Reasonable doubt

A WEEK AND a half ago, attempting to bring back the death penalty in a state that abolished it in 1984, Governor Mitt Romney introduced what is widely agreed to be one of the most conscientious and strictly limited death penalty bills in history.

The bill confines capital punishment to a short list of what Romney called ‘‘the most heinous of crimes’’: multiple murders, murders involving prolonged torture, murders committed as acts of terrorism, and murders intended to influence the outcome of a trial. It requires, among other provisions, that there be ‘‘conclusive scientific evidence’’ to link the defendant to the crime, that juries be explicitly warned of the limits of eyewitness accounts and the unreliability of jailhouse informants, and that defendants be ensured at least two ‘‘capital-case qualified’’ defense attorneys.

Perhaps most dramatically, the bill insists that juries be instructed only to hand down a death sentence on the basis of a ‘‘no doubt’’ standard of proof that is far stricter than the current ‘‘beyond a reasonable doubt’’ standard. All told, Romney argued, these layered protections would make for a nearly infallible system. ‘‘To the extent that is humanly possible,’’ he claimed in introducing his bill, ‘‘this would not ever result in a questionable execution.’’

The bill’s reception, however, has been cold. Death penalty opponents and supporters alike seem equally unimpressed.

‘‘I think it’s good that there is at least a legislative movement in the direction of establishing the death penalty in Massachusetts,’’ says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death penalty organization based in Sacramento. ‘‘But even if [the bill] were to pass, it’s so narrow it wouldn’t cover much.’’

Similarly, Hugo A. Bedau, an emeritus professor of philosophy at Tufts University and leading death penalty scholar and opponent, calls the Romney bill ‘‘a serious and comprehensive effort.’’ To him, however, ‘‘the idea that we should enact this proposed legislation because it constitutes a scientifically foolproof system is embarrassing.’’

Part of the reaction stems from skepticism about Romney’s motives. Observers on both sides of the argument share a suspicion that the bill (which has little chance of passing) is meant less as a prospective piece of legislation than a conservative-friendly entry on a resume being polished for a 2008 presidential run. More to the point, there’s a certain bemusement at the idea that any part of the criminal justice system can approach perfection.

As Ann Lambert, legislative counsel for the American Civil Liberties Union of Massachusetts, puts it, ‘‘There’s something surreal about the idea that everything will be done scientifically, as if humans aren’t running the data, gathering the data, comparing the footprints. It’s as if humans aren’t under the robe, as if humans aren’t in the jury box.’’

Still, for Joseph L. Hoffmann, a law professor at Indiana University and the chair of the blue-ribbon death penalty commission that Romney set up two years ago, the proposal -- which incorporates wholesale the commission’s recommendations -- has a sort of clarifying effect. ‘‘It’s really intended to be serious in addressing all of the other problems of procedure and application so that people can get at the core moral question,’’ he says.

If it does nothing else, the Romney bill has already done that. As it makes clear, in the end the fight isn’t just about getting it right. It’s about whether or not the state should kill people.

. . .

In recent years, the dispute over the death penalty has become largely a debate about innocence, fed in part by a string of high-profile exonerations based on DNA evidence. As Austin D. Sarat, a professor of jurisprudence at Amherst College, describes it, being a death penalty opponent used to mean that ‘‘you had to defend against questions like, Do you think Eichmann should have been executed, do you think Hitler should have been executed?’’’ Today, he says, that’s mostly off the agenda. ‘‘Now it’s, Do you think we should be executing people when they’re innocent, or executing people because their lawyer fell asleep?’’’

For those most strongly invested in the issue, however, the basic question remains simply whether the death penalty is a good thing or a bad thing. And it seems that there’s something about the idea of a foolproof death penalty that just doesn’t sit well with either side of the sharply polarized dispute.

For the death penalty’s staunchest supporters, reforms like Romney’s would further slow a system that is already too hesitant. ‘‘My primary concern,’’ Scheidegger says, ‘‘is that in too many cases the death penalty is not carried out, and that when it is, it is carried out much too late. We spend way too much time and way too many resources litigating issues.’’ Some states, he believes, could shorten their list of capital crimes or improve standards for capital defense counsel. But overall, he argues, concerns about the arbitrary application of the death penalty or its racial bias are wildly overplayed.

Joshua Marquis, district attorney in Oregon’s Clatsop County and a forceful death penalty advocate, agrees that excessive caution has costs. There is no conclusive proof of a wrongful execution in the United States in the past hundred years, he points out. (Death penalty critics counter by pointing to a few highly suggestive cases and a general lack of interest in postmortem investigations.) But, Marquis continues, ‘‘I can give you the names of at least a hundred people killed by people [who had been] convicted of murder, put on death row, and subsequently released.’’

For some death penalty opponents, on the other hand, the reform impulse itself can be suspect. Three years ago, Carol Steiker of Harvard Law School and her brother Jordan Steiker, of the University of Texas Law School, wrote an article asking whether death penalty abolitionists should be involved in death penalty reform at all. ‘‘We worry,’’ they wrote, ‘‘that reforming our current practices of capital punishment may be analogous to replacing the electric chair with lethal injection; the reformed practice is unquestionably better (fairer, more humane) than the one rejected, but the choice to reform also carries the distinct possibility that it will normalize the underlying practice...thus delaying, or even permanently preventing, full-scale abolition of capital punishment.’’

William J. Stuntz, a colleague of Carole Steiker’s at Harvard Law School and a self-professed agnostic on capital punishment, sees a similar tension. ‘‘One thing working against the [Romney] proposal is precisely that it’s good,’’ he said. ‘‘Death penalty opponents don’t want a well-working death penalty. They want no death penalty.’’

Carol Steiker, in an interview, carefully differentiates between those reforms, like DNA testing, that may be worth a certain amount of diffusion in anti-death penalty sentiments, and those, like Romney’s ‘‘no doubt’’ standards of guilt, that she describes as ‘‘window dressing.’’ But in general, she says, ‘‘Death penalty abolitionist activists have maybe jumped too much on the bandwagon of innocence, because it has a political power with people who are unsure about the death penalty. The starting point for reform today is that We’re all for the death penalty, we just want to get it right.’ But that’s not the premise that we should be starting from.’’

Ultimately, of course, the Romney bill isn’t intended to impress either side in the debate, but rather the mass of conflicted people in the middle. Polling numbers for capital punishment, as for abortion, are exquisitely sensitive to how the question is asked: According to a 2004 Gallup poll, 71 percent of Americans said they favored the death penalty, but only 50 percent said they preferred the death penalty to life imprisonment. With such a confusing, morally charged issue, the promise of certainty may be deeply comforting.

But even for those who are less certain, the requirements of an ostensibly foolproof system may be too rigid. The novelist and lawyer Scott Turow served on Illinois’s own death penalty commission, established after the exoneration of 13 of its death row inmates caused George Ryan, Illinois governor at the time, to declare a moratorium in 2000 on further executions. As Turow points out, Romney’s ‘‘conclusive scientific evidence’’ requirement would have forbidden a death sentence for Timothy McVeigh, whose case depended largely on circumstantial evidence.

To Turow, himself a death penalty opponent, the Romney bill ‘‘certainly does the most humanly possible to avoid executing innocent people. But by doing that it would make the application of the death penalty absolutely freakish.’’

‘‘I think if people think about it,’’ Turow goes on, ‘‘it will become a rather substantial demonstration of why capital punishment is so hard to practice in a rational way.’’

Drake Bennett is the staff writer for Ideas. Email drbennett@globe.com.