Section 33E survives the death penalty: why extraordinary review of first-degree murder in Massachusetts serves no compelling purpose.

Author:Allen, Michael Thad

    Chapter 278, section 33E of the Massachusetts General Laws guarantees every defendant convicted of murder in the first degree direct review in the Supreme Judicial Court (SJC), skipping the intermediate Appeals Court, and also granting a more lenient standard of review than ordinary appellate procedure. The statute is a relic of the death-penalty era, originally enacted in 1939 to provide a special, plenary appeal in "capital cases." As amended in 1939, section 33E read:

    In a capital case the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence, and the court may order a new trial if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require. (1) Although the statute has been amended several times, its plain language still identifies it as a capital-procedure statute, despite the fact that Massachusetts has not been a death-penalty state for forty years. (2) In the meantime, section 33E has been converted into a murder-procedure statute. In 1962, when Massachusetts still had a death penalty, the legislature added a crucial clause defining "a capital case" as "a case in which the defendant was tried on an indictment for murder in the first degree...." (3) By virtue of this legislative malapropism, section 33E survived the death penalty. The SJC's extraordinary power of review is still reserved exclusively for "capital" cases, but the 1962 definition clause guarantees this protection for first-degree murder defendants regardless of the punishment they face.

    First-degree murder appeals now take up a huge share of the court's docket, amounting to just over a third of its criminal appeals and eighteen percent of all full opinions issued. (4) But these appeals are even more time consuming than the numbers imply. Unlike ordinary criminal appeals, the SJC may not restrict review to issues raised on appeal; it examines the whole record for any error giving rise to a "substantial likelihood of a miscarriage of justice"; and the court may order a new trial or reduce the verdict to a lesser degree of guilt for any reason that the interest of justice requires. (5)

    This article argues that this no longer serves any compelling purpose. Massachusetts should eliminate the definition clause that mandates extraordinary review of non-capital cases. This would be consistent with the statute's original intent and purpose, and it is also warranted on grounds of judicial economy. Below I discuss the historical devolution of section 33E from the linchpin of Massachusetts's capital procedure into a murder-procedure statute. Parts I and II are historical in nature, with the first explaining how capital procedure survived the death penalty after the Commonwealth eliminated capital punishment in the 1970s. This altered the entire context of extraordinary review, which has thereafter focused on the crime of murder in the first degree rather than the punishment of death. Part II then delves into the legislative history of section 33E and shows that it had always addressed the qualitatively different fate faced by capital defendants, not murder per se. There was nothing historically distinctive about the crime of murder in the first degree that entitled defendants to an extra measure of review. Part III discusses why extraordinary review of murder in the first degree is actually a waste of resources, and why the Massachusetts Appeals Court could do this job more efficiently with no greater risk of error or injustice. Finally, Part IV examines statistics on the prison population in Massachusetts and demonstrates that, although only murder one is subject to life without parole, the possibility of parole makes no qualitative difference in life sentences as actually served. This is because in lenient years up to thirty percent of the releases of lifers have been murder-one convicts; however, during years of severe punishment, murder-two convicts are very unlikely to win freedom through parole. There is, therefore, no justification for different standards of appellate review for murder-one defendants. Massachusetts should either extend extraordinary review to all defendants facing life sentences, or, preferably, eliminate section 33E review of non-capital cases in line with the original intent of the statute.


    Capital procedure may be defined as those extra safeguards at all stages of trial afforded to defendants who face the death penalty. The Commonwealth of Massachusetts, as well as most other states, has always required such procedures because of the permanence of execution. (6) For instance, the landmark case, Gideon v. Wainwright, (7) addressed a Florida capital-procedure statute that granted the right to appointed counsel in death-penalty cases but no others. Gideon forced Florida (and all states) to grant ordinary criminal defendants a right formerly reserved exclusively for capital cases, and it stands within a long-term trend in which normal criminal procedure has gradually incorporated the special protections of capital procedure.

    This is particularly evident in Massachusetts where capital procedure extends back over three hundred years. The most famous example is the Supreme Court of Judicature, commonly considered the predecessor to the SJC, established during great political upheaval in 1692 and vested with exclusive jurisdiction over capital cases. This was partly a response to the special Court of Oyer and Terminer in Salem that began hanging individuals convicted of witchcraft. (8) This miscarriage of justice cannot be overstated and was obvious even among colonists who sincerely believed that witchcraft was a real threat. During the entire 150-year period from the first charter in 1629 to the American Revolution, the Colony executed no more than forty individuals for murder, and only fifteen people had been executed prior to 1680, but in less than three months from June 10 to August 19, 1692 the Court of Oyer and Terminer sent twenty-two people to their death. (9) The Supreme Court of Judicature (along with the colonial governor) quickly put an end to this orgy of executions, and the SJC retained exclusive original jurisdiction over capital cases for the next 184 years. (10)

    The rise of the SJC is perhaps the most notable example of the special protections afforded capital defendants, but there were many others long since incorporated into ordinary criminal procedure. For example, the right to indictment by a grand jury, to be represented by counsel, to have a trial by jury and appellate review; the right to challenge jurors, to present evidence, and to confront witnesses; all of these rights were once reserved exclusively for capital defendants. (11) In the revolutionary era, many were enshrined in the Sixth Amendment to the united States Constitution and Article XII of the Massachusetts Declaration of Rights, but the plain language of Article XII still retains the distinction between capital and ordinary procedure where it forbids making "any law, that shall subject any person to a capital or infamous punishment ... without trial by jury." (12)

    As the Salem Witch Trials make obvious, capital procedures did not come into being to address murder trials, and there was no special "murder procedure." This is also obvious considering the wide variety of crimes formerly subjected to punishment by death. Along with the exotic anachronism of witchcraft, the Massachusetts Bay Colony imposed the death penalty on nine other offenses: murder, idolatry, blasphemy, bestiality, sodomy, adultery, "man-stealing," bearing false witness in capital cases, and conspiracy. (13) To these were eventually added: rape of a married or single woman, the cursing or smiting of a natural parent by a child over 16, burglary for the third offense, highway robbery for the third offense, arson, heresy, piracy and mutiny, and military service with an enemy or against allies. (14) At the time of the Salem Witch Trials, twelve crimes were punishable by death, increasing to fourteen between 1696 and 1736. (15) At one time Jesuits and Quakers who returned to the Massachusetts Bay Colony after banishment also faced execution. (16) In 1780, the legislature of the newly independent Commonwealth reduced the number of capital offenses to arson at night, rape, highway robbery, willful murder, burglary at night, and treason. (17) But only after 1852 was this corpus reduced solely to murder, (18) and only thereafter could anyone confuse capital procedure with murder procedure. (19)

    Massachusetts has not had an enforceable death penalty since 1972 and, in practice, the state did not execute anyone after 1947. Attempts to reinstate the death penalty recurred through the 1990s but repeatedly failed, not least because of the activism of the SJC. In 1984, the court effectively declared unconstitutional an amendment to the state constitution that had authorized capital punishment. The amendment stated:

    No provision of the Constitution ... shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death. (20) This change in the constitution was the culmination of a broad-based popular reaction to Commonwealth v. O'Neal, (21) which struck down the lone surviving death-penalty statute at that time (for rape-murder).

    Following hard on the heels of these decisions, Governor Edward King was elected after campaigning on a pro-death-penalty platform in 1979. A new death-penalty statute, 1979 Mass. Acts 488, passed shortly after he entered office; but the SJC quickly struck this down in District...

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