Behind The Debate

Listening to 84 witnesses, members of the commission on capital punishment found their eyes opened to aspects of the death penalty that surprised and sobered them.

November 16, 2008|By Jennifer McMenamin

When the New Jersey legislature voted late last year to repeal the death penalty, it did so on the heels of a near-unanimous recommendation from a state commission that said capital punishment was too costly, too arbitrary and too tough on victims' families to justify the risk of an irreversible mistake.

So when Maryland lawmakers created a panel to study the issue, death penalty opponents hoped it would produce a similar recommendation and provide the boost needed to repeal the death penalty law.

Last week, they got that recommendation - but on a much closer vote than in New Jersey, where the margin was 12-1.

The Maryland Commission on Capital Punishment found, by 13-7 vote, that the state should abolish the death penalty because it carries the "real possibility" of executing innocent people and may be biased against blacks.

Once the 23-member commission issues its final report in mid-December, the focus will shift to the General Assembly, where previous repeal efforts have narrowly failed despite a high-profile campaign by Gov. Martin O'Malley.

A look back at the commission's work highlights the divisions among members - and pinpoints issues likely to resurface in General Assembly debates.

Like members of New Jersey's panel, the Maryland commissioners have bemoaned the long appeals process in death penalty cases. Relatives of murder victims testified that it drags family members through painful delays without delivering the justice promised by the system.

But panel members - law enforcement officers, attorneys, religious leaders, lawmakers and victims' relatives - also debated whether sentencing convicted killers to life without parole would provide fewer appeals or greater finality. And with an exonerated death row inmate sitting on the commission, many have expressed concern that accelerating the process and narrowing legal appeals could increase the risk that an innocent person is executed.

"The question in my mind is can we afford to make a mistake? ... I don't think we can," Noel L. Godfrey, a correctional officer who works at a Jessup prison, said at a meeting. Referring to a fellow panel member - Kirk N. Bloodsworth, who spent nine years in prison, including two on death row, before DNA evidence cleared him in the murder and rape of a little girl - he added, "Bloodsworth's testimony was so compelling. What if the circumstances were different? Then he would not be here today."

Under Maryland law, prosecutors can generally pursue a death sentence for a convicted killer - not an accomplice - in cases with a so-called aggravating factor, such as the killing of a police officer or multiple victims, a killing by a prisoner, or a killing committed during a robbery, kidnapping or rape. Five men have been executed since Maryland's death penalty law was reinstated in 1978, and five men remain on death row.

But the state has effectively been under a moratorium on executions since December 2006, when Maryland's highest court ruled that lethal injection procedures must be rewritten. O'Malley, a death penalty opponent, reluctantly ordered the drafting of those protocols in May. Gary D. Maynard, secretary of the Department of Public Safety and Correctional Services, is reviewing a draft before releasing the procedures for public comment, a department spokesman says.

Led by former U.S. Attorney General Benjamin R. Civiletti, Maryland's death penalty commission held five public hearings with 84 witnesses offering more than 24 hours of testimony - mostly in favor of abolishing capital punishment. Among the panel findings issued Wednesday: Racial and geographic disparities exist in how the death penalty is applied. Capital cases are more costly than non-death penalty cases and take a greater toll on the survivors of murder victims. And the unavailability of DNA evidence in some cases opens the "real possibility" of wrongly executing an innocent person

The dynamic among commissioners has often been fascinating. On one side of the room sits Baltimore County State's Attorney Scott D. Shellenberger, the panel's most vocal death penalty supporter and top prosecutor of the county that has sent more men to death row than any other locality in the state. One of those men - Bloodsworth, wrongly convicted twice in a case prosecuted by attorneys who now work for Shellenberger - sits across the room, beside Katy O'Donnell, who leads the capital defense division of the public defender's office.

Nearby is Rick N. Prothero, whose brother - a Baltimore County police officer - was killed in 2000 while working as an off-duty security guard at a Pikesville jewelry store. The four men involved in the robbery and shooting were prosecuted by Baltimore County and received life sentences; the killer died in prison this year.

And several members are current or former attorneys and law professors who take every available opportunity to cross-examine expert witnesses.

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