E-Mail This Article to a Friend The sudden death of Romney’s dream What once seemed like a clever ploy has become a political and policy disaster for the governor BY DAVID S. BERNSTEIN

It seemed like a good idea at the time.

When Mitt Romney first announced his desire for a "gold standard" death penalty almost two years ago, it looked like a reasonable bet — both as politics and as policy. Previous death-penalty bills had lost by close margins in the state, suggesting that a better plan — and a popular governor — might swing the vote. The 11 members he assembled on his Governor’s Council on Capital Punishment, including respected figures like forensic scientist Dr. Henry Lee, Indiana University law professor Joseph Hoffman, and Brigham and Women’s pathologist Dr. Fred Bieber, impressed even the most skeptical. By demanding extra assurances of guilt, Romney’s plan would presumably assuage the concerns raised by reports of innocent death-row inmates, which have stalled public support for capital punishment. He could force potential gubernatorial opponents — like Attorney General Thomas Reilly, a death-penalty supporter — to either back his bill or take an unpopular position opposing it. And even if the measure failed here in Massachusetts, it would look good to Republicans nationally for his potential 2008 presidential run.

But by last Thursday, when Romney finally presented the plan to the state legislature’s Joint Committee on the Judiciary, his gamble had crapped out. Democrats in the State House say the bill has no chance of passing, a reality Romney himself seemed to concede. "I don’t pretend there will be a dramatic shift in response to my testimony," he said.

The Massachusetts citizenry apparently doesn’t care about the measure: although polls show a majority favoring the bill, legislators and their aides say they are receiving no calls about it. Romney’s bill has been denounced by both the Boston Globe and the Boston Herald, providing sufficient cover for Reilly and other Democrats to oppose it while still supporting capital punishment. State Senator Marc Pacheco (D-Taunton), normally a slam-dunk vote for any death-penalty proposal, tells the Phoenix that he is "increasingly getting frustrated with this piece of legislation being used for purely political purposes." Even assuming Pacheco and other pro-death-penalty Democrats ultimately vote for the bill, it will lose by roughly 40 votes in the House and 15 in the Senate, according to anti-death-penalty lobbyists. If Pacheco and others like him vote no, the loss could end up as a massacre.

Nationally, it looks just as bad. The New York Times Magazine mocked Romney in its most recent "Year in Ideas" issue, calling his "foolproof death penalty" "the first effort to write a purely symbolic criminal statute." No prominent Republicans from out of state have spoken up for the plan.

And the best example of how sad and lonely this bill is? The Romney team can’t even provide the de rigueur prop for a piece of tough-on-crime legislation: a victim’s teary-eyed family member. A few showed up to testify against the bill, and the governor’s office has yet to find anyone in favor who will even stand alongside Romney for photo ops.

A parody?

Romney’s plan can best be described as a right-wing parody of a liberal’s perfect death-penalty bill: an expensive and complicated new bureaucracy that would execute nobody. The bill calls for layers and layers of new processes and legal requirements, while restricting death-penalty eligibility so narrowly that it’s hard to find any real case to which it would ever apply. Whether this was bad work by Romney’s staff or the inevitable result of a quixotic endeavor, it’s not likely to appeal to many people on either side of the debate.

Under Romney’s plan, the death penalty would be applied to murders committed as an act of terrorism; assassination of law-enforcement officers, prosecutors, corrections officers, and other state criminal-justice officials; killings committed during incarceration; multiple murders; and killings involving prolonged torture. Those are rare enough. But each case would also have to involve forensic evidence. Further, eligible convicted killers would face a second trial to determine punishment, with a separate jury tasked with finding guilt beyond any doubt, rather than just beyond a reasonable doubt. Suffolk County sheriff Andrea Cabral, testifying against the bill, questioned whether that is even possible — the state judiciary’s own language for explaining "reasonable doubt" to jurors, she pointed out, says that "beyond all doubt" is not a feasible standard.

Romney himself cites two murders in the Commonwealth in the past 10 years that he claims might have been deterred by this legislation: the killings of Assistant Attorney General Paul McLaughlin in 1995, and incarcerated former priest/molester John Geoghan in 2003. He also points to the London bombings and the multiple murders allegedly committed by Joseph Duncan in Idaho as the types of crimes that would be eligible for death.

Perhaps the governor really believes that, had his proposed statute been in place, Jeffrey Bly and Joseph Druce would have refrained from killing, respectively, McLaughlin and Geoghan — a view not shared by death-penalty opponents, who insist that capital punishment is not a deterrent. But even Romney doesn’t think that terrorism cases would be prosecuted by the state. At the hearing, Lieutenant Governor Kerry Healey conceded that the federal courts, which can impose the death penalty, would handle such cases, but asserted that making terrorism murders punishable by death in state law is nevertheless "important as a statement of principle." Sounds like the Times Magazine had it nailed — this is symbolic crime-fighting.