail of a death penalty that can meet society's standards for accuracy and fairness. Paradoxically, it may be the path least often taken. The paradox here is that reform is the one option that should be capable of garnering the maximum amount of public and political support. Both proponents and opponents of capital punishment certainly should be able to agree that, so long as the death penalty continues to exist, the system for administering it should be continually improved in an effort to reduce, as much as humanly possible, the risk of substantive error.

But, in fact, neither group has completely embraced the reform option. Opponents of capital punishment frequently find themselves in the position of advocating reform, at least as an alternative to an entrenched status quo (and as a way of delaying executions). But their advocacy is sometimes tempered by the fear that real reform will merely enhance the legitimacy of the death penalty, which in turn will make abolition--their ultimate goal--more difficult to achieve. (32) And even when abolitionists do manage to overcome these fears and advocate passionately for reform, it is hard for them to do so without seeming disingenuous, because it is clear to anyone who knows their true position that they do not really want the death penalty system to become successful. (33)

Proponents of capital punishment, on the other hand, distrust real reform, largely because they perceive it to be driven by abolitionists who (in their view) try to impose every possible roadblock in front of a death sentence. Many proponents, including many prosecutors and advocacy groups for crime victims, do not believe that the current death-penalty system is truly "broken." They therefore tend to oppose reform initiatives, almost reflexively, or at most to support incremental reforms that they view as sufficient to solve any minor problems that may exist. (34)

As a result, real death-penalty reform turns out to be elusive and difficult at best, and more frequently impossible. Under normal circumstances, the political forces simply do not align in a manner that allows such reform to be achieved. (35)

A NEW AND DIFFERENT POLITICAL PARADIGM

Enter Massachusetts Governor Mitt Romney. Governor Romney, a Republican, was elected in 2002 in a liberal "blue" state politically dominated by Democrats. (36) Massachusetts has not had a valid death penalty statute since 1984, and has not executed anyone since 1947. (37) Governor Romney, during his election campaign, advocated the reintroduction of capital punishment to Massachusetts. (38) Many average Massachusetts residents--but not their elected state legislators--seem to agree with the Governor's position on capital punishment. (39)

In September 2003, Governor Romney created the Massachusetts...