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)
Capital punishment is ruled unconstitutional on the grounds that it is not applied fairly, since only defendants who went to trial were eligible, excluding defendants who plead guilty. This ruling applies to punishment in state, not federal, courts.

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. In their opinions, the Justices quote Francis Bacon, Aristotle, Dostoevsky, Kant, Shakespeare, Milton, Sartre, and Camus.

Federal constitution

United States Constitution, Eighth Amendment
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Federal laws

Federal Death Penalty Act, 18 U.S.C. § § 3591-3599:
The Act sets out how the federal courts make formal judgments, review cases, and impose death sentences.

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.

United States v. Tsarnaev, __ U.S. ___  (2022)
Supreme Court held that the District Court properly limited the admission of mitigating evidence under § 3593 (c) of the Federal Death Penalty Act because the evidence lacked probative value and would confuse the jury. The District Court was correct in limiting the evidence about the involvement of Dzhokhar Tsarnaev’s brother, Tamerlan Tsarnaev, in 2011 murders in Waltham.

Web sources

Capital punishment, 2020 – Statistical tables, Bureau of Justice Statistics, 2021.
Report presenting statistics on persons who were under sentence of death in 2020, state and federal death penalty laws in 2020, and historical trends in executions. The report includes a list of which methods of execution are authorized in each jurisdiction.

Death penalty doctrine and practice, Congressional Research Service’s U.S. Constitution Annotated, available from Cornell Law School’s Legal Information Institute, updated to the currently published version.
Information about early doctrine, important federal cases, and various limitations on imposition of the death penalty.

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, 4th ed., by Linda E. Carter. Carolina Academic Press, 2018.

Contact

Online

Law library locations and phone numbers Library locations 
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Reference librarians via email masslawlib@gmail.com
Last updated: April 1, 2022
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