Romney And The Death Penalty

Capital punishment has been back in the news lately, first with the Presidential-debate-audience applause for Texas Governor Rick Perry's lengthy record of allowing executions, and then in the protests over last night's execution of Troy Davis. I will post later on the broader issues sparked by the Davis case, but first I want to use the opportunity to note Mitt Romney's intriguing history on the issue -- and to suggest a question that I would like to see posed to him at tonight's debate.

When Romney was in his first year as governor of Massachusetts, he initiated a very serious attempt to formulate a "foolproof death penalty" bill. Romney, at the time, was quite serious about trying to accomplish concrete things that would make for good bullet-point items on future campaign material; since then, the Republican base has become opposed to such things, and judge their governors only by the dollar amounts of their budget cuts and the quantity of their vetoes. But at the time, it seemed like a smart approach. A state-of-the-art death penalty scheme would have drawn national attention, since states across the country were struggling with the issue. (Including Illinois, where a state senator named Barack Obama was busy crafting a law that restored that state's death penalty, with reforms, after wrongful-conviction revelations had prompted a moratorium.)

Romney assembled a genuinely impressive commission to concoct a plan to bring the death penalty back to Massachusetts, with sufficient safeguards to positively ensure against executing the innocent.

Two years later, when the commission put forward its recommendations, and Romney submitted them as a bill to the state legislature, the issue had become even more highly charged -- an unprecedented series of wrongful conviction cases had come to light in the sate during the intervening period. Yet it was immediately clear that they had failed to square the assigned circle. As I wrote at the time, the plan was so narrow in its application, and so heavily stacked with procedural safeguards, that it was utterly impractical. Almost nobody, on any side of the issue, was willing to speak up for it. It was effectively dead on arrival in legislative committee.

Aside from the overall failure to accomplish the task, Romney made matters worse with some rather dubious statements when testifying before the committee:

--Romney asserted that, rather than serving to put terrible criminals to death, the major benefit of the legislation would be to pressure the accused into accepting guilty pleas for life sentences, rather than risk execution. As then-District Attorney, now-Congressman Bill Keating explained, that is precisely an argument that had recently been made by the state's top court for the possible unconstitutionality of the death penalty -- that the accused, innocent and guilty alike, could be pressured to plead to anything just to avoid it. An unconcerned Romney testified optimistically that the state might end up saving money by avoiding actual trials.

--Asked about the enormous added expense of death-penalty legal representation, Romney claimed that this cost would not materialize, because defense attorneys from all over the country invariably offer their services pro bono in death penalty cases. This is simply untrue -- although not a surprise from Romney, who had earlier made the same eye-popping claim about the Commonwealth's entire quarter-million annual criminal-defense caseload.

--Romney professed that racial inequities in administration were moot, because racial minorities do not commit the types of crimes his bill would make death-penalty eligible: 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. As I wrote at the time, Romney had just cited several specific cases with minority defendants as examples of the need for his law:

...when State Senator Steven Baddour (D-Methuen) asked about the historic injustice that African-Americans receive the death penalty in vastly disproportionate numbers, Romney bizarrely claimed that not only did his plan safeguard against that concern, but that the death penalty would apply specifically to crimes that minorities don’t commit. "I can’t think of a case involving an African-American where this provision might apply," he said, apparently forgetting Jeffrey Bly, the man convicted of killing prosecutor [Paul] McLaughlin. In fact, he opined, all cases of mass murder he could think of were perpetrated by people "of the majority race" — an interesting new theory of terrorism, not to mention the DC sniper killings.

Romney may have been confusing perpetrators with victims. Although racial minorities make up a disproportionately high percentage of homicide victims in Massachusetts, McLaughlin and [former priest and incarcerated molester John] Geoghan, as well as the victims in Idaho and most of those in the London bombings, were white.

All of this may be of interest to many Republicans, and to general-election voters if Romney reaches that stage of the Presidential election. But as I mentioned above, the entire episode suggests a question that might be of great interest to GOP primary voters, and tonight's debate provides an opportune moment to pose it. Romney's efforts to "foolproof" the death penalty -- and the fact that he did not subsequently submit a more straightforward proposal -- certainly suggests that he has concerns about the efficacy and fairness of existing death-penalty processes (including those in Texas). Is that the case? Does he have any objections to executions taking place under those systems?

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