A worthy compromise?

Rethinking Maryland's Death Penalty

NO: It goes too far in restricting eligibility

March 19, 2009|By Douglas F. Gansler

During the current legislative session, elected representatives engaged in a healthy and robust debate about repealing the death penalty in Maryland. Despite the dire need for its reform, the General Assembly was correct not to repeal the death penalty statute. Heinous criminals who commit certain crimes forfeit their right to live. Osama bin Laden, Timothy McVeigh and John Allen Muhammad all come to mind.

I am not a death penalty zealot, and I believe that fairness is the most important aspect of the prosecution of a capital case. Capital cases must be race-neutral and socioeconomically neutral. Despite having never initiated a death penalty case during my 14 years as a federal prosecutor and state's attorney, I remain convinced that we need the death penalty for use in appropriate cases.

That said, I object to the intellectual dishonesty that infected the debate in Annapolis and has now led to ill-advised, faulty compromise legislation.

The fact is, it costs far more money to house a convict for decades than to inject him with lethal poison - not less. Also, the notion that our death penalty system in Maryland is discriminatory toward minorities is misguided. The majority of the hundreds of murders in Maryland each year are committed in either Prince George's County or Baltimore, jurisdictions where the state's attorneys have been extremely reluctant to seek the death penalty. Most of the defendants and victims in those jurisdictions are African-American.

Recently, the effort to repeal the death penalty failed and amendments were offered to protect innocent people from execution, resulting in the passage of Senate Bill 279 by the state Senate. Although no one has suggested that an innocent person has been executed in Maryland, these amendments are well-intended and the laudable principle underscoring them is that no innocent person ever should be executed. The problem is that the amendments were hastily crafted and would effectively nullify the death penalty in Maryland.

Consider this: A hundred people observe and take photographs of a convicted serial killer pumping bullets into another man while shouting, "I am killing this man on purpose to steal his money and I have deliberated for weeks before doing so." There likely would be no DNA, videotape of the shooting or videotaped confession. Thus, the case would be ineligible for the death penalty under the current bill.

I believe that we should not mete out the death penalty based solely on eyewitness testimony, or in a case where the identity of the killer is genuinely in question. The killer's identity should be established beyond any doubt. Thus, assuming it is an egregious murder committed by a particularly dangerous criminal, prosecutors should be allowed to bring a capital case only under one of two conditions: (1) there is dispositive scientific evidence unique to the defendant, e.g., DNA, fingerprints or a ballistics match, or (2) a reliable confession.

Then, and only then, would imposing the ultimate penalty protect the integrity of our law enforcement system and bring deserved justice to the families of victims.

Douglas F. Gansler is the attorney general of Maryland. His e-mail is oag@oag.state.md.us.

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