Keep the moratorium

January 09, 2003

IMAGINE A STATE law that said defendants could be punished more severely if they were black, or if victims of their crimes were white. Or one that said defendants whose crimes were committed in one county would be 26 times more likely to receive the maximum sentence than defendants in other jurisdictions.

Besides being ridiculous, either would be a patent violation of the 14th Amendment's equal protection and due process stipulations, and an invitation to a whopper of a federal legal challenge.

And yet, for nearly 25 years, Maryland's death penalty statute, whether intentionally or not, has produced those very results. A study released this week reveals that you are far more likely to face the death penalty if you are black, even more likely to face it if you kill someone white, and considerably more likely to face it if you kill in Baltimore County.

Already, there were compelling reasons to support Gov. Parris N. Glendening's moratorium on executions; this study, commissioned by the governor, makes the case for it ironclad. It suggests that Maryland's death penalty debases the simplest notions of fairness, and may indulge naked racism.

Although Gov.-elect Robert L. Ehrlich Jr. vowed to undo the moratorium as soon as he takes office, he surely cannot be held to that pledge now. The study's release radically alters the landscape on this issue, and demands a rethinking no one could have anticipated during the campaign.

Mr. Ehrlich has said that instead of continuing the moratorium he would review cases on an individual basis for errors or bias. But that entirely misses the point. As many legal experts have said, the systemic bias revealed in the study can't be identified or remedied on an individual basis. It requires wholesale changes - and Mr. Ehrlich now has a good reason to ask for them.

In a way, the study provides an opportunity for Mr. Ehrlich, and to a lesser extent for Lt. Gov.-elect Michael S. Steele.

Mr. Steele made it clear during the campaign that he opposed the death penalty, and Mr. Ehrlich made it clear that Mr. Steele would not be a silent partner in the administration. Both men played up the historic nature of Mr. Steele's inclusion on the ticket, and implored voters to "make history" by electing the first African-American to the state's second-highest post.

They can put meaning behind their campaign rhetoric by working together to ensure that capital punishment meets the highest standards of fairness in Maryland - and they ought to hold off on executions until that is done.

Unfortunately, the legislature began taking steps yesterday to try to bind the new leadership to the moratorium by passing a bill and getting Governor Glendening to sign it in his last few days in office.

Their intentions may be noble - to prevent Mr. Ehrlich from making the wrong choice - but their methods are a perversion of the democratic process. It's not much different than the other ridiculous last-minute action Mr. Glendening indulged last month.

If legislators are serious about a moratorium, they ought to pass one once Mr. Ehrlich is in office - and dare him to veto it.

But the choice in the end should undoubtedly rest with the new governor. That choice could not be clearer: He can show great leadership and stand for fairness. Or he can rubber-stamp inequality.

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