Worcester Telegram & Gazette
 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