Massachusetts constitution

Article 26 of the Massachusetts Constitution Declaration of Rights as amended in 1982 by Article 116 of the Amendments to the Massachusetts Constitution addresses cruel or unusual punishment and capital punishment:

“No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.  No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death.”

Massachusetts laws

MGL c.265, § 2 no longer provides for capital punishment (St. 2014, c. 189)

Selected Massachusetts cases

Com. v. Colon-Cruz, 393 Mass. 150 (1984)
Held that a prior version of MGL c.265, § 2 was unconstitutional because it unfairly punished defendants who choose to go to trial, since the death penalty could only be used after a guilty verdict at trial and not after a guilty plea. "If a judge may not penalize a defendant for asserting his right to trial or his right not to plead guilty by imposing a harsher sentence than he otherwise would have, neither may the Legislature."

Suffolk County District Attorney v. Watson , 381 Mass. 648 (1980)
Held that a prior version of MGL c.265, § 2, was unconstitutional.  The case is worth a read for the careful analysis of the issue, with references to literature, history, philosophy and more.

Selected Federal cases

Baze v. Rees, 553 US 35 (2008)
Supreme Court held that a three-drug execution protocol (sodium thiopental, followed by pancuronium bromide and potassium chloride) does not constitute cruel and unusual punishment.

Bucklew v. Precythe, ___ U.S. ___ (2019)
Supreme Court affirmed the Baze-Glossip test to find that that an execution protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” It held that a single-drug execution protocol (pentobarbital) does not constitute cruel and unusual punishment.  

Glossip v. Gross, 576 U.S. 863 (2015)
Supreme Court held that a three-drug execution protocol using midazolam instead of sodium thiopental for the first-administered drug does not constitute cruel and unusual punishment.

Web sources

Death Penalty Information Center 
Web site devoted to information on the death penalty nationwide.

Governor's Council on Capital Punishment: Final Report, Governor's Office, May 3, 2004
Recommendations to former Gov. Romney "to ensure that any death penalty statute that may be considered in Massachusetts would be as narrow, and as foolproof, as possible."

Print sources

Death penalty in a nutshell, 5th ed., by Victor Streib. West Academic Pub., 2017. 

Murder and the death penalty in Massachusetts, by Alan Rogers. University of Massachusetts Press, 2008.

Understanding capital punishment law, 3rd ed., by Linda E. Carter.  LexisNexis, 2012. 



Within Massachusetts only

Within Massachusetts only


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Last updated: August 18, 2021