A history of death

By Sean Smith
Staff Writer

Capital punishment has come and gone in Massachusetts, and may come again, but according to Assoc. Prof. Alan Rogers (History), many of the controversial issues surrounding the death penalty in earlier eras are centerpieces of today's debate.

Rogers' ongoing study of murder and the death penalty in Massachusetts - drawn from newspapers, trial transcripts and lawyers' briefs and other documents - examines events and trends from the colonial period to the mid-1970s. He has published recent articles in The American Journal of Legal History and Proceedings of the Massachusetts Historical Society and plans to compile his material into a book over the coming year.

As Massachusetts - which has not executed a criminal since 1947 - once again ponders whether to reinstate the death penalty 20 years after it was struck down by the Supreme Judicial Court, Rogers agrees that his project is timely. But there were other very good reasons to concentrate the study on Massachusetts, he says.

"Along with its prominent role in American history, the state has a progressive reputation, an elite who pride themselves on intellect, reason, education and sophistication," he said. "There is a legacy of reform in Massachusetts, so it provides a good test in this examination of capital punishment's history. At the same time, you have a tension between the reformers and Yankee elite and other viewpoints which advocate the desire to punish severely.

"Murder and capital punishment in Massachusetts, therefore, constitutes a large puzzle," Rogers said. "What I'm trying to do is take up several pieces of the puzzle and work through larger themes."

For example, Rogers found that marital violence is hardly unique to modern day Massachusetts: One-third of all murder indictments in the early 20th century involved spouses.

"Then, as now," Rogers said, "men on trial for murdering their wives were far less likely to be found guilty of murder, or if found guilty were less likely to be executed, than those on trial for murdering another man. I try not to make a layman's judgment, but sometimes it's inevitable you come to a conclusion: It would seem that for a long time, men's streak of violence towards women was not taken seriously."

Another area of controversy involves court-appointed attorneys, Rogers said. Until 1891, capital crimes were tried before the Supreme Judicial Court, which meant that lawyers appointed to defend accused murderers "were usually the cream of the crop, since only a relative few would ever get to the level of the SJC." But then district courts were given jurisdiction, meaning that the pool of available lawyers was of a lesser quality - and, arguably, so was the representation they provided.

Rogers also examined the insanity defense. While a minuscule number of those accused actually make an insanity plea - about 1 percent in 19th century cases, he says, and the figure is not likely to have changed much - these cases often create unusually intense publicity and spark an equally strong outcry.

"We hear the same comments today as we heard in the 19th century," Rogers said. "The insanity plea is regarded as a smart lawyer's trick to deter us from exacting punishment. Psychiatry is more sophisticated now than it was then, but is still viewed with a jaundiced eye by many."

Massachusetts was among the first to have murder defendants pleading insanity be assessed by psychiatrists before coming to trial, Rogers said. While the defense was permitted to call upon their own psychiatric experts to question the findings, he said, this change meant that determining a defendant's mental state would no longer be a sole function of the legal system.

To illustrate the burden juries often face in weighing guilt and possible insanity, Rogers cites an 1854 case in which a defendant long considered eccentric was found not guilty by reason of insanity, although she had argued lucidly that she was both sane and innocent of the accusation against her.

"If she was able to speak and act like this," Rogers said, "then she must be rational, and should therefore receive the full punishment if she was guilty. But what about her previous behavior? What weighs more? My interpretation is, they wanted to go easy on her. Their old sympathy for her, as an eccentric yet generally harmless person, was such that institutionalization was better than the possibility of execution. A jury ultimately brings its own common sense and sympathies to bear, outside of the information it receives.

"There has been a lot of work on the subject [of the death penalty] by philosophers, ethicists and theologians," said Rogers. "No one has really looked at the historical basis and ramifications of the death penalty. What I want to do is establish an empirical base for a rational examination of capital punishment."

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