The Death Penalty: Foolproof or foolish?


By James Alan Fox, 9/28/2003


SEPTEMBER has surely seemed like death penalty month here in the Bay State. Not only has the long arm of the federal government reached into our state repeatedly to prosecute local defendants under its broad death penalty statute, but Governor Mitt Romney has put in motion a plan to make good on his campaign promise of bringing capital punishment back to Massachusetts. By establishing a prominent panel of forensic and legal specialists, the governor expects to fashion a process for administering the death penalty that is absolutely foolproof -- a model for the rest of the nation. Romney plans to exploit the power of science -- and DNA in particular -- to discern well beyond a reasonable doubt the guilt or innocence of a narrow class of defendants. There is no attempt to apply the penalty as widely as the Feds, but to reserve it for cop killers, terrorists, and the most atrocious and depraved killers of innocents.


Anyone who has tuned into ''CSI: Crime Scene Investigation'' understands the unparalleled probative value of the genetic profiles that can be derived from blood, semen, saliva, or even hairs recovered at a crime scene. While the scientific theory underlying DNA is unimpeachable and the methods of extracting genetic material from limited trace evidence is advancing every year, the testing process is still performed by human beings who are not exactly infallible.


In the few years that DNA has been used as a forensic tool, the integrity of the testing and record-keeping processes has been threatened because of overburdened labs and poorly trained technicians. Not seen in episodes of ''CSI'' are the kinds of mistakes occurring in real practice: mislabeling of DNA samples discovered in Kansas and falsified records traced to a Florida lab. The analytic and reporting errors revealed recently at the understaffed Houston crime lab were so bad that several employees were suspended or terminated and hundreds of tests ordered to be redone.


Besides the unrealistic idea that the risk of false conviction can be totally eliminated, the governor holds dearly to the myth of deterrence. If Romney is so impressed with science, then why is he dismissive of scientific research showing that the death penalty does not deter murders? While many would-be assailants might be dissuaded from committing murder by the prospect of being executed, they are equally repelled by the prospect of incarceration for life, which is hardly a slap on the wrist.


Speed and certainty of punishment deter, not its severity. It is ironic, therefore, that the rare and exceptional application of capital punishment envisioned by the governor would in effect help to negate any possible deterrent impact. Because this narrow statute would apply only to a very small percentage of the murders committed each year in the state, offenders would ignore the remote chance of execution, if they even contemplated getting caught at all.


While life imprisonment may be virtually as strong a deterrent as the death penalty, many citizens are concerned about their tax dollars being used wastefully to house and feed convicted murderers for the rest of their lives. Yet, the potential savings associated with removing a prisoner from a cell and executing him has been grossly exaggerated. Given the fixed overhead costs of incarceration, including utilities, salaries, and maintenance, relatively little -- pennies per capita taxpayer -- is saved by staging an execution.


On the other side of the fiscal ledger, the cost of capital trials runs into the millions. In view of the life-and-death issue at stake, previous bills unsuccessfully introduced in the Massachusetts Legislature would have guaranteed those prosecuted for capital murder the very best defense that the taxpayers' money could buy -- a top-notch team of attorneys with wide latitude in hiring experts and consultants.


Other states have already learned the expensive way that capital murder trials tend to be many times more costly than noncapital murder trials because of the length and complexity of these prosecutions. The process could be streamlined, of course, but at a very different cost -- increasing the possibility of convicting and executing an innocent person.


In the final analysis, Massachusetts simply cannot afford to maintain the expensive legal machinery required to safeguard against an irreversible error in the use of the death penalty. With budgets for everything from schools to police departments being slashed across the state, how can we justify spending millions to prosecute a death penalty case? Undoubtedly, there are far better ways to invest our limited resources for the greater good of the citizens of the state than to assist Governor Romney in making the restoration of capital punishment his political legacy.


James Alan Fox is the Lipman Family Professor of Criminal Justice at Northeastern University.