Beyond doubt

May 13, 2004

A MASSACHUSETTS panel last week proposed a blueprint for reducing attorney error, geographic disparity, evidentiary flaws, racial bias and juror doubt in capital cases. If adopted, these reforms would create a death penalty that is "as infallible as humanly possible," the panel claimed, to bolster Republican Gov. Mitt Romney's campaign to restore the death penalty. Capital punishment was abolished there in 1984.

History teaches us to beware governmental claims of infallibility. Caution is especially warranted when we're talking about the horror of convictions of innocents and undeserved sentences of death. As proved by exoneration after exoneration enabled by newly discovered evidence, advances in DNA technology and revelations of inadequate representation or witness error, the death penalty too often has been misapplied.

So one can appreciate the Massachusetts panel's zeal to examine laws and practices that might better ensure fairness. Maryland leaders have shirked taking such an important step to follow up studies documenting racial and geographic disparities in death sentencing here. And despite well-founded doubts about whether Maryland's system is just, an execution has been scheduled for June.

Maryland should examine some of Massachusetts' 10 recommendations:

Severely narrow the type of crimes considered capital offenses to a small group considered most heinous. Too often, all it takes is a well-publicized crime to incite calls for expanding death eligibility. (Fortunately, bills to expand death-eligible crimes failed in Annapolis this spring.)

Establish statewide protocols backed up by case reviews to control prosecutorial discretion. This is intended to promote consistency and prevent the type of disparity seen in Maryland, where Baltimore County produces a disproportionate number of the state's death sentences. "It should be unacceptable for a particular murder to be a capital crime in one part of the state but not in a different part of the state," the panel said.

Set rigorous standards of training, experience and performance for defense lawyers to ensure the accused representation that is not "overworked, underpaid, inexperienced, less than fully competent, and/or unprepared to handle such a uniquely complex and stressful case."

Improve the use of technologies such as DNA testing and procedures for gathering evidence, and reduce reliance on potentially faulty witness identifications.

Set the highest possible burden of proof for sentencing. Any lingering or residual juror doubt as to a defendant's guilt should prevent use of the death sentence, the panel said, recommending a standard of "no doubt." If even possible to meet, that's far tougher than "beyond a reasonable doubt." As judges in Maryland's highest court have noted, it's "incongruous" that this state sets a high standard of proof when a jury decides whether a defendant is eligible to die, and a lower one when deciding whether he or she should be spared.

While it's doubtful that any system of justice employing death could be made infallible or error-free, it is not only humanly possible but the obligation of a civilized society to try.

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