District Attorney for the Suffolk District v. James Watson & others n1
n1 Michael Amann, Lawrence Licciardi and John Real.

Supreme Judicial Court of Massachusetts
381 Mass. 648; 411 N.E.2d 1274; 1980 Mass. LEXIS 1347
 
May 29, 1980, Argued  
October 28, 1980, Decided

PRIOR HISTORY:    [***1] 
 
Suffolk.

Civil action commenced in the Supreme Judicial Court for the county of 
Suffolk on January 9, 1980.

The case was reported by Quirico, J.

DISPOSITION: So ordered.

HEADNOTES: Homicide. Constitutional Law, Cruel and unusual punishment. 
Death Penalty. Practice, Civil, Declaratory relief.

SYLLABUS: Discussion of the provisions of c. 488 of the Acts of 1979. 
[651-654]
 
Discussion of authorities pertaining to the constitutionality of the death 
penalty. [655-659]
 
A complaint brought against four defendants, indicted for murder in the 
first degree, by the district attorney for the Suffolk district seeking a 
declaratory judgment as to the constitutionality of c. 488 of the Acts of 
1979, a capital punishment statute, presented an actual controversy within 
the meaning of G. L. c. 231A, § 1, established exceptional circumstances 
warranting relief despite the pendency of the criminal prosecutions, and 
demonstrated the plaintiff's standing to secure resolution of the dispute. 
[659-660]
 
In light of contemporary standards of decency, the death penalty is 
unconstitutionally cruel under art. 26 of the Declaration of Rights of the 
Massachusetts Constitution. [660-665]
 
In [***2]  light of the arbitrariness and discrimination inherent in the 
application of capital punishment, the death penalty is unconstitutionally 
cruel under art. 26 of the Declaration of Rights of the Massachusetts 
Constitution. [665-671]
 
Braucher, J., concurred on the ground that the imposition of a death 
sentence which will rarely be carried out and only after months and years 
of uncertainty is cruel and unusual in violation of art. 26 of the 
Declaration of Rights of the Massachusetts Constitution. [672-673]
 
Wilkins, J., concurred, with the reservation that the Court should have 
postponed determining the constitutionality of the death penalty until it 
was presented with an actual case in which a defendant had been sentenced 
to death under the statute. [673-674]
 
Liacos, J., concurred, discussing the nature of the death penalty and 
stating that the phrase "cruel or unusual" as used in art. 26 of the 
Declaration of Rights of the Massachusetts Constitution has a meaning 
distinct from the phrase "cruel and unusual" in the Eighth Amendment to 
the United States Constitution and that, under art. 26, a punishment may 
not be inflicted if it be either cruel or unusual. [675-686]
 
Quirico,  [***3]  J., dissented on the ground that the court, by ignoring 
tradiditional standards of review, has infringed on the Legislature's 
prerogative to define crimes and establish the terms of punishment. 
[686-701]

COUNSEL: William P. Homans, Jr. (John Reinstein with him) for James Watson.

Stephen L. Saltonstall (Ann Lambert Greenblatt with him) for John Real.

Barbara A. H. Smith, Assistant Attorney General, for the Attorney General.

Newman Flanagan, District Attorney, pro se (Michael J. Traft, Assistant 
District Attorney, & Rosalind Henson Miller, Special Assistant District 
Attorney, with him).

Henry P. Arsenault, amicus curiae, pro se, submitted a brief.

Jeanne Baker, Daniel Featherston, Andrew Good, Joseph S. Oteri, P. J. 
Piscitelli, Harvey A. Silverglate & Martin G. Weinberg, for the 
Massachusetts Association of Criminal Defense Lawyers, amicus curiae, 
submitted a brief.

JUDGES: Hennessey, C.J., Quirico, Braucher, Kaplan, Wilkins, Liacos, & 
Abrams, JJ. Braucher, J., concurring. Wilkins, J., concurring. Liacos, J., 
concurring. Quirico, J., dissenting.

OPINION BY: HENNESSEY

OPINION:  [*649]   [**1275]  On January 9, 1980, the plaintiff, in his 
capacity [***4]  as district attorney for the Suffolk district, filed a 
complaint in the Supreme Judicial Court for Suffolk County seeking a 
declaratory judgment or, in the alternative, relief under this court's 
general superintendence powers under G. L. c. 211, § 3. The complaint 
sought a determination of the constitutionality of the recently enacted 
capital punishment statute, c. 488 of the Acts of 1979. The Commonwealth 
and the judges of the Superior Court were named as defendants. The single 
justice allowed the motion of the Attorney General to intervene as a 
defendant. The single justice also allowed the Attorney General's motion 
to dismiss  [*650]  filed on behalf of the Commonwealth and the judges of 
the Superior Court, and permitted the intervention of four men as 
defendants, all of whom are awaiting trial on first degree murder 
indictments which may subject them to the death penalty under the statute. 
The parties filed a statement of agreed facts. Thereafter, on a motion 
joined by all the parties, the single justice reserved and reported the 
case to the full bench of this court.

Two issues are before this court today: (1) whether the court may 
entertain a suit for a declaratory [***5]  judgment concerning the 
validity of c. 488 of the Acts of 1979 during the pendency of a criminal 
prosecution brought pursuant to the contested chapter, and (2) whether c. 
488 of the Acts of 1979 violates art. 26 of the Declaration of Rights of 
the Massachusetts Constitution. We conclude that under the particular 
circumstances of these cases declaratory relief is the appropriate vehicle 
for resolving the constitutionality of the statute in question. We 
conclude furthermore that c. 488 of the Acts of 1979 contravenes the 
prohibition against cruel or unusual punishment contained in art. 26 of 
the Declaration of Rights on each of two grounds: (1) the death penalty is 
unacceptably cruel under contemporary standards of decency, and (2) the 
death penalty is administered with unconstitutional arbitrariness and 
discrimination. n2

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n2 Conventional debate and analysis have paid much attention to the 
question of "deterrence," the contention being that capital punishment is 
unconstitutional in the absence of a demonstration that it serves as a 
stronger deterrent than life imprisonment. In Opinions of the Justices, 
372 Mass. 912, 921 (1977), a majority of the Justices speculated that 
there might be some types of homicide (perhaps one or more of those 
referred to in the "aggravated circumstances" of statutes like the 
present) as to which that demonstration might conceivably be made; and it 
was intimated that the findings of a legislative commission particularly 
studying those questions could be significant. No legislative study so 
directed has been made. However, out of respect to the blanket legislative 
declarations set out in § 1 of the present statute, the same majority of 
the Justices are content for purposes of the present case to pretermit the 
question of deterrence and proceed to the issues of contemporary standards 
of decency and of arbitrariness. The latter approaches were mentioned as 
alternatives in Opinions of the Justices, supra, and in Commonwealth v. 
O'Neal, 369 Mass. 242, 278-279 (1975) (O'Neal II). (Kaplan, J., 
concurring).
 

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 [***6] 
 [*651]   [**1276]  The Statute

The general design of c. 488 is to provide a dual procedure when a 
defendant is charged with murder in the first degree. The first phase is 
to consist of trial of the charge. If the jury n3 find the defendant 
guilty, then there is a second, separate presentencing hearing before the 
same jury in which argument and evidence may be adduced relevant to 
certain factors or standards described in the statute intended to single 
out those offenders who merit capital punishment. The jury are to decide 
on the evidence thus brought forward whether sentence of death, rather 
than life imprisonment, is to be imposed. When sentence of death is 
passed, there is a special review by the Supreme Judicial Court to guard 
further against arbitrary or capricious imposition of the death penalty.

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n3 A defendant in a capital case currently has no right to a jury waived 
trial. G. L. c. 263, § 6.
 

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To describe the four sections of the statute in greater detail: Section 1 
prefaces the substantive [***7]  requirements of the remaining three 
sections with a general declaration of the utility of capital punishment 
as a deterrent to crime and the appropriateness of such punishment being 
imposed by the Legislature. Section 2 amends c. 265 of the General Laws to 
provide that those convicted of murder in the first degree may only suffer 
the punishment of death pursuant to procedures set forth in those 
amendments to G. L. c. 279, §§ 53-56, enacted in § 3.

Section 3 of c. 488 would add to G. L. c. 279 the four new sections (§§ 
53-56) mentioned above which describe the sentencing procedure. On the 
return of a verdict of guilty of murder in the first degree a 
presentencing hearing would be held before the same jury to determine the 
punishment to be imposed. Argument on both sides would be presented, the 
Commonwealth presenting the opening argument and the defendant presenting 
the closing argument, and evidence would be received to assist the jury in 
determining whether any mitigating or aggravating circumstances, as  
[*652]  defined in § 54, exist and whether to recommend that the death 
penalty be imposed. If the sentence of death is reversed on appeal for 
error found only in the presentencing [***8]  hearing, any new trial would 
relate only to the issue of punishment (§ 53).

The imposition of the death penalty is limited to those cases in which one 
or more of the enumerated statutory aggravating offenses are found to 
exist beyond a reasonable doubt. Additionally, the jury are permitted to 
consider any other appropriate aggravating or mitigating circumstances, 
some of these mitigating circumstances being enumerated in the statute (§ 
54 [b]). The jury must find a statutory aggravating circumstance before 
recommending a sentence of death, but need not find any mitigating 
circumstance in order to make a binding recommendation of mercy.

Included in the aggravating matter that might be entertained are twelve 
statutory aggravating circumstances which point more particularly to the 
nature of the offense or the kind of victim or offender (§ 54 [a]). 
Illustrative are: "(1) The offense of murder was committed on the victim 
who was killed while serving in the performance of his duties as a police 
officer, firefighter, or correctional officer; (2) The offense of murder 
was committed by a person who had previously been convicted of the crime 
of murder in the first degree";  [***9]  "(11) The offense of murder was 
committed by a person in connection with the commission of rape or an 
attempt to commit rape on the victim." (The other statutory aggravating 
circumstances are reproduced in the  [**1277]  margin. n4 ) Mitigating 
matter would include five statutory circumstances  [*653]  (§ 54 [b]) of 
which the following are illustrative: "(1) The offense of murder was 
committed by one with no history of prior criminal activity"; "(5) The age 
or mental capacity of the defendant at the time of the crime." (The other 
statutory mitigating circumstances are reproduced in the margin. n5)

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n4 "(3) The offender committed the offense of murder for himself or 
another, for the purpose of receiving money or any other thing of monetary 
value.

"(4) The offender caused or directed another to commit murder as an agent 
or employee of another person.

"(5) The offender by his act of murder knowingly created a great risk of 
death to more than one person in a public place by means of a weapon or 
device which would normally be hazardous to the lives of more than one 
person.

"(6) The offense of murder was committed on the victim during the course 
of a hijacking or attempted hijacking of an airplane or school bus.

"(7) The capital felony was committed by a person under sentence of 
imprisonment.

"(8) The defendant was previously convicted of another capital felony or 
of a felony involving the use or threat of violence to the person.

"(9) The defendant knowingly created a great risk of death to many persons.

"(10) The capital felony was committed for the purpose of avoiding or 
preventing a lawful arrest or effecting an escape from custody.

. . .

"(12) The offense of murder was committed on the victim in the course of a 
kidnapping for ransom of the victim or attempted kidnapping for ransom of 
the victim." [***10] 
 


n5 "(2) The offense of murder was committed by one who was under the 
influence of extreme mental or emotional disturbance.

"(3) The offense of murder was committed by one who was a participant in 
the defendant's homicidal conduct or consented to the homicidal act.

"(4) The offense of murder was committed by one under duress or under 
domination of another person."
 

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The appropriate statutory instructions must be given in writing to the 
jury for their deliberations (§ 54 [b]). The jury must designate in 
writing the aggravating circumstance or circumstances (of which at least 
one must be a statutory aggravating circumstance) which they find beyond a 
reasonable doubt and upon which they base their unanimous recommendation 
of death. Where such a statutory aggravating circumstance is found and a 
recommendation of death is made, the judge must impose the death sentence 
(§ 55). If a recommendation of death supported by a finding of at least 
one of the statutory aggravating circumstances is not made by the jury, 
then the judge may not impose the death sentence except that no finding of 
statutory [***11]   [*654]  aggravating circumstance is necessary in 
offenses of treason or aircraft hijacking (§ 55). n6

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n6 Section 54 (a) (6), however, identifies aircraft hijacking as a 
statutory aggravating circumstance. See note 4, supra.
 

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There would be an automatic review by the Supreme Judicial Court of any 
death sentence imposed (§ 56 [a]). Besides considering any errors of law 
claimed to have been committed in the sentencing proceeding (§ 56 [b]), 
the court would consider the propriety or fairness of the punishment 
itself according to stated criteria, one of which examines "whether the 
sentence of death was imposed under the influence of passion, prejudice or 
any other arbitrary factor" (§ 56 [c] [1]). In order to comply with § 4 of 
the statute, the court must include in its decision "a reference to 
similar cases which it took into consideration" (§ 56 [e]), the records of 
such cases being accumulated and extracts being provided to the court by 
the executive secretary to the [***12]  Justices of the Supreme Judicial 
Court. In addition to its authority regarding correction of errors, the 
Supreme Judicial Court has authority to affirm the sentence of death or to 
set aside the sentence of death and remand the case for resentencing by 
the trial judge (§ 56 [e]).
The Facts as to the Four Defendants.

The facts pertaining to each of the four defendants, as presented in the 
parties' statement of agreed facts, can be summarized as follows. In 
January, 1980, the Suffolk County grand jury indicted the defendant James 
Watson for the crime of murder in the first degree. The indictment charges 
that "James J. Watson on the 16th of November, 1979, did assault and beat 
one Jeffrey  [**1278]  S. Boyajian with intent to murder him and by such 
assault and beating did kill and murder the said Jeffrey S. Boyajian." On 
January 24, 1980, the defendant Watson was arraigned and is currently 
awaiting trial. The district attorney has announced that he will seek the 
imposition of the death penalty for the defendant Watson on the basis that 
one of the statutory aggravating circumstances is present in this case, 
namely, that  [*655]  "the offender committed the offense [***13]  of 
murder for himself or another, for the purpose of receiving money or any 
other thing of monetary value."

On February 6, 1980, the Suffolk County grand jury indicted the defendants 
Lawrence Licciardi and Michael Amann for the crimes of murder in the first 
degree, kidnapping, and two counts of rape of a child. The indictments 
each charge individually that Licciardi and Amann "on the 23rd of 
November, 1979, did assault and beat one Kathleen Boardman with intent to 
murder her and by such assault and beating did kill and murder the said 
Kathleen Boardman." On February 7 and 19, 1980, the defendants Licciardi 
and Amann, respectively, were arraigned in Superior Court and are 
currently awaiting trial. The district attorney has announced that in each 
case he will seek imposition of the death penalty as authorized by c. 488 
of the Acts of 1979 when "the offense of murder [is] committed by a person 
in connection with the commission of rape or an attempt to commit rape on 
the victim."

A Norfolk County grand jury has indicted John Real for murder in the first 
degree. The indictment charges Real with the murder of Vance J. Farmer on 
February 2, 1980. At that time Real was under sentence [***14]  of 
imprisonment and, thus, if convicted of murder in the first degree, could 
be sentenced to death under the provision of c. 488 which designates this 
as one of the aggravating circumstances.
Recent History of the Death Penalty.

The history of the death penalty and the debate between its proponents and 
opponents reaches back for generations. Prior to the 1960's it was assumed 
in this country that death was a constitutionally permissible punishment 
which Legislatures could choose as the proper response to certain crimes. 
See McElvaine v. Brush, 142 U.S. 155 (1891); State v. Olander, 193 Iowa 
1379 (1922); State v. Miller, 165 Kan. 228 (1948). During this period 
condemned defendants challenged primarily the means by which the death 
penalty was carried out, see, e.g., In re Kemmler, 136 U.S. 436 (1890) 
(electrocution is a permissible method of execution);  [*656]  Wilkerson 
v. Utah, 99 U.S. 130 (1878) (public execution by shooting upheld), or the 
procedural propriety of the trial; cf. Coleman v. Alabama, 389 U.S. 22 
(1967) (racial discrimination in jury composition). "As one author on the 
subject of capital punishment litigation in [***15]  the 1960's points 
out, if the condemned's lawyer failed to see the procedural errors in a 
given case or if there were simply none, the condemned individual like the 
moneyless patient with a commonplace disease, was simply 'out of luck.'" 
Note: Furman to Gregg: The Judicial and Legislative History, 22 How. L.J. 
53, 65 (1979), quoting from M. Meltsner, Cruel and Unusual: The Supreme 
Court and Capital Punishment 19 (1974).

In October, 1963, Mr. Justice Goldberg published a dissenting opinion, 
jointed by Messrs. Justice Brennan and Douglas, in which he argued that 
the Supreme Court should decide whether infliction of the death penalty 
for rape was constitutional. See Rudolph v. Alabama, 375 U.S. 889 (1963). 
"Following the Rudolph dissent, a large number of cases were brought to 
the Supreme Court squarely presenting the issue of the constitutionality 
of the death penalty [, an issue] which . . . had never been explicitly 
presented to the Court or even raised in the lower courts." Goldberg, The 
Death Penalty and the Supreme Court, 15 Ariz. L. Rev. 355, 365 (1973). At 
the same time, the procedural challenges to death penalty statutes 
continued with  [**1279]  increasing [***16]  success. In United States v. 
Jackson, 390 U.S. 570 (1968), the Supreme Court invalidated the death 
penalty provision of the Lindbergh Law (Federal Kidnapping Act, 18 U.S.C. 
§ 1201[a]) because it impaired a defendant's exercise of his Fifth 
Amendment right against self-incrimination and his Sixth Amendment right 
to a jury trial by making defendants risk death only if they went to trial 
before a jury instead of either pleading guilty or waiving their right to 
a jury trial. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Court 
held with full retroactive effect ( id. at 523 n.22), that veniremen could 
not be eliminated from a jury merely because they had conscientious 
scruples against capital  [*657]  punishment. Due to such decisions, and 
to the pendency of other procedural and substantive challenges to the 
constitutionality of the death penalty in the United States, executions 
throughout the nation were stayed by court orders.

In June, 1972, the Supreme Court rendered a five-to-four decision in the 
case of Furman v. Georgia, 408 U.S. 238 (1972), which has since become the 
touchstone for constitutional analysis of the death penalty. Two Justices 
[***17]  (Marshall and Brennan) in the five judge majority expressed the 
view that capital punishment was per se unconstitutional as cruel and 
unusual punishment. The other three held that capital punishment as 
currently administered violated the Constitution because of its arbitrary 
imposition on a small percentage of eligible defendants due to the lack of 
standards to guide the discretion of juries and judges. As a result of 
this decision, many States enacted new death penalty statutes in an effort 
to comply with the somewhat vague requirements of Furman. Most of the 
statutes either made the death penalty mandatory for certain offenses or 
promulgated sets of "standards," often presented in the form of 
aggravating or mitigating circumstances for the guidance of juries in the 
selection of those who were to die.

In July, 1976, the Supreme Court ruled on five selected capital sentencing 
cases, n7 each involving a challenge to the constitutionality of a State 
statute passed in response to Furman. The Court upheld three of the State 
statutes (those of Georgia, Florida, and Texas), and struck down two 
(those of Louisiana and North Carolina). The principal distinction was 
that the valid [***18]  statutes provided judges and juries with guidance, 
in the form of detailed mitigating and aggravating circumstances, for 
deciding whether the death sentence was appropriate in each case. A bare 
majority of the Court also held that the States may not impose mandatory  
[*658]  capital punishment laws requiring that every convicted murderer be 
sentenced to death. Woodson v. North Carolina, 428 U.S. 280, 301 (1976). 
Subsequent Supreme Court litigation regarding the death penalty has 
involved efforts to clarify the requirements and implications of Furman 
and its progeny, see Godfrey v. Georgia, 446 U.S. 420 (1980) (statutory 
aggravating circumstance excessively broad and vague as interpreted by the 
Supreme Court of Georgia), or efforts to challenge the procedural aspects 
of the imposition of the death penalty. See Beck v. Alabama, 447 U.S. 625 
(1980) (death sentence may not constitutionally be imposed after jury 
verdict of guilty of capital offense where jury were not permitted to 
consider verdict of guilty of lesser included offense). In each case since 
Furman, Mr. Justice Marshall and Mr. Justice Brennan have continued to 
express their opinions that [***19]  the death penalty is in all 
circumstances cruel and unusual punishment prohibited by the Eighth and 
Fourteenth Amendments to the United States Constitution.

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n7 Gregg v. Georgia, 428 U.S. 153 (1976). Proffitt v. Florida, 428 U.S. 
242 (1976). Jurek v. Texas, 428 U.S. 262 (1976). Woodson v. North 
Carolina, 428 U.S. 280 (1976). Roberts v. Louisiana, 428 U.S. 325 (1976).
 

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 [**1280]  The history of the death penalty in the Supreme Judicial Court 
of Massachusetts consists basically of two matters. In the first of these, 
Commonwealth v. O'Neal, 369 Mass. 242 (1975) (O'Neal II), a majority of 
this court held that a mandatory death penalty for rape-murder constituted 
cruel or unusual punishment in violation of art. 26 of the Declaration of 
Rights of the Massachusetts Constitution. In Opinions of the Justices, 372 
Mass. 912 (1977), the Justices were asked to express their opinions 
concerning the constitutionality of 1972 House Bill No. 3373, which 
contained essentially [***20]  the same substantive provisions as c. 488 
of the Acts of 1979 which is before the court today. In their opinion, 
five Justices of this court gave the following response: "Holding the same 
overriding view as was expressed by a majority of this court in O'Neal II, 
[369 Mass. 242 (1975)], the undersigned Justices answer that art. 26 of 
the Declaration of Rights -- 'No magistrate or court of law, shall . . . 
inflict cruel or unusual punishments' -- forbids the imposition of a death 
penalty in this Commonwealth in the absence of a showing on the part of 
the Commonwealth that the availability of  [*659]  that penalty 
contributes more to the achievement of a legitimate State purpose -- for 
example, the purpose of deterring criminal conduct -- than the 
availability in like cases of the penalty of life imprisonment." Opinions 
of the Justices, supra at 917.
Declaratory Relief Is Appropriate.

In order for a declaratory judgment to issue under G. L. c. 231A, the 
plaintiff must demonstrate that an actual controversy exists and that he 
has legal standing to sue. Massachusetts Ass'n of Independent Ins. Agents 
& Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 [***21]  
(1977). Both of these requirements are satisfied in the instant case. An 
actual controversy within the meaning of G. L. c. 231A, § 1, is a "real 
dispute" caused by the assertion by one party of a duty, right, or other 
legal relation in which he has a "definite interest," in circumstances 
indicating that failure to resolve the conflict will almost inevitably 
lead to litigation. Bunker Hill Distrib., Inc. v. District Attorney for 
the Suffolk Dist., 376 Mass. 142 (1978). Hogan v. Hogan, 320 Mass. 658, 
662 (1947). An actual controversy can exist whether or not the plaintiff's 
rights have already been impaired. School Comm. of Cambridge v. 
Superintendent of Schools of Cambridge, 320 Mass. 516, 518 (1946).

In the cases under consideration here, the plaintiff asserts and the 
defendants deny that c. 488 is consistent with art. 26 of the Declaration 
of Rights. Thus these cases come within the class of cases in which an 
actual controversy exists: "The cases in which an actual controversy 
concerning criminal statutes has been found generally involved 
constitutional challenges to the facial validity of legislation or to its 
validity as applied to a class of persons [***22]  similarly situated." 
Bunker Hill, supra at 145.

Ordinarily declaratory relief will not be granted during the pendency of a 
criminal prosecution. Norcisa v. Selectmen of Provincetown, 368 Mass 161, 
170-172 (1975). The purpose of this limitation is to prevent 
"fragmentation and proliferation of litigation and disrupt[ion of] the 
orderly administration of the criminal law." Id. at 172. However,  [*660]  
a declaratory judgment is appropriate, despite a pending criminal action 
in "very special circumstances." Id. at 171. See P.B.I.C., Inc. v. 
District Attorney of Suffolk County, 357 Mass. 770, 771 (1970); Kenyon v. 
Chicopee, 320 Mass. 528, 535 (1946). We conclude that the cases at bar are 
clearly exceptional ones justifying declaratory relief to prevent 
disruption of the orderly administration of criminal justice.

A determination of the validity of c. 488 is of fundamental importance to 
the plaintiff  [**1281]  because he is bound by the oath and duties of his 
office to enforce the law of the Commonwealth as enacted by the 
Legislature and is also required to uphold the Constitution of the 
Commonwealth as interpreted by this court. At the present [***23]  time, 
the plaintiff's duties with respect to the enforcement of c. 488 of the 
Acts of 1979 are uncertain. This statute will affect every district 
attorney in the Commonwealth and thus presents a matter of public 
importance beyond the parties. Under the statute all district attorneys 
will be responsible for requesting that certain extraordinary procedures 
be followed in first degree murder prosecutions, including holding a voir 
dire of each prospective juror concerning his or her view of the death 
penalty; deciding in which cases to hold a bifurcated trial; and 
presenting evidence at the second half of the bifurcated trial. Of course, 
none of these procedures will be necessary if c. 488 is held 
unconstitutional. The plaintiff also satisfies the standing requirement 
for pursuing declaratory relief since affording him declaratory relief 
pursuant to G. L. c. 231A would relieve him of uncertainty with respect to 
his duties in enforcing the law and in administering prosecutions of first 
degree murder cases in Suffolk County. Similarly, the four defendants 
charged with murder will be afforded declaratory relief from present 
uncertainties which in turn, to say the least, will affect major [***24]  
decisions in their defenses.
 
I. The Death Penalty Is Offensive to Contemporary Standards of Decency.

The particular standard we examine today is that established by art. 26 in 
its prohibition of cruel or unusual  [*661]  punishment. While the word 
"unusual" may suggest the need for an ongoing comparison of punishments 
meted out for comparable crimes in similar cultures, we focus instead on 
the constitutional prohibition of "cruel" punishments. All punishments 
might be said to be cruel, but what we examine here is the question of 
punishment which is too cruel under constitutional standards. Also, we 
focus on the absolute and irreversible punishment of death, as 
distinguished from all lesser penalties.

The constitutional prerogratives and duties of this court permit, indeed 
require, a reexamination of the death penalty to determine whether it is 
unconstitutionally cruel in light of contemporary circumstances. 
"Certainly at the time of its adoption, art. 26 was not intended to 
prohibit capital punishment. Capital punishment was common both before and 
after its adoption. However, art. 26, like the Eighth Amendment, 'must 
draw its meaning from the evolving standards of decency [***25]  that mark 
the progress of a maturing society.' Trop v. Dulles, 356 U.S. 86, 101 
(1958)." Commonwealth v. O'Neal, 367 Mass. 440, 451 (1975) (O'Neal I) 
(Wilkins, J., concurring). "A constitutional provision 'is enacted, it is 
true, from an experience of evils, but its general language should not, 
therefore, be necessarily confined to the form that evil had theretofore 
taken. Time works changes, brings into existence new conditions and 
purposes. Therefore a principle to be vital must be capable of wider 
application than the mischief which gave it birth.'" Furman v. Georgia, 
408 U.S. 238, 263-264 (1972) (Brennan, J., concurring), quoting from Weems 
v. United States, 217 U.S. 349, 373 (1910). Clearly, "[t]he framers of our 
Constitution, like those who drafted the Bill of Rights, anticipated that 
interpretation of the cruel or unusual punishments clause would not be 
static but that the clause would be applied consistently with the 
standards of the age in which the questioned punishment was sought to be 
inflicted." People v. Anderson, 6 Cal. 3d 628, 648, cert. denied, 406 U.S. 
958 (1972). Therefore, if the death penalty is indeed unacceptable [***26] 
 under contemporary moral standards,  [*662]  it is tantamount to those 
punishments barred since the adoption of art. 26, and it is our 
responsibility to declare it invalid.

 [**1282]  It is true that there is no unanimity of public opinion either 
favoring or opposing the death penalty. But public opinion, while 
relevant, is not conclusive in assessing whether the death penalty is 
consonant with contemporary standards of decency. "If the judicial 
conclusion that a punishment is 'cruel and unusual' 'depend[ed] upon 
virtually unanimous condemnation of the penalty at issue,' then, '[l]ike 
no other constitutional provision, [the Clause's] only function would be 
to legitimize advances already made by the other departments and opinions 
already the conventional wisdom.' We know that the Framers did not 
envision 'so narrow a role for this basic guaranty of human rights.'" 
Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring), 
quoting from Goldberg & Dershowitz, Declaring the Death Penalty 
Unconstitutional, 83 Harv. L. Rev. 1773, 1782 (1970).

Moreover, we think that what our society does in actuality is a much more 
compelling indicator of the acceptability [***27]  of the death penalty 
than the responses citizens may give upon questioning. See Furman v. 
Georgia, 408 U.S. 238, 279 (1972) (Brennan, J., concurring). From the 
beginning of 1948 until the end of 1972 (the Furman case was decided in 
1972) no person was executed in this Commonwealth. The death sentences of 
forty-three persons were commuted or reduced by executive action. See 
Opinions of the Justices, supra at 919, and sources cited. The complete 
absence of executions in the Commonwealth through these many years 
indicates that in the opinion of those several Governors and others who 
bore the responsibility for administering the death penalty provisions and 
who had the most immediate appreciation of the death sentence, it was 
unacceptable.

In its finality, the 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  [*663]  evidence. This court has 
recognized the anomalous results which may be wrought in criminal cases by 
changes in the law and has adjusted standards of appellate review 
accordingly. For example, in Commonwealth v. Stokes, 374 Mass. 583,  
[***28]  587-591 (1978), this court applied retroactively the 
constitutional requirement that the Commonwealth bear the burden of 
disproving self-defense, n8 and declined to apply the rule that challenged 
jury instructions are unreviewable absent contemporaneous objection or 
exception. We reasoned that defendants should not be penalized for failure 
to anticipate changes in the law. The "irreversible finality of the 
execution of a criminal defendant," O'Neal II, supra at 276 n.1 (Wilkins, 
J., concurring), could frustrate such efforts to see that justice is 
applied equally when changes in the law occur or when new evidence is 
discovered. While this court has the power to correct constitutional or 
other errors retroactively by ordering new trials for capital defendants 
whose appeals are pending or who have been fortunate enough to obtain 
stays of execution or commutations, it cannot, of course, raise the dead.

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n8 See Mullaney v. Wilbur, 421 U.S. 684 (1975), made retroactive by 
Hankerson v. North Carolina, 432 U.S. 233 (1977), and by Commonwealth v. 
Rodriguez, 370 Mass. 684 (1976).
 

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The cruelty of the death penalty similarly inheres in its unparalleled 
effect on all the rights of the person condemned. "There is little doubt 
that life is a fundamental right 'explicitly or implicitly guaranteed by 
the Constitution.' San Antonio Independent Sch. Dist. v. Rodriguez, 411 
U.S. 1, 33-34 (1973). . . . [T]he '. . . right to live . . . is the 
natural right of every man' (quoting from Camus, Reflections on the 
Guillotine, in Resistance, Rebellion and Death 131, 221 [1969]), 
encompassing as it does 'the right to have rights.' Trop v. Dulles, 356 
U.S. 86, 102 (1958). See Comment, The Death Penalty Cases, 56 Cal. L. Rev. 
1268, 1354 (1968)." O'Neal II, supra at 245-246 (Tauro, C.J., concurring). 
"The calculated killing of a human being by the state involves,  [**1283]  
by its very nature, a denial of the executed  [*664]  person's humanity. 
The contrast with the plight of a person punished by imprisonment is 
evident. An individual in prison does not lose 'the right to have rights.' 
A prisoner retains, for example, the constitutional rights to the free 
exercise of religion, to be free of cruel and unusual punishments, and to 
treatment as a 'person'  [***30]  for purposes of due process of law and 
the equal protection of the laws." Furman v. Georgia, 408 U.S. 238, 290 
(1972) (Brennan, J., concurring).

Finally, and perhaps most conclusive, the death penalty is unacceptable 
under contemporary standards of decency in its unique and inherent 
capacity to inflict pain. The mental agony is, simply and beyond question, 
a horror. "Since the discontinuance of flogging as a constitutionally 
permissible punishment, Jackson v. Bishop, 404 F.2d 571 (CA 8 1968), death 
remains as the only punishment that may involve the conscious infliction 
of physical pain. In addition, we know that mental pain is an inseparable 
part of our practice of punishing criminals by death, for the prospect of 
pending execution exacts a frightful toll during the inevitable long wait 
between the imposition of sentence and the actual infliction of death." 
Furman v. Georgia, supra at 287-288 (Brennan, J., concurring). "[T]he 
process of carrying out a verdict of death is often so degrading and 
brutalizing to the human spirit as to constitute psychological torture," 
People v. Anderson, 6 Cal. 3d 628, 649, cert. denied, 406 U.S. 958 (1972), 
and [***31]  "the onset of insanity while awaiting execution of a death 
sentence is not a rare phenomenon." Solesbee v. Balkcom, 339 U.S. 9, 14 
(1950) (Frankfurter, J., dissenting).

The fact that the delay may be due to the defendant's insistence on 
exercising his appellate rights does not mitigate the severity of the 
impact on the condemned individual, and the right to pursue due process of 
law must not be set off against the right to be free from inhuman 
treatment. Moreover, it is often the very reluctance of society to impose 
the irrevocable sanction of death which mandates, "even against the wishes 
of the criminal, that all legal avenues be explored before the execution 
is finally carried out." Furman  [*665]  v. Georgia, supra at 289 n.37 
(Brennan, J., concurring). We conclude, therefore, from our examination of 
the actual operation of capital punishment provisions in Massachusetts, 
that 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.
 
II. The Death Penalty Is Arbitrarily Inflicted.

It is inevitable that the death penalty will be applied arbitrarily.  
[***32]  Also, experience has shown that the death penalty will fall 
discriminatorily upon minorities, particularly blacks. For these reasons 
the death penalty is unconstitutionally cruel under art. 26 of the 
Declaration of Rights. n9

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n9 It could also be said that such arbitrariness violates art. 1 of the 
Declaration of Rights of the Massachusetts Constitution, as amended by 
art. 106 of the Amendments, in its provision that all people must be 
treated with equality under the law, but we need not reach that argument, 
in light of our conclusions under art. 26.
 

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We know that, each year during the decades of the 1930's through the 
1960's, thousands of persons were convicted of criminal homicides in 
States where death was an authorized punishment for those crimes. However, 
death was inflicted in only a minute fraction of those cases. "When a 
country of over 200 million people inflicts an unusually severe punishment 
no more than 50 times a year, the inference is strong that the punishment 
is not being regularly and fairly [***33]  applied. To dispel it would 
indeed require a clear showing of nonarbitrary infliction." Furman v. 
Georgia, 408 U.S. 238, 293 (1972) (Brennan, J., concurring). No rational  
[**1284]  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  [*666]  
death penalty is "wantonly and . . . freakishly" inflicted. Furman v. 
Georgia, supra at 310 (Stewart, J., concurring).

We think that arbitrariness in sentencing will continue even under the 
discipline of a post-Furman statute like the one before us. In 1972, in 
Furman v. Georgia, supra, the Supreme Court of the United States held that 
the Eighth Amendment (applied to the States through the Fourteenth) 
invalidated a Georgia statute which allowed the jury untrammeled 
discretion in choosing between death and life imprisonment as the penalty 
for the crime of murder. In July, 1976, the United States Supreme Court 
handed down [***34]  a series of cases indicating that a majority of that 
Court are prepared, as far as the Federal Constitution is concerned, to 
validate State statutes which channel or regulate discretion in 
sentencing, thus curing those aspects of arbitrariness which concerned the 
Court in the Furman case. See Gregg v. Georgia, 428 U.S. 153 (1976); 
Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 
(1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. 
Louisiana, 428 U.S. 325 (1976). "In summary, the concerns expressed in 
Furman that the penalty of death not be imposed in an arbitrary or 
capricious manner can be met by a carefully drafted statute that ensures 
that the sentencing authority is given adequate information and guidance. 
As a general proposition these concerns are best met by a system that 
provides for a bifurcated proceeding at which the sentencing authority is 
apprised of the information relevant to the imposition of sentence and 
provided with standards to guide its use of the information." Gregg v. 
Georgia, 428 U.S. at 195 (Stewart, J.).

The Legislature of Massachusetts clearly attempted, in the [***35]  
statute now before us, to follow the mandates of the Furman opinion and 
its progeny by promulgating a law of guided and channeled jury discretion. 
It may be that c. 488 would meet the Federal constitutional requirements, 
if tested, but here we appraise the statute under art. 26 of the 
Declaration of Rights of the State Constitution. We accept the Furman 
principle that untrammeled discretion in imposing  [*667]  the death 
penalty is intolerable; we find unacceptable under the State Constitution 
the premise of the post-Furman cases that statutory guidelines and 
standards may be entirely curative. As Mr. Justice Harlan wrote in 
McGautha v. California, 402 U.S. 183, 204 (1971): "Those who have come to 
grips with the hard task of actually attempting to draft means of 
channeling capital sentencing discretion have confirmed the lesson taught 
by . . . history . . . . To identify before the fact those characteristics 
of criminal homicides and their perpetrators which call for the death 
penalty, and to express these characteristics in language which can be 
fairly understood and applied by the sentencing authority, appear to be 
tasks which are beyond present human ability."  [***36] 

A basic criterion, for example, in "channeling" the death penalty decision 
lies in the choice between first and second degree murder. Mr. Justice 
Cardozo said of the distinction between degrees of murder, that it is "so 
obscure that no jury hearing it for the first time can fairly be expected 
to assimilate and understand it. I am not at all sure that I understand it 
myself after trying to apply it for many years and after diligent study of 
what has been written in the books. Upon the basis of this fine 
distinction with its obscure and mystifying psychology, scores of men have 
gone to their death." Cardozo, What Medicine Can Do For Law, in Law & 
Literature 100-101 (1931).

 [**1285]  Even if it were possible by statutory language to bring 
evenhandedness to the death penalty decisional process, we should still 
conclude that a statute (like c. 488) that presumably complies with the 
Furman principle is unconstitutional under art. 26. The Federal 
constitutional requirements are a constraint only upon certain aspects of 
jury discretion. Furman and subsequent cases do not address the 
discretionary powers exercised at other points in the criminal justice 
process. Power to [***37]  decide rests not only in juries but in police 
officers, prosecutors, defense counsel, and trial judges. n10 In the 
totality of the process, most life or  [*668]  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.

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n10 It is true also that executive clemency is exercised in the 
untrammeled discretion of the Governor and Executive Council, but we 
recognize that it can be said that there is a specific grant of such 
power. See Part II, c. 2, § 1, art. 8, of the Massachusetts Constitution, 
as amended by art. 73 of the Amendments.
 

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Furman stands indifferent to the exercise of the prosecutor's "untrammeled 
discretion." For reasons which may be valid in the context of his duties, 
but which do not assist evenhandedness, the prosecutor in a homicide case 
may forgo a first degree murder indictment and seek an indictment for 
second degree murder or a lesser charge. Also, in a [***38]  first degree 
murder case, perhaps pursuant to plea bargaining, the prosecutor may in 
his uncurbed discretion nol-pros that part of the indictment which charges 
murder in the first degree. Similarly, the judge may dismiss the first 
degree murder charge, in his sole discretion, pursuant to accepting a plea 
of guilty to a lesser offense.

We do not think that our comments denigrate the general administration of 
criminal justice, or the good will of those who administer the system. It 
can be said that these officials must necessarily have these discretionary 
powers in the exercise of most of their functions. Nevertheless, the 
criminal justice system allows chance and caprice to continue to influence 
sentencing, and we are here dealing with the decisions as to who shall 
live and who shall die. With regard to the death penalty, such chance and 
caprice are unconstitutional under art. 26.

The death penalty has been described by many commentators not only as 
arbitrary and capricious but also as discriminatory. For example, the 
President's Commission on Law Enforcement and Administration of Justice 
concluded that "there is evidence that the imposition of the death 
sentence and the exercise [***39]  of dispensing power by the courts and 
the executive follow discriminatory patterns. The death sentence is 
disproportionately imposed and carried  [*669]  out on the poor, the 
Negro, and the members of unpopular groups." The Challenge of Crime in a 
Free Society, A Report by the President's Commission on Law Enforcement 
and Administration of Justice 143 (1967). C. Black, Capital Punishment: 
The Inevitability of Caprice and Mistake (1974).

Examination of death sentences imposed in Florida, Georgia, and Texas 
under post-Furman statutes upheld by the Supreme Court in 1976 indicates 
that very little has changed as to arbitrariness and discrimination. The 
criminal homicide data from the date of the post-Furman statutes through 
1977 indicate the following: In Florida, of 286 blacks who had killed 
whites, forty-eight (16.8%) were sentenced to death; of 111 whites who 
killed blacks, none were sentenced to death. In Georgia, of 258 blacks who 
killed whites, thirty-seven (14.3%) were sentenced to death; of 
seventy-one whites who killed blacks, two (2.8%) were sentenced to death. 
In Texas, of 344 blacks who killed whites, twenty-seven (7.8%) were 
sentenced to death; of 143 [***40]  whites who killed blacks, none were 
sentenced to death. n11 One commentator stated  [**1286]  as to this 
post-Furman experience, "The conclusion is inescapable that the death 
penalty is reserved for those who kill whites, because the criminal 
justice system in these states simply does not put the same value on the 
life of a black person as it does on the life of a white." n12 Another 
commentator concluded that  [*670]  "there is no evidence to suggest that 
post-Furman statutes have been successful in reducing the discretion which 
leads to a disproportionate number of nonwhite offenders being sentenced 
to death." n13

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n11 W. Bowers & G. Pierce, Preliminary Tabulations Reflecting 
Arbitrariness and Discrimination under Post-Furman Capital Statutes, Table 
1 (August 1979) (Center for Applied Social Research, Northeastern 
University). Data for this study were supplied (Florida, Georgia, and Ohio 
1973-1976; Texas, 1974-1976) by the Uniform Crime Reporting Program of the 
United States Department of Justice and (1977) by various government and 
private organizations within each of the individual States. These figures 
are estimates compiled from the data identified above and are adjusted for 
temporal and cross sectional undercoverage. The adjustment procedures are 
described in Appendix A of the study. [***41] 
 


n12 To Establish Rational Criteria For the Imposition of Capital 
Punishment: Hearings on S. 1382 Before the Subcommittee on Administrative 
Practice and Procedure of the Senate Judiciary Committee. 95th Cong., 2d 
Sess. 25 (1978) (statement of Dr. Hugo A. Bedau).


n13 M. Reidel, Discrimination in the Imposition of the Death Penalty: A 
Comparision of the Characteristics of Offenders Sentenced Pre-Furman and 
Post-Furman, 49 Temple L.Q. 261, 282 (1976).
 

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We reject any suggestion that racial discrimination is confined to the 
South or to any other geographical area. The experience of Ohio under a 
post-Furman statute through 1977 shows that, of 173 black persons who 
killed white persons, thirty-seven of them (21.4%) were sentenced to 
death. Of forty-seven whites who killed blacks, none were sentenced to 
death. n14 Moreover, the existence of racial prejudice in some persons in 
the Commonwealth of Massachusetts is a fact of which we take notice. Cf. 
Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979); 
Commonwealth v. Franklin, 376 Mass. 885, 891-892 (1978). [***42] 

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n14 W. Bowers & G. Pierce at Table 1, note 11, supra.
 

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From the foregoing discussion, it follows that we accept the wisdom of 
Furman, that arbitrary and capricious infliction of the death penalty is 
unconstitutional. However, we add that 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.

We have a response to those who might argue that our comments as to 
arbitrariness and discrimination apply as well to all punishments, not 
merely to the death penalty. While other forms of punishment may also be 
arbitrary in some measure, the death penalty requires special scrutiny for 
constitutionality. "The penalty of death differs from all other forms of 
criminal punishment, not in degree but in kind." Furman, supra at 306 
(Stewart, J., concurring). Accord, O'Neal II, 369 Mass. 242-249 (Tauro, 
C.J., concurring). "[T]he penalty of death is qualitatively different  
[*671]   [***43]  from a sentence of imprisonment, however long. Death, in 
its finality, differs more from life imprisonment than a 100-year prison 
term differs from one of only a year or two." Woodson v. North Carolina, 
428 U.S. 280, 305 (1976). Our society's failure to bring evenhandedness to 
the entire spectrum of criminal punishment calls for great and persistent 
effort toward improvement. However, we are not required to abandon all 
such punishments on constitutional grounds. At the same time, the supreme 
punishment of death, inflicted as it is by chance and caprice, may not 
stand.
 
III. Conclusion.

There is an impetus to respond in kind in punishing the person who has 
been convicted of murder, but the death penalty brutalizes the State which 
condemns and kills its prisoners. "Revenge is a kind of wild justice; 
which the more man's nature runs to,  [**1287]  the more ought law to weed 
it out." n15 Moreover, this brutality assumes new dimensions in its 
virtually random selection of those who are to be executed. "I shall ask 
for the abolition of the punishment of death until I have the 
infallibility of human judgment demonstrated to me." n16

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n15 Of Revenge, The Works of Francis Bacon 384 (J. Spedding ed. 1858). 
[***44] 
 


n16 Words of Thomas Jefferson as quoted by Senator Hart, A Bill to Abolish 
the Death Penalty Under all Laws of the United States: Hearings on S. 1760 
Before the Subcomm. on Criminal Laws and Procedures of the Senate 
Committee on the Judiciary, 90th Cong., 2d Sess. 14 (1968).
 

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A judgment shall enter in the county court declaring that c. 488 of the 
Acts of 1979 is unconstitutional under art. 26 of the Declaration of 
Rights of the Constitution of Massachusetts.

So ordered.

CONCURBY: BRAUCHER; WILKINS; LIACOS

CONCUR: Braucher, J. (concurring).

I join in the opinion and decision of the court, but I cannot rid myself 
of doubt whether, if  [*672]  I relied solely on "contemporary standards 
of decency," "I would be enforcing my private view rather than that 
consensus of society's opinion which . . . is the standard enjoined by the 
Constitution." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 471 
(1947) (concurring opinion of Frankfurter, J.). Not only is there profound 
disagreement on the question whether the death penalty should ever be 
imposed; there is also disagreement among those [***45]  who favor the 
death penalty as to what circumstances make it appropriate. But those 
disagreements reinforce the court's second ground of decision. In our 
criminal justice system responsibility for answering those questions is so 
diffused that the answers inevitably will be inconsistent, like cases will 
not be treated alike, and the penalty will be arbitrarily inflicted. Even 
if the judicial branch could administer the death penalty fairly and with 
reasonable certainty and expedition, neither we nor the Legislature could 
control either executive clemency or Federal intervention.

I find particularly persuasive the recent course of events. In the four 
years since the decision in Gregg v. Georgia, 428 U.S. 153 (1976), 
"hundreds have been placed on death row" but "only three persons have been 
executed." Godfrey v. Georgia, 446 U.S. 420, 439 at nn.8, 9 (1980) 
(concurring opinion of Marshall, s.). Even in the rare case where the 
sentence has been carried out, it has been carried out only after "one or 
more agonizing stays of execution." Lenhard v. Wolff, 444 U.S. 807, 811 
n.2 (1979) (dissenting opinion of Marshall, J.). The threat of death 
constitutes punishment [***46]  in itself. Cf. Gilmore v. Utah, 429 U.S. 
1012, 1013 n. 1 (1976) (concurring opinion of Burger, C.J.) (defendant's 
only complaint was with respect to the delay in carrying out the 
sentence). It is not suggested that punishment by threat serves a useful 
purpose if the threat is never carried out; its utility must rest instead 
on the utility of the threatened execution. Punishment is cruel when it 
involves "a lingering death." In re Kemmler, 136 U.S. 436, 447 (1890). See 
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463-464 n.4 (1947). 
Since death sentences will rarely be  [*673]  carried out, and since they 
will be carried out only after agonizing months and years of uncertainty, 
the punishment is cruel and unusual and violates art. 26 of the 
Declaration of Rights.

Wilkins, J. (concurring).

I alone among my colleagues believe that this court, in its discretion, 
should not pass on the constitutionality of the capital punishment statute 
in this proceeding. However, because all my colleagues have expressed 
their views on the constitutionality of the statute, I think it 
appropriate that I also do so in this matter of great public importance. 
Thus, I join [***47]  in the opinion of the court.

 [**1288]  I would have preferred to decide this constitutional question 
in an actual case in which the question had to be answered. Such a case 
would have been one in which, after conviction of murder in the first 
degree, the jury unanimously recommended the imposition of the death 
penalty and, on appeal, apart from the possible unconstitutionality of the 
capital punishment statute, the conviction would have been affirmed after 
consideration of all other grounds of the appeal, including the exercise 
of our special power and duty under G. L. c. 278, § 33E, to review the 
record to see that justice was done and that there was no reason for 
reducing the verdict. n1

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n1 Our consideration might also have resulted in a determination that, 
even assuming the death penalty statute were constitutional, under the 
terms of the statute ( G. L. c. 279, § 56 [c]) the sentence of death 
nevertheless should not have been imposed.
 

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The district attorney for the Suffolk district has no such [***48]  
dilemma that he needs an answer to the question. He is but one of the 
district attorneys in the Commonwealth. Others have not seen fit to 
participate in the case, although they had an opportunity to do so. 
Indeed, a trial has already been held in Norfolk County under the new 
statute. The Attorney General, the chief law enforcement officer in the 
Commonwealth, argues that we should not, by answering  [*674]  the 
constitutional question, in effect give an "advisory" opinion. n2

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n2 The Attorney General has not, however, exercised whatever authority he 
might have to control the maintenance of this proceeding by the plaintiff. 
See G. L. c. 12, § 27 ("but the attorney general, when present, shall have 
the control of such case," i.e., "cases, criminal or civil, in which the 
commonwealth is a party or interested"). See also Commonwealth v. 
Kozlowsky, 238 Mass. 379, 389-390 (1921).

The Justices of this court have a constitutional duty to give advisory 
opinions on important questions of law on solemn occasions on the request 
of the House, the Senate, the Governor, or the Executive Council. Part II, 
c. 3, art. 2, of the Constitution of the Commonwealth, as amended by art. 
85 of the Amendments. Neither branch of the Legislature asked for an 
advisory opinion from the Justices concerning the new death penalty 
statute. The judgment of each branch of the Legislature not to seek such 
an opinion suggests their preference that the death penalty statute be 
tested in a real, and not a hypothetical, proceeding.
 

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If the statute's procedures were followed and this court ultimately were 
to declare the statute unconstitutional, there would be no disruption of 
the system. The sentence of death would be vacated, and the defendant 
resentenced to life imprisonment. This is exactly what happened in 
numerous cases following the Supreme Court's decision in Furman v. 
Georgia, 408 U.S. 238 (1972). See Commonwealth v. Curry, 368 Mass. 195, 
204 (1975); Commonwealth v. Stone, 366 Mass. 506, 518 (1974), and cases 
cited.

The court's approach to these questions presents a constitutional 
confrontation between its views and those of the Legislature. I would have 
preferred not to identify such a conflict unless and until the 
circumstances of a particular case made it unavoidable. n3

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n3 Unlike the practice under the former procedure in which the penalty of 
death would be imposed unless the jury unanimously recommended against it 
( Commonwealth v. Stewart, 359 Mass. 671, 676 [1971], judgment vacated, 
408 U.S. 845 [1972]), the new capital punishment statute calls for a 
sentence of death only if all twelve jurors recommend it. G. L. c. 279 § 
55. It is a violation of the Fourteenth Amendment to the Constitution of 
the United States to exclude potential jurors "simply because they [voice] 
general objections to the death penalty or [express] conscientious or 
religious scruples against its infliction." Witherspoon v. Illinois, 391 
U.S. 510, 522 (1968). One may speculate that, if the statute were allowed 
to operate, a case involving the imposition of the death penalty might not 
reach this court for some time.
 

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 [*675]  Liacos, J. (concurring).

Mr. Justice Brennan, concurring in Furman v. Georgia, 408 U.S. 238, 257 
(1972), reviewed the four principles recognized in earlier cases and 
inherent in the prohibition against cruel and unusual punishment found in 
the Eighth Amendment to the  [**1289]  Federal Constitution. The first 
principle "is that a punishment must not be so severe as to be degrading 
to the dignity of human beings." Id. at 271. The second principle is that 
"the State must not arbitrarily inflict a severe punishment." Id. at 274. 
A "third principle inherent in the [Eighth Amendment] is that a severe 
punishment must not be unacceptable to contemporary society." Id. at 277. 
Finally, inherent in the Eighth Amendment prohibition is the principle 
that "a severe punishment must not be excessive." Id. at 279. Mr. Justice 
Brennan recognized, as do I, that these principles are interrelated and 
cumulative. "The function of these principles, after all, is simply to 
provide means by which a court can determine whether a challenged 
punishment comports with human dignity." Id. at 282.

While the language of the Eighth Amendment ("nor cruel and unusual [***51] 
 punishments inflicted") and art. 26 ("[n]o magistrate or court of law, 
shall . . . inflict cruel or unusual punishments") is not identical, our 
decisions have utilized Federal precedent in interpreting our own 
constitutional provisions. Commonwealth v. O'Neal, 369 Mass. 242, 244 n.1 
(1975) (O'Neal II) (Tauro, C.J., concurring). The discussion in O'Neal II, 
supra, the Opinions of the Justices, 372 Mass. 912 (1977), and the opinion 
of the majority in this case proceeds in essence within the framework of 
the principles summarized by Mr. Justice Brennan in Furman. n1 While I do 
not disagree with this approach, it is also likely that the Constitution 
of this Commonwealth may have a separate and distinct meaning which is to 
be interpreted  [*676]  and enforced by this court. See, e.g., 
Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979). 
Article 26, with its disjunctive phrasing, has been so interpreted by the 
Attorney General of this Commonwealth. See Note, The Death Penalty in 
Massachusetts, 8 Suffolk U.L. Rev. 632, 646 (1974). The California Supreme 
Court has similarly interpreted its constitutional provision containing 
essentially [***52]  the same language as art. 26. People v. Anderson, 6 
Cal. 3d 628, cert. denied, 406 U.S. 958 (1972). This court has not decided 
whether the phrase "cruel and unusual" and the phrase "cruel or unusual" 
have the same or a distinct meaning. But cf. O'Neal II, supra at 247 n.4 
(Tauro, C.J., concurring). The majority opinion does not reach this issue. 
While I concur in the reasoning and result of the majority, I would go 
further and state that art. 26 stands on its own footing, for reasons 
similar to those expressed in Anderson, supra. I would further hold that a 
punishment may not be inflicted if it be either "cruel" or "unusual." 
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." 
Opinions of the Justices, supra at 921.

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n1 Chief Justice Tauro also based his views in O'Neal II on due process 
considerations. Even this approach is not without precedent in the earlier 
Federal decisions. See, e.g., Louisiana ex rel. Francis v. Resweber, 329 
U.S. 459 (1947).
 

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I write to amplify my reasons for joining in the conclusion of the court 
that "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." See supra at 665.

The imposition of the death penalty is disguised by the language and 
technique of abstraction. "Indeed, no one dares speak directly of the 
ceremony. Officials and journalists who have to talk about it, as if they 
were aware of both its provocative and its shameful aspects, have made up 
a sort of ritual language, reduced to stereotyped  [**1290]  phrases. 
Hence we read at breakfast time in a corner of the newspaper that the 
condemned 'has paid his debt to society' or that he has 'atoned' or that 
'at five a.m. justice was done.'" A. Camus, Reflections on the Guillotine, 
in Resistance,  [*677]  Rebellion, and Death 132 (1960). Consistent with 
the views of Camus, of authorities cited elsewhere in this opinion, and of 
the majority, are the experiences described by Henry Arsenault, a 
convicted murderer sentenced to death in this Commonwealth. See Arsenault 
v. Commonwealth, 353 Mass. 575, rev'd 393 [***54]  U.S. 5 (1968). See also 
Commonwealth v. Devlin, 335 Mass. 555 (1957). Arsenault is presently an 
inmate at the Massachusetts Correctional Institution at Norfolk and has 
submitted a brief pro se as amicus curiae. His brief tells his story.

For over two years, Henry Arsenault "lived on death row feeling as if the 
Court's sentence were slowly being carried out." Arsenault could not stop 
thinking about death. Despite several stays, he never believed he could 
escape execution. "There was a day to day choking, tremulous fear that 
quickly became suffocating." If he slept at all, fear of death snapped him 
awake sweating. His throat was clenched so tight he often could not eat. 
His belly cramped, and he could not move his bowels. He urinated 
uncontrollably. He could not keep still. And all the while a guard watched 
him, so he would not commit suicide. The guard was there when he had his 
nightmares and there when he wet his pants. Arsenault retained neither 
privacy nor dignity. Apart from the guards he was alone much of the time 
as the day of his execution neared.

And on the day of the execution, after three sleepless weeks and five 
days' inability to eat, after a night's [***55]  pacing the cell, he heard 
the warden explain the policy of the Commonwealth -- no visitors, n2 no 
special last meal, and no medication. Arsenault asked the warden to let 
him walk to the execution on his own. The time came. He walked to the 
death chamber and turned toward the chair. Stopping him, the warden 
explained that the execution would not be for over an hour. Arsenault sat 
on the other side of the room as the witnesses filed in behind a one-way 
mirror.  [*678]  When the executioner tested the chair, the lights dimmed. 
Arsenault heard other prisoners scream. After the chaplain gave him last 
rites, Arsenault heard the door slam shut and the noise echoing, the clock 
ticking. He wet his pants. Less than half an hour before the execution, 
the Lieutenant Governor commuted his sentence. Arsenault's legs would not 
hold him up. Guards carried him back to his cell. He was trembling 
uncontrollably. A doctor sedated him. And he was moved off death row.

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n2 Only members of the prisoner's immediate family were allowed to visit 
before the execution. Arsenault had no immediate family.
 

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"That capital punishment is horrible and cruel is the reason for its 
existence." C. Darrow, A Comment on Capital Punishment, quoted in 
Attorneys for the NAACP Legal Defense and Educational Fund, A Cruel and 
Unusual Punishment, in Voices Against Death, 264, 283 (P. Mackey ed. 
1976). The raw terror and unabating stress that Henry Arsenault 
experienced was torture; torture in the guise of civilized business in an 
advanced and humane polity. This torture was not unique, but merely one 
degrading instance in a legacy of degradation. n3 The ordeals of the 
condemned are inherent and inevitable in any system that informs the 
condemned person of his sentence n4 and provides for a gap between 
sentence  [**1291]  and execution. n5 Whatever one believes  [*679]  about 
the cruelty of the death penalty itself, this violence done the prisoner's 
mind must afflict the conscience of enlightened government and give the 
civilized heart no rest. n6

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n3 Many commentators have recognized the debilitating effects of 
imprisonment under sentence of death. See, e.g., Furman v. Georgia, 408 
U.S. 238, 288-289 n.36 (1972) (Brennan, J., concurring). See also 
Commonwealth v. O'Neal, 369 Mass. 242, 249-250 (1975) (O'Neal II) (Tauro, 
C.J., concurring); People v. Anderson, 6 Cal. 3d 628, 649, cert. denied, 
406 U.S. 958 (1972). [***57] 
 


n4 I am assuming that the condemned prisoner has sufficient mental 
competence between the time of sentence and execution to understand what 
the State is doing to him.


n5 At the end of the 1960's, the average time spent on death row was 32.6 
months. H. Bedau, The Courts, the Constitution, and Capital Punishment 60 
(1977). "[H]uman reaction to the threat of death is a function of the 
duration, as well as the nature of the threat." Note, Mental Suffering 
Under Sentence of Death: A Cruel and Unusual Punishment, 57 Iowa L. Rev. 
814, 830 (1972). Lengthy delays, especially if punctuated by a series of 
last minute reprieves, intensify the prisoner's suffering. West, 
Psychiatric Reflections on the Death Penalty, in Voices Against Death 290, 
291 (P. Mackey ed. 1976). Nonetheless, one psychiatric study of a limited 
sample found that, for two to three months, the typical condemned prisoner 
felt he was going to break down; within six to eighteen months, according 
to the researchers, most inmates had adjusted somewhat to their lot. 
Gallenore & Parton, Inmate Responses to Lengthy Death Row Confinement, 129 
Am. J. of Psychiatry 167 (1972). My argument that the ordeal imposed on 
the condemned is cruel and unusual punishment does not depend on the 
existence of lengthy delays between sentence and execution. Two months -- 
or for that matter one day -- of torture offends the Constitution. As C. 
Duffy, a former warden of California's prison at San Quentin, has 
described, "One night on death row is too long, and the length of time 
spent there by [some inmates] constitutes cruelty that defies the 
imagination. It has always been a source of wonder to me that they didn't 
all go stark, raving mad." C. Duffy & A. Hirshberg, 88 Men and 2 Women 254 
(1962). [***58] 
 


n6 Cf. In re Kemmler, 136 U.S. 436, 447 (1890) ("[T]he punishment of death 
is not cruel, within the meaning of [the Eighth Amendment]. It implies 
there something inhuman and barbarous, something more than the mere 
extinguishment of life"). Most Federal precedent relating to the death 
penalty has demonstrated insensitivity to the mental anguish of the 
condemned. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 
(1947) (plurality opinion), cited with approval in Gregg v. Georgia, 428 
U.S. 153, 178 (1976) (plurality opinion): "The cruelty against which the 
Constitution protects a convicted man is cruelty inherent in the method of 
punishment, not the necessary suffering involved in any method employed to 
extinguish life humanely." But see Furman v. Georgia, 408 U.S. 238, 
288-289 (1972) (Brennan, J., concurring); cf. Trop v. Dulles, 356 U.S. 86, 
101 (1958) (Eighth Amendment protection not limited to physical 
mistreatment). For a discussion of the issue under art. 26 of our State 
Constitution, see O'Neal II, 369 Mass. 242, 249-250 (1975) (Tauro, C.J., 
concurring). See also id. at 282-283 (Braucher, J., concurring in the 
result).
 

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Death is the "king of terrors." Job 18:14. Aristotle called death "the 
most terrible of all things; for it is the end, and nothing is thought to 
be any longer either good or bad for the dead." Aristotle, Nicomachean 
Ethics, Book III, c. 6, 64 (D. Ross trans. 1969). Fear of death is natural 
n7 and  [*680]  universal in human experience. n8 It resides in our 
inability to imagine our own nonexistence. n9 We imagine the manner of 
death and the corpse n10 or, perhaps in hopes of finding consolation, we 
envision the continuing life of the soul. n11 So deep is the fear of death 
 [**1292]  and the corresponding desire for transcendence that Christian 
thought attributes death to the fall of Adam, n12 and the New Testament 
proclaims Christ's victory over death. 1 Corinthians 15:20, 26.

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n7 See, e.g., F. Bacon, Of Death, in The Oxford Anthology of English 
Literature 1437-1438 (F. Kermode & J. Hollander, gen. eds. 1973). Bacon 
goes on to say that any emotion can overwhelm the fear of death, id., but 
this shows only that the mind is not static. It is constantly in motion. 
Furthermore, the fear of death takes many covert forms. See generally E. 
Becker, The Denial of Death (1973). [***60] 
 


n8 Aristotle, Nicomachean Ethics, Book III, c. 7, 65 (D. Ross trans. 1969) 
("What is terrible is not the same for all men; but we say there are 
things terrible even beyond human strength. These, then, are terrible to 
every one . . .").


n9 I. Kant, Anthropology from a Pragmatic Point of View § 27 (1978). 


n10 
"Ay, but to die, and go we know not where;
To lie in cold obstruction and to rot;
This sensible warm motion to become
A kneaded clod; and the delighted spirit
To bathe in fiery floods, or to reside
In thrilling region of thick-ribbed ice;
To be imprison'd in the viewless winds,
And blown with restless violence round about
The pendent world . . . ."

W. Shakespeare, Measure for Measure, Act III, Scene i.


n11 Such thoughts, of course, are not invariably comforting:
"[T]he dread of something after death --
The undiscover'd country from whose bourn
No traveller returns . . . ."

W. Shakespeare, Hamlet, Act III, Scene i. See generally J. Choron, Death 
and Western Thought (1963).


n12 See, e.g., J. Milton, Paradise Lost, Book I, Lines 2-3.
 

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Psychiatrists have observed that terror of death is at the root of much 
mental disease. "The anxiety neuroses, the various phobic states, even a 
considerable number of depressive suicidal states and many schizophrenias 
amply demonstrate the ever-present fear of death which becomes woven into 
the major conflicts of the given psychopathological conditions." Zilboorg, 
Fear of Death, 12 Psychoanalytic Q. 465, 465-467 (1943), quoted in E. 
Becker, The Denial of Death 16 (1973). See also Lifton, The Sense of 
Immortality:  [*681]  On Death and the Continuity of Life, in New Meanings 
of Death 274 (H. Feifel ed. 1977). We instinctively hold to life.
"The weariest and most loathed worldly life
That age, ache, penury and imprisonment
Can lay on nature is a paradise
To what we fear of death." n13


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n13 W. Shakespeare, Measure for Measure, Act III, Scene i.
 

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The condemned must confront this primal terror directly, and in the most 
demeaning circumstances. A condemned man knows, subject to the possibility 
[***62]  of successful appeal or commutation, the time and manner of his 
death. His thoughts about death must necessarily be focused more precisely 
than other people's. He must wait for a specific death, not merely expect 
death in the abstract. n14 Apart from cases of suicide or terminal 
illness, this certainty is unique to those who are sentenced to death. The 
State puts the question of death to the condemned person, and he must 
grapple with it without the consolation that he will die naturally n15 or 
with his humanity intact. n16 A condemned person experiences an extreme 
form of debasement.

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n14 See J.P. Sartre, Being and Nothingness 685-687 (Barnes ed. 1969).


n15 For five hundred years, in various manifestations, the ideal of 
natural death has prevailed in Western society. See I. Illich, Political 
Uses of Natural Death, in The Hastings Center Report, Death Inside Out 25, 
29-42 (P. Steinfels & R. Veatch, eds. 1975). In the Eighteenth Century, 
Condorcet stated the ideal plainly. See J. Choron, supra at 135-136. The 
notion that death is natural, a part of life, even the "final stage of 
growth," underlies Dr. Elisabeth Kubler-Ross's approach to helping 
terminally ill patients adjust to approaching death. Death: The Final 
State of Growth (E. Kubler-Ross ed. 1975). E. Kubler-Ross, On Death and 
Dying 5-6 (1969). If he achieves the last stage of the psychological 
process of dying, the patient comes to accept his death as a natural event 
in his life. See E. Kubler-Ross, On Death and Dying c. 7 (1969). It seems 
unlikely that a condemned prisoner could arrive at the same attitude of 
acceptance. [***63] 
 


n16 The circumstances of a person's death profoundly affect the 
experience. Montaigne believed that the cause of a dying person's fear of 
death is the fear in the faces of those attending him. M. de Montaigne, 
Essays, I:20, 67-68 (D.M. Frame, trans. 1958). Kubler-Ross asserts that 
death is easiest to cope with in a familiar environment. E. Kubler-Ross, 
Questions and Answers on Death and Dying, c. 6 (1974). See generally P. 
Aries, Western Attitudes Toward Death: From the Middle Ages to the Present 
(1974). See also Mauksch, The Organizational Context and Dying, in Death: 
The Final State of Growth 7 (E. Kubler-Ross ed. 1975).
 

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 [*682]  A sociologist has identified the ideal characteristics of the 
modern "humane" practice of capital punishment. The treatment of the 
condemned and the execution itself can be described as "stark, impersonal, 
solemn, unemotional, privatized," n17 unlike the raucous spectacles of 
earlier times. n18 Not all  [**1293]  recent executions accomplish these 
objectives. Indeed, grotesque descriptions of electrocutions, both bungled 
and successful, n19 indicate that [***64]  the method presently used falls 
far short of its goal. Cf. Furman v. Georgia, supra at 287 (Brennan, J., 
concurring) ("[I]t appears that there is no method available that 
guarantees an immediate and painless death"). Shortcomings aside, however, 
 [*683]  the result of this attempt at "humane" execution is to go far 
toward concealing the fact and significance of the event: that a human 
being has been put to death. Thus, writers have remarked on the anomaly of 
hiding from the public a practice ostensibly designed to deter crime. n20

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n17 Lofland, The Dramaturgy of State Executions, in State Executions 
Viewed Historically and Sociologically 275, 319 (1977) (hereinafter 
Lofland). As Lofland points out, these are features of many modern ways of 
dying. See P. Aries, Western Attitudes Toward Death: From the Middle Ages 
to the Present, c. 4 (1974).


n18 See, e.g., D. Cooper, The Lesson of the Scaffold (1974); M. Foucault, 
Discipline and Punish, Part 1, c. 2 (1979). Public spectacles, complete 
with execution sermons of the clergy and speeches of the condemned, were 
the practice in early Massachusetts. E. Powers, Crime and Punishment in 
Early Massachusetts 1620-1692, 294-298 (1966). Powers also documents in 
part the movement favoring "humane" capital punishment in Massachusetts in 
the Nineteenth Century. Id. at 310-320. [***65] 
 


n19 See, e.g., Louisiana ex rel. Francis v. Resweber, supra at 480-481 n.2 
(Burton, J., dissenting); Bills to Suspend for Two Years or to Abolish the 
Death Penalty: Hearings on H.R. 8414, H.R. 8483, H.R. 9486; H.R. 3243, 
H.R. 193, H.R. 11797; and H.R. 12217 Before Subcommittee No. 3 of the 
House Committee on the Judiciary, 92d Cong., 2d Sess. 305-306 (1972); A 
Bill to Abolish the Death Penalty Under All Laws of the United States: 
Hearings on S. 1760 Before the Subcommittee on Criminal Laws and 
Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess. 
20-21 (1968) (hereinafter Senate Hearings) (testimony of Clinton T. 
Duffy); Lofland, supra at 314-315; G.R. Scott, The History of Capital 
Punishment 216-220 (1950); Comment, The Death Penalty Cases, 56 Cal. L. 
Rev. 1268, 1338-1339 (1968). But see In re Kemmler, 136 U.S. 436, 443-444, 
447 (1890) (relying on lower court finding that death by electrocution is 
instantaneous and painless).


n20 Senate Hearings, supra at 31 (testimony of James Bennett). Id. at 
40-42 (testimony of Douglas Lyons). A. Camus, Reflections on the 
Guillotine, in Resistance, Rebellion, and Death 135-142 (1960). W.C. Bok, 
Star Wormwood, quoted in Gottlieb, Capital Punishment, 15 Crime & 
Delinquency 1, 7-8 (1969).
 

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Less frequently observed is the effect of these policies upon the 
condemned. The death sentence itself is a declaration that society deems 
the prisoner a nullity, less than human and unworthy to live. But that 
negation of his personality carries through the entire period between 
sentence and execution. "[I]n Death Row, organized and controlled in grim 
caricature of a laboratory, the condemned prisoner's personality is 
subjected to incredible stress for prolonged periods of time." n21 The 
condemned person is generally isolated, allowed few visitors, limited in 
permissible activities, and kept under close guard. n22 The execution 
occurs within prison walls in a small room before witnesses whom the 
prisoner may not be able to see. The prisoner wears prison clothes. He is 
allowed to say little, if anything, and is often blindfolded. An anonymous 
executioner puts him to death at an odd hour. The mode of execution 
ideally causes little commotion to inform the witnesses that a person has 
died. And the body is not displayed. In this context, the prisoner has 
only the most meager opportunities to assert his shattered dignity, and 
few persons ever see any gesture he chooses to make.  [***67]  n23  [*684] 
 Under the circumstances it is virtually impossible to die a noble or 
courageous or self-respecting death. n24

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n21 West, Psychiatric Reflections on the Death Penalty, in Voices Against 
Death 290-291 (P. Mackey ed. 1976).


n22 See, e.g., R.A. Liston, The Edge of Madness 104 (1972); Lofland, supra 
at 320; Smith, Count Down for Death, 15 Crime & Delinquency 77 (1969).


n23 See Lofland, supra at 320-321. Mythology and history are replete with 
the instances of honorable death. Saints, martyrs, heroes, and patriots 
have met death not only with pride and courage, but even with joy. Seneca 
has stated: "Death is sometimes a punishment, sometimes a gift; to many it 
has come as a favor." Seneca, Hercules Oetaeus, quoted in Evans' 
Dictionary of Quotations 149 (1968). Whether one is a coward or 
courageous, modern methods of execution produce no martyrs or patriots. 
The romantic notions of heroic death are precluded by the realities of 
modern "humane" methods of execution.


n24 Contrast the death of Socrates, who died for an idea after 
conversation with an audience of friends and disciples, at a time of his 
choosing, and out of sight of officials other than the man who prepared 
the hemlock. See Plato, Phaedo, in Plato: The Collected Dialogues 40, 
especially 41-43 and 95-98 (E. Hamilton & H. Cairns, eds. 1961).
 

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 [**1294]  "[W]hat man experiences at such times," Camus wrote, "is beyond 
all morality . . . . Having to face an inevitable death, any man, whatever 
his convictions, is torn asunder from head to toe. The feeling of 
powerlessness and solitude of the condemned man, bound up and against the 
public coalition that demands his death, is in itself an unimaginable 
punishment . . . . [I]t would be better for the execution to be public. 
The actor in every man could then come to the aid of the terrified animal 
and help him cut a figure, even in his own eyes. But darkness and secrecy 
offer no recourse. In such a disaster, courage, strength of soul, even 
faith may be disadvantages. As a general rule, a man is undone by waiting 
for capital punishment well before he dies. Two deaths are inflicted on 
him, the first being worst than the second, whereas he killed but once. 
Compared to such torture, the penalty of retaliation seems like a 
civilized law" (footnote omitted). A. Camus, supra at 155-156. n25

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n25 See Black, The Crisis in Capital Punishment, 31 Md. L. Rev. 289, 292 
(1971): "What cannot be changed, apart from the killing itself, is the 
fear. To say the literal truth about this fear, and about its grosser 
physiological consequences, even in restrained language, is to incur the 
charge of sensationalism. This is the standard fatigued old charge which 
must always be borne by the opponents of cruelty in any form. . . . But I 
solemnly assert that those who are still in doubt owe it to their own 
consciences to think often . . . on what it does to a human being to be 
classified as a piece of trash, fit only to be disposed of, and then to be 
given a while, in close confinement but under close observation, to think 
about the impending disposition. . . . [I]f anything at all is evil, then 
I submit that the imposition of this fear, with its consequences, is in 
itself an evil of a size too big for language, an evil sternly demanding 
the clearest and most weighty justification."
 

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 [*685]  The condemned suffer a "fate of ever-increasing fear and 
distress," Trop v. Dulles, 356 U.S. 86, 102 (1958), quoted in Furman v. 
Georgia, supra at 289 (Brennan, J., concurring), which result in 
"behavioral aberrations ranging from malingering to acute psychotic 
breaks." n26 Thus, "the onset of insanity while awaiting execution of a 
death sentence is not a rare phenomenon." n27 Solesbee v. Balkcom, 339 
U.S. 9, 14 (1950) (Frankfurter, J., dissenting).

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n26 West, supra at 292. For brief case histories showing inmate reaction 
to the death sentence, see, e.g., Bluestone & McGahee, Reaction to Extreme 
Stress: Impending Death by Execution, 119 Am. J. of Psychiatry 393 (1962); 
Gottlieb, supra at 8-10.


n27 When a condemned prisoner does become insane, the psychiatrist faces 
the task of restoring him to sanity so the execution can take place. West, 
supra at 292. Gottlieb, supra at 10.
 

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The purpose of the cruel or unusual punishment prohibition is to guarantee 
a [***70]  measure of human dignity even to the wrongdoers of our society. 
The Massachusetts Constitution recognizes that there are some punishments 
so abhorrent, so offensive to evolved standards of decency, that no 
justification can support their employment. Inflicting upon a person the 
terror of death in a definite manner is such a punishment. My views would 
not change if stays on death row were made more pleasant, killing 
techniques less painful, or removal from death row more swift. This is a 
punishment antithetical to the spiritual freedom that underlies the 
democratic mind. What dignity can remain for the government that 
countenances its use?

Fyodor Dostoyevsky was sentenced to die for discussing Utopian Socialist 
ideas. Arrayed with his coprisoners, he saw three men bound to stakes and 
blindfolded before the firing squad. Just as the commanding officer was 
about to shout "Fire!" an official waved his white handkerchief to stop 
the execution and inform them that the Czar had commuted the men's 
sentences. "Standing before the firing squad he was so certain of the 
imminence of death that he felt more dead than alive at the abrupt 
proclamation of the Czar's clemency; when he finally [***71]  recovered 
his senses it was  [*686]  to find himself in irons and on his way to 
Siberia. There he . . . had to submit to treatment so inhuman that only 
glimpses of it can be  [**1295]  caught in his later work . . . ." n28 
Thus, Dostoyevsky wrote from experience when he discussed the fate of the 
condemned. In The Idiot, Prince Myshkin hears the suggestion that the 
guillotine is painless. He contends that a painless execution may be 
harder for the condemned than torture. "[T]he chief and the worst pain is 
perhaps not inflicted by wounds, but by your certain knowledge that in an 
hour, in ten minutes, in half a minute, now, this moment your soul will 
fly out of your body, and that you will be a human being no longer, and 
that that's certain -- the main thing is that it is certain. Just when you 
lay your head under the knife and you hear the swish of the knife as it 
slides down over your head -- it is just that fraction of a second that is 
the most awful of all . . . . To kill for murder is an immeasurably 
greater evil than the crime itself . . . . [H]ere all . . . last hope, 
which makes it ten times easier to die, is taken away for certain; here 
you have been sentenced [***72]  to death, and the whole terrible agony 
lies in the fact that you will most certainly not escape, and there is no 
agony greater than that. Take a soldier and put him in front of a cannon 
in battle and fire at him and he will still hope, but read the same 
soldier his death sentence for certain, and he will go mad or burst out 
crying. Who says that human nature is capable of bearing this without 
madness? Why this cruel, hideous, unnecessary, and useless mockery? . . . 
It was of agony like this and of such horror that Christ spoke. No, you 
can't treat a man like that!" n29

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n28 M. Slonim, Introduction to F. Dostoyevsky, The Brothers Karamazov at 
v, v-vi (C. Garnett trans. 1950).


n29 F. Dostoyevsky, The Idiot 47-48 (D. Magarshack trans. 1955).
 

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DISSENTBY: QUIRICO

DISSENT: Quirico, J. (dissenting).

I dissent from the holding of the court that St. 1979, c. 488, entitled 
"An Act providing for capital punishment," and that the various amendments 
to  [*687]  the General Laws enacted thereby are unconstitutional [***73]  
under art. 26 of the Declaration of Rights of the Constitution of the 
Commonwealth. Although the holding is directed to specific statutory 
enactments, I believe that it is fair to state (1) that the broad sweep of 
the language of the court leaves the Legislature without power to enact 
legislation authorizing the imposition of the death penalty for any crime, 
and (2) that this situation will prevail unless and until (a) the present 
decision is reversed by this court, or (b) our Constitution is amended to 
negative or otherwise reverse the effect of this decision by the addition 
of language which recognizes or declares that the Legislature has the 
power to enact such legislation.

Today's decision completes a cycle which this court started by its 
decision in Commonwealth v. O'Neal, 369 Mass. 242 (1975), where four 
Justices held, although not all for the same reasons, that the 
Massachusetts Constitution proscribed the death penalty for the crime of 
rape-murder. Three of those Justices expressed the view that some cases of 
murder in the first degree might constitutionally be made subject to the 
death penalty. Id. at 263-264 n.23 (Tauro, C.J., concurring). Id. at 275 
[***74]  (Hennessey, J., concurring). Id. at 277-278 (Wilkins, J., 
concurring). I joined the dissent by Justice Reardon in the O'Neal case. 
Id. at 283. On the same day the rule of the O'Neal case was applied in 
deciding Commonwealth v. Tarver, 369 Mass. 302 (1975). I dissented in that 
case. Id. at 320.

The next occasion on which the Justices of this court were called to speak 
on the subject of the constitutionality of capital punishment under our 
State Constitution was in Opinions of the Justices, 372 Mass. 912 (1977). 
Five of the Justices joined in an opinion that a bill on the subject of 
capital punishment then under consideration by the House of 
Representatives would violate art. 26 of the Declaration of Rights. 
Justice Braucher and I joined in an opinion to the contrary. Id. at 922.

 [**1296]  The grounds or bases on which the majority or plurality of the 
Justices based their decisions or opinions on the unconstitutionality  
[*688]  of the death penalty in this Commonwealth may be summarized as 
follows. In Commonwealth v. O'Neal, supra, in which all members of the 
court participated, a majority concurred in the view that because [***75]  
the Commonwealth had failed to establish that the death penalty for 
rape-murder served a compelling or substantial State interest, the 
punishment violated art. 26 of the Declaration of Rights. n1 The Opinions 
of the Justices, supra, were given in response to a question whether the 
bill then being considered would, if enacted, violate arts. 1, 10, 12 or 
26 of the Declaration of Rights of the Massachusetts Constitution. Five of 
the Justices joined in an opinion that the bill, if enacted, would violate 
art. 26, and they did not answer as to arts. 1, 10, and 12.

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n1 In Commonwealth v. Tarver, 369 Mass. 302, 319 (1975), in which five 
members of the court participated, the statement of the court on this 
subject was limited to the following: "This court has decided that the 
death penalty for rape-murder is proscribed by our State Constitution. 
Commonwealth v. O'Neal [369 Mass. 242, 243 (1975)]. Accordingly the death 
penalty imposed herein must be vacated."
 

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In the present case six of the Justices [***76]  subscribe to the 
conclusion that the death penalty violates art. 26 of the Declaration of 
Rights. Five of those Justices base their decision on two grounds: that 
the actual operation of capital punishment in Massachusetts, with its 
concomitant physical and mental torture, violates contemporary standards 
of decency; and that the discretionary powers exercised throughout the 
criminal process make the death penalty both arbitrary and discriminatory. 
n2 One of those five Justices concurs in a separate opinion which places 
greater emphasis and reliance on the ordeal of the condemned between the 
imposition and the ultimate commutation of the sentence. A sixth Justice 
concurs in a separate opinion based on the more limited ground that the 
imposition of a death sentence which experience shows will rarely, if 
ever,  [*689]  be carried out, with the ensuing long delays before the 
ultimate commutation of the sentence, is per se "cruel and unusual and 
violates art. 26 of the Declaration of Rights."

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n2 One of those five Justices joins in the opinion of the court, but 
states in a separate concurring opinion his belief that the court should 
have declined to pass on the constitutionality of capital punishment in 
the instant proceeding.
 

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In this situation, having full regard for the conclusions reached by this 
court in Commonwealth v. O'Neal, supra, I nevertheless must note that the 
decision was based on a standard of review shifting the burden of proof to 
the State which the court has chosen not to follow in today's decision. 
Similarly, and with full regard for the opinions expressed by five 
Justices of this court in Opinions of the Justices, supra, I note that 
they do not constitute a binding precedent. Therefore, I adhere to the 
views expressed (a) in the dissenting opinion by Justice Reardon, in which 
I joined in the case of Commonwealth v. O'Neal, supra at 283; (b) in my 
dissenting opinion in Commonwealth v. Tarver, supra at 320; and (c) in the 
opinions expressed by me jointly with Justice Braucher, in Opinions of the 
Justices, supra at 922. On the basis of those views which I have 
previously expressed, or in which I have previously joined, I respectfully 
disagree with the decision of this court that the current death penalty 
statute enacted by St. 1979, c. 488, and thereby incorporated into G. L. 
c. 279, §§ 52-56, is unconstitutional under art. 26 of the Declaration of 
Rights.  [***78] 

While the precise question which is before us is the constitutionality of 
a particular statute authorizing the imposition of the death penalty for 
murder in the first degree in prescribed circumstances, I believe the 
present decision constitutionally forecloses any legislative authorization 
of capital punishment for any crime in this Commonwealth. I believe that 
the court, by its decision in this case, has completely stripped the 
Legislature of the constitutional power  [**1297]  which it has heretofore 
possessed and exercised for two hundred years to determine, in its wisdom 
and discretion, when and in what circumstances the public good requires 
the imposition of the death penalty for murder in the first degree.

We have thus reached the precise position which was presaged by the 
following language in Commonwealth v. O'Neal, 369 Mass. 242 (1975): "[I]f 
the present will of the  [*690]  people of the Commonwealth is that 
capital punishment should be permitted in some or all cases of murder in 
the first degree, procedures for amendment of the State Constitution which 
are relatively speedy, but still require time for reasonable reflection, 
are available to accomplish [***79]  that end." Id. at 275 (Hennessey, J. 
[now C.J.], concurring). The same quoted language was noted in Opinions of 
the Justices, supra, with the following reply thereto: "With respect, we 
would suggest that if the present will of the people is that capital 
punishment should not be permitted in some or all cases of murder in the 
first degree, procedures for amendment of the State Constitution which are 
relatively speedy, but still require time for reasonable reflection, are 
available to accomplish that end." Id. at 923 (joint opinion of Quirico 
and Braucher, JJ.). If the Legislature's existing power to determine what 
should be this Commonwealth's policy on the subject of capital punishment 
is to be abrogated, I believe that the latter statement suggests the 
correct approach to follow.

I do not, of course, question the authority or the duty of this court to 
pass on the constitutionality of the statute in question. Paquette v. Fall 
River, 338 Mass. 368, 376 (1959). Nor do I question the propriety of 
reaching the constitutional issue as presented in this case. I do, 
however, have serious reservations about the standards which the court has 
applied and the manner [***80]  and extent to which I believe the court 
has intruded upon the province of the Legislature in arriving at its 
conclusion of unconstitutionality.

We start with the proposition that the Legislature has "full power and 
authority . . . to make, ordain, and establish, all manner of wholesome 
and reasonable orders, laws, statutes, and ordinances, . . . either with 
penalties or without, so as the same be not repugnant or contrary to this 
constitution, as they shall judge to be for the good and welfare of this 
Commonwealth, and for the government and ordering thereof, and of the 
subjects of the same . . . ." Part II, c. 1, § 1, art. 4, of the 
Massachusetts Constitution. In Commonwealth v. Jackson, 369 Mass. 904, 909 
(1976),  [*691]  this court said: "We note at the outset that the 
Legislature has great latitude to determine what conduct should be 
regarded as criminal and to prescribe penalties to vindicate the 
legitimate interests of society. . . . 'The function of the legislature is 
primary, its exercises fortified by presumptions of right and legality, 
and is not to be interfered with lightly, nor by any judicial conception 
of their wisdom or propriety.' Weems v. United  [***81]  States, 217 U.S. 
349, 379 (1910). It is thus with restraint that we exercise our power of 
review to determine whether the punishment before us exceeds the 
constitutional limitations imposed by the Eighth Amendment and by art. 26" 
(citations omitted).

In determining the constitutionality of a statute, this court ordinarily 
assumes that the Legislature has acted on the basis of facts which have a 
rational bearing on the subject matter of the legislation, and which 
support the validity of the statute. Hall-Omar Baking Co. v. Commissioner 
of Labor & Indus., 344 Mass. 695, 700 (1962). If the Legislature could 
have found any conceivable facts which would form a rational basis for its 
legislation, the court assumes that such facts were found, and it has 
never required that the Legislature expressly state that it found them, or 
state what findings it made. As to the statute now under consideration, 
the Legislature voluntarily indulged in the heretofore unnecessary and 
somewhat unusual, but not improper, practice of making and declaring 
express findings which are contained in St. 1979, c. 488, § 1.

 [**1298]  In Commonwealth v. Leis, 355 Mass. 189, 192 (1969), it was 
[***82]  argued that a statute was unconstitutional as "'irrational and 
unreasonable' because the Legislature did not thoroughly investigate the 
available scientific and medical evidence concerning marihuana when 
enacting and revising the law." This court rejected the argument, stating: 
"We know nothing that compels the Legislature to thoroughly investigate 
the available scientific and medical evidence when enacting a law. The 
test of whether an act of the Legislature is rational and reasonable is 
not whether the records of the Legislature contain a sufficient basis of 
fact to  [*692]  sustain that act. The Legislature is presumed to have 
acted rationally and reasonably. See Commonwealth v. Finnigan, 326 Mass. 
378, 379 [1950]; Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 
Mass. 414, 422 [1965]. 'Unless the act of the Legislature cannot be 
supported upon any rational basis of fact that reasonably can be conceived 
to sustain it, the court has no power to strike it down as violative of 
the Constitution.' Sperry & Hutchinson Co. v. Director of the Div. on the 
Necessaries of Life, 307 Mass. 408, 418 [1940]."

In my opinion, it cannot be said that [***83]  the statute under 
consideration "cannot be supported upon any rational basis of fact that 
reasonably can be conceived to sustain it." It should therefore follow, 
under that rule, that "the court has no power to strike it down as 
violative of the Constitution." I believe that the same result would 
follow if we were limited in our decision to a consideration of those 
facts expressly found by the Legislature.

It should surprise no one that the factual conclusions reached by the 
Legislature are not universally accepted. The Legislature's powers are not 
limited to action in areas where there is unanimity of opinion as to the 
need for action and the nature of the action required. There are few 
subjects which have been so widely debated for so long as has been the 
case with capital punishment. There are perhaps few subjects on which 
opinions are so polarized, and the basis for which is found in personal 
viewpoints without satisfactory factual proof to support them. We thus 
have a typical case for the application of the rule that "[w]here the 
reasonableness of the legislative finding or the factual basis of the 
legislative finding is fairly debatable the legislative determination must 
[***84]  be sustained. . . . [And the fact that] there may be an earnest 
conflict of serious opinion does not suffice to bring matters of 
legislative judgment within the range of judicial cognizance." 
Commonwealth v. Leis, supra at 201 (Kirk, J., concurring).

Rather than applying the traditional standard of review, the court today 
attempts to determine whether the death  [*693]  penalty is "unacceptable 
under contemporary moral standards." n3 However persuasive  [**1299]  the 
argument might be if addressed to the Legislature, the analysis is, 
essentially, a moral rather than a legal one. In thus elaborating its view 
of contemporary morality, the court proceeds with no apparent regard for 
the constitutionally distinct roles of the judiciary and the Legislature.

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n3 The opinion of the court does not reach the issue whether the death 
penalty is a deterrent to crime. In its note 2, supra, however, citing 
Opinions of the Justices, 372 Mass. 912 (1977), the court implicitly 
accepts the standard of review set forth in that opinion, placing on the 
State the burden of proving that capital punishment contributes more to 
the achievement of a legitimate State purpose, such as deterrence, than 
does life imprisonment. To the extent, if any, that the court suggests 
that the Commonwealth bears a special burden of proving the superior 
deterrence of the death penalty to the court in a judicial proceeding, I 
respectfully disagree. That is a factual issue to be decided by the 
Legislature, and in my opinion it is sufficient that there is some 
reasonable body of fact or opinion which permits a finding of such value 
by the Legislature. What matters is that there be a sufficient foundation 
for the Legislature's judgment, and if there is, that judgment is not 
reviewable by a court. It is the Legislature and not the court which must 
be satisfied or convinced about the merits of the remedy or penalty which 
the former chooses to impose for a particular offense. "Judicial inquiry 
does not concern itself with the accuracy of the legislative finding, but 
only with the question whether it so lacks any reasonable basis as to be 
arbitrary. Standard Oil Co. v. Marysville, 279 U.S. 582, 586-587 [1929]." 
Commonwealth v. Leis, 355 Mass. 189, 201 (1969) (Kirk, J., concurring). 
See also Gregg v. Georgia, 428 U.S. 153 (1976), where a plurality of the 
United States Supreme Court noted that the results of statistical attempts 
to evaluate the worth of the death penalty "simply have been 
inconclusive." Id. at 185. "The value of capital punishment as a deterrent 
of crime is a complex factual issue the resolution of which properly rests 
with the legislatures." Id. at 186.
 

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If this court is to determine the constitutionality of the death penalty 
in light of contemporary moral standards, I believe it must, at a minimum, 
award great deference to the legislative judgment implicit in the passage 
of the statute that contemporary moral standards support the punishment in 
certain circumstances. The fact that we interpret art. 26 rather than 
another provision of our Constitution should not affect the functions and 
responsibilities of the coequal  [*694]  branches of government so as to 
justify an otherwise unwarranted and improper intrusion by the judiciary 
into the legislative domain. "'Judicial inquiry does not extend to the 
expediency, wisdom or necessity of the legislative judgment for that is a 
function that rests entirely with the lawmaking department.' Slome v. 
Chief of Police of Fitchburg, 304 Mass. 187, 189 [1939]." Commonwealth v. 
Leis, supra (Kirk, J., concurring). By substituting its view of 
contemporary standards for the view implicitly expressed by the 
Legislature, the court infringes on the Legislature's prerogative to 
define crimes and establish the terms of punishment. See Commonwealth v. 
Jackson, 369 Mass. 904,  [***86]  909 (1976). Especially in an area of 
emotionally charged debate, our role should be limited to determining 
whether the Legislature's action exceeds its constitutional grant of 
power. In contrast, today's decision in effect limits the Constitution's 
grant of power to the Legislature to judge what shall be "for the good and 
welfare of this Commonwealth." I believe that we should not so alter the 
principles of judicial restraint and the constitutional requirement of 
separation of powers under art. 30 of the Declaration of Rights of the 
Constitution of the Commonwealth according to the nature of the subject 
matter of the legislation being construed.

This court's obligation "to avoid judicial legislation," Commonwealth v. 
Isenstadt, 318 Mass. 543, 548 (1945), should be particularly evident here, 
since in St. 1979, c. 488, § 1, the Legislature has articulated its 
judgment as to the deterrent and retributive value of capital punishment. 
Cf. Roberts v. Louisiana, 428 U.S. 325, 355 (1976) (White, J., dissenting) 
("[Legislative judgments as to the efficacy of capital punishment] are 
solemn judgments, reasonably based, that imposition of the death penalty 
will save the lives [***87]  of innocent persons. This concern for life 
and human values and the sincere efforts of the States to pursue them are 
matters of the greatest moment with which the judiciary should be most 
reluctant to interfere").


 [*695]  It is, of course, well established that art. 26 of the 
Declaration of Rights places a restraint upon the exercise of legislative 
power and an obligation on the court to judge the constitutionality of 
legislative determinations regarding punishment. It is also clear that 
art. 26 would bar certain punishments even if legislatively approved. See, 
e.g., Commonwealth v. Moore, 359 Mass. 509, 515 (1971). However, I am of 
the view that "for purposes of this analysis art. 26 of the Massachusetts 
Declaration of Rights imposes a standard no more restrictive than that 
expressed in the prohibition of 'cruel and unusual' punishment in the 
Eighth Amendment." Opinions of the Justices, 372 Mass. 912, 922 (1977) 
(Quirico, J., dissenting), quoting from Commonwealth v. O'Neal, supra at 
294-295 (Reardon, J., dissenting). I do not believe that the court places 
any particular reliance on the slight difference between the words making 
reference to "cruel  [***88]  or unusual" punishment in art. 26 of the 
Declaration of Rights, and the words making reference to "cruel and 
unusual" punishment  [**1300]  in the Eighth Amendment to the United 
States Constitution in interpreting art. 26 as proscribing the death 
penalty (emphasis supplied). We are, of course, free to interpret our own 
Constitution differently from the manner in which the United States 
Supreme Court interprets basically the same language in the United States 
Constitution. However, the total absence of any sound reason for the 
difference in interpretation gives cause to question the decision in this 
case. There is no historical reason to suppose that these words, first 
adopted as a part of the Massachusetts Constitution in 1780 and then 
adopted as part of the First through Tenth Amendments to the United States 
Constitution in 1790, were intended to have different meanings in 
substantially similar societal settings, both of which clearly recognized 
and sanctioned capital punishment for certain crimes. There is no other 
apparent reason why the nearly identical State and Federal constitutional 
provisions should not dictate identical results. See Commonwealth v. 
O'Neal,  [***89]   supra at 284, 293-294 (Reardon, J., dissenting), and 
cases cited. See also Storti v. Commonwealth,  [*696]  178 Mass. 549, 553 
(1901) (Holmes, C.J.) (dicta) ("[I]t is unnecessary to go into any nice 
argument upon the words of the article, and to decide whether, inasmuch as 
those words are 'cruel or unusual,' not 'cruel and unusual,' a punishment 
which is unusual but is not cruel is forbidden by them. . . . [T]he word 
'unusual' must be construed with the word 'cruel' and cannot be taken so 
broadly as to prohibit every humane improvement not previously known in 
Massachusetts"). Cf. Pugliese v. Commonwealth, 335 Mass. 471, 474-475 
(1957) (The rights under art. 12 of the Declaration of Rights of the 
Massachusetts Constitution are substantially the same as those secured 
under the Fourteenth Amendment to the Constitution of the United States).

I note that in seven separate instances the majority today relies in its 
decision on the concurring opinion of Mr. Justice Brennan in Furman v. 
Georgia, 408 U.S. 238 (1972), to the effect that the imposition and 
carrying out of the death penalty violates the Eighth Amendment to the 
United States Constitution. I [***90]  believe it is appropriate to note 
in response that, interpreting the Eighth Amendment in light of evolving 
standards of decency, seven of the Justices of the United States Supreme 
Court have concurred in the view that the death penalty does not, of 
itself and in all circumstances, constitute cruel and unusual punishment: 
"It is now settled that the death penalty is not invariably cruel and 
unusual punishment within the meaning of the Eighth Amendment; it is not 
inherently barbaric or an unacceptable mode of punishment for crime; 
neither is it always disproportionate to the crime for which it is 
imposed." Coker v. Georgia, 433 U.S. 584, 591 (1977) (plurality). See 
Gregg v. Georgia, 428 U.S. 153, 168-187, 226-227 (1976); Proffitt v. 
Florida, 428 U.S. 242, 247, 260-261 (1976); Jurek v. Texas, 428 U.S. 262, 
268, 277-279 (1976); Woodson v. North Carolina, 428 U.S. 280, 285, 306-324 
(1976); Roberts v. Louisiana, 428 U.S. 325, 331, 350-356, 363 (1976).

Moreover, in following the evolving standards approach, the Supreme Court 
explicitly rejected the argument that  [*697]  "the evolutionary process 
had come to an end, and that standards of [***91]  decency required that 
the Eighth Amendment be construed finally as prohibiting capital 
punishment for any crime regardless of its depravity and impact on 
society." Instead the Court concluded that "it is now evident that a large 
proportion of American society continues to regard [capital punishment] as 
an appropriate and necessary criminal sanction." Gregg v. Georgia, 428 
U.S. 153, 179 (1976) (plurality). n4 See  [**1301]  J. H. Ely, Democracy 
and Distrust: A Theory of Judicial Review 65 (1980): "In their separate 
concurring opinions in Furman v. Georgia (1972), Justices Brennan and 
Marshall argued quite directly that the death penalty was unconstitutional 
because it was out of accord with contemporary community values. The risk 
in such a claim is obvious, and in this case it was tragically realized. 
Following Furman there was a virtual stampede of state reenactments of the 
death penalty, and the clarity of that community reaction surely had much 
to do with the Court's turnaround on the issue" (footnotes omitted). n5

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n4 The Court found that the legislative response to Furman v. Georgia, 
supra, was the most marked indication of society's endorsement of the 
death penalty, noting that after Furman at least thirty-five Legislatures 
enacted new statutes that provided for the death penalty. Also, the 
Congress of the United States enacted a statute providing for the death 
penalty for aircraft piracy that results in death. Gregg v. Georgia, 428 
U.S. 153, 179-180 (1976). [***92] 
 


n5 For a persuasive analysis of the problems inherent in a constitutional 
jurisprudence which seeks to measure the merits of policy judgments 
against a perceived set of "fundamental" values, see Ely at 43-72.
 

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Thus, in its Eighth Amendment analysis the Supreme Court recognizes that 
"Eighth Amendment judgments should not be, or appear to be, merely the 
subjective views of individual Justices; judgment should be informed by 
objective factors to the maximum possible extent." Coker v. Georgia, 433 
U.S. 584, 592 (1977) (plurality). n6 Indeed,  [*698]  while recognizing 
that the "cruel and unusual" clause of the Eighth Amendment was intended 
to safeguard individuals from the abuse of legislative power, the Court 
has noted "the limited role to be played by the courts" in addressing an 
Eighth Amendment claim: "[I]n assessing a punishment selected by a 
democratically elected legislature against the constitutional measure, we 
presume its validity. We may not require the legislature to select the 
least severe penalty possible so long as the penalty selected is not 
cruelly inhumane or disproportionate [***93]  to the crime involved. And a 
heavy burden rests on those who would attack the judgment of the 
representatives of the people. This is true in part because the 
constitutional test is intertwined with an assessment of contemporary 
standards and the legislative judgment weighs heavily in ascertaining such 
standards." Gregg v. Georgia, supra at 175 (plurality) (upholding the 
constitutionality of Georgia's statutory scheme for imposing death 
penalty).

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n6 In determining the constitutionality of a particular statute, the Court 
stated that it should give attention to public attitudes concerning a 
particular sentence -- history and precedent, legislative attitudes, and 
the response of juries reflected in their sentencing attitudes. Id.
 

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Furthermore, a review of the various decisions of the United States 
Supreme Court on the constitutionality of the death penalty under the 
Eighth Amendment demonstrates clearly that a majority of the Justices 
emphasize the necessity for judicial restraint and deference to 
legislative [***94]  judgments regarding capital punishment when analyzing 
a particular statute in light of evolving standards of decency. See Gregg 
v. Georgia, supra at 174-187 (plurality opinion by Stewart, J., with 
Powell and Stevens, JJ.); Roberts v. Louisiana, supra at 350-356 (White, 
J., dissenting); Furman v. Georgia, 408 U.S. 238, 383-384 (1972) (Burger, 
C.J., dissenting); id. at 410-411 (Blackmun, J., dissenting); id. at 
428-433, 451-456 (Powell, J., dissenting). Cf. Furman v. Georgia, supra at 
465-470 (Rehnquist, J., dissenting). As Mr. Chief Justice Burger stated in 
his dissent to Furman v. Georgia, supra at 383, "in a democratic society 
legislatures, not courts, are constituted to respond to the will and 
consequently the moral values of the people."

In part two of its decision the court properly suggests that c. 488 would 
meet Federal constitutional requirements.  [*699]  Nevertheless, the court 
concludes that c. 488 -- or any other statute providing for capital 
punishment -- is unconstitutional under the Massachusetts  [**1302]  
Constitution. Part two of the decision holds the death penalty to be 
unconstitutional because it is arbitrarily [***95]  inflicted, and because 
it falls discriminatorily upon minorities. To support this holding, the 
court takes judicial notice of the existence of racial prejudice in some 
persons in this Commonwealth. Even recognizing the existence of such 
prejudice, however, I am not prepared to accept a statistical showing from 
Florida, Georgia, Texas and Ohio as evidence of the extent of such 
discrimination in Massachusetts. There are no comparable statistics or 
other evidence before the court which suggests that the death penalty has 
been discriminatorily imposed in this Commonwealth. In the absence of such 
a record, I do not concede that sentencing under c. 488 would inevitably 
be arbitrary and discriminatory. To the extent that the court bases its 
opinion in part two on statistics from four other jurisdictions and an 
assumption about prejudice in Massachusetts, I believe that the court 
ignores traditional standards of review, and particularly review under 
G.L. c. 278, § 33E, much as it did in part one by its purported 
determination of contemporary moral standards. n7

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n7 General Laws c. 278, § 33E, as amended through St. 1979, c. 346, § 2, 
states in relevant part: "In a capital case as hereinafter defined the 
entry in the supreme judicial court shall transfer to that court the whole 
case for its consideration of the law and the evidence. Upon such 
consideration the court may, if satisfied that the verdict was against the 
law or the weight of the evidence, or because of newly discovered 
evidence, or for any other reason that justice may require (a) order a new 
trial or (b) direct the entry of a verdict of a lesser degree of guilt, 
and remand the case to the superior court for the imposition of sentence."
 

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I note that for the first time to my knowledge this court, or some of the 
Justices of this court, are holding that the death penalty is "cruel or 
unusual" based in whole or in part on the fact that the imposition of the 
penalty is almost always followed by a long period of mental suffering by 
the convicted felon who is under the sentence of death, only to have the 
sentence commuted after many years of appellate  [*700]  procedures. I 
find it difficult to understand or appreciate how it is constitutionally 
cruel or unusual punishment to permit a person who has been sentenced to 
death to pursue appellate procedures almost ad infinitum when, as stated 
by the Justices taking that position, the procedures always end in a 
commutation of the death sentence. To the extent that a defendant resorts 
to those endless appellate procedures, he should not be heard to complain 
about the prolongation of his period of anxiety and agony over his 
possible execution. To the extent that the delays are due to the actions 
of intermeddlers, the court is not without power to deal with them. As to 
ultimate commutations by executive officers, the courts are not 
responsible for such action. In any [***97]  event, if this is to be a 
ground for the holding, I question the fairness of buttressing that 
holding by quotations from the unverified "brief" submitted by Henry 
Arsenault. If his description of his ordeal while under sentence of death 
is accurate, it would be appropriate for submission to the Legislature for 
its consideration of the "expediency, wisdom or necessity" for capital 
punishment, but that is not what we are asked to decide in this case. If 
that description were before the Legislature, it would be open to and 
appropriate for the Legislature to consider also the description by this 
court in Commonwealth v. Devlin (and Arsenault), 335 Mass. 555, 559-563 
(1957), of the deliberate planning, preparation which included the 
purchase of firearms, and execution by Arsenault and his codefendants of 
the invasion of a house while the occupants were present, the attempted 
commission of a robbery while armed, the resulting terrorization of the 
occupants, and the cruel and senseless murder of one of them. The place to 
present all of that information is before the Legislature for its 
consideration of the policy to be adopted on the subject of capital 
punishment, and not before [***98]  this court. I believe that this is an 
appropriate occasion to recall that "legislatures are ultimate guardians 
of the liberties and welfare of the people in quite as great a degree as 
the courts." Maher v. Roe, 432 U.S. 464, 479-480  [*701]   [**1303]  
(1977), quoting from Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270 
(1904) (Holmes, J.).

In summary, the issue before the Justices of this court, as I see it, is 
not whether any Justice favors or opposes capital punishment as a matter 
of Commonwealth policy. Nor is the issue whether any Justice would favor 
or oppose capital punishment if he were called to vote thereon as a member 
of the general public or as a member of the Legislature. Rather, the issue 
before us, as I see it, is whether the Legislature has the power, under 
the Constitution of the Commonwealth, to enact a statute mandating capital 
punishment for certain types of murder in the first degree, and more 
specifically whether it has the power to enact St. 1979, c. 488, the 
statute under consideration, which authorizes the imposition of the death 
penalty for murder in the first degree committed in particular, specified 
circumstances. A vote on the [***99]  subject of capital punishment by a 
member of the general public or by a member of the Legislature requires a 
consideration of broad questions of public policy. A vote on the same 
subject as it comes before the court in this case involves consideration 
of the much more limited constitutional question of the power of the 
Legislature to determine what the public policy of the Commonwealth should 
be on this subject. I conclude that the Legislature has the power to make 
that decision under the provisions of the Constitution of this 
Commonwealth, and I reach that conclusion without regard to any personal 
views which I may have on the "expediency, wisdom or necessity" of capital 
punishment.