LWVMD DEATH PENALTY STUDY

 

Steven Oken, a 42-year old white man, was put to death by lethal injection in June, 2004, in the old state penitentiary in downtown Baltimore, for the rape and murder of Baltimore County newlywed Dawn Marie Garvin, one of three women he sexually assaulted and killed in as many weeks in 1987. The victim’s mother and three other relatives witnessed the execution. Outside the prison a crowd of 60 waved signs and shouted “Oken Must Go”, “Remember the Victims” and “Justice Has Been 17 Years Too Long.”  A few blocks away, 40 death penalty opponents, carrying candles, stood in front of Baltimore Central Booking. Killing is not the answer, they said.  “He was sick, mentally ill,” Oken’s attorney claimed. “You should not kill mentally ill people, “he said.

 

Despite an admission of guilt, Oken had his case reviewed four times by the Maryland Court of Appeals, and he had five times petitioned the United States Supreme Court prior to the issuance of an execution warrant in April, 2004. Between April and June he filed three actions in Federal Court, two appeals to the Fourth Circuit, and four more petitions to the Supreme Court, the last of which was not resolved until 30 minutes before his death.

 

Oken’s execution was the 84^th in Maryland history, the fourth since executions were resumed in Maryland in 1994, and the first since 1998. It occurred amid an intensifying statewide debate over capital punishment. In the prior two years former governor Parris Glendening had imposed a temporary moratorium on executions; state Attorney General Joseph Curran called for death penalty abolition; and a state-commissioned report questioned the fairness of Maryland’s use of the sentence. Governor Robert Ehrlich lifted the moratorium when he took office in 2003 and denied clemency to Oken.

 

At this writing (January, 2005), Oken’s death leaves eight men on Maryland’s death row. Six are black and two white.  All their victims, except one (a child), were white.  Of the eight men, five, like Oken, were convicted in Baltimore County, one in Wicomico County, one in Prince George’s County and one in Baltimore City. Three of the current death row occupants have been there over 20 years, one for 12 years, one for eight years, one for six years, one for four years, and one for two months.  Since 1993 nine men have been removed from death row, including four in 2004, all with white victims and all from Baltimore County. Eight of the nine had verdicts or sentences overturned on direct appeal or had death sentences commuted to life in prison after living under threat of execution, in two cases, for more than 16 years. Kirk Bloodsworth, whose innocence was proved by DNA testing, spent 10 years in prison for a crime he did not commit. 

 

League Study

A study to consider whether the death penalty should continue to be applied in Maryland was approved at the Maryland League of Women Voters State Convention in June 2003.  The committee looked at Maryland laws relating to the death penalty; the differences among Maryland jurisdictions on whether a case is eligible for the death penalty; the role of juries, public defenders and states attorneys; the treatment of juveniles and the mentally deficient; improved crime solving technologies and racial biases.  It also looked at information from other states, studies relating to deterrence, punishment, costs, innocence and victim’s relatives, as well as international ramifications. 

 

History of Death Penalty

Early on, death was the punishment for most crimes. Between Maryland’s first execution

in 1773 and a 1961 change in the Criminal Code, 79 executions took place. Until 1923 when executions were moved to the penitentiary in Baltimore, they were public spectacles conducted by the sheriff in each county seat. In 1961 Maryland changed its laws to authorize death for just six offenses. That same year a 17-member Committee on Capital Punishment recommended the gradual elimination of the Maryland death penalty based on a study of 122 death-sentenced defendants, which showed among other things that blacks and laborers were more likely to be executed.

 

Over the next few years a de facto moratorium existed as civil rights groups challenged the U.S. Supreme Court to declare the death penalty a cruel and unusual punishment, unconstitutional under the Eighth and Fourteenth Amendments. In 1972 Furman v. Georgia found the death penalty unconstitutional due to the standardless discretion allowed sentencing authorities.  In 1976 in Gregg v. Georgia the U.S. Supreme Court reinstated the death penalty so long as certain standards are met. These decisions required 1975, 1976 and 1978 rewritings of Maryland law, making the death penalty applicable only to first degree murder; requiring consideration of the offender’s character and record and the circumstances of the offense; providing a bifurcated procedure where the sentencing hearing is separate from the trial determining the defendant’s guilt; plus consistency and proportionality in its application.

 

International Considerations

More than half the countries in the world have abolished the death penalty in law or in practice, causing the United States’ continued use of the death penalty to be the focus of international criticism for violating international human rights.  Besides the U.S. the chief execution countries are China, Iran and Saudi Arabia.  Our closest allies in Europe, North America and South America have all abolished the death penalty and sometimes refuse to extradite persons accused of murder because they could face capital punishment here.

 

Constitution Project Study

The Constitution Project, housed at Georgetown University, seeks to develop bipartisan solutions to contemporary constitutional and governance issues by combining high-level scholarship and public education.  In May, 2000, the Project created a death penalty initiative to address the “deeply disturbing risk that Americans are being wrongfully convicted of capital crimes or wrongfully sentenced to death” and convened a 30-member blue-ribbon panel to examine our country’s present course and to recommend ways to ensure fundamental fairness. The group disagreed on much, “including whether abolition of the death penalty is warranted, but (were) united in a profound concern that, in recent years, and around the country, procedural safeguards and other assurances of fundamental fairness in the administration of capital punishment have been revealed as deeply flawed.”  In a Preface to its report it says that “(f)or too long society has cast the death penalty debate as one between ‘liberals’ and ‘conservatives’, those who are ‘soft on crime’ and those who ‘care about victims of crime’.” Stereotypes must be put aside. We can no longer debate in this manner, it said.

 

Regardless of their opinions on abolition, all agreed that no one should be denied basic constitutional protections, including a competent lawyer, a fair trial and full judicial review of the conviction. The Project’s recommendations include: effective counsel; prohibiting execution of questionable categories of defendants (such as the retarded, insane or juveniles); expanding and explaining life without parole; safeguarding racial fairness; even-handedness to safeguard against  jurisdictional differences and prosecutorial discretion (as in reliability of eye-witness testimony or use of informers); and open file discovery (making prosecution files available to the defense).

 

 

Maryland Statutory Law

Current Maryland statutes define murder in the first degree as (1) deliberate, premeditated and willful killing; (2) committed while lying in wait; (3) committed by poison; or (4) committed in connection with arson, burglary, car jacking, escape from a correctional facility, kidnapping, mayhem, rape, robbery, a sexual offense or sodomy. A person found guilty of murder in the first degree shall be sentenced to death, imprisonment for life without possibility of parole; or imprisonment for life.  Imprisonment for life allows for the possibility of parole.

 

A defendant found guilty of first degree murder may be sentenced to death only if the State gave written notice of its intent to seek the death penalty 30 days before trial and notice of each aggravating circumstance on which the State intended to rely. In Maryland those under 18 at the time the murder was committed, and the mentally retarded may not be executed.  Mental retardation is defined as showing an IQ of 70 or below and impairment of adaptive behavior, if the mental retardation was manifested before the age of 22.

 

Maryland law provides a list of aggravating and mitigating factors to be considered in determining the appropriate penalty, and for an automatic appellate review of all death sentences to ensure consistency and proportionality in its application. Maryland statutes list as aggravating circumstances: the murder of an on-duty law enforcement officer; a murder committed in prison or while trying to escape; a murder in connection with a kidnapping, the murder of an abducted child; or a contract murder. Aggravating circumstances may also include the brutality of the murder or whether it was committed in connection with another felony.  At least one of these aggravating circumstances must exist “beyond a reasonable doubt” for the death penalty to be imposed. 

 

If one or more of the aggravating circumstances exists beyond a reasonable doubt, then mitigating circumstances shall be considered. These include: no previous crime of violence, a guilty plea, and the victim’s participation in the cause of death.  Also included are: that the defendant acted under substantial duress or the domination or the provocation of another; that the murder was committed while the capacity of the defendant to appreciate its criminality was impaired; that the defendant was of a youthful age at the time of the murder; that the defendant was not the sole proximate cause of the death; that it is unlikely that the defendant will engage in further criminal activity that would be a threat to society, or any other fact that the court or jury specifically sets forth in writing as a mitigating circumstance in the case. Sometimes included in the latter is a terrible childhood, alcohol or drugs.  Specifically ruled out as a mitigating factor is the discovery of one’s spouse engaged in sexual intercourse with another.

 

The statute provides then that “if the court or jury finds that one or more of the mitigating circumstances… exists, it shall determine by a preponderance of the evidence whether the aggravating circumstances outweigh… the mitigating circumstances.” This clause has been the subject of many bills in recent years which have attempted, so far unsuccessfully, to increase the standard to beyond a reasonable doubt.

 

The jury decision for death must be unanimous and it must include written statements of all its findings in regard to aggravating and mitigating circumstances and how they were weighed. Once a death sentence is imposed and the judgment becomes final, the matter goes to the Maryland Court of Appeals for review. There the defendant and the state may submit briefs and present oral arguments. With regard to the death sentence, the Court of Appeals shall determine whether the imposition of the death sentence was influenced by passion, prejudice or any other arbitrary factor; whether the evidence supports the finding of a statutory aggravating circumstance; and whether the evidence supports a finding that aggravating circumstances outweigh the mitigating circumstances. Appeals relating to the Constitutional matters are also heard at this level.

 

University of Maryland Study

In 2002 Governor Parris Glendening issued an execution moratorium, pending receipt and review of a University of Maryland study on administration of the death penalty. This study, the fifth on the death penalty since 1987,  found geographic and racial disparities in how the death penalty is handed down in Maryland, especially in the early stages of prosecution (at the stage when the State’s Attorney determines whether or not to seek the death  penalty). The study found that blacks who kill whites are 2 ½ times more likely to be sentenced to death than whites who kill whites and 3 ½ times more likely to be executed than blacks who kill blacks. The study also found that the likelihood that prosecutors will seek the death penalty in Baltimore County is 13 times greater than in Baltimore City, even when other factors such as the circumstances of the crime and the county’s racial makeup are taken into account. In other Maryland jurisdictions fewer State’s Attorneys sought a death penalty and, once sought, more were withdrawn.

 

Recent Actions

After Governor Robert Ehrlich lifted the Glendenning moratorium, an attempt in March 2003 to reinstate it for two years failed in the state Senate by one vote. All 14 of the Senate’s Republicans voted against the bill and all of the Senate’s black members voted to reinstate the moratorium, which was the top priority of the Legislative Black Caucus. The bill would have authorized a new study during the moratorium of Maryland death penalty laws by a commission chaired by Lieutenant Governor Michael S. Steele, who opposes the death penalty.

 

Legislation to change the standard of proof in death penalty sentencing was also defeated by three votes in 2003. Currently a jury can convict only by unanimous vote following the time honored high standard of “guilty beyond a reasonable doubt.”  However, the standard for weighing the mitigating against the aggravating circumstances during the sentencing phase is the lower “preponderance of the evidence” standard, which could mean a “certainty” of only 51 per cent that the aggravating circumstances outweigh the mitigating circumstances.  Opponents of the higher standard have maintained that changing the law would end capital punishment in Maryland: for example Baltimore County State’s Attorney Sandra O’Connor made a public statement that the change would empty out death row

 

No bills relating to the death penalty got out of committee in the 2004 General Assembly..   

 

National Studies and Overview

Twelve states plus Puerto Rico and the District of Columbia do not have a death penalty: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin. The Federal Government, the U.S. Military and all the “southern states” including Maryland have the death penalty as a punishment option although they do not all agree on the eligible crimes or whether age, insanity or other circumstances may prevent execution. (In Atkins v. Georgia the U.S. Supreme Court ended the execution of the mentally retarded in 2002)

 

According to the Death Penalty Information Center, the use of the death penalty declined in 2003, with executions, death sentences and the death row populations all lower than a few years ago.  Executions dropped from 71 in 2002 to 65 in 2003, and are down 35% when compared to 98 in 1999. The number of inmates on death row in July, 2004, stood at 3490, a decrease from 3697 in October, 2002. The number of new death sentences has declined for four straight years, dropping from 159 in 2002 to 139 in 2003. This is a 50% drop from the late 1990s, when the average was about 300 per year.

 

Regional studies show that outside the south only Indiana, Missouri and Ohio had executions in 2003. Three states: Texas, Oklahoma and North Carolina accounted for 69% of the executions, and altogether the south was responsible for 89 percent of 2003 executions.  Yet only 11 states had an execution in 2003, the fewest in a decade.  The two states with the largest death rows had no executions in 2003: California and Pennsylvania. Although a death penalty and a death row exist, Connecticut, Kansas, New Hampshire, New Jersey, New York and South Dakota along with the U.S. Military have had no executions since 1976. (At this writing an execution is pending in Connecticut at the defendant’s request.)

 

Racial differences in implementing the death penalty have been found in nationwide studies as well as those undertaken in Maryland. Those executed have been almost exclusively guilty of murdering a white victim.  Only 18% of those executed were convicted of murdering a black person, despite the fact that blacks are victims in about 50% of U.S. murders (80% in Maryland). In 2003 no white person was executed exclusively for the murder of a black person.

 

National cost studies cited by the Death Penalty Information Center, an anti-death penalty organization, indicate that taxpayers pay more to execute a defendant than to keep him in prison for life. Many cost studies show that providing food, health care and other basic essentials for the incarcerated prisoner for life are far less than the legal costs for trials and multiple appeals when both prosecution and defense attorney fees, court costs, investigative and other expenses are factored in. A study by Duke University said North Carolina (a state that is demographically comparable to Maryland) pays $2.16 million more per execution than for imprisonment for life. There are, however, far different estimates in a Fiscal Note prepared by the Maryland Division of Legislative Services (DLS) for the 2004 General Assembly in connection with a bill which would have repealed the death penalty. DLS found repeal of the death penalty would decrease General Fund expenditures for the Office of the Public Defender by $1.3 million annually but would not have a significant effect on over all state operations or finances. DLS also found that the effect on State’s Attorneys’ offices would be minimal as staff and associated operating expenses would be used on other cases.      

 

Innocence, until recent years, has not been a major issue in the death penalty debate. This has been changing, however, with the release of many death row defendants, and former Illinois Governor and death penalty proponent George Ryan’s decision to halt executions because the system was “infected with error” in his state. Findings of innocence reached a highpoint in 2003 with 10 persons exonerated and freed from death row, the highest number since the reinstatement of the death penalty. Over 100 persons have been exonerated and released from death row, in 25 different states, since 1973, and the pace has been accelerating with the introduction of DNA. In order of frequency the factors leading to false convictions are mistaken identity, seriology (blood type) inclusion, police misconduct, prosecutorial misconduct, defective or fraudulent science, microscopic hair comparisons, bad lawyering, false witness testimony, informant snitches and false confessions.

 

The Quality of the Lawyers provided by the state for indigent defendants accounts for many death row case mistakes.  According to the Death Penalty Information Center, complaints from inmates on death row about shoddy representation at trial did not garner much sympathy until the number of innocent people freed from death row became an embarrassment. Among the shocking examples have been unqualified lawyers, drunk lawyers, lazy lawyers, lawyers who fell asleep during the trial and lawyers who were simply in over their heads or lacked the resources to prepare properly. Because simply establishing minimum standards for attorneys is not enough, fixing the quality of representation will be expensive. Consideration is needed on who is making the appointments, how the standards are implemented, whether sufficient resources have been allotted, and whether representation is provided for the entire appeals process.

 

Arbitrariness and Jurisdictional Differences result in an uneven use of the death penalty. Whether a person is sentenced to death depends heavily on where a crime is committed, not on the heinousness of the crime.  Nationally since 1976 the South has been responsible for 80% of executions, while the Northeast has carried out less than 1%. In Maryland, the Baltimore County States Attorney seeks the death penalty in all eligible cases, with the result that five of the eight men on death row were convicted in Baltimore County.  Other counties either do not have the resources to try a death penalty case or have States’ Attorneys who seldom seek capital punishment.

 

Deterrence is often cited by death penalty proponents who point to data showing that murder rates decreased as executions increased from 1990-2000.  Opponents argue that murder rates in states with a death penalty are higher than in states without a death penalty.  FBI Uniform Crime Statistics for 2002 show that the average murder rate among death penalty states was 5.2 per 100,000 people, while the murder rate in non-death penalty states was 2.8. Maryland’s murder rate per 100,000 in 2002 was 9.4, second highest in the country.

 

Arguments Pro and Con

Arguments for and against the death penalty focus on two general concepts. Clustered in the first are statistics concerning such matters as racial bias, deterrence, costs, effectiveness of counsel, innocence and jurisdictional differences as set out above. Clustered in the second are the religious, philosophical and moral aspects of the death penalty.

 

Retribution arguments focus on whether the death penalty is a moral choice in our society and on the sanctity of life. Proponents maintain that those opposing the death penalty do not care about the lives of the victims, only the murderer, and quoting Dostoyevsky say “he who sympathizes with the criminal can never sympathize with the victim.”  They go on  to cite ideological, philosophical and religious texts, including Rousseau’s Social Contract to argue that retribution or revenge is an entirely natural emotion, necessary to maintain the basic social order. Numerous Biblical passages are also quoted by proponents who claim God himself instituted the death penalty as a just punishment for murder, that Christ regarded the death penalty as a just punishment for murder and that those who take the sword shall perish by the sword.

 

Opponents of the death penalty, maintaining that every human life is sacred, cite the simple moral argument, “thou shalt not kill”, which they say should apply equally to individuals and the state.

 

Both opponents and proponents of the death penalty are found among victims’ families in Maryland. Many seek retribution and what they call “closure”. Upon the execution of Oken the Baltimore Sun quoted the mother of one of his victims: “My family has been put through hell for 17 years……….Steven Oken has been brought to justice.  The only problem is that Steven Oken died in peace, and my daughter didn’t have the luxury to die in peace like I saw him die tonight.” But in the case of Darris Ward, who was convicted of murdering two women and sentenced to death in 1997, families of the two victims urged the Anne Arundel County State’s Attorney to drop pursuit of the death penalty, noting that the route to execution is torturous for families. They asked that a life sentence be imposed to end the “cycle of trials, appeals, and overturned sentences.”

 

PARTIAL BIBLIOGRAPHY

 

Mandatory Justice: Eighteen Reforms to the Death Penalty.  The Constitution Project, Washington D.C. 2001.

 

Understanding Capital Punishment: A Guide Through the Death Penalty Debate. Death Penalty Information Center, Washington, D.C. 2003, plus on-line updates at www.deathpenaltyinfo.org. (This is an anti-death penalty website) 

 

Maryland’s Criminal and Juvenile Justice Process, Legislative Handbook Series Volume IX, 2002.

 

Maryland Statutes, Criminal Law Sections 2-201 and following

 

An Empirical Analysis of Maryland’s Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction, Raymond Paternoster, Robert Brame et al, Univ of Maryland, 2004.

 

Fiscal Note – HB 521. Maryland Division of Legislative Services, 2004.

 

Dudley Sharp, Director, Death Penalty Resources, Justice for All, www.prodeathpenalty.com.

 

Van Den Haag, The Ultimate Penalty, National Review, Harvard Law Review, et al, 1983-2001.

 

Donald Hook and Lothar Kahn, The Debate Over Capital Punishment, Lexington Books, 1989.

 

CASE Maryland, Maryland Coalition Against State Executions, www.mdcase.org.

 

Kennedy, David, The End of Finality, Maryland Bar Journal, Nov/Dec 2004.

 

Fact Sheet prepared by the Death Penalty Study Committee, Maryland League of Women Voters

Susan Fingerman                                          Marcia Reinke, chair

Sally Grant                                                    Carol Filipczak, State Board program coordinator 

Myrna Siegal

Kay Terry

Kellie Thomas

 

 

CONSENSUS QUESTIONS

 

 

(1)   Would you favor abolition of the death penalty in Maryland?

a.      For all crimes

b.      For certain classes of defendants 

c.       In absence of intent

d.      No

 

(2)   For so long as Maryland has a death penalty, what reforms would you favor for its equitable and consistent application?

a.      Uniform statewide criteria for death penalty prosecutions

b.      Changing the standard of proof in the weighing of aggravating and mitigating factors in sentencing from “preponderance of the evidence” to “beyond a reasonable doubt.”  

c.       Requiring prosecutors:

1.      To provide open file discovery and all favorable evidence to the defense

2.      To establish internal guidelines in cases which are particularly subject to human error

3.      To have mechanisms for preserving DNA and other evidence and for introducing newly discovered evidence.

d.      Requiring judges:

1.      To explain to juries life without parole as a sentencing option

2.      To charge the jury to weigh mitigating factors

e.      Effective defense including:

1.      Methods to screen, appoint and supervise lawyers representing defendants charged  with a capital crime

2.      Adequate compensation for defense counsel and sufficient funding to mount an effective defense.

 

(3) Would you favor a suspension of executions pending further study and/or the passage of legislation listed above.