Senate to Hear Contested Death Penalty Legislation

Although a Massachusetts legislative committee gave the death penalty bill an unfavorable recommendation last month, the state Senate will debate the controversial measure later this month, lawmakers said yesterday.

For the first time in many years, the Criminal Justice Committee gave the bill an unfavorable reccomendation by a vote of nine to eight.

Similar capital punishment proposals have fared better in the state legislature in past years. But when the bill passed through the House and Senate nearly two years ago, it was vetoed by Gov. Michael S. Dukakis.

The sponsor of the death penalty bill proposedthis year, Sen. Arthur J. Lewis Jr. (D-Boston),attributed the bill's adverse report to thechanging political nature of the committeemembers.

"The make-up of the Criminal Justice Committeehas changed--there has been an increasing numberof liberals," Lewis said. "There is one newsenator and a number of new House representativeswho have decided to vote against it."

The legislation proposed by Lewis seeks tochange a loophole in a past capital punishment lawthat was found unconstitutional by the state'sSupreme Judicial Court. Since that 1984 decision,the state has not had a death penalty, andattempts to institute a new death penalty havebeen felled by Dukakis vetos.

Under the unconstitutional statute, after ajury found a defendent guilty, it had to sit for aseparate hearing on the issue of whether a deathsentence should be imposed.

But since a defendant who pleads guiltyautomatically waives a jury trial, no pre-sentencehearing is held, and the death penalty cannot beimposed, Lewis said. Therefore, a person whopleads guilty to first-degree murder avoids therisk of being sentenced to death, while one whopleads not gulity and has a jury trial may get adeath sentence.

To remedy this problem, the proposed bill wouldrequire that a jury sit at a presentence hearingwhether or not there is a jury trial.

"The governor's position [on the bill] is tooppose it under any and all circumstances," saidRep. Michael F. Flaherty (D-S. Boston), who is oneof the bill's sponsors. "The governor under noconditions would ever support it."

Flaherty said he doesn't expect that the billhas enough supporters to override a gubernatorialveto.

Lawmakers said they expected a lively debateover the bill in the legislature this year.

"The unfavorable recommendation given by thecommittee this year shows that this was not justthe usual rubber stamp approval," Flaherty said.

Instead, this will get the bill "off on a newstart, and add some sparkle to the debate," headded.

The bill is expected to be debated in theSenate early in the month. Since it was given anunfavorable recommendation by the committee, theproposed bill will only reach the House if it isfirst passed by the Senate