The Dzhokhar Tsarnaev trial has led the news throughout New England and the country over the past couple weeks. The man found guilty of carrying out the 2013 Boston Marathon bombings is now facing the death penalty in federal court in Boston. WAMC’s Berkshire Bureau Chief Jim Levulis takes a look at Massachusetts’ history with and without the death penalty.
Although the death penalty was ruled unconstitutional in Massachusetts in 1984, the commonwealth has a long and notable history with capital punishment — just ask any eighth-grader who has read The Crucible.
Michael Meltsner is a professor at Northeastern University School of Law, where he previously served as dean. He was also the first assistant counsel to the NAACP Legal Defense Fund helping to bring forward cases that led to the U.S. Supreme Court’s 1972 decision in Furman V. Georgia, which at the time placed a moratorium on the death penalty. As Massachusetts was one of the most developed colonial areas in the 17th century, he says British common law was introduced to the land.
“And it was quite ferocious,” Meltsner said. “There were several hundred crimes that could lead to capital punishment in England at the time. They included what we would regard as relatively trivial offenses; stealing clothes from bleaching grounds, forgery and so forth. So initially both that influence and the influence of the Puritans led to a kind of healthy use of the death penalty or at least finding it in the statute books in Massachusetts from the beginning.”
According to the Death Penalty Information Center, John Billington, a colonist who arrived on the Mayflower, was the first person executed in Massachusetts in 1630. He was hanged for murder. The most high-profile event involving the death penalty in colonial Massachusetts was the Salem Witch Trials in the early 1690s. Some 20 people, mostly women, were hanged after being accused of witchcraft.
Then came Sacco and Vanzetti in the 1920s. Italian immigrants Nicola Sacco and Bartolomeo Vanzetti were convicted of murdering a guard and paymaster during a robbery of a shoe factory in Braintree. Following appeals and protests by thousands, the two were executed in 1927. More than 10,000 people viewed their bodies in open caskets over two days in Boston. As Meltsner explains, historians and researchers have questioned whether the men, known anarchists, received a fair trial.
“Sacco and Vanzetti have never been authoritatively cleared, but there is an enormous amount of controversy around this case,” he said. “I think everyone who studies it would at least conclude that they were not fairly tried and so it’s kind of iconic.”
Three hundred and forty-five people have been executed in Massachusetts. The last, Phillip Bellino and Edward Gertson, were electrocuted for murder in 1947, according to the Death Penalty Information Center.
“Until 1951 Massachusetts was one of the few states, maybe five or six, that had a mandatory death penalty for murder,” Meltsner said. “In other words there was no discretion on the part of the jury to sentence to life. You were convicted of murder in the first degree and you were going to be executed unless there was clemency extended.”
Meltsner says opposition to the death penalty in Massachusetts started with elites as about a half dozen governors remitted sentences, not allowing death penalties to be carried out.
“Lots of people enjoy having the death penalty on the books, but they don’t actually want to see it stuck in their faces,” Meltsner said. “The details are rather unpleasant.”
Following the 1972 Supreme Court ruling, Meltsner says Massachusetts courts hardened their stance against capital punishment. From there until the 1980s it turned into a dance between the legislature attempting to place the death penalty on the books and the courts. New England Law professor Lawrence Friedman explains lawyers played a role by advocating how costly lengthy appeals in death sentences can be for the state.
“The legislature passes a statute, court says it’s unconstitutional because it’s cruel and unusual,” Friedman explains. “The legislature motivated to get the people to amend the constitution to say that you can’t say death penalty is cruel and unusual. OK says the court well we’ll say it’s unconstitutional for different reason, because it violates the right to self-incrimination, back to you legislature. After a while I think the fight went out of the legislature to try and come up with a statute that would pass constitutional scrutiny.”
The death penalty statute enacted in 1982 was ruled unconstitutional on the grounds it wasn’t applied fairly, because only defendants who went to trial faced it, not those who plead guilty.
Meltsner says minorities, who generally oppose the death penalty, have aided in the shift of public opinion. He says movements like The Innocence Project, which works to free people believed to have been wrongly convicted, has raised skepticism of government’s behavior in the criminal process, especially around sentences that don’t allow for a second chance. In a recent editorial, The New York Times said a system that has seen 152 people around the country freed from death row needs reform.
As for Meltsner’s thoughts on the jury deciding on a death sentence for Tsarnaev, which is a federal case?
“I suspect that they will not, but it’s not easy to predict juries,” Meltsner said. “It’s a little like picking the winner of The Kentucky Derby when you’re looking at yearlings.”