Buoyed by the argument that changing the law would end capital punishment in Maryland, the Senate narrowly defeated a bill yesterday that would have raised the standard of proof required to issue a death sentence.
"You're going to empty out death row," said Sen. Norman R. Stone Jr., a Baltimore County Democrat. "If that's the intent when passing this bill, then pass the bill. It will eliminate the death penalty in Maryland."
Only 21 senators voted for the measure, three shy of the number needed for passage. The vote occurred a day after a margin of one vote ended the chances of a bill that would have temporarily halted executions in the state.
Two senators who supported the moratorium - Anne Arundel County Democrats John C. Astle and James E. DeGrange Sr. - voted against the standard of proof bill.
Yesterday's bill would have come into play in the sentencing portion of a death penalty case when a jury is considering whether to issue death. To sentence someone to death in Maryland, a jury must decide by a "preponderance of the evidence" whether aggravating factors, such as another felony committed with the murder, outweigh mitigating factors, like a defendant's difficult childhood.
The bill, sponsored by Sen. Brian E. Frosh, a Montgomery County Democrat, would have raised the stakes to "beyond a reasonable doubt" and would have applied only to future cases.
Attorneys for convicted killer Steven H. Oken, who was sentenced to death in 1991, used an Arizona court ruling that questions how a jury makes its sentencing decision in their effort to earn a stay of execution from the Maryland Court of Appeals. They argue that, according to the Arizona ruling, the question of whether the aggravating factors outweigh the mitigating circumstances is an element of the crime and therefore should be proved beyond a reasonable doubt.
Frosh noted statistics from other states using the stricter standard in arguing that it is unlikely to make it more difficult to get a death sentence. Ohio, for example, has 202 people on death row compared with 12 in Maryland, where the standard is more lenient.
"This is a bill about frosting. It's not about the cake," said Sen. Lisa A. Gladden, who is a Baltimore City public defender. "It's not about releasing people to the streets because they've been convicted of murder. Even if you change the law and the standard, no one is going to get freed. They're not coming to your neighborhood. They're not going to knock on your door."