Execution envy

October 20, 2003

IN THE CONTEST over who was more likely to secure a death sentence in the Washington-area sniper case and carry it out, Virginia handily beat Maryland. That Virginia won the right to first try suspect John Allen Muhammad and his 18-year-old alleged accomplice, Lee Boyd Malvo, left some prosecutors and lawmakers here outraged and vowing to expand Maryland's death penalty.

Such talk is premature, at the very least.

A decision is pending from the Maryland Court of Appeals that could significantly change how the death penalty is applied in Maryland.

The appeal, heard by the court in May, turns on the constitutionality of the standard of proof used to determine if one set of circumstances outweighs another in sentencing a person to death.

But even absent that decision, the idea that Maryland should increase the pool of potential death row cases is repugnant. The Ehrlich administration has not yet addressed the disturbing findings of a 2003 study, commissioned by the state, that identified racial and geographic disparities in the application of the death penalty here.

How could any one in good conscience allow for a potential increase in death row inmates when serious questions have been raised about the present law and its implementation?

No one should consider Virginia worth emulating -- only Texas has exceeded it in executions since 1976 and neither 16-year-olds nor the mentally retarded are spared. More states are moving to narrow use of the death penalty since DNA testing began identifying death row inmates who were innocent of the crimes for which they were convicted. The science showed how imperfect a system we have and the consequences of those imperfections.

Gov. Robert L. Ehrlich Jr., who lifted the moritorium on executions that his predecessor had established, has said he finds nothing objectionable in Maryland's law or prosecutors' use of it; the status quo is all right by him.

That was not the position of Lt. Gov. Michael S. Steele who, commenting on the state's 2003 report by University of Maryland criminologist Raymond Paternoster, said he would push for another study. He wanted to know why blacks "are seemingly disadvantaged when it comes to sentencing." Mr. Ehrlich then instructed him to interview prosecutors, defense attorneys and others involved in the debate, but nothing has come of it.

Mr. Steele has initiated no study, nor has he solicited interested parties in exploring the issue.

"What he's doing is accepting suggestions and welcoming opinions from all sides on this issue," a spokeswoman for Mr. Steele said. But that's just not good enough.

The focus should be on rectifying the disparities identified instead of adding a new class of criminal to the law; to do otherwise would be wrong.

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