The General Assembly once again has before it the issue of whether capital punishment should be abolished in Maryland. The debate has been and promises to continue to be both intense and traditional. On December 12, 2008 The Maryland Commission on Capital Punishment created last year by the Joint Resolution of the General Assembly in lieu of other action reported to the General Assembly that “After a thorough review of testimony from experts and members of the public, relevant Maryland laws, and court cases, as well as statistics and studies relevant to the topic of capital punishment in Maryland, The Commission recommends that capital punishment be abolished in Maryland.”
This distinguished, representative, and as it turns out Collegial Commission split 13 in favor of its final recommendation to 9 who opposed it for various reasons. This division was not unexpected. In fact it was a predictable division considering the history of previous commissions on the same subject matter and the current split in public opinion on the issue. That public opinion is reflected not only by the split within this latest Commission, but among the people’s representatives elected to The General Assembly which is again considering what to do with the Commission’s recommendation. This year, however, there is a little more handwringing, agonizing and reflection than in the past.
A recent Baltimore Sun survey of the 47 member State Senate revealed the same narrow majority of Senators opposed to completely repealing capital punishment that has existed in recent years. This is where the focus of the effort to repeal must be because it is clear that a majority of the House of Delegates was as recently as last year and apparently still is prepared to vote to abolish the death penalty. But this year the House Leadership appears to be waiting to see what the Senate which has not previously been willing to vote to repeal capital punishment will do before asking its members to further expose themselves on this on this potentially politically costly issue.
That tactical decision makes it even more difficult to move the legislation to repeal the death penalty recommended by the Commission because it deprives the proposal to repeal of the momentum which might have developed if it passed The House before the debate in the Senate began. It also throws the spotlight directly on two Republican State Senators, Bryon W. Simonaire and Alex X. Mooney. Both have stated that they have no moral objection to capital punishment and both believe that it should be used “in some circumstances.” Their position is arrived at in the face of the Commission’s findings and recommendations which they have both read as well as the promise of Governor O’Malley “to do everything in my power” to abolish executions in Maryland. It is also reached after considering the same “expert opinions,” “statistics,” “prior studies and reports,” “court cases” and the “testimony of both proponents and opponents of repeal” which persuaded a majority of the Commission and apparently the House of Delegates and the governor to support repeal.
Why? How can the division with the commission, within the legislature, and within society on this issue persist when The Report of the Commission shows close to unanimity on the Findings regarding the underlying issues? Shouldn’t these Findings logically lead to consensus on the Final Recommendation by the majority for Repeal? The answer is that the positions of both the majority in favor of repeal and the minority against it are not arrived at syllogistically. Furthermore there is still ambiguity and a resulting serious dispute and confusion over the sufficiency and meaning of the data which researchers have collected to try to answer the central question which drives both the proponents and opponents of repeal. That central question is whether the death penalty has a deterrent effect.
Two of these researchers, Professors Cass R. Sunstein, Felix Frankfurter Professor of Law at Harvard Law School and Justin Wolfers, assistant professor of Public Policy at the University of Pennsylvania Wharton School, whose separate work was cited by different members of the United States Supreme Court to justify their competing conclusions on the deterrent effect or lack thereof the death penalty recently commented on that. They pointed out that both justices “misread the evidence” and misinterpreted their work. Specifically Justice John Paul Stevens cited research by Wolfers to support his claim that “there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.” This statement directly confronted the adoption by Justice Antonin Scalia of a suggestion by Sunstein that “a significant body of recent evidence” shows “capital punishment may well have a deterrent effect, possibly a quite powerful one.”
These researchers say neither of the justices’ conclusions is compelled or even supported by their work. As they point out in an article jointly authored, entitled “The Death Penalty Puzzle- The Murky Evidence for and Against Deterrence” , “One might like to conclude that these studies demonstrate that the death penalty does not deter. But this is asking too much of the data. Furthermore on the basis of existing evidence, it is especially hard to justify claims about causality. The absence of evidence of deterrence should not be confused with evidence of absence.” In short, “the best reading of the accumulated data is that it does not establish a deterrent effect of the death penalty” say Professors Sunstein and Wolfers whose data we are talking about.
It is this ambiguity and the incomplete state of the available data on the question of whether the death penalty has a deterrent effect particularly in certain circumstances which allows legislators such as Senators Simonaire and Mooney to oppose the complete repeal of the death penalty without flying in the face of science, logic and even conventional morality. Indeed it allows Senator Simonaire to explain his position very simply as “my basis is that I am a death penalty proponent.”
So where do we go from here? The proponents of repeal have in the past and again as recently as last week refused to compromise in the name of morality, thereby choosing not to acknowledge the arguable ambiguity and insufficiency of the evidence to support their position. Surprisingly the opponents of repeal have recently expressed a willingness to compromise by narrowing the circumstances in which the death penalty could be noticed. Specifically Senator Mooney, whose vote in favor of the bill would change the result in the Senate Judicial Proceedings Committee, has said that he would consider approving a bill which repeals the death penalty for all killers except a prisoner who kills a correctional officer. If that had been the law the law in Maryland for the last 25 years, none of the inmates currently on death row in Maryland would be there and none of the defendants who were executed would have been sentenced to death.
Why not do that which is doable this year? Why not accept where we apparently are as a society in 2009 and pass amended legislation that moves our state forward by recognizing what the late Supreme Court Justice William J. Brennan said, “Someday, not tomorrow (as it turns out) perhaps some years from now, “the evolving standards of human decency will finally lead to the abolition of the death penalty in this country.” Maybe in Maryland in 2009 we should start down that road perhaps a little slower than some of us might like. That way we can and perhaps should come back next year and drive further particularly since we wouldn’t have as far to go if we go as far as we can this year.