Mar 06, 2013 Maryland soon to repeal capital punishment. Abolish the death penalty NOW!
For years I have been obsessed against the death penalty.
In my law school criminal law class in 1986, with glee I read the 1972 Furman v. Georgia Supreme Court decision that effectively put the brakes on the then-existing death penalty systems in the nation. That glee did not last long, as I immediately thereafter read with deep disappointment the 1976 Gregg v. Georgia Supreme Court decision that okayed Georgia’s legislative response to Furman, effectively allowing the state-sponsored murder to resume.
I quickly became endeared to Supreme Court Justices Thurgood Marshall and William Brennan’s consistent insistence that the death penalty is unconstitutional. While a first year law student, the Bridgeport [Connecticut] Post — in my natal city — printed my letter to the editor insisting that the death penalty was unconstitutional for violating the Eight Amendment’s prohibition against cruel and unusual punishment and the Fifth Amendment’s prohibition against deprivation of life and liberty without due process. However, right after my letter was a letter to the editor rambling all too generally about how morality was declining in society. A year earlier, I wrote to my then-Connecticut state delegate Christine Niedermeyer opposing the death penalty. In those pre-Internet days, she called back and left me a message through my mother that she was not fully opposed to the death penalty. Recently, Connecticut repealed capital punishment.
Praised be my fellow law school Amnesty International members, who in 1987 collected over eighty signatures of the school’s students, decrying the death penalty as a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. At the conclusion of Justice Scalia’s lecture, before he went two blocks away to a fancy concluding wine and cheese law school reception — while the general public in the street suffered from his many wrongly-reached majority votes to curtail Constitutional rights — I walked up to him, and said: “Justice Scalia, here is a petition signed by over eighty law students that the death penalty is unconstitutional.” He would not take it, saying that if I wanted to lobby him, to do so through oral argument (or ,I suppose, by filing an amicus brief); however, the Supreme Court only accepts one to two percent of certiorari petitions for oral argument. I told him I’d send the petition to his secretary in case he changed his mind. He said she would throw it out. Was she somehow a Radar O’Reilly, who knew to look out for my letter before it was ever sent? He said she throws out all correspondence seeking to influence his opinion.
Not long after this interchange with Justice Scalia, I read the Supreme Court’s June 1987 decision in Booth v. Maryland, 482 U.S. 496 (1987), the later-reversed decision that banned victim-impact statements in capital murder sentencing proceedings. Imagine my head-scratching (a gross understatement), when I read the scathing dissent of this justice who several months thereafter refused my anti-death penalty petition, where he did not even give any citations to his claim that: “Recent years have seen an outpouring of popular concern for what has come to be known as ‘victims’ rights’ — a phrase that describes what its proponents feel is the failure of courts of justice to take into account in their sentencing decisions not only the factors mitigating the defendant’s moral guilt, but also the amount of harm he has caused to innocent members of society.” Booth, 482 U.S. at 520.
I will even debate my allies when they support the death penalty. In Gunning for Justice, my teacher Gerry Spence makes an unconvincing explanation about why he took an appointed prosecution in a capital case because of the gruesomeness of the murder, despite his otherwise being opposed to capital punishment. The death penalty always is unjust.
By now, I could have put my money where my mouth is all the more — beyond opposing it online — and for instance by going to the Maryland legislature recently when the legislators were hearing the public’s views on repealing the death penalty or not. Instead, I returned to my office after court to serve my current clients and to be home early enough during a week that I had been late at the office thus far. I could have defended capital defendants pro bono at the trial level (where I have heard estimates of it not being unusual to take at least two thousand hours to effectively represent a capital defendant, which is a real financial challenge to a solo law practitioner to handle pro bono) or the appellate or post conviction level. My not having done this work yet is not relate yet to the concept that the death penalty can end — with awful casualties along the way — if qualified lawyers simply refuse to legitimize the death penalty machine by refusing to do such defense. The only such work I have done thus far was to have devoted around twenty hours during my second year law school winter break to assist an accomplished lawyer at a high-powered law firm with legal research for his pro bono post conviction work for a Maryland death row inmate. There is no end to the work that can be done against the death penalty.
Today, when many Washington, D.C., courthouses were closed for the snow that petered out other than in more rural areas well outside of the Capital Beltway, Maryland’s senate passed legislation repealing the death penalty, apparently after some classic political wheeling and dealing that so often accompanies efforts to pass legislation. The Maryland death penalty repeal legislation is expected to fly through the state’s remaining chamber, the House of Delegates, and to be signed by the governor. This wonderful result has been decades in the making.
Across the river in Virginia, the death penalty remains much more entrenched in the law and in prosecutions. At the federal level, we are far from eliminating the death penalty.
As is common throughout the nation, death sentences in Maryland have been overwhelmingly issued where the victim was white, even after adjusting for the higher population of white people in society. The racism of the death penalty is clear.
Fortunately, the number of executions are going down and are becoming more isolated as to the number of states that frequently execute. Every member must act to end the death penalty.
Abolish the death penalty NOW!