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Massachusetts governor asks for "a new kind of death penalty'

Gov. Mitt Romney of Massachusetts does not just want a death penalty for his state. He wants an airtight, scientifically unassailable death penalty.

Confident in the march of forensic science, Romney appointed a council last month to write a law that would restore capital punishment to his state _ one of 12 that have abandoned it _ while requiring physical evidence of guilt that would meet "the highest evidentiary standard" before a death sentence could be imposed.

"This," he said in appointing his council, "is a new kind of death penalty."

That rule, in a law that would also limit capital punishment to the most egregious kinds of homicide, is intended to guarantee that Massachusetts never puts the wrong person to death. Romney, a Republican, is looking to the broad middle stripe of public opinion, the majority who would accept the death penalty if it could be purged of unfairness and uncertainty.

"Ten or 15 years ago, to be against the death penalty was to be politically marginal," said Austin Sarat, a professor of political science and law at Amherst College. "No longer. One can stand for the death penalty and say, "I'm just against executing the innocent.' That's a simple and appealing proposition, and it's one Romney has come to."

Opponents of the death penalty say that even the most finely drawn legislation cannot ensure that the penalty is administered fairly.

"There's an arbitrary quality that nobody's been able to uproot and eliminate," said Richard C. Dieter, the director of the Death Penalty Information Center in Washington. "Questions like whether you killed a black person or a white person, whether the police turned over all the evidence _ that's what determines whether you get the death penalty."

A requirement of incontrovertible physical evidence in itself creates distinctions that may be troubling. James S. Liebman, a Columbia University law professor, gives this example: "You might get a run-of-the-mill 7-Eleven robbery where somebody left his fingerprints on the cash register. Then you've got another case where it's a heinous torture-murder thing but the evidence could be a little unclear."

Under the system that Romney envisions, the first would be eligible for a death sentence and the second would not. "That's not what you want to do," Liebman said.