Doubt and death

Standards: Legislature has important chance to raise the bar on capital sentencing.

March 13, 2002

IF YOU SO much as steal a pack of gum in Maryland, your guilt and sentence would be determined according to the highest legal standard: beyond a reasonable doubt.

But when Maryland jurors make the most important legal decision - whether to allow the state to put someone to death - the standard drops, to a preponderance of the evidence. That means they only have to be pretty sure, maybe 51 percent sure, they're making the right decision.

It's a philosophical incongruity that cheapens the judicial process. And as a practical matter, it casts serious doubts over the integrity of this state's capital system.

Is Maryland's death row made up of the worst of the worst, the most heinous 1 percent of all murderers, as the U.S. Supreme Court has said it should be? Or are there death row inmates for whom a lesser sentence is more appropriate? With a standard set so low, it's too difficult - perhaps impossible - to eliminate "yes" as an answer to the latter question.

Two bills being considered by the House and Senate judiciary committees today in Annapolis seek to remedy this problem by raising the standard and applying it retroactively to current death-row occupants. They would get new sentencing hearings, at which the highest legal standard would be used to determine their fate.

Both houses ought to endorse the bills (without amendment), and the governor ought to sign them. If Maryland is going to engage in the ultimate punishment, there should be no doubts about who gets it, or why.

Legislators should have no trouble supporting the bills' provision that would raise the standard. Even though polls consistently show strong public support for capital punishment in Maryland, they show nearly equal support for ensuring that the capital system is operated fairly. Surely that notion can be extended to include the assurance that the highest standards of proof and evidence are used to make life-or-death decisions.

Trickier, though, will be holding together the support for the provision that would grant new sentencing hearings to the 11 men now on death row. On its face, this might seem an improper application of current law to past cases.

And in fact, the legal prohibitions against retroactively applying the law exist to protect defendants from being charged for offenses that weren't crimes when they were committed.

But there are some compelling reasons that retroactive application of the law makes sense here.

One is the very nature of the issue at hand: death. The Supreme Court has said repeatedly that death penalty cases must be handled differently because of the finality of their outcomes, and that, if anything, states should go overboard in ensuring fairness.

It would be inconsistent with that thinking to go ahead with executions that were meted out under a standard that legislators later decided was too low.

And some of the 11 cases themselves offer strong evidence that the sentencing standards played a role in the outcomes, raising doubts about how deserving the defendants are of their sentences.

For example, court records show that individual jurors in the case of Jody Lee Miles, convicted of a 1997 robbery and murder, found several reasons that argued against a death sentence. Mr. Miles had endured a violent childhood, they said, had accepted responsibility for his crime and apologized, and at least one juror also reported that life in prison without parole was a sufficient sentence. But the jury as a whole still imposed death.

That result could be reflective of the low sentencing standard. If jurors had to determine whether the arguments for executing Mr. Miles outweighed the arguments for a life sentence beyond a reasonable doubt, they might have opted for the lesser punishment. But because their level of certainty only had to be about 51 percent, it was easier to choose death.

That same set of circumstances arises in the case of Darris A. Ware, convicted of the 1993 killing of his girlfriend. At least one juror in his case indicated that life imprisonment seemed an adequate punishment, but then the jury as a whole picked death.

Other death row inmates have mitigating factors that would gain new salience under a heightened sentencing standard. The profound childhood physical and emotional abuse Anthony Grandison and Lawrence M. Borchardt suffered would have to be considered more carefully by a jury, as would other inmates' mental illnesses, or low IQs.

Marylanders, in whose names these lives would be taken, deserve to know whether low sentencing standards helped doom these men to death row. It's about certainty, and fairness, and not looking back five years from now to wonder whether someone who has been executed should not have been.

If the death penalty is to continue to be part of this state's judicial system, that kind of assurance must be part of the equation.

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