Chapter 278, section 33E of the Massachusetts General Laws guarantees every first-degree murder defendant direct review in the Supreme Judicial Court (SJC), skipping the intermediate Massachusetts Appeals Court. It also grants a more lenient standard of review.
This article argues that this serves no justifiable purpose; rather, it routinely dumps meritless, automatic appeals onto the docket of the high court.
Section 33E is a relic of the death-penalty era, originally enacted in 1939 to provide special, plenary appeal in “capital cases,” but Massachusetts ceased to be a death-penalty state forty years ago.
In 1962, however, the Massachusetts legislature added a crucial clause defining “a capital case” as “a case in which the defendant was tried on an indictment for murder in the first degree . . . .” By virtue of this legislative malapropism, section 33E survived the death penalty and has persisted as a statute orphaned by judicial and legislative history. Now first-degree murder defendants are guaranteed special review regardless of the punishment they face, and they take up a huge share of the SJC’s docket: over a third of its criminal appeals and almost twenty percent of all full opinions issued.
This article is the first to address comprehensively the unique treatment of murder appeals in Massachusetts. It blends original research into legislative and judicial history as well as contemporary statisti was never the case. Massachusetts actually enacted section 33E to make the death penalty more effective. Furthermore, the statute always addressed the punishment of death, not the crime of homicide. The 1962 definition clause changed this and guaranteed first-degree murderers, for no reason inherent in the crime, an expedited and more lenient appeal. This article argues that Massachusetts should eliminate the definition clause consistent with the statute’s original intent. This will preserve the Supreme Judicial Court’s primary purpose, as stated by Justice Henry Lummus, to “superintend the growth of the law.”