As Maryland's de facto moratorium on executions drags on and lawmakers in Annapolis prepare for another set of hearings in the years-long push by advocates to outlaw capital punishment, it is understandable that the families of those who were murdered by the five men on death row would be frustrated and angry. Phyllis Bricker, whose parents were murdered by death row inmate John Booth-El, gave voice to the anguish that has caused in a recent interview with The Sun's Julie Bykowicz: "There's been no closure, no justice. … We're still here, and now we're fighting the legislature. Nobody ever told us we'd have to do that."
When Mr. Booth-El was sentenced, Ms. Bricker and her family were promised the ultimate in finality, but they have gotten anything but. It has been 27 years since he was sentenced. Two other inmates on Maryland's death row have been there the same amount of time, and the other two have served 15 and 13 years since they were sentenced to die.
Supporters of capital punishment in Maryland point to the very real suffering of people like Ms. Bricker as evidence that our state's criminal justice system is hopelessly prejudiced in favor of criminals and not victims.
Baltimore County State's Attorney Scott Shellenberger, perhaps the most thoughtful of capital punishment advocates among Maryland's elected officials, said that in capital-eligible cases, he or his deputies sit down with the families of victims to make sure they know what they're getting into. They usually don't; he said they realize the process won't take a year or two, but 10, 15, 20 years or more is a shock, and presented with the option of a sentence of life without parole, some conclude that it isn't worth it.
"I believe in our system," Mr. Shellenberger says. "But somewhere between five years and 30 years, there has to be a place that's reasonable."
But the phenomenon is not limited to Maryland. Nationwide, the death penalty offers families of victims neither certainty nor resolution.
According to the U.S. Department of Justice, the vast majority of people sentenced to death are not actually executed. Since 1977, 4,942 of the 8,115 people sentenced to capital punishment have left death row. Of that number, only 1,188 were executed, or 24 percent. More than twice as many eventually had their convictions or sentences overturned; others had their sentences commuted or died of other causes before they could be executed.
And Maryland's delays in executing prisoners, while greater than average, are not an anomaly. The typical death row inmate has been waiting 146 months, or more than 12 years, since sentencing, and the average time from sentencing to execution nationwide went up from about six years in 1984 to more than 14 years in 2009. The amount of time varies by state, but even in Texas — which few would argue is reluctant to carry out capital punishment — the average time between sentencing and execution is 10.6 years.
Death row inmates are, by and large, an unsympathetic lot, and a justice system that is focused on ensuring that brutal killers' rights have been scrupulously observed inevitably comes across as cruel to victims' families, who have already endured monumental cruelty. The problem is that it is impossible to construct a system of capital punishment that doesn't doubly victimize the innocent. If we are to impose the most final of all penalties, we must be absolutely certain of the guilt and culpability of those who receive it, lest the state be just as guilty of murder as the criminals it seeks to punish. And too many inmates on death row have been exonerated for us to take that process lightly.
According to the Innocence Project, 17 people who spent time on death row have been exonerated through DNA testing, and many more have been released based on other new evidence. Twenty-two convictions of people sentenced to death were overturned in 2009 alone, according to the Justice Department, and appeals courts overturned another 42 sentences — together, that's more than the 52 people who were executed nationwide in that year.
The story of Kirk Bloodsworth is familiar to many in Maryland. He was sentenced to death in 1985 for the murder of a 9-year-old girl in Rosedale, only to be freed nine years later after DNA evidence showed he was not the killer. But his story is hardly unique. Among the cases chronicled by the Justice Project, with which Mr. Bloodsworth now works, are those of Earl Washington Jr. of Virginia, who spent 18 years in prison, nine of them on death row, before he was exonerated by DNA evidence; Joseph Amrine of Missouri, who spent 17 years on death row for a crime he didn't commit; and Anthony Porter of Illinois, who spent 16 years on death row and was within two days of execution when the state Supreme Court agreed to a stay to examine his mental fitness. During that delay, a key witness recanted, another came forward, and the real killer made a videotaped confession.
Mr. Shellenberger notes that two years ago, Maryland enacted what may be the strictest standard for capital cases in the nation and now allows the death penalty only when there is physical evidence, such as DNA, or a videotaped confession. "We're as close to infallible as you can be in Maryland now," he says.
That may decrease the likelihood that the state will execute an innocent person, or that capital convictions will eventually be overturned. But it doesn't diminish the rights of death row inmates to file appeals, and it doesn't necessarily make it more likely that appeals courts will uphold a capital sentence, which is a different question from guilt or innocence. Even with the new, heightened standards, people like Ms. Bricker will likely be forced to confront their loved ones' killers again and again, and to have the closure they were promised repeatedly put at risk.
In other states, the frustrations inherent in capital cases have led the families of some victims to argue for the end of capital punishment. In Connecticut, 76 family members of murder victims sent a letter to the legislature this month urging it to repeal the death penalty, saying it is "a false promise that goes unfulfilled. And as the state hangs on to this broken system, it wastes millions of dollars that could go toward much-needed victims' services."
In Illinois, Jennifer Bishop and Kathleen Bishop Becker, cousins who lost three family members to murder, wrote in an op-ed in the Peoria Journal Star last month that the death penalty is a "harmful albatross" for murder victims' families. "In capital cases, family members are forced to endure years of trials and appeals that last at least twice as long as in non-capital cases, not to mention a long string of possible reversals because the system didn't get it right," they wrote. "The offender becomes a household name and the victim is forgotten. We are frequently denied legal finality. The state ends up spending millions, which are then not available to help victims or family members." Dozens of family members of Illinois murder victims have also petitioned the legislature for an end to capital punishment.
When the House of Delegates takes up a death penalty repeal bill next month, many will likely see the debate as a conflict between those who have sympathy for murderers and those who have sympathy for victims. But the issue is much more complicated. Proponents of capital punishment may believe they are offering victims' families the chance for true justice, but they must acknowledge that the promise frequently goes unfulfilled, and it exacts a terrible price. The state has interests in the penal system beyond the desires of victims and their families, but insofar as Maryland legislators weigh the question of justice for those most deeply affected by the most terrible crimes, they need to recognize that a sentence of life without the possibility of parole provides peace and certainty that the death penalty rarely can.