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Editorial Advisory Board: Maryland’s death penalty belongs in the past

Maryland does and does not have capital punishment.

It’s on the books, and our Death Row hosts five murderers to prove it. But no one has been executed here since 2005, when a chemical cocktail made its way through Wesley Eugene Baker’s veins and sent him to Kingdom Come for brutally murdering a 49-year-old teacher’s aide in front of her grandchildren during a robbery. Baker was killer No. 5 to be executed in Maryland since 1976, the year the Supreme Court ushered in capital punishment’s modern era. As things stand now, legally and procedurally, it’s doubtful that anyone will become No. 6, but prosecutors will continue to pursue death cases; maybe down the road, some will succeed.

For varying reasons, a substantial majority of the Editorial Advisory Board believes, as it has for years, that capital punishment should be formally abolished.

The most compelling reason, one that has been expressed in this space before and by commissions that have studied capital punishment, is the soul-chilling possibility that the State might kill an innocent person. Our system of justice is far from perfect, and its flaws have led to wrongs, something that cannot be tolerated when a life is at stake. People on this country’s death rows — including here in Maryland — have eventually been cleared of crimes for which they had been convicted.

There is no claim that an innocent person has been put to death in our state, and thanks to DNA testing and the increasingly stringent requirements added to Maryland law before someone can be executed, it is unlikely that there will be. But that slimmest of possibilities convinces most of us that execution should never be a sentencing option.

Some members of this Board find the death penalty repugnant on moral or religious grounds, no matter who the killers are or what they have done. Others on this Board would reserve capital punishment only for the most vile killer whose crime cries out for death and whose State-sanctioned demise they see as true justice, bringing a measure of comfort and peace to the public at large. The most extreme examples of this model would include Oklahoma City bomber Timothy McVeigh, and Adolph Eichmann and his cohorts who were executed after the Nuremberg trials. Those trials cost a lot of money, but these members of the Board doubt whether any of the victims’ families or society thought the funds not well spent.

The members of the Board who would preserve the death penalty as it currently exists point out that discretion to seek capital punishment is in the hands of our State’s Attorneys, where its potential imposition can be used to obtain a plea bargain including the very punishment of life imprisonment that the Board majority supports. The death penalty requires not only a finding of guilt but also a unanimous separate jury finding in a separate penalty phase at trial where further protections are accorded the person found guilty to insure that only the most egregious crimes are punished by death.

Still other Board members abhor not capital punishment itself but the process, because the road from sentence to death is so long and costly that it has become a high-profile caricature of our grotesquely cumbersome legal system, with the public and the families of the killers’ victims paying the price. Even those who favor the death penalty recognize the need for justice to be sure, and that requires time and care.

Some accuse capital punishment opponents of creating roadblocks to make death an impossible option and then turning around and claiming that it should be abolished because of the expense and delays caused by those very same roadblocks. Nevertheless, the majority of our Board has no illusion that the procedures will ever be significantly streamlined. In fact, ambiguous amendments to Maryland’s death law just two years ago will likely lead to even more expensive litigation with wrangling over the law promising to last decades into the future.

In 2009, the American Law Institute withdrew Section 210.6 of the Model Penal Code, which was the template for most modern death penalty sentencing statutes. Although the ALI took no formal stand for or against capital punishment per se, it said it withdrew Section 210.6 “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” The debate among the ALI’s members was spirited, and the reasons that a majority of the ALI’s members supported the action varied greatly.

The debate among the members of this Board has been no less spirited. Our individual views vary greatly, too. Some members are opposed to capital punishment no matter what the circumstances may be. Some members not only are satisfied with the current system but even might support broadening the death penalty were it constitutionally permissible. Many of us are somewhere in the middle.

The death penalty is one of the most important issues facing Maryland today. The General Assembly has just concluded its session. We encourage the General Assembly during its break, and the legal community at large, to do what the ALI did and we as a Board have done. That is, to take a hard look at capital punishment as it exists and decide whether it is worth maintaining.

We shed no tears for ruthless murderers. They should suffer Eighth Amendment-compliant misery as long as they breathe. But either for fear of killing the innocent or to eliminate wasteful legal process, a substantial majority of this Board calls for banning death coldly administered by the State.