Could The Death Penalty Come Back To The Commonwealth?

After Yarmouth police Officer Sean Gannon was shot and killed while serving a warrant in Barnstable on April 12, Gov. Charlie Baker and conservative lawmakers began calling for the legislature to consider giving prosecutors the power to pursue the death penalty against so-called cop killers. However, the state Supreme Judicial Court struck down capital punishment in 1984 and no legislature since has successfully reinstated the practice. Capital punishment in general is rarely used across the country and isn't legal in 11 other states besides Massachusetts. WGBH legal analyst and Northeastern law professor Daniel Medwed tells Morning Edition that there's good reason capital punishment is becoming less frequent because executions are sometimes mishandled and there are troubling trends that show race and geography heavily influence when a death penalty is issued.

A transcript of their interview is below and the full audio is in the link above:

Joe Mathieu: This is WGBH's MORNING EDITION. Earlier this month Gov. Baker announced he was considering the idea of working with lawmakers to reinstate the death penalty in Massachusetts to apply to so-called cop killers. Joining us to talk about the history of capital punishment in the commonwealth and to put this development in the national context is WGBH News legal analyst and Northeastern law professor Daniel Medwed. Morning Daniel, welcome back.

Daniel Medwed: Good morning Joe.

JM: So Massachusetts has not had the death penalty for a long time. What were the circumstances that led the state to abolish it?

DM: That's right. Massachusetts has had a complicated relationship with the death penalty. It was one of the first states to embrace it back in colonial times, infamously executing dozens of people based on their religious beliefs — including 19 people accused of witchcraft in the Salem witch trials back in the 1690s. What a history. And up until 1951 every first-degree murder conviction carried with it an automatic death sentence. Things began to change significantly in the 1970s as they did across the country and in 1984 the SJC, our Supreme Judicial Court, formally abolished the death penalty and ruled it unconstitutional. Now every governor or virtually every governor since then has talked about reinstating the death penalty. Most notably and aggressively was Gov. Romney back in the 2000s but the legislature has never bought in completely to this initiative.

JM: How about this time? Would a possible death penalty bill fare better today or have we seen this movie already?

DM: We've seen this movie. I think it depends. On the one hand Gov. Baker has proposed a very limited circumscribed death penalty, one that would apply to people accused of killing police officers. That would obviously appeal to certain segments of the law enforcement community and also resonate with many voters who want to reserve the death penalty for the so-called worst of the worst. But on the other hand, polling in the last few years, especially a Gallup poll last fall, has indicated that support for the death penalty is at almost an all-time low. At least at numbers not seen since about 1972.

JM: We're talking with WGBH News legal analyst Daniel Medwed about the history and perhaps future of capital punishment in Massachusetts. Why do you think support for the death penalty has fallen so much to your point the numbers we're seeing showing some of the lowest numbers ever?

DM: I think there are several reasons. First there is data that shows that the death penalty is applied arbitrarily and discriminatorily based on geography and race. For instance, in New York City there was sort of an ill-fated experiment with the death penalty it turned out that the district attorney in the Bronx didn't like it and never sought death whereas the district attorney in Queens used it quite often. So your likelihood of getting the death penalty in New York City depended on which borough you committed your crime in, sort of an absurd result. Even worse there are statistics showing that the race of the victim is often the determinative factor in dictating whether someone receives death. If the victim is Caucasian, the suspect is more likely going to get a death sentence than if the victim is African-American or Latina suggesting a profound devaluation ... a very troubling devaluation of the lives of victims of color.

Second there have been a lot of high-profile well-publicized botched executions where the lethal injection cocktail simply didn't work and caused visible agony on the part of the defendant in front of the public. Finally the emergence of DNA technology over the past 30 years has proven beyond all shadow of a doubt that we make mistakes, that some people are sent to death row even though they're factually innocent.

So I think it's a combination of all those factors that led to the decline of support for the death penalty.

JM: So back to where we started Daniel. Do you think Gov. Baker will work with lawmakers to develop a bill and could it pass?

DM: Gosh, I like to leave those political prognostications to the scrum folks and WGBH’s Peter Kadzis, it's probably smart of me but but it won't stop me here. I don't think it's going to happen, capital punishment is largely an historical anachronism. It's time I think has passed for good reason. Lots of evidence suggesting that it's cruel and unusual and abolition is likely in the future nationwide. So I don't see it being resuscitated here in Massachusetts.

JM: WGBH News legal analyst and Northeastern law professor Daniel Medwed. We have this talk every week on MORNING EDITION. Thanks for being with us.