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Leonardo Angiulo: Why We Don’t Have The Death Penalty In Mass.

Monday, September 30, 2013


As the prosecution of Boston Marathon suspect Dzokhar Tsarnaev moves forward, federal prosecutors weigh the decision to seek the death penalty.

As the prosecution of Boston Marathon Suspect Dzokhar Tsarnaev moves forward, federal prosecutors weigh the decision to seek the death penalty. If this defendant is ultimately found guilty for the atrocities of last April then there are likely many who believe capital punishment would be just. Some might even say that an execution would be too humane an end for such an inhuman actor. The nature of the act, the hideous intent and results, as well as the malicious ideology resulting in the bombings incur the deepest wrath from all of us.

That the United States Attorney General has the power to seek the death penalty and State Prosecutors do not is a direct result of thoughtful rulings by the Supreme Judicial Court (“SJC”) of Massachusetts. Underlying the precedent are facts including historical observations, decades of effort by social justice groups and the cruel, crushing, finality of death sentences in a world otherwise devoid of clear endings.

If you really want to understand how the SJC came to their conclusion, it is essential that you do some research. A good place to start is the Massachusetts Trial Court Law Library online database, which organizes issues of law by topic. The page on the death penalty in Massachusetts provides links to several resources that are very thorough. In particular, the link to Alan Rogers' history of the death penalty from the Boston College website connects the present state of our law all the way back to activists in 1928 in a way that I wouldn't be able to here.

In addition, the 1980 case of District Attorney for the Suffolk District v. James Watson & others is an important read because it outlines the arguments for why the death penalty, as an idea, represents cruel and unusual punishment in violation of Art. 26 of the Massachusetts Declaration of Rights. The Watson case ruled that, therefore, the then existing version of the death penalty statute was unconstitutional. That finding stood until voters of Massachusetts approved Article 116 as an Amendment to the state constitution. When they did so, they made it so “[n]o 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."

As a result of that constitutional amendment the present day version of Massachusetts General Laws chapter 265, section 2 exists. Anybody who reads that law is in for a shock because the first sentence clearly states in relevant part “[w]hoever is guilty of murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty, and who had attained the age of eighteen years at the time of the murder, may suffer the punishment of death . . .” Now this leads to the question, if state prosecutors have the legal authority to pursue the death penalty, why don't they?

The answer is found in the second half of the first sentence of MGL c. 265, section 2, which reads “. . . may suffer the punishment of death pursuant to the procedures set forth in sections sixty-eight to seventy-one, inclusive, of chapter two hundred and seventy-nine. ”

When we look at Massachusetts General Laws c. 279 we see the statutory structure by which crimes get punished. In particular, sections 68, 69, 70, and 71 lay out strict guidelines for the jury findings that must occur before a death sentence may be imposed.

The rigidity of this statutory structure, which was likely designed to prevent arbitrary application of the laws, also contributed to the SJC finding this version of the death penalty unconstitutional in the 1984 case of Commonwealth v. Colon-Cruz. This case came from Worcester County and has some particularly difficult facts. The defendants were charged with the shooting death of a Massachusetts State Police Trooper on Rt. 20 in Auburn, Massachusetts. Any time members of law enforcement are injured or killed in the line of duty we, as a society, are faced with defendants that have not only broken the law, but have done so in a way that indicates a disregard for the role of police as armed guards of public well-being. Defendants willing to cross that line present a fundamental danger to the safety of our society because in difficult situations the police are really the only ones standing between lawful citizens and those willing to engage in mayhem.

Notwithstanding the particularly difficult facts, and unpopular nature of the defendants, the SJC found in Colon-Cruz that the way the current death penalty statutes get implemented is unconstitutional. In its ruling, the court highlighted that, in accordance with Art. 116 they were not saying death sentences themselves are unconstitutional. Instead, the court focused on the practical reality that all a person charged with first degree murder had to do to avoid a risk of death was to either plead guilty or choose to have a jury waived trial. The effect, therefore, of such a rule is that people were being discouraged from exercising their right to remain silent and their right to a jury trial guaranteed by the Federal and Massachusetts Constitutions. The majority opinion concluded that there can be no rule in our laws that unnecessarily chills the rights that serve as the foundation for our system of justice. No matter how atrocious the underlying crime is.

Remember that arguments against the death penalty should not be conflated with approval of murderous, or other heinous, acts. It is no surprise that if we, as a society, experience an inhumane offense we respond with a justifiable demand for vengeance ten times what we suffered. An eye for an eye is one of the oldest laws in our land. We also, however, need to acknowledge the inherent flaws of any human endeavor, not because of intentional wrongdoing, but because of the fallible nature of human beings. These flaws can be present in criminal investigations, or in defense counsel's conduct at trial, and even in the closing arguments of a prosecution. When balancing our desire for revenge and our knowledge that the death penalty is a permanent outcome in a fallible system, we, as a society, need to decide what justice means to us.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at langiulo@gmail.com.


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Iron Mike Farquhar

Any attorney who uses the non-word 'notwithstanding' in his prose or his verbal arguments is NOT to be trusted.

The real truth is that Mass Lib-tards object to the Death Penalty – because they are well aware of the generations of sloppy police work that began soon after Democratic domination of the state government.

The recent number of crimes and drunken driving incidents by our state police, and the horror of our state drug lab – are just two examples.

Still, if citizens are serious about deterring murder, then bring back the Death Penalty. Certain crimes beg for it!

Stephen Jacoby

I oppose the death penalty under ALL circumstances for only one very simple reason. There have been too many (and more than zero is too many) instances of people being executed who were later proven beyond any doubt to be innocent of the crimes for which they were convicted. I agree that certain crimes beg for the perpetrator to be executed, but I would rather have the state support every single slimeball in jail than to execute even one innocent person.

And, despite the typical ignorant partisan commentary offered by Farquhar above, the political party in power has absolutely nothing to do with this phenomena. Some of the most conservative states in the country (Texas being the most notable example) have installed what amounts to an express lane for executions. In recent years, Texas has executed more innocent people (that we know of) than all of the other states combined. That is nothing more than state-sanctioned murder by mob rule and it has to be stopped.

Iron Mike Farquhar

The problem Steven, is that YOU DON'T support them...


And, they injure and kill prison guards....

Stephen Jacoby

Yet more evidence that you're an ignorant ass. Are you actually that stupid to think that conservatives are the only taxpayers in the state? I have news for you buddy. You're outnumbered by a WIDE margin.

And, yes. They continue to be a problem in prison, but I stand by my statement that it's better to keep them locked up than to execute an innocent person.

Apparently, you don't mind killing innocent people.

Iron Mike Farquhar

How 'innocent' are Mucko McDermott, Neil Entwistle, or Dzhokhar Tsarnaev?

How 'innocent' is Tamik Kirkland? Edwin Alemany? Jarod Remy? Charles Stuart?

Stephen Jacoby

Guilty as sin. However, it's not the high-profile cases that cause those of us with a conscience to object. It's the hundreds (and counting) of cases where the innocent person was executed. You simply can't argue against that without revealing yourself to be an uncaring and truly evil human being.

Iron Mike Farquhar

Stephen, yes – innocents were jailed – and executed...

BUT – when the killer is caught red-handed like Mucko and Jared Remy,...there is ZERO reason not to hang / shoot / fry them. Executing the high-profile killers sends a message.

Why will Whitey die of old age? Why? You have some lingering doubts about him?

Stephen Jacoby

Sadly, it doesn't matter if they were caught red-handed or not. As a self-professed supporter of our nation's constitution at all costs - even when you think it says things it clearly does not - you have to agree that equal treatment under the law is one of our founding principles. You can't treat people differently for behaving the same way. Kill them all or kill none. There is no gray area.

Iron Mike Farquhar

I will NEVER 'have to agree' with ANYTHING you say or write.

Stephen Jacoby

So, in other words, you're a hypocrite AND an idiot.

The only reason I waste my time with you is to show the few others who read these pieces that not everyone in the region is a knee-jerk asshole like you. You are a complete waste of oxygen.

Iron Mike Farquhar

Strange that a brilliant fellow like yourself can't communicate without going directly to potty-talk.

Must be that Democratic upbringing.

Stephen Jacoby

Yes, I curse. So sorry that offends your delicate nature. But, unlike the drivel you post, my points actually have proven merit. You can look up facts from independent, non-partisan sources that support what I say. Yours are usually (much more often than not) taken directly from the proven blatant lies and distortions told by those who take advantage of an idiot's incapacity to fact check. So, what's your excuse? Are you too stupid or just too lazy to find the truth? I can't count the number of times I've challenged you to either factually discredit my posts OR to substantiate your own. Like a typical fool that lacks the courage of his own convictions, you NEVER do so.

Dudley Sharp

Immanuel Kant: "If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death.". "A society that is not willing to demand a life of somebody who has taken somebody else's life is simply immoral."

Pope Pius XII; "When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live." 9/14/52.

John Murray: "Nothing shows the moral bankruptcy of a people or of a generation more than disregard for the sanctity of human life." "... it is this same atrophy of moral fiber that appears in the plea for the abolition of the death penalty." "It is the sanctity of life that validates the death penalty for the crime of murder. It is the sense of this sanctity that constrains the demand for the infliction of this penalty. The deeper our regard for life the firmer will be our hold upon the penal sanction which the violation of that sanctity merit." (Page 122 of Principles of Conduct).

John Locke: "A criminal who, having renounced reason... hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tyger, one of those wild savage beasts with whom men can have no society nor security." And upon this is grounded the great law of Nature, "Whoso sheddeth man's blood, by man shall his blood be shed." Second Treatise of Civil Government.

Jean-Jacques Rousseau: "In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he has broken the Social Contract, and so is no longer a member of the State." (The Social Contract).

Stephen Jacoby

Once again, I am not saying that these people do not deserve to be executed. What I AM saying is that, since the judicial system is so flawed that we have hundreds - perhaps thousands - of documented instances of innocent people being executed for crimes they did not commit, I would rather not execute anyone than to have the state kill just one person who didn't deserve it.

And, quoting Pope Pius XII - a Nazi collaborator directly responsible for the death of hundreds of thousands of people during WWII - just might be a bad idea.

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