Speak against death

Here in Massachusetts, there have been several. Among the most atrocious is that of Jeffrey Curley, a 10-year-old boy who was abducted from his Cambridge home, killed, raped, swaddled in concrete, and dumped in an upcountry river. His father's dignity in the face of overwhelming pain made the crime seem all the more monstrous.

Curley's murder, and a string of others in the space of a month -- including a drive-by shooting at a bus stop of a mother by her estranged boyfriend -- has brought public fury and new demands to bring back capital punishment.

But as terrible as the stories can be, they never address the central question of the death penalty debate. Is the criminal justice system so perfect that, as a matter of general policy, we can trust it to impose the ultimate, irreversible sanction?

All of the evidence indicates that it is not.

Since 1973, 72 death row inmates have been released because their prosecutions were improper. There have been some 6000 death penalty convictions over this period of time, which means that the error rate is greater than 1 percent. Death is 100 percent. And those are just the mistakes that come to light. "It is better to risk saving a guilty man than to condemn an innocent one," as Voltaire has written. With life in prison and no possibility of parole -- the punishment for first-degree murder in this state -- these mistakes can be addressed. But you cannot bring a dead man back to life.

Bobby Joe Leaster was convicted of killing a South End store clerk. He served 15 years in prison before it was proved that he was not guilty. With the death penalty, it would only be a matter of time before the state of Massachusetts executed an innocent. A humane society should condemn murder, but it should not gamble with life -- whatever the odds.

Even when it's clear that a defendant is guilty, the death penalty violates two bedrock principles of American law: equal protection and due process. Minority and poor defendants are more likely to be put to death for their crimes.

The government has gone to great lengths to ensure that bias does not sway a jury's decision. When the Supreme Court brought back the death penalty in 1976, it emphasized that such laws were constitutional only if they outlined detailed instructions to the jury about which factors could be considered in deciding on the punishment. But, as two Northeastern University researchers wrote in the Boston Globe last week, all the evidence suggests that most jurors ignore, or do not understand, those instructions. This alone would be a good enough reason for the state's Supreme Judicial Court (SJC), which has struck down the death penalty before, to strike it down again.

The death penalty, like mandatory minimum sentencing, is a facile, formulaic response that does not give people the thing they really want: safety. There is simply no evidence that capital punishment does anything to deter crime. In the states with the most executions, the average murder rate is actually higher than the national average. It is ironic that Acting Governor Paul Cellucci has chosen this issue as his rallying cry, even as Boston is becoming a model for innovative crime fighting and crime prevention. And the irony runs deeper: putting somebody to death is expensive. In Florida, for example, the bills have averaged $3.2 million for each execution -- six times the cost of life imprisonment.

Given the stakes, it has been sad to observe the timidity of the opposition outside the legislature. Both Cardinal Bernard Law and retired SJC chief justice Paul J. Liacos were eloquent opponents. But the liberal political establishment has been eerily quiet -- made timid, perhaps, by the public's anger.

That is not leadership.

The three Democrats angling to be governor -- Patricia McGovern, Ray Flynn, and Scott Harshbarger -- all say they oppose the death penalty, but their opposition in recent weeks has not been forceful. In the case of Scott Harshbarger, whose position as Attorney General would allow him to make a real difference, the lack of passion is especially disappointing.

So far, the legislators have been afraid to resist the fury. So far, Cellucci has egged them on. If they do not change their minds, we can only hope that the Supreme Judicial Court -- founded, as Liacos has noted, in the wake of the Salem witch trials -- will be the voice of reason.

What do you think? Send an e-mail to letters[a]phx.com.

Paul Cellucci: (617) 727-9173