The fight to kill

Posted: Sep 25, 2003 12:00 AM
The governor of Massachusetts, no less, has announced his intention to restore the death penalty. He promised to do this in his election campaign, and has set up a commission to devise legislation that would guard against any possibility of executing an innocent defendant. He would recommend capital punishment for only three types of crime: those associated with terrorism; those involving the killing of police officers, prosecutors, judges or trial witnesses; and "heinous" crimes, defined as multiple killings or murders done with extreme brutality.

It is by no means predictable that the legislature will go along, the nationwide trend being in the other direction. Massachusetts hasn't executed anybody since 1947, the 20th anniversary of the execution of Sacco and Vanzetti, who went to the chair proclaiming that they were innocent, which they were not.

Gov. Mitt Romney's initiative comes only a few days after the release of Kathy Boudin, a parole decision that has inflamed the police community in New York and others who believe that her release dishonored the community's obligation. This debt was to the two police officers and the Brink's guard who were murdered when Ms. Boudin, her lover and other members of the Weather Underground robbed a Brink's armored car and shot their way out of an ensuing encounter with the police. Ms. Boudin pleaded that it hadn't been she who had actually pulled the trigger, and got less than the 75-year sentence given to her lover, the father of their child (who has just graduated from Yale and won a Rhodes scholarship), and the three other participants.

Some months ago my help (in the form of a signature on a petition) was solicited on behalf of Boudin. The little committee that would present its petition to the parole board pleaded what one would expect: She had been in jail for 22 years; she was a model prisoner; she convinced everyone she was in touch with of her genuine remorse; if released she would be in lifelong parole requiring regular check-ins and restricting her travel. I signed that petition for her release. If 22 years ago I had been asked to sign a petition recommending capital punishment for Ms. Boudin et al. I'd have done that too.

The two positions are not contradictory. If you believe, as the families of the victims of the robbery believe, that society owes to its members the ultimate protection from murder, then capital punishment raises its august hand, the most solemn form of retribution against the killer of innocent people.

But capital punishment was not decreed, neither against Boudin nor against the four other defendants. What then should the state have done? She was imprisoned. The families of the victims were deprived of such sense of justice as they'd have got from capital punishment. But that being said, was any point served in infinitely protracting Boudin's sentence? It is not unreasoning to have advocated her execution then, and later to acknowledge, as the years rolled by, that considerations of mercy persuasively entered the scene.

The Leopold-Loeb precedent is with us yet. Two collegians resolved in 1924 to murder a friend for the sheer thrill of the experience. They were apprehended, and the great Clarence Darrow pleaded with the jury not to send them to the chair on the understanding that they would live forever in jail. The court finally yielded, and 34 years later the surviving killer, Nathan Leopold (Richard Loeb had died in jail), was released and went to Puerto Rico, where he did charitable work.

Gov. Romney faces a legislature that denied by a tie vote a bid to restore capital punishment in 1997, but four years later defeated another attempt at restoration by a significant count. Reluctance to execute has been the mood in America as news comes in of innocent men imprisoned. None such have been executed, notwithstanding the blare of the abolitionists. The DNA fingerprint has vindicated men serving prison sentences, and given rise to such hysteria as that of outgoing Gov. George Ryan of Illinois, who in January commuted every death sentence, noblesse oblige. That was contumacious: Death sentences had been given by juries, pursuant to laws passed by the Illinois legislature.

Gov. Romney insists that the death sentence is "viable," by which he means that no one will doubt the guilt of Massachusetts citizens condemned to death under the proposed code. But of course there are those who would refuse to condemn Osama bin Laden to hang, even as three U.S. divisions attempt, month after month, to serve as executioners.