The case against capital punishment

The Maryland Senate's vote today to repeal the death penalty was a milestone in an effort to remove from the law a sentence that puts vengeance above justice, fails to deter crime and provides for the families of victims not the closure they crave but instead years of frustration and heartache. With the 27-20 vote — a solid majority that included two Republicans and 25 Democrats — repeal supporters are already looking ahead to the possibility that Maryland could provide momentum for ending capital punishment in other states, and ultimately help convince the Supreme Court that the death penalty is cruel and unusual.

They shouldn't get ahead of themselves. Gay marriage advocates thought two years ago that they would easily prevail in the House of Delegates after the Senate approved marriage equality two years ago. Instead, they came up painfully short and had to wait another year. In Annapolis, nothing can be taken for granted until the votes are cast. And in this case, even that may not be the end of things. Senators removed from the bill a provision that would have appropriated a small amount of money every year to victim services. In so doing, they also removed any question about whether the legislation could be petitioned to referendum. Ultimately, voters could have the final say. The attention provided by the Senate's vote, then, offers an important opportunity to restate the case against capital punishment.

In 2009, Maryland enacted what are thought to be the nation's strictest standards for applying the death penalty. It may only be used in cases where a suspect is linked to the crime with DNA or other biological evidence; provides a voluntary, videotaped confession; or is recorded in a video that conclusively links him or her to the murder. But for all that, the possibility remains that the state could sentence an innocent person to death.

DNA evidence doesn't necessarily prove anything more than a suspect's presence at a crime scene. And it's far from unheard of for an innocent person, under duress, to confess. In 2007, The New York Times conducted an analysis of the first 200 prisoners exonerated with DNA evidence. In a quarter of those cases, the wrongfully convicted had confessed or otherwise admitted guilt, and in about 4 percent, they had actually pleaded guilty to crimes they did not commit.

Even if Maryland could somehow guarantee that it never made a mistake about someone's guilt, there remains the substantial likelihood of injustice stemming from the subjectivity with which the death penalty is applied. The preponderance of murders in Maryland involve both black victims and perpetrators, but most of those sentenced to death in this state have been black men with white victims. And the likelihood that a criminal will be sentenced to death is entirely dependent on where the crime takes place. In some Maryland jurisdictions, like Baltimore City and Prince George's County, prosecutors virtually never seek the death penalty. But for decades, former Baltimore County State's Attorney Sandra O'Connor pursued the death penalty in every case possible. Her successor, Scott Shellenberger, has dropped that policy, but his office is still responsible for a disproportionate share of the state's capital cases.

Proponents of capital punishment contend that it affords true justice for the families of murder victims. But as a practical matter, it offers years of frustration and heartache. Death is the one punishment that cannot be taken back, so the criminal justice system has no choice but to afford substantial opportunities for post-conviction review. The decades of delay in the cases of some Maryland death row inmates are unusual, but the average time from sentencing to execution nationally is nearly 15 years, according to the most recent figures from the Bureau of Justice Statistics.

Finally, and most profoundly, is the moral question. Is it right for the state to punish killing by killing? Capital punishment proponents say yes, that some people commit crimes of such profound evil that they forfeit their right to live in our society. But that can be accomplished with a sentence of life without the possibility of parole. Capital punishment serves not to render judgment on a killer's humanity but to diminish ours. It should be abolished.

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