A capital offense

November 30, 2007

Today, Maryland is in a unique position to get out of the business of executing prisoners. A de facto moratorium exists here, stemming from an appeals court decision that invalidated the state's protocols on administering the death penalty. And even if the irregularities in the protocols were fixed, it's unlikely any of the five men on death row would be executed, because Gov. Martin O'Malley adamantly opposes the death penalty.

Even Scott D. Shellenberger, state's attorney for Baltimore County - which leads the state in death penalty cases - has pledged to revise his office's practice of seeking capital punishment in all eligible cases. But such revision, should it occur, doesn't get to the heart of the issue.

In Maryland, the decision to seek death for a defendant rests solely with individual state's attorneys - and though that has resulted in neither an equitable nor a fair system, it won't change until the state's death penalty law is repealed by the legislature or invalidated by the courts. A perennial cause for death penalty opponents, the issue of repeal continues to gain ground and supporters.

Across the country, fewer juries are sentencing defendants to death, and more people seem to favor life without parole instead. A poll this year by the Maryland Catholic Conference showed increasing opposition to the death penalty among black voters (51 percent, compared with 45 percent in 2005) and more support for life without parole (77 percent, compared with 69 percent in 2005). That's an encouraging shift even though African-Americans represent the majority of homicide victims in the state.

The Supreme Court is considering the constitutionality of the dominant form of execution - lethal injection - and this month stayed another execution, that of a Florida inmate, pending its review.

And yet, in Maryland, the machinery of the capital system marches on - prosecutors continue to seek the death penalty, and the appeals of those facing it grind on at a cost of thousands of dollars to the state.

Of the 12 pending cases in which prosecutors are seeking the death penalty, eight are in Baltimore County, although most predated Mr. Shellenberger. So far, his decision to impanel a team to review death-eligible cases and consider at the outset social and personal factors that would argue against the death penalty has changed his mind in just one case - and it involved an 18-year-old, barely eligible for the death penalty.

Time will tell if Mr. Shellenberger's approach changes the landscape, but Maryland lawmakers don't need to wait - they should repeal the law.

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