District Attorney for the Suffolk District v. Watson

Article 26 of the Massachusetts Declaration of Rights (no “cruel or unusual” punishment)

After the U.S. Supreme Court struck down the death penalty in Furman v. Georgia, 408 U.S. 238 (1972), the Massachusetts Legislature—along with many other state legislatures—redrafted their capital punishment statutes to comply with Furman’s requirements. The Suffolk County District Attorney named four individuals eligible for death under the new state statute and asked the MSJC for clarification (a “declaratory judgment”) on the viability of the statute.

Under Article 26 of the Declaration of Rights of the Massachusetts Constitution, the death penalty is (1) unacceptably cruel under contemporary standards of decency, and (2) administered with unconstitutional arbitrariness and discrimination.

Like the Eighth Amendment, the meaning of art. 26 evolves over time to reflect contemporaneous standards of decency. Even a perfectly-drafted capital punishment statute would fail the standard under art. 26 because “from our examination of the actual operation of capital punishment provisions in Massachusetts . . . the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel under art. 26 when judged by contemporary standards of decency.”

The majority opinion did not attempt to distinguish the “cruel or unusual” language of art. 26 from the “cruel and unusual” language of the Eighth Amendment—although Justice Laicos argued for a distinct interpretation in his concurrence—but the Court found that the death penalty was impermissibly cruel for two key reasons: First, the death penalty is distinctively brutal and dehumanizing. According to the Court, the death penalty infringes on the U.S. Constitution’s guarantee of life as a fundamental right. And unlike other types of criminal punishment, death is different in its finality and atrocity. “[T]he death penalty may cruelly frustrate justice. Death is the one punishment from which there can be no relief in light of later developments in the law or the evidence,” wrote Justice Hennessey for the majority. “[P]erhaps most conclusive, [the death penalty has a] unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror.”

Second, the death penalty was not—and likely could never be—administered fairly. “The death penalty brutalizes the State which condemns and kills its prisoners. . . . Moreover, this brutality assumes new dimensions in its virtually random selection of those who are to be executed.”

Citing studies and patterns from other states that showed racially-disproportionate application of the death penalty, the Court said it was “inevitable” that the death penalty “will be applied arbitrarily. Also, experience has shown that the death penalty will fall discriminatorily upon minorities, particularly blacks.”

The Court noted that this disproportionate effect on racial minorities lacked any logical mooring. “No rational basis can be offered to explain why the few were executed and many others were not. It cannot be said that only the ‘worst’ offenders were executed. All murderers are extreme offenders. Fine distinctions, designed to select a very few from the many, are inescapably capricious when applied to murders and murderers. As a consequence, the death penalty is wantonly and freakishly inflicted.”

Noting that the statute at issue may well meet federal constitutional requirements, the Court agreed that “untrammeled discretion in imposing the death penalty is intolerable.” However, “we find unacceptable under the State Constitution the premise of the post-Furman cases that statutory guidelines and standards may be entirely curative.” Even if a statute could be drafted to adequately guide jury discretion, it would still fail Article 26 because federal constraints “do not address the discretionary powers exercised at other points in the criminal justice process. Power to decide rests not only in juries but in police officers, prosecutors, defense counsel, and trial judges. In the totality of the process, most life or death decisions will be made by these officials, unguided and uncurbed by statutory standards. In any given case, decisions may rest upon such considerations as the level of public outcry.”

“Such arbitrariness and discrimination, which inevitably persist even under a statute which meets the demands of Furman, offend art. 26 of the Massachusetts Declaration of Rights.”

Justice Leicos wrote that while he did not disagree with the majority’s approach, “it is also likely that the Constitution of this Commonwealth may have a separate and distinct meaning which is to be interpreted and enforced by this court.” According to Leicos, art. 26 should “stand on its own footing.”

“I would further hold that a punishment may not be inflicted if it be either ‘cruel’ or ‘unusual,’” Leicos wrote. “Last, in my view, the imposition of death by the State as a penalty for crime is in itself so brutal to the object and so dehumanizing of others that it constitutes ‘cruel’ or ‘unusual’ punishment within art. 26.”