Sunday, 24 August 2008

No fatal mistakes

By Joseph D. Tydings
August 22, 2008

As a lawyer and former U.S. attorney, I have both prosecuted and defended death penalty cases. As a member of the Maryland House of Delegates and as a U.S. senator, I have studied and dealt with this issue for more than 40 years. While I have never been philosophically opposed to the death penalty, and have supported it in special cases, I now have deep concerns about the failures in our criminal justice system in capital cases.

The Maryland Commission on Capital Punishment - which is holding public hearings in Annapolis and must submit a final report in December - can play a vital role in educating the public and the General Assembly that our present failure to provide competent lawyers for the accused who can't afford one will likely lead to the execution of innocent defendants. The fact that Maryland pays less than any state other than Mississippi for such representation underscores the seriousness of this problem.

The commission needs to address two key issues: First, what is the present risk that Maryland will execute innocent people over the next decade? Second, can and will Maryland ensure that indigent defendants facing the death penalty - generally minorities, frequently mentally impaired - are provided with a competent lawyer and fair trial, as required by the Constitution?

We now know that in recent years, 129 people in the United States who were found guilty of capital offenses in a trial and were facing a sentence of death were later found to be innocent. In some of these cases, witnesses lied; in others, police or prosecutors took constitutionally unlawful shortcuts; in some, the defense lawyer did not put on a defense.

As pro bono counsel, I unsuccessfully litigated a Virginia appeal of a mentally retarded minor who had been convicted and sentenced to death for a crime that I firmly believe he didn't commit, because his court-appointed attorney didn't want to represent him and was basically worthless as his lawyer. After seven years, the Virginia governor ultimately lacked the courage to stay the sentence, and my client was executed.

Maryland is not immune to this type of miscarriage of justice. Kirk Bloodsworth, a resident of our Eastern Shore, was sentenced to death and later found to be innocent. Mr. Bloodsworth is a member of the state study commission today. Too many Marylanders have been prosecuted, convicted and sentenced to life for crimes they did not commit - and in some of those cases, it was only a matter of chance that they were not sentenced to death and executed.

Americans are just beginning to focus on miscarriages of justice in capital offenses and the fact that our nation, in all likelihood, continues to execute innocent people. Former Supreme Court Justice Sandra Day O'Connor - like myself, a supporter of capital punishment - in 2001 stated: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Since she made that comment, several more people have been shown to be innocent after being sentenced to death.

An accused innocent is most likely to be charged in a highly emotional atmosphere after a heinous crime has been committed, when there is tremendous public pressure on prosecutors and police to find and charge a defendant. The targets in many of these situations have no financial or family resources and are forced to rely on state-paid attorneys, who often are inexperienced and unprepared to defend them in this type of case. Defendants with substantial wealth seldom face a risk of execution.

The defense of a person accused in a death penalty case is enormously time-consuming and professionally demanding for a lawyer. When a state fails to provide the funds necessary to retain a competent lawyer, our state justice system is forced to rely on the altruism of a dwindling number of pro bono attorneys willing to endure the economic sacrifice and emotionally draining task of defending a capital case. Without a competent lawyer, the likelihood of a wrongful conviction rises drastically.

Like Ms. O'Connor, I see the deep and irrefutable flaws that are built into our present system of capital punishment. These flaws hold the most risk for those at the margins of society.

I am very skeptical that these flaws can be fairly repaired in today's fiscal climate, where Maryland's state budget is as crunched as any state. A study this year released by the Abell Foundation revealed that the present death penalty system in Maryland has cost the state nearly $200 million over the last 30 years because of "extra" costs of incarceration and prosecution.

Unless we are prepared to invest even more in the future for competent lawyers, I believe that there is a very real risk that Maryland (and other states that still have death penalty statutes) will execute innocent people. The commission has heard testimony from veteran defense attorneys about the inadequacy of the pay the state provides to attorneys in capital cases. Maryland pays the second-lowest rate in the nation for such attorneys - far below what it costs a lawyer to take on such a case.

Today, the system relies on a dwindling number of lawyers who take the cases at a financial sacrifice because they believe in the importance of providing good counsel to capital defendants.

We must honor America's fundamental democratic and constitutional principle that innocent people shall not be executed. The penalty for conviction in capital cases should be changed to life imprisonment without the possibility of parole until we are willing or able to provide the resources to stop these frightfully tragic miscarriages of justice.

Joseph D. Tydings is a former U.S. senator from Maryland, a former U.S. attorney and a former member of Maryland's General Assembly. He is now a partner in a law firm. His e-mail is

1 comment:

dudleysharp said...

Mr. Tidings,

It would benefit the debate, greatly, if you would fact check.

The 129 "innocents" released from death row is a blatant fraud. Simple fact check proves it. In fact, those making the claims, with regard to those 129 won't claim that they are factually innocent.

Why do you?

The reality is that innocent folks are more at risk if we don't execute murderers.

The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below

Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.

To state the blatantly clear, living murderers, in prison, after release or escape, are much more likely to harm and murder, again, than are executed murderers.

Although an obvious truism, it is surprising how often folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.

No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.

Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.

That is. logically, conclusive.

16 recent studies, inclusive of their defenses, find for death penalty deterrence.

A surprise? No.

Life is preferred over death. Death is feared more than life.

Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.

What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.

However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.

In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.

Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.

The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers, The New York Times, has recognized that deception.

To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.

There is no proof of an innocent executed in the US, at least since 1900.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?


(1) The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times