DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT vs. JAMES WATSON & others.
Supreme Judicial Court of Massachusetts
October 28, 1980
381 Mass. 648
Suffolk. May 29, 1980. — October 28, 1980.
Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.
Discussion of the provisions of c. 488 of the Acts of 1979. [651-654]
Discussion of authorities pertaining to the constitutionality of the death penalty. [655-659]
A complaint brought against four defendants, indicted for murder in the first degree, by the district attorney for the Suffolk district seeking a declaratory judgment as to the constitutionality of c. 488 of the Acts of 1979, a capital punishment statute, presented an actual controversy within the meaning of
In light of contemporary standards of decency, the death penalty is unconstitutionally cruel under
In light of the arbitrariness and discrimination inherent in the application of capital punishment, the death penalty is unconstitutionally cruel under
BRAUCHER, J., concurred on the ground that the imposition of a death sentence which will rarely be carried out and only after months and years of uncertainty is cruel and unusual in violation of
WILKINS, J., concurred, with the reservation that the Court should have postponed determining the constitutionality of the death penalty until it was presented with an actual case in which a defendant had been sentenced to death under the statute. [673-674]
LIACOS, J., concurred, discussing the nature of the death penalty and stating that the phrase “cruel or unusual” as used in
QUIRICO, J., dissented on the ground that the court, by ignoring traditional standards of review, has infringed on the Legislature‘s prerogative to define crimes and establish the terms of punishment. [686-701]
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on January 9, 1980.
The case was reported by Quirico, J.
William P. Homans, Jr. (John Reinstein with him) for James Watson.
Stephen L. Saltonstall (Ann Lambert Greenblatt with him) for John Real.
Barbara A. H. Smith, Assistant Attorney General, for the Attorney General.
Newman Flanagan, District Attorney, pro se (Michael J. Traft, Assistant District Attorney, & Rosalind Henson Miller, Special Assistant District Attorney, with him).
Henry P. Arsenault, amicus curiae, pro se, submitted a brief.
Jeanne Baker, Daniel Featherston, Andrew Good, Joseph S. Oteri, P. J. Piscitelli, Harvey A. Silverglate & Martin G. Weinberg, for the Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
HENNESSEY, C.J. On January 9, 1980, the plaintiff, in his capacity as district attorney for the Suffolk district, filed a complaint in the Supreme Judicial Court for Suffolk County seeking a declaratory judgment or, in the alternative, relief under this court‘s general superintendence powers under
Two issues are before this court today: (1) whether the court may entertain a suit for a declaratory judgment concerning the validity of c. 488 of the Acts of 1979 during the pendency of a criminal prosecution brought pursuant to the contested chapter, and (2) whether c. 488 of the Acts of 1979 violates
The general design of c. 488 is to provide a dual procedure when a defendant is charged with murder in the first degree. The first phase is to consist of trial of the charge. If the jury3 find the defendant guilty, then there is a second, separate presentencing hearing before the same jury in which argument and evidence may be adduced relevant to certain factors or standards described in the statute intended to single out those offenders who merit capital punishment. The jury are to decide on the evidence thus brought forward whether sentence of death, rather than life imprisonment, is to be imposed. When sentence of death is passed, there is a special review by the Supreme Judicial Court to guard further against arbitrary or capricious imposition of the death penalty.
To describe the four sections of the statute in greater detail: Section 1 prefaces the substantive requirements of the remaining three sections with a general declaration of the utility of capital punishment as a deterrent to crime and the appropriateness of such punishment being imposed by the Legislature. Section 2 amends c. 265 of the General Laws to provide that those convicted of murder in the first degree may only suffer the punishment of death pursuant to procedures set forth in those amendments to
Section 3 of c. 488 would add to
The imposition of the death penalty is limited to those cases in which one or more of the enumerated statutory aggravating offenses are found to exist beyond a reasonable doubt. Additionally, the jury are permitted to consider any other appropriate aggravating or mitigating circumstances, some of these mitigating circumstances being enumerated in the statute (§ 54 [b]). The jury must find a statutory aggravating circumstance before recommending a sentence of death, but need not find any mitigating circumstance in order to make a binding recommendation of mercy.
Included in the aggravating matter that might be entertained are twelve statutory aggravating circumstances which point more particularly to the nature of the offense or the kind of victim or offender (§ 54 [a]). Illustrative are: “(1) The offense of murder was committed on the victim who was killed while serving in the performance of his duties as a police officer, firefighter, or correctional officer; (2) The offense of murder was committed by a person who had previously been convicted of the crime of murder in the first degree“; “(11) The offense of murder was committed by a person in connection with the commission of rape or an attempt to commit rape on the victim.” (The other statutory aggravating circumstances are reproduced in the margin.4) Mitigating matter would include five statutory cir-
The appropriate statutory instructions must be given in writing to the jury for their deliberations (§ 54 [b]). The jury must designate in writing the aggravating circumstance or circumstancеs (of which at least one must be a statutory aggravating circumstance) which they find beyond a reasonable doubt and upon which they base their unanimous recommendation of death. Where such a statutory aggravating circumstance is found and a recommendation of death is made, the judge must impose the death sentence (§ 55). If a recommendation of death supported by a finding of at least one of the statutory aggravating circumstances is not made by the jury, then the judge may not impose the death sentence except that no finding of statutory
There would be an automatic review by the Supreme Judicial Court of any death sentence imposed (§ 56 [a]). Besides considering any errors of law claimed to have been committed in the sentencing proceeding (§ 56 [b]), the court would consider the propriety or fairness of the punishment itself according to stated criteria, one of which examines “whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor” (§ 56 [c] [1]). In order to comply with § 4 of the statute, the court must include in its decision “a reference to similar cases which it took into consideration” (§ 56 [e]), the records of such cases being accumulated and extracts being provided to the court by the executive secretary to the Justices of the Supreme Judicial Court. In addition to its authority regarding correction of errors, the Supreme Judicial Court has authority to affirm the sentence of death or to set aside the sentence of death and remand the case for resentencing by the trial judge (§ 56 [e]).
The Facts as to the Four Defendants.
The facts pertaining to each of the four defendants, as presented in the parties’ statement of agreed facts, can be summarized as follows. In January, 1980, the Suffolk County grand jury indicted the defendant James Watson for the crime of murder in the first degree. The indictment charges that “James J. Watson on the 16th of November, 1979, did assault and beat one Jeffrey S. Boyajian with intent to murder him and by such assault and beating did kill and murder the said Jeffrey S. Boyajian.” On January 24, 1980, the defendant Watson was arraigned and is currently awaiting trial. The district attorney has announced that he will seek the imposition of the death penalty for the defendant Watson on the basis that one of the statutory aggravating circumstances is present in this case, namely, that
On February 6, 1980, the Suffolk County grand jury indicted the defendants Lawrence Licciardi and Michael Amann for the crimes of murder in the first degree, kidnapping, and two counts of rape of a child. The indictments each charge individually that Licciardi and Amann “on the 23rd of November, 1979, did assault and beat one Kathleen Boardman with intent to murder her and by such assault and beating did kill and murder the said Kathleen Boardman.” On February 7 and 19, 1980, the defendants Licciardi and Amann, respectively, were arraigned in Superior Court and are currently awaiting trial. The district attorney has announced that in each case he will seek imposition of the death penalty as authorized by c. 488 of the Acts of 1979 when “the offense of murder [is] committed by a person in connection with the commission of rape or an attempt to commit rape on the victim.”
A Norfolk County grand jury has indicted John Real for murder in the first degree. The indictment charges Real with the murder of Vance J. Farmer on February 2, 1980. At that time Real was under sentence of imprisonment and, thus, if convicted of murder in the first degree, could be sentenced to death under the provision of c. 488 which designates this as one of the aggravating circumstances.
Recent History of the Death Penalty.
The history of the death penalty and the debate between its proponents and opponents reaches back for generations. Prior to the 1960‘s it was assumed in this country that death was a constitutionally permissible punishment which Legislatures could choose as the proper response to certain crimes. See McElvaine v. Brush, 142 U.S. 155 (1891); State v. Olander, 193 Iowa 1379 (1922); State v. Miller, 165 Kan. 228 (1948). During this period condemned defendants challenged primarily the means by which the death penalty was carried out, see, e.g., In re Kemmler, 136 U.S. 436 (1890) (electrocution is a permissible method of execution);
In October, 1963, Mr. Justice Goldberg published a dissenting opinion, jointed by Messrs. Justice Brennan and Douglas, in which he argued that the Supreme Court should decide whether infliction of the death penalty for rape was constitutional. See Rudolph v. Alabama, 375 U.S. 889 (1963). “Following the Rudolph dissent, a large number of cases were brought to the Supreme Court squarely presenting the issue of the constitutionality of the death penalty [, an issue] which had never been explicitly presented to the Court or even raised in the lower courts.” Goldberg, The Death Penalty and the Supreme Court, 15 Ariz. L. Rev. 355, 365 (1973). At the same time, the procedural challenges to death penalty statutes continued with increasing success. In United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court invalidated the death penalty provision of the Lindbergh Law (Federal Kidnapping Act,
In June, 1972, the Supreme Court rendered a five-to-four decision in the case of Furman v. Georgia, 408 U.S. 238 (1972), which has since become the touchstone for constitutional analysis of the death penalty. Two Justices (Marshall and Brennan) in the five judge majority expressed the view that capital punishment was per se unconstitutional as cruel and unusual punishment. The other three held that capital punishment as currently administered violated the Constitution because of its arbitrary imposition on a small percentage of eligible defendants due to the lack of standards to guide the discretion of juries and judges. As a result of this decision, many States enacted new death penalty statutes in an effort to comply with the somewhat vague requirements of Furman. Most of the statutes either made the death penalty mandatory for certain offenses or promulgated sets of “standards,” often presented in the form of aggravating or mitigating circumstances for the guidance of juries in the selection of those who were to die.
In July, 1976, the Supreme Court ruled on five selected capital sentencing cases,7 each involving a challenge to the constitutionality of a State statute passed in response to Furman. The Court upheld three of the State statutes (those of Georgia, Florida, and Texas), and struck down two (those of Louisiana and North Carolina). The principal distinction was that the valid statutes provided judges and juries with guidance, in the form of detailed mitigating and aggravating circumstances, for deciding whether the death sentence was appropriate in each case. A bare majority of the Court also held that the States may not impose manda-
The history of the death penalty in the Supreme Judicial Court of Massachusetts consists basically of two matters. In the first of these, Commonwealth v. O‘Neal, 369 Mass. 242 (1975) (O‘Neal II), a majority of this court held that a mandatory death penalty for rape-murder constituted cruel or unusual punishment in violation of
Declaratory Relief Is Appropriate.
In order for a declaratory judgment to issue under
In the cases under consideration here, the plaintiff asserts and the defendants deny that c. 488 is consistent with
Ordinarily declaratory relief will not be granted during the pendency of a criminal prosecution. Norcisa v. Selectmen of Provincetown, 368 Mass. 161, 170-172 (1975). The purpose of this limitation is to prevent “fragmentation and proliferation of litigation and disrupt[ion of] the orderly administration of the criminal law.” Id. at 172. However,
A determination of the validity of c. 488 is of fundamental importance to the plaintiff because he is bound by the oath and duties of his office to enforce the law of the Commonwealth as enacted by the Legislature and is also required to uphold the Constitution of the Commonwealth as interpreted by this court. At the present time, the plaintiff‘s duties with respect to the enforcement of c. 488 of the Acts of 1979 are uncertain. This statute will affect every district attorney in the Commonwealth and thus presents a matter of public importance beyond the parties. Under the statute all district attorneys will be responsible for requesting that certain extraordinary procedures be followed in first degree murder prosecutions, including holding a voir dire of each prospective juror concerning his or her view of the death penalty; deciding in which cases to hold a bifurcated trial; and presenting evidence at the second half of the bifurcated trial. Of course, none of these procedures will be necessary if c. 488 is held unconstitutional. The plaintiff also satisfies the standing requirement for pursuing declaratory relief since affording him declaratory relief pursuant to
I. THE DEATH PENALTY IS OFFENSIVE TO CONTEMPORARY STANDARDS OF DECENCY.
The particular standard we examine today is that established by
The constitutional prerogratives and duties of this court permit, indeed require, a reexamination of the death penalty to determine whether it is unconstitutionally cruel in light of contemporary circumstances. “Certainly at the time of its adoption, art. 26 was not intended to prohibit capital punishment. Capital punishment was common both before and after its adoption. However, art. 26, like the Eighth Amendment, ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ Trop v. Dulles, 356 U.S. 86, 101 (1958).” Commonwealth v. O‘Neal, 367 Mass. 440, 451 (1975) (O‘Neal I) (Wilkins, J., concurring). “A constitutional provision ‘is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth.‘” Furman v. Georgia, 408 U.S. 238, 263-264 (1972) (Brennan, J., concurring), quoting from Weems v. United States, 217 U.S. 349, 373 (1910). Clearly, “[t]he framers of our Constitution, like those who drafted the Bill of Rights, anticipated that interpretation of the cruel or unusual punishments clause would not be static but that the clause would be applied consistently with the standards of the age in which the questioned punishment was sought to be inflicted.” People v. Anderson, 6 Cal. 3d 628, 648, cert. denied, 406 U.S. 958 (1972). Therefore, if the death penalty is indeed unacceptable under contemporary moral stand-
It is true that there is no unanimity of public opinion either favoring or opposing the death penalty. But public opinion, while relevant, is not conclusive in assessing whether the death penalty is consonant with contemporary standards of decency. “If the judicial conclusion that a punishment is ‘cruel and unusual’ ‘depend[ed] upon virtually unanimous condemnation of the penalty at issue,’ then, ‘[I]ike no other constitutional provision, [the Clause‘s] only function would be to legitimize advances already made by the other departments and opinions already the conventional wisdom.’ We know that the Framers did not envision ‘so narrow a role for this basic guaranty of human rights.‘” Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring), quoting from Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1782 (1970).
Moreover, we think that what our society does in actuality is a much more compelling indicator of the acceptability of the death penalty than the responses citizens may give upon questioning. See Furman v. Georgia, 408 U.S. 238, 279 (1972) (Brennan, J., concurring). From the beginning of 1948 until the end of 1972 (the Furman case was decided in 1972) no person was executed in this Commonwealth. The death sentences of forty-three persons were commuted or reduced by executive action. See Opinions of the Justices, supra at 919, and sources cited. The complete absence of executions in the Commonwealth through these many years indicates that in the opinion of those several Governors and others who bore the responsibility for administering the death penalty provisions and who had the most immediate appreciation of the death sentence, it was unacceptable.
In its finality, the death penalty may cruelly frustrate justice. Death is the one punishment from which there can be no relief in light of later developments in the law or the
The cruelty of the death penalty similarly inheres in its unparalleled effect on all the rights of the person condemned. “There is little doubt that life is a fundamental right ‘explicitly or implicitly guaranteed by the Constitution.’ San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973).... [T]he ... right to live ... is the natural right of every man’ (quoting from Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death 131, 221 [1969]), encompassing as it does ‘the right to have rights.’ Trop v. Dulles, 356 U.S. 86, 102 (1958). See Comment, The Death Penalty Cases, 56 Cal. L. Rev. 1268, 1354 (1968).” O‘Neal II, supra at 245-246 (Tauro, C.J., concurring). “The calculated killing of a human being by the state involves, by its very nature, a denial of the execut-
Finally, and perhaps most conclusive, the death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror. “Since the discontinuance of flogging as a constitutionally permissible punishment, Jackson v. Bishop, 404 F.2d 571 (CA 8 1968), death remains as the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.” Furman v. Georgia, supra at 287-288 (Brennan, J., concurring). “[T]he process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture,” People v. Anderson, 6 Cal. 3d 628, 649, cert. denied, 406 U.S. 958 (1972), and “the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon.” Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting).
The fact that the delay may be due to the defendant‘s insistence on exercising his appellate rights does not mitigate the severity of the impact on the condemned individual, and the right to pursue due process of law must not be set off against the right to be free from inhuman treatment. Moreover, it is often the very reluctance of society to impose the irrevocable sanction of death which mandates, “even against the wishes of the criminal, that all legal avenues be explored before the execution is finally carried out.”
II. THE DEATH PENALTY IS ARBITRARILY INFLICTED.
It is inevitable that the death penalty will be applied arbitrarily. Also, experience has shown that the death penalty will fall discriminatorily upon minorities, particularly blacks. For these reasons the death penalty is unconstitutionally cruel under
We know that, each year during the decades of the 1930‘s through the 1960‘s, thousands of persons were convicted of criminal homicides in States where death was an authorized punishment for those crimes. However, death was inflicted in only a minute fraction of those cases. “When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction.” Furman v. Georgia, 408 U.S. 238, 293 (1972) (Brennan, J., concurring). No rational basis can be offered to explain why the few were executed and many others were not. It cannot be said that only the “worst” offenders were executed. All murderers are extreme offenders. Fine distinctions, designed to select a very few from the many, are inescapably capricious when applied to murders and murderers. As a consequence, the
We think that arbitrariness in sentencing will continue even under the discipline of a post-Furman statute like the one before us. In 1972, in Furman v. Georgia, supra, the Supreme Court of the United States held that the Eighth Amendment (applied to the States through the Fourteenth) invalidated a Georgia statute which allowed the jury untrammeled discretion in choosing between death and life imprisonment as the penalty for the crime of murder. In July, 1976, the United States Supreme Court handed down a series of cases indicating that a majority of that Court are prepared, as far as the Federal Constitution is concerned, to validate State statutes which channel or regulate discretion in sentencing, thus curing those aspects of arbitrariness which concerned the Court in the Furman case. See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). “In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” Gregg v. Georgia, 428 U.S. at 195 (Stewart, J.).
The Legislature of Massachusetts clearly attempted, in the statute now before us, to follow the mandates of the Furman opinion and its progeny by promulgating a law of guided and channeled jury discretion. It may be that c. 488 would meet the Federal constitutional requirements, if tested, but here we appraise the statute under
A basic criterion, for example, in “channeling” the death penalty decision lies in the choice between first and second degree murder. Mr. Justice Cardozo said of the distinction between degrees of murder, that it is “so obscure that no jury hearing it for the first time can fairly be expected to assimilate and understand it. I am not at all sure that I understand it myself after trying to apply it for many years and after diligent study of what has been written in the books. Upon the basis of this fine distinction with its obscure and mystifying psychology, scores of men have gone to their death.” Cardozo, What Medicine Can Do For Law, in Law & Literature 100-101 (1931).
Even if it were possible by statutory language to bring evenhandedness to the death penalty decisional process, we should still conclude that a statute (like c. 488) that presumably complies with the Furman principle is unconstitutional under
Furman stands indifferent to the exercise of the prosecutor‘s “untrammeled discretion.” For reasons which may be valid in the context of his duties, but which do not assist evenhandedness, the prosecutor in a homicide case may forgo a first degree murder indictment and seek an indictment for second degree murder or a lesser charge. Also, in a first degree murder case, perhaps pursuant to plea bargaining, the prosecutor may in his uncurbed discretion nol-pros that part of the indictment which charges murder in the first degree. Similarly, the judge may dismiss the first degree murder charge, in his sole discretion, pursuant to accepting a plea of guilty to a lesser offense.
We do not think that our comments denigrate the general administration of criminal justice, or the good will of those who administer the system. It can be said that these officials must necessarily have these discretionary powers in the exercise of most of their functions. Nevertheless, the criminal justice system allows chance and caprice to continue to influence sentencing, and we are here dealing with the decisions as to who shall live and who shall die. With regard to the death penalty, such chance and caprice are unconstitutional under
The death penalty has been described by many commentators not only as arbitrary and capricious but also as discriminatory. For example, the President‘s Commission on Law Enforcement and Administration of Justice concluded that “there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and car
Examination of death sentences imposed in Florida, Georgia, and Texas under post-Furman statutes upheld by the Supreme Court in 1976 indicates that very little has changed as to arbitrariness and discrimination. The criminal homicide data from the date of the post-Furman statutes through 1977 indicate the following: In Florida, of 286 blacks who had killed whites, forty-eight (16.8%) were sentenced to death; of 111 whites who killed blacks, none were sentenced to death. In Georgia, of 258 blacks who killed whites, thirty-seven (14.3%) were sentenced to death; of seventy-one whites who killed blacks, two (2.8%) were sentenced to death. In Texas, of 344 blacks who killed whites, twenty-seven (7.8%) were sentenced to death; of 143 whites who killed blacks, none were sentenced to death.11 One commentator stated as to this post-Furman experience, “The conclusion is inescapable that the death penalty is reserved for those who kill whites, because the criminal justice system in these states simply does not put the same value on the life of a black person as it does on the life of a white.”12 Another commentator concluded that
We reject any suggestion that racial discrimination is confined to the South or to any other geographical area. The experience of Ohio under a post-Furman statute through 1977 shows that, of 173 black persons who killed white persons, thirty-seven of them (21.4%) were sentenced to death. Of forty-seven whites who killed blacks, none were sentenced to death.14 Moreover, the existence of racial prejudice in some persons in the Commonwealth of Massachusetts is a fact of which we take notice. Cf. Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979); Commonwealth v. Franklin, 376 Mass. 885, 891-892 (1978).
From the foregoing discussion, it follows that we accept the wisdom of Furman, that arbitrary and capricious infliction of the death penalty is unconstitutional. However, we add that such arbitrariness and discrimination, which inevitably persist even under a statute which meets the demands of Furman, offend
We have a response to those who might argue that our comments as to arbitrariness and discrimination apply as well to all punishments, not merely to the death penalty. While other forms of punishment may also be arbitrary in some measure, the death penalty requires special scrutiny for constitutionality. “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind.” Furman, supra at 306 (Stewart, J., concurring). Accord, O‘Neal II, 369 Mass. 242-249 (Tauro, C.J., concurring). “[T]he penalty of death is qualitatively different
III. CONCLUSION.
There is an impetus to respond in kind in punishing the person who has been convicted of murder, but the death penalty brutalizes the State which condemns and kills its prisoners. “Revenge is a kind of wild justice; which the more man‘s nature runs to, the more ought law to weed it out.”15 Moreover, this brutality assumes new dimensions in its virtually random selection of those who are to be executed. “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.”16
A judgment shall enter in the county court declaring that c. 488 of the Acts of 1979 is unconstitutional under
So ordered.
BRAUCHER, J. (concurring). I join in the opinion and decision of the court, but I cannot rid myself of doubt whether, if
I find particularly persuasive the recent course of events. In the four years since the decision in Gregg v. Georgia, 428 U.S. 153 (1976), “hundreds have been placed on death row” but “only three persons have been executed.” Godfrey v. Georgia, 446 U.S. 420, 439 at nn.8, 9 (1980) (concurring opinion of Marshall, J.). Even in the rare case where the sentence has been carried out, it has been carried out only after “one or more agonizing stays of execution.” Lenhard v. Wolff, 444 U.S. 807, 811 n.2 (1979) (dissenting opinion of Marshall, J.). The threat of death constitutes punishment in itself. Cf. Gilmore v. Utah, 429 U.S. 1012, 1013 n. 1 (1976) (concurring opinion of Burger, C.J.) (defendant‘s only complaint was with respect to the delay in carrying out the sentence). It is not suggested that punishment by threat serves a useful purpose if the threat is never carried out; its utility must rest instead on the utility of the threatened execution. Punishment is cruel when it involves “a lingering death.” In re Kemmler, 136 U.S. 436, 447 (1890). See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463-464 n.4 (1947). Since death sentences will rarely be
WILKINS, J. (concurring). I alone among my colleagues believe that this court, in its discretion, should not pass on the constitutionality of the capital punishment statute in this proceeding. However, because all my colleagues have expressed their views on the constitutionality of the statute, I think it appropriate that I also do so in this matter of great public importance. Thus, I join in the opinion of the court.
I would have preferred to decide this constitutional question in an actual case in which the question had to be answered. Such a case would have been one in which, after conviction of murder in the first degree, the jury unanimously recommended the imposition of the death penalty and, on appeal, apart from the possible unconstitutionality of the capital punishment statute, the conviction would have been affirmed after consideration of all other grounds of the appeal, including the exercise of our special power and duty under
The district attorney for the Suffolk district has no such dilemma that he needs an answer to the question. He is but one of the district attorneys in the Commonwealth. Others have not seen fit to participate in the case, although they had an opportunity to do so. Indeed, a trial has already been held in Norfolk County under the new statute. The Attorney General, the chief law enforcement officer in the Commonwealth, argues that we should not, by аnswering
If the statute‘s procedures were followed and this court ultimately were to declare the statute unconstitutional, there would be no disruption of the system. The sentence of death would be vacated, and the defendant resentenced to life imprisonment. This is exactly what happened in numerous cases following the Supreme Court‘s decision in Furman v. Georgia, 408 U.S. 238 (1972). See Commonwealth v. Curry, 368 Mass. 195, 204 (1975); Commonwealth v. Stone, 366 Mass. 506, 518 (1974), and cases cited.
The court‘s approach to these questions presents a constitutional confrontation between its views and those of the Legislature. I would have preferred not to identify such a conflict unless and until the circumstances of a particular case made it unavoidable.3
While the language of the
I write to amplify my reasons for joining in the conclusion of the court that “the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel under
The imposition of the death penalty is disguised by the language and technique of abstraction. “Indeed, no one dares speak directly of the ceremony. Officials and journalists who have to talk about it, as if they were aware of both its provocative and its shameful aspects, have made up a sort of ritual language, reduced to stereotyped phrases. Hence we read at breakfast time in a corner of the newspaper that the condemned ‘has paid his debt to society’ or that he has ‘atoned’ or that ‘at five a.m. justice was done.‘” A. Camus, Reflections on the Guillotine, in Resistance,
For over two years, Henry Arsenault “lived on death row feeling as if the Court‘s sentence were slowly being carried out.” Arsenault could not stop thinking about death. Despite several stays, he never believеd he could escape execution. “There was a day to day choking, tremulous fear that quickly became suffocating.” If he slept at all, fear of death snapped him awake sweating. His throat was clenched so tight he often could not eat. His belly cramped, and he could not move his bowels. He urinated uncontrollably. He could not keep still. And all the while a guard watched him, so he would not commit suicide. The guard was there when he had his nightmares and there when he wet his pants. Arsenault retained neither privacy nor dignity. Apart from the guards he was alone much of the time as the day of his execution neared.
And on the day of the execution, after three sleepless weeks and five days’ inability to eat, after a night‘s pacing the cell, he heard the warden explain the policy of the Commonwealth — no visitors,2 no special last meal, and no medication. Arsenault asked the warden to let him walk to the execution on his own. The time came. He walked to the death chamber and turned toward the chair. Stopping him, the warden explained that the execution would not be for over an hour. Arsenault sat on the other side of the room as the witnesses filed in behind a one-way mirror.
“That capital punishment is horrible and cruel is the reason for its existence.” C. Darrow, A Comment on Capital Punishment, quoted in Attorneys for the NAACP Legal Defense and Educational Fund, A Cruel and Unusual Punishment, in Voices Against Death, 264, 283 (P. Mackey ed. 1976). The raw terror and unabating stress that Henry Arsenault experienced was torture; torture in the guise of civilized business in an advanced and humane polity. This torture was not unique, but merely one degrading instance in a legacy of degradаtion.3 The ordeals of the condemned are inherent and inevitable in any system that informs the condemned person of his sentence4 and provides for a gap between sentence and execution.5 Whatever one believes
Death is the “king of terrors.”
Psychiatrists have observed that terror of death is at the root of much mental disease. “The anxiety neuroses, the various phobic states, even a considerable number of depressive suicidal states and many schizophrenias amply demonstrate the ever-present fear of death which becomes woven into the major conflicts of the given psychopatholog-ical conditions.” Zilboorg, Fear of Death, 12 Psychoanalyt-ic Q. 465, 465-467 (1943), quoted in E. Becker, The Denial of Death 16 (1973). See also Lifton, The Sense of Immor-
“The weariest and most loathed worldly life That age, ache, penury and imprisonment Can lay on nature is a paradise To what we fear of death.”13
The condemned must confront this primal terror directly, and in the most demeaning circumstances. A condemned man knows, subject to the possibility of successful appeal or commutation, the time and manner of his death. His thoughts about death must necessarily be focused more precisely than other people‘s. He must wait for a specific death, not merely expect death in the abstract.14 Apart from cases of suicide or terminal illness, this certainty is unique to those who are sentenced to death. The State puts the question of death to the condemned person, and he must grapple with it without the consolation that he will die naturally15 or with his humanity intact.16 A condemned person experiences an extreme form of debasement.
Less frequently observed is the effect of these policies upon the condemned. The death sentence itself is a declaration that society deems the prisoner a nullity, less than human and unworthy to live. But that negation of his personality carries through the entire period between sentence and execution. “[I]n Death Row, organized and controlled in grim caricature of a laboratory, the condemned prisoner‘s personality is subjected to incredible stress for prolonged periods of time.”21 The condemned person is generally isolated, allowed few visitors, limited in permissible activities, and kept under close guard.22 The execution occurs within prison walls in a small room before witnesses whom the prisoner may not be able to see. The prisoner wears prison clothes. He is allowed to say little, if anything, and is often blindfolded. An anonymous executioner puts him to death at an odd hour. The mode of еxecution ideally causes little commotion to inform the witnesses that a person has died. And the body is not displayed. In this context, the prisoner has only the most meager opportunities to assert his shattered dignity, and few persons ever see any gesture he chooses to make.23
“[W]hat man experiences at such times,” Camus wrote, “is beyond all morality . . . . Having to face an inevitable death, any man, whatever his convictions, is torn asunder from head to toe. The feeling of powerlessness and solitude of the condemned man, bound up and against the public coalition that demands his death, is in itself an unimaginable punishment . . . . [I]t would be better for the execution to be public. The actor in every man could then come to the aid of the terrified animal and help him cut a figure, even in his own eyes. But darkness and secrecy offer no recourse. In such a disaster, courage, strength of soul, even faith may be disadvantages. As a general rule, a man is undone by waiting for capital punishment well before he dies. Two deaths are inflicted on him, the first being worst than the second, whereas he killed but once. Compared to such torture, the penalty of retaliation seems like a civilized law” (footnote omitted). A. Camus, supra at 155-156.25
The purpose of the cruel or unusual punishment prohibition is to guarantee a measure of human dignity even to the wrongdoers of our society. The Massachusetts Constitution recognizes that there are some punishments so abhorrent, so offensive to evolved standards of decency, that no justification can support their employment. Inflicting upon a person the terror of death in a definite manner is such a punishment. My views would not change if stays on death row were made more рleasant, killing techniques less painful, or removal from death row more swift. This is a punishment antithetical to the spiritual freedom that underlies the democratic mind. What dignity can remain for the government that countenances its use?
Fyodor Dostoyevsky was sentenced to die for discussing Utopian Socialist ideas. Arrayed with his coprisoners, he saw three men bound to stakes and blindfolded before the firing squad. Just as the commanding officer was about to shout “Fire!” an official waved his white handkerchief to stop the execution and inform them that the Czar had commuted the men‘s sentences. “Standing before the firing squad he was so certain of the imminence of death that he felt more dead than alive at the abrupt proclamation of the Czar‘s clemency; when he finally recovered his senses it was
QUIRICO, J. (dissenting). I dissent from the holding of the court that St. 1979, c. 488, entitled “An Act providing for capital punishment,” and that the various amendments to
Today‘s decision completes a cycle which this court started by its decision in Commonwealth v. O‘Neal, 369 Mass. 242 (1975), where four Justices held, although not all for the same reasons, that the Massachusetts Constitution proscribed the death penalty for the crime of rape-murder. Three of those Justices expressed the view that some cases of murder in the first degree might constitutionally be made subject to the death penalty. Id. at 263-264 n.23 (Tauro, C.J., concurring). Id. at 275 (Hennessey, J., concurring). Id. at 277-278 (Wilkins, J., concurring). I joined the dissent by Justice Reardon in the O‘Neal case. Id. at 283. On the same day the rule of the O‘Neal case was applied in deciding Commonwealth v. Tarver, 369 Mass. 302 (1975). I dissented in that case. Id. at 320.
The next occasion on which the Justices of this court were called to speak on the subject of the constitutionality of capital punishment under our State Constitution was in Opinions of the Justices, 372 Mass. 912 (1977). Five of the Justices joined in an opinion that a bill on the subject of capital punishment then under consideration by the House of Representatives would violate
The grounds or bases on which the majority or plurality of the Justices based their decisions or opinions on the un-
In the present case six of the Justices subscribe to the conclusion that the death penalty violates
In this situation, having full regard for the conclusions reached by this court in Commonwealth v. O‘Neal, supra, I nevertheless must note that the decision was based on a standard of review shifting the burden of proof to the State which the court has chosen not to follow in today‘s decision. Similarly, and with full regard for the opinions expressed by five Justices of this court in Opinions of the Justices, supra, I note that they do not constitute a binding precedent. Therefore, I adhere to the views expressed (a) in the dissenting opinion by Justice Reardon, in which I joined in the case of Commonwealth v. O‘Neal, supra at 283; (b) in my dissenting opinion in Commonwealth v. Tarver, supra at 320; and (c) in the opinions expressed by me jointly with Justice Braucher, in Opinions of the Justices, supra at 922. On the basis of those views which I have previously expressed, or in which I have previously joined, I respectfully disagree with the decision of this court that the current death рenalty statute enacted by St. 1979, c. 488, and thereby incorporated into
While the precise question which is before us is the constitutionality of a particular statute authorizing the imposition of the death penalty for murder in the first degree in prescribed circumstances, I believe the present decision constitutionally forecloses any legislative authorization of capital punishment for any crime in this Commonwealth. I believe that the court, by its decision in this case, has completely stripped the Legislature of the constitutional power which it has heretofore possessed and exercised for two hundred years to determine, in its wisdom and discretion, when and in what circumstances the public good requires the imposition of the death penalty for murder in the first degree.
We have thus reached the precise position which was presaged by the following language in Commonwealth v. O‘Neal, 369 Mass. 242 (1975): “[I]f the present will of the
I do not, of course, question the authority or the duty of this court to pass on the constitutionality of the statute in question. Paquette v. Fall River, 338 Mass. 368, 376 (1959). Nor do I question the propriety of reaching the constitutional issue as presented in this case. I do, however, have serious reservations about the standards which the court has applied and the manner and extent to which I believe the court has intruded upon the province of the Legislature in arriving at its conclusion of unconstitutionality.
...
We start with the proposition that the Legislature has “full power and authority . . . to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, . . . either with penalties or without, so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same. . . .”
In determining the constitutionality of a statute, this court ordinarily assumes that the Legislature has acted on the basis of facts which have a rational bearing on the subject matter of the legislation, and which support the validity of the statute. Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 700 (1962). If the Legislature could have found any conceivable facts which would form a rational basis for its legislation, the court assumes that such facts were found, and it has never required that the Legislature expressly state that it found them, or state what findings it made. As to the statute now under consideration, the Legislature voluntarily indulged in the heretofore unnecessary and somewhat unusual, but not improper, practice of making and declaring express findings which are contained in St. 1979, c. 488, § 1.
In Commonwealth v. Leis, 355 Mass. 189, 192 (1969), it was argued that a statute was unconstitutional as “‘irrational and unreasonable’ because the Legislature did not thoroughly investigate the available scientific and medical evidence concerning marihuana when enacting and revising the law.” This court rejected the argument, stating: “We know nothing that compels the Legislature to thoroughly investigate the available scientific and medical evidence when enacting a law. The test of whether an act of the Legislature is rational and reasonable is not whether the records of the Legislature contain a sufficient basis of fact to
In my opinion, it cannot be said that the statute under consideration “cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it.” It should therefore follow, under that rule, that “the court has no power to strike it down as violative of the Constitution.” I believe that the same result would follow if we were limited in our decision to a consideration of those facts expressly found by the Legislature.
It should surprise no one that the factual conclusions reached by the Legislature are not universally accepted. The Legislature‘s powers are not limited to action in areas where there is unanimity of opinion as to the need for action and the nature of the action required. There are few subjects which have been so widely debated for so long as has been the case with capital punishment. There are perhaps few subjects on which opinions are so polarized, and the basis for which is found in personal viewpoints without satisfactory factual proof to support them. We thus have a typical case for the application of the rule that “[w]here the reasonableness of the legislative finding or the factual basis of the legislative finding is fairly debatable the legislative determination must be sustained. . . . [And the fact that] there may be an earnest conflict of serious opinion does not suffice to bring matters of legislative judgment within the range of judicial cognizance.” Commonwealth v. Leis, supra at 201 (Kirk, J., concurring).
Rather than applying the traditional standard of review, the court today attempts to determine whether the death
If this court is to determine the constitutionality of the death penalty in light of contemporary moral standards, I believe it must, at a minimum, award great deference to the legislative judgment implicit in the passage of the statute that contemporary moral standards support the punishment in certain circumstances. The fact that we interpret
This court‘s obligation “to avoid judicial legislation,” Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945), should be particularly evident here, since in St. 1979, c. 488, § 1, the Legislature has articulated its judgment as to the deterrent and retributive value of capital punishment. Cf. Roberts v. Louisiana, 428 U.S. 325, 355 (1976) (White, J., dissenting) (“[Legislative judgments as to the efficacy of capital punishment] are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons. This concern for life and human values and the sincere efforts of the States to pursue them are matters of the greatest moment with which the judiciary should be most reluctant to interfere“).
It is, of course, well established that
I note that in seven separate instances the majority today relies in its decision on the concurring opinion of Mr. Justice Brennan in Furman v. Georgia, 408 U.S. 238 (1972), to the effect that the imposition and carrying out of the death penalty violates the
Moreover, in following the evolving standards approach, the Supreme Court explicitly rejected the argument that
Thus, in its
Furthermore, a review of the various decisions of the United States Supreme Court on the constitutionality of the death penalty under the
In part two of its decision the court properly suggests that c. 488 would meet Federal constitutional requirements.
I note that for the first time to my knowledge this court, or some of the Justices of this court, are holding that the death penalty is “cruel or unusual” based in whole or in part on the fact that the imposition of the penalty is almost always followed by a long period of mental suffering by the convicted felon who is under the sentence of death, only to have the sentence commuted after many years of appellate
In summary, the issue before the Justices of this court, as I see it, is not whether any Justice favors or opposes capital punishment as a mаtter of Commonwealth policy. Nor is the issue whether any Justice would favor or oppose capital punishment if he were called to vote thereon as a member of the general public or as a member of the Legislature. Rather, the issue before us, as I see it, is whether the Legislature has the power, under the
Notes
The Justices of this court have a constitutional duty to give advisory opinions on important questions of law on solemn occasions on the request of the House, the Senate, the Governor, or the Executive Council. Part II, c. 3, art. 2, of the Constitution of the Commonwealth, as amended by art. 85 of the Amendments. Neither branch of the Legislature asked for an advisory opinion from the Justices concerning the new death penalty statute. The judgment of each branch of the Legislature not to seek such an opinion suggests their preference that the death penalty statute be tested in a real, and not a hypothetical, proceeding.
Only members of the prisoner‘s immediate family were allowed to visit before the execution. Arsenault had no immediate family. One of those five Justices joins in the opinion of the court, but states in a separate concurring opinion his belief that the court should have declined to pass on the constitutionality of capital punishment in the instant proceeding.“(4) The offender caused or directed another to commit murder as an agent or employee of another person.
“(5) The offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.”
“(6) The offense of murder was committed on the victim during the course of a hijacking or attempted hijacking of an airplane or school bus.“(7) The capital felony was committed by a person under sentence of imprisonment.
“(8) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
“(9) The defendant knowingly created a great risk of death to many persons.
“(10) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
“(12) The offense of murder was committed on the victim in the course of a kidnapping for ransom of the victim or attempted kidnapping for ransom of the victim.”
I am assuming that the condemned prisoner has sufficient mental competence between the time of sentence and execution to understand what the State is doing to him. The Court found that the legislative response to Furman v. Georgia, supra, was the most marked indication of society‘s endorsement of the death penalty, noting that after Furman at least thirty-five Legislatures enacted new statutes that provided for the death penalty. Also, the Congress of the United States enacted a statute providing for the death penalty for aircraft piracy that results in death. Gregg v. Georgia, 428 U.S. 153, 179-180 (1976).“(3) The offense of murder was committed by one who was a participant in the defendant‘s homicidal conduct or consented to the homicidal act.
“(4) The offense of murder was committed by one under duress or under domination of another person.”
At the end of the 1960‘s, the average time spent on death row was 32.6 months. H. Bedau, The Courts, the Constitution, and Capital Punishment 60 (1977). “[H]uman reaction to the threat of death is a function of the duration, as well as the nature of the threat.” Note, Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, 57 Iowa L. Rev. 814, 830 (1972). Lengthy delays, especially if punctuated by a series of last minute reprieves, intensify the prisoner‘s suffering. West, Psychiatric Reflections on the Death Penalty, in Voices Against Death 290, 291 (P. Mackey ed. 1976). Nonetheless, one psychiatric study of a limited sample found that, for two to three months, the typical condemned prisoner felt he was going to break down; within six to eighteen months, according to the researchers, most inmates had adjusted somewhat to their lot. Gallenore & Parton, Inmate Responses to Lengthy Death Row Confinement, 129 Am. J. of Psychiatry 167 (1972). My argument that the ordeal imposed on the condemned is cruel and unusual punishment does not depend on the existence of lengthy delays between sentence and execution. Two months — or for that matter one day — of torture offends the Constitution. As C. Duffy, a former warden of California‘s prison at San Quentin, has described, “One night on death row is too long, and the length of time spent there by [some inmates] constitutes cruelty that defies the imagination. It has always been a source of wonder to me that they didn‘t all go stark, raving mad.” C. Duffy & A. Hirshberg, 88 Men and 2 Women 254 (1962). For a persuasive analysis of the problems inherent in a constitutional jurisprudence which seeks to measure the merits of policy judgments against a perceived set of “fundamental” values, see Ely at 43-72.