Guest Shot: RETHINKING MARYLAND'S DEATH PENALTY By Michael Millemann

The following opinion was originally published in the Baltimore Sun on March 19, 2009.

A worthy compromise?
Yes: Bill is a crucial step in the right direction

By Michael Millemann

March 19, 2009

The Maryland death penalty has been an utter failure by every measure since it was reinstituted in 1978. From 1978 to 1999, the period for which there is detailed information, there were 1,308 homicides eligible for the death penalty. Prosecutors filed death notices in 353 of these cases, and actually sought the death penalty in 180 cases. This produced 76 death sentences. Of these, 62 were reversed, a staggering 82 percent error rate. There were five executions, and five inmates currently are under sentence of death. (Governors commuted two death sentences, and two death-sentenced prisoners died of natural causes.)

Moreover, the death penalty comes with a huge price tag. The resources committed to the death components of homicide prosecutions - of prosecutors, courts, defense counsel and others - are as staggering as the error rate. Indeed, the bitter irony of the Maryland death penalty experience is that, in fact, the death penalty undermines public safety. If we reallocated these resources, for example, to target career offenders who predictably will kill, and to protect children at risk who predictably will be killed, we could save lives.

Senate Bill 279, compromise legislation passed by the state Senate and now before the House of Delegates, is an important step forward. It would limit the death penalty to cases in which there is biological or DNA evidence that links the defendant to murder, a videotaped and voluntary confession, or a video recording that conclusively links the defendant to murder. These measures would help to prevent the execution of innocent people.

That is a serious concern. Despite all of the resources committed to death cases, innocent people still are convicted and sentenced to death. In Maryland, Kirk Bloodsworth is a prime example. The 2008 Maryland Commission on Capital Punishment, chaired by Benjamin R. Civiletti, recommended the repeal of the death penalty. It pointed out that during the last 35 years nationwide, there have been 1,125 executions and 130 exonerations of innocent, death-sentenced persons. Thus, for every 8.7 executions, there has been one exoneration.

This demonstrates what we all know: Human beings are fallible. If a defendant is mistakenly sentenced to life in prison, that mistake can be corrected, but not if the sentence is death and the sentence is carried out.

SB 279 responds to this profound concern. Under the legislation, many homicide cases now prosecuted as capital cases would no longer be death-eligible. The considerable resources now devoted to the death components of these cases could be used to more effectively protect the public and provide services to the families of victims.

Soon, I hope, the General Assembly will repeal the death penalty. It is bad policy as well as bad practice. If it does not, it should deal with other serious problems with the administration of the death penalty that are described in the Civiletti Commission report. These include racial and jurisdictional disparities in how the death penalty is applied.

For the present, however, SB 279 is a critically important step in the right direction.

Michael Millemann, a professor of law at the University of Maryland, represents a death-sentenced inmate in Maryland. His e-mail is mmillemann@law.umaryland.edu.