ANNAPOLIS — A condemned killer’s lawyer urged Maryland’s top court Thursday to strike down his death sentence based on a never-before addressed provision of the state constitution, which he said limits capital punishment to acts of treason against the state government.
Pressing the appeal of Jody Lee Miles, attorney Brian Saccenti told the Court of Appeals that the Constitution’s “Sanguinary Laws” clause permits executions only when “necessary” for the state government’s safety.
The provision, never cited in a Court of Appeals opinion, is in Article 16 of the Declaration of Rights, which is analogous to the federal Constitution’s Bill of Rights. The article was added to the Maryland Constitution in 1776, a time when “sanguinary” referred to the death penalty and “the state” referred to state government, said Saccenti, an assistant Maryland public defender.
But an attorney for the state countered that Article 16 imposes no such limit on the death penalty. Capital punishment was carried out in the years immediately following the 1776 ratification for crimes other than treason and remains a valid punishment for aggravated murder of the type Miles committed, said Assistant Maryland Attorney General James E. Williams.
He added that if Article 16 truly limited the death penalty, that argument would have been brought to the high court’s attention earlier and not become “a case of first impression [more than] 236 years later.”
“Article 16 has been lurking in the shadows all these years?” Williams said. “Maryland continues on with the death penalty long after enactment of the Declaration of Rights.”
Under Article 16, “That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.”
Saccenti said the provision means that capital punishment “ought to be avoided” as long as doing so is “consistent with the safety of the state.” Thus, the death penalty can be imposed only when the punishment is “necessary” for the state’s safety, he added.
But judges on the high court parsed the article differently, questioning Saccenti’s novel argument.
Retired Judge Lawrence F. Rodowsky, sitting by assignment, said “the state” could refer not just to the government but to “the body politic,” thus allowing the death penalty to be imposed as “necessary” to protect the citizens from a killer.
In response, Saccenti said the death penalty would still be prohibited under Article 16 because capital punishment is not necessary to protect the public. Sentences of life in prison keep killers from society, and the threat of such sentences serves as a deterrent to crime, he said.
But Judge Sally D. Adkins said the limitation on sanguinary laws might just as easily refer to punishments that draw blood, such as chopping off a criminal’s arm.
In response, Saccenti said the amputation of a convict’s limbs is dealt with elsewhere in Article 16 as a “cruel and unusual” punishment. “Sanguinary laws,” as used in the article, is a “term of art” that means “the taking of life,” he said.
Adkins also questioned Saccenti’s deterrence argument, saying murderers presumably do not consider fully the consequences of their evil act.
“You are assuming that these would-be criminals will think like a computer,” Adkins said.
Countering Saccenti, Williams said the death penalty serves to protect the safety of Marylanders by advancing the criminal justice system’s goals of punishment, retribution and deterrence for the most serious crimes.
The death penalty is “one tool in the toolbox,” Williams added.
Miles was sentenced to death in 1998 for the murder and robbery of Edward J. Atkinson, a musical theater director, on April 2, 1997, in Wicomico County.
In September 2011, the Court of Appeals rejected Miles’ earlier challenge to his sentence in upholding the constitutionality of the standard Maryland jurors use in determining whether to impose the death penalty.
Under the state’s sentencing law, the jury can vote for death when circumstances favoring execution, known as aggravating factors, outweigh mitigating factors by a preponderance of the evidence. Miles, through his attorneys, had argued in vain that the standard should be “beyond a reasonable doubt.”
The U.S. Supreme Court last year refused to review the 2011 decision.
The Court of Appeals did not indicate when it will rule in Miles’ latest appeal, Miles v. Maryland, No. 36, Sept. Term 2012.
Rodowsky was sitting by special assignment in place of Judge Mary Ellen Barbera.
Barbera did not publicly disclose the reason for her recusal.