371 Mass. 902

November 16, 1976

Constitutional Law, Opinions of the Justices. Supreme Judicial Court, Opinions of the Justices.

The Justices declined to answer a question as to the constitutionality of proposed legislation to provide for capital punishment where, by reason of the prorogation of the 1976 legislative session, no solemn occasion existed requiring and empowering them to render their opinions. [903-904]

On November 16, 1976, the Justices submitted the following reply to a question propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this response to the question set forth in an order adopted by the House on August 24, 1976, and transmitted to us on August 27, 1976. The order recites the pendency before the General Court of a bill, House No. 5272, a copy of which was transmitted to us with the order. The bill is entitled, "An Act to provide for capital punishment." It provides, in substance, for the imposition of the death penalty for certain enumerated classes of murder in the first degree and prescribes the procedure to be followed in determining whether the death penalty will be imposed. The order further recites that the Supreme Court of the United States has held that capital punishment does not violate the Eighth Amendment to the Constitution of the United States if the death penalty is determined by a

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pre-sentence hearing like that set forth in the bill; [Note 1] that this court may find art. 26 of the Declaration of Rights of the Massachusetts Constitution more restrictive than the Eighth Amendment in light of Commonwealth v. O'Neal, 369 Mass. 242 (1975); that the O'Neal decision involved only the issue of punishment for rape-murder, but the language in the decision could be construed to apply to other classes of murder; and that grave doubt exists as to the constitutionality of the bill if enacted into law.

The question is:

"Would the enactment of said House, No. 5272 which provides for capital punishment for `whoever is guilty of murder in the first degree, unless the jury -- or the court' after a presentence hearing recommends that the sentence of death not be imposed be an unconstitutional violation of Article 1, 10, 12 or Article 26 of the Massachusetts Declaration of Rights:

"(a) as to rape murder;

"(b) as to other murders enumerated in subsection (a) of section fifty-four of chapter two hundred and seventy-nine of the General Laws, which would be inserted by said House, No. 5272?"

On receipt of the order requesting our opinions, we invited interested persons to file briefs on or before September 30, 1976. At the request of a State official who expressed an interest in filing a brief, we extended the time for filing briefs to October 14, 1976. [Note 2] On October 16, 1976, the Governor prorogued the 1976 session of the General Court. Consequently, House No. 5272 is no longer

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pending in the General Court. Therefore, no solemn occasion exists requiring and empowering us to render our opinions. Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Articles of Amendment. Answer of the Justices, 360 Mass. 903 (1971). Answer of the Justices, 358 Mass. 833 (1970). Answer of the Justices, 290 Mass. 601 (1935). Accordingly, we must respectfully decline to answer the question set forth in the order.

We address this communication to the present Honorable House of Representatives if it convenes again and, if not, then to the Honorable House of Representatives whose members were elected in November, 1976, and whose terms of office will commence on the first Wednesday of January, 1977.









[Note 1] Undoubtedly, the reference is to the opinions released by the Supreme Court of the United States on July 2, 1976, in Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262 (1976) (96 S. Ct. 2950 [1976]); Proffitt v. Florida, 428 U.S. 242 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).

[Note 2] Briefs were filed by the district attorney for Hampden and Berkshire counties, Boston Bar Association, Prisoners' Rights Project, and Civil Liberties Union of Massachusetts.