Tuesday, May 4, 2004 Wrong questions Ethics of death penalty beyond panel's mandate A commission formed last fall to study capital punishment has responded thoughtfully to Gov. Mitt Romney's call for a "foolproof" death penalty law. Problem is, the exercise leaves unanswered the fundamental ethical objections to state-sanctioned killings. Massachusetts has not executed anyone since 1947. The state officially abolished capital pun-ishment in 1984. Since that time there have been periodic campaigns to reinstate the death penalty, including three failed attempts since 1997. The commission's report, unveiled yesterday, recommends that the legal standard of guilty "beyond a reasonable doubt" be tightened to a finding of "no doubt" in death-penalty cases. It would require that jury convictions be corroborated by forensic science, especially DNA evidence. It would confine capital pun-ishment to a few "worst of the worst" offenses, including murder of law enforcement officials, terrorism, torture killings and murder of witnesses to obstruct justice. It would mandate better lawyers for defendants. It would establish new layers of oversight to review district attorneys' decisions concerning capital prosecutions. It would create a system of separate juries in capital cases -- one to determine guilt, one to pass sentence. Although the layered complexity of the system the commission recommends is meant to reassure, it also underscores the extreme difficulty, if not impossibility, of the task it was assigned. Attaining a level of certainty beyond all doubt smacks of wishful thinking. DNA matching and other scientific techniques are powerful criminal justice tools, but as long as there is a human element in the system, there exists the possibility of error, mishandling of evidence or tampering. Juries are unpredictable and defense attorneys have varying skills. Mandatory review of capital prosecutions may make implementation of the death penalty less arbitrary, but such oversight would not guarantee a truly evenhanded, mistake-free system. Capital punishment advocates say that executing criminals deters crime. However, they have been unable to demonstrate a deterrent effect, even after decades of trying. Limiting the death-penalty to the "worst of the worst" offenses may make it palatable to some people. However, moral distinctions between the murder of, say, a police officer and a store clerk are artificial at best. Death-penalty advocates assertthat society has a right to protect itself from wanton killers. It already does just that when perpetrators of heinous crimes are imprisoned for life without parole. Society has no need to kill in order to protect itself from killers.