The Maryland General Assembly’s Restriction of the Death Penalty: the Prospect of Blood on Its Hands

–Richard E. Vatz

Gov. Martin O’Malley has indicated he is going to sign into law in the next few weeks new restrictions on Maryland’s death penalty. The limits will allow the state’s prosecutors to seek the ultimate penalty in qualified cases only wherein the evidence against the accused includes DNA and/or biological (with the possible addition of fingerprints) evidence or crime videotape. In addition, if there is videotape evidence of a legal confession, that would be acceptable as well.

The new restrictions constitute perhaps the most irresponsible legislation in memory. According to SUN reporter Julie Bykowicz, “Maryland’s evidentiary limitations will become the most stringent of any of the 35 states that have capital punishment on the books.” This will be the case perhaps because legislating what specific type of evidence is necessary to prove guilt, about which expertise is lacking among many legislators, is inferior to legislating the LEVEL of proof necessary, about which less specific expertise is required among legislators.

Maryland’s Attorney General Doug Gansler has called the original Senate proposal “ill-prepared, ill-thought out, awkward and clumsy.” He was being much too indulgent.

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Legislative persuasion on critical matters usually involves, at least to some degree, the merits of a bill, not just party politics, constituent support and deal-making. Some of the most public persuasion by supporters of the bill has simply ignored major arguments opposing the proposed legislation.

Let’s first put aside some permanently inconclusive issues:

Deterrence? This argument will never persuade either side to reconsider, even though, parenthetically, the preponderance of evidence establishes that serious, consistent, and relatively timely use of the death penalty does prevent some homicides.

Racial bias? This argument will also never convince either side to reconsider, because it is impossible to prove. One should note, however, that even the much-misinterpreted Paternoster Study found no discrimination in use of the death penalty in Maryland regarding the race of the defendant. Regarding the race of victims, if there is a desire to even-up use of the death penalty among those who kill blacks and those who kill whites, let the prosecutors increase its use in the latter situations.

Cost? Another peripheral matter the consequences of which are manipulatable according to what one considers is a direct result of the death penalty or how it is adjudicated. Regardless, this debate is completely dwarfed by the consequential matters of the threat to citizens of not having a death penalty.

But with the new legislation, there are other fish to fry.

Some of the more trenchant arguments against the current restrictions include the fact that so restricting capital punishment
1. defines instructively for criminals and would-be criminals how to commit capital crime without incurring capital punishment, and 2. instructs such miscreants regarding how one can commit capital crime in some cases without any punishment at all.

Such crimes will surely focus the perpetrator on avoiding the leaving of DNA or fingerprint evidence or committing crimes in front of a camera. Lawyerly advice regarding capital crime will surely herein include the admonition to avoid confessing to capital crimes. If the death penalty is ever eliminated altogether, as many legislators want, horrific crimes which will enable a criminal to avoid punishment altogether will include prisoners’ killing prison guards or other inmates and murders subsequent to the first one. With the new restrictions incarcerated accused felons’ contracting with third parties to kill witnesses and convicts’ ordering killings or threats by cohorts will be punishment-free. An escaped killer with the death penalty eliminated or with the new restrictions if he’s careful will have carte blanche to kill at will.

Columnist Gregory Kane asked in a BALTIMORE SUN column in 2007 about how Maryland would punish those who murdered David McGuinn, a corrections officer, in the Maryland House of Correction.

The murders of brave Marylanders like Carl Lackl, witness to a murder, seem not to overly concern death penalty opponents.

Recent prominent articles by, for example, the current Governor and former House Speaker Cas Taylor, supporting the repeal of the death penalty and not even addressing the above arguments against repeal, argue that an innocent person could be executed. The Governor also asks rhetorically if even in the case of unrepentant multiple killer John Thanos does execution “‘even the ledger’ for the taking of another’s unique life?” The question of whether such an execution “evens the ledger” ignores more telling questions as to whether Thanos’ execution brings some peace (no, not “closure”) to those directly affected by his murders and whether the removal of Thanos from the land of the living is salutary, since otherwise he could kill again or order more killings.

Does anyone wish that Tim McVeigh, who killed 168 people in the Oklahoma City bombing, were still alive? Not many, according to public opinion polls which supported his execution by about 80% and typically support the death penalty when the issue is publicly salient.

Could an innocent person be executed? Yes. Are all of those who have been released from death row in this country “innocent,” as the Governor and other death penalty opponents describe them? No, maybe not even most. They are legally “not guilty,” because the evidence was compromised or due process was violated.

But the chance does exist that a person could be executed who didn’t commit a capital crime. The question is where does society want to locate the risk: in the general public from living murderers or terrorists, or among the infinitesimal number of people tried incorrectly for horrific crimes.

The fact of the matter is that the new restrictions and/or removal of the death penalty will result in a population at increased risk from killers and/or terrorists. To the extent that some legislators support untoward public policy that predictably enables this result makes those legislators witting accomplices-in-waiting.

Richard E. Vatz is professor of communication at Towson University

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