On capital punishment, a message for all

(Globe file photo)

NEARLY THREE decades ago Massachusetts abolished the death penalty. The Commonwealth did not rush to judgment. For more than 300 years the state executed men and women convicted of murder. All the while, however, good people differed about the ultimate penalty. Lawyers and jurists worried that their commitment to due process and capital punishment could not coexist, clergymen preached conflicting Biblical messages about vengeance and love, and politicians broke their silence when a heinous murder grabbed public attention.

A handful of individuals also stood up for mercy and human dignity and an end to the death penalty. Against this contentious backdrop, executions were informally halted in 1947. For the next 25 years Massachusetts governors, both Democrats and Republicans, refused to sign death warrants. In 1980, four years after the US Supreme Court reinstated the death penalty, the Supreme Judicial Court found that capital punishment violated the Massachusetts Declaration of Rights.

Massachusetts's history does not provide a template for abolition throughout the United States - certainly not in the deep South, where the legacy of racism taints due process. But this state's experience highlights the promise that a democratic society can change, that it will be better tomorrow than today. This understanding is the necessary prerequisite to end the death penalty, what SJC Chief Justice Paul Liacos once called "torture in the guise of civilized business."

The religious activists who settled Massachusetts Bay in the 17th century brought state-sanctioned executions in their legal baggage. Like their English cousins, the settlers had little good to say about lawyers. But unlike their countrymen they realized death was different, and insisted an attorney represent a capital defendant. Governor John Winthrop also wanted to exercise "discretionary justice" - the power to use mitigating circumstances to decide whether a convict would be put to death.

The American Revolution accelerated the transformation of due process - fair and reasonable rules consistently applied - and in Massachusetts the newly established Supreme Judicial Court assumed the role of protecting individual freedom. The death penalty was condemned by some as "British and brutish," and unacceptable in an American republic. The Commonwealth retained the death penalty for murder, but Articles 12-14 of John Adams's Massachusetts constitution improved due process. Article 26 prohibited a court from inflicting "cruel or unusual punishment," a sentiment in keeping with enlightened thought.

Legislators, clergymen, and reformers joined hands in the early 19th century to launch the Massachusetts Society for the Abolition of Capital Punishment. To believe that executing a murderer would deter others was an "awful perversion of all moral reasoning," the Rev. Charles Spear said. The Society's argument bore fruit: in 1836 the House came within a single vote of abolishing the death penalty, and for more than a decade Suffolk County jurors refused to convict a capital defendant. At mid-century, though, the movement collapsed, and a black man was hanged. (Ironically, the abolition of slavery gained momentum.)

Still, executions for murder rarely topped more than one or two a year until the 1920s, when a crime wave overwhelmed the judicial system's old-fashioned safeguards. The famous Sacco and Vanzetti were but two of the men rushed to a deadly judgment. Out of this debacle came two significant changes.

First, Sara Ehrmann, a Brookline housewife, almost single-handedly powered a new abolition society that in 1951 persuaded the Legislature to give capital juries the choice of sentencing convicted first-degree murderers to life imprisonment instead of death. During the next 20 years, jurors sentenced 75 percent of convicted murderers to life imprisonment.

Second, the Legislature expanded the SJC's review of capital convictions, allowing the court to reverse a death sentence "for any reason justice may require." This change helped open the way for the SJC to review the death penalty's constitutionality. In 1980, the court determined the death penalty was unconstitutionally cruel punishment as measured against contemporary standards of decency.

The details of Massachusetts's death penalty experience are exceptional, but its central message recognized by our forefathers is unambiguous. The law cannot be made perfect. I hope that, someday, every state will understand this - and follow Massachusetts in realizing that capital punishment and our commitment to due process are not compatible.

Alan Rogers, a professor of history at Boston College, is the author of "Murder and the Death Penalty in Massachusetts."