Baltimore County Circuit Judge John F. Fader II is scheduled to decide today whether to add convicted killer Wesley Allen Rollins to the dwindling population on Maryland's death row.
In many ways, the 55-year-old Rollins, who is white, fits the characteristics of a classic Maryland death row inmate. A jury found him guilty in the murder of a white person, which studies say increases the chances of a death sentence. He was prosecuted in Baltimore County, the jurisdiction most likely to seek execution.
While Rollins denied smothering 71-year-old Irene Ebberts of Catonsville, he admitted burglarizing her home.
But if Fader agrees with prosecutors and sends Rollins to death row, it will be a move contrary to an apparent trend in Maryland and nationwide: a growing reluctance on the part of judges and juries to sentence defendants to death.
"The most recent phenomenon is a decline in death sentences, and a decline in death rows across the country," said Richard Dieter, executive director of the Death Penalty Information Center, a research group with an anti-death penalty tilt. "I think juries are hesitant, even when they find someone guilty, of giving the death penalty."
Nationwide, the number of death sentences has dropped markedly in recent years. From 1995 to 1999, judges and juries handed out an average of 300 death sentences a year. In 2001, the number fell to 155, according to the center.
Death penalty advocates attribute much of that decline to a nationwide decrease in murders. But opponents of capital punishment say juries are simply rejecting a greater number of death sentences.
In federal court, juries have decided not to give the death penalty in 18 of the last 19 cases when federal prosecutors asked for capital punishment.
"It's definitely a trend," said Michael Stark, the Baltimore-Washington coordinator of the Campaign to End the Death Penalty. "The courts are beginning to look with a more critical eye to what exactly we are doing with the death penalty."
In Maryland, there have been three death sentences since 2000, compared with 10 from 1996 to 1999, according to the Division of Corrections.
At the same time, many inmates have left death row - and not because of executions.
Tyrone Gilliam, the last person to receive a lethal injection from Maryland, was executed in 1998. At that point, there were 16 inmates on death row. Now there are 10. And because of the regular flow of inmates on and off death row, the number of death sentences overturned by the court system is larger than that difference.
Supporters of capital punishment say the cumbersome appeals process and many reversals in death cases have lessened the number of capital sentences sought by prosecutors and imposed by judges or juries.
"I think [the drop in death sentences] may just reflect the frustration that the sentences are not being carried out," said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation, a nonprofit group based in California that supports the death penalty.
Since Rollins' conviction in April, Maryland's death row has shrunk by two inmates. In May, the Maryland Court of Appeals ordered a new sentencing hearing for Courtney Bryant, who had been convicted in 2001 of killing a 21-year-old man in Hunt Valley. In June, the U.S. Supreme Court overturned Kevin Wiggins' death sentence. Wiggins was sentenced to death in 1989 for killing an elderly woman in Woodlawn.
While frustrating to capital punishment supporters, to death penalty opponents these reversals are a sign that the Court of Appeals is on their side.
"I think we're seeing a real trend of greater scrutiny at the court level, so cases are getting overturned," said Jane Henderson, co-director of the Quixote Center, an organization that fights against the death penalty.
And once death sentences are overturned, they are unlikely to be reinstated.
According to a study done last year by Columbia University, in only about 20 percent of cases in which a death sentence is overturned will another death sentence be ordered.
To Scheidegger and others, this reveals a court system failure. "Once we have a system in which sentences are actually being carried out, you're going to see them sought more often," Scheidegger said.
The "unending" appeals process in Maryland's capital punishment system was a reason that Baltimore County Circuit Judge Dana M. Levitz decided against death sentences in the county's most recent capital cases.
In the cases of Douglas A. Starliper, convicted of killing two friends in 2001, and Clarence Conyers, who had been on death row but last month had a new trial and sentencing hearing, Levitz said he was loath to give the death penalty because of its impact on victims' families.
"The devastating effect that this unending litigation has on the innocent families of the victims is incalculable," the judge said at the time of the Conyers case.
Levitz sentenced both Starliper and Conyers to two life terms.
Those in the anti-death penalty camp say that judges and juries have been affected by recent stories of death row exonerations, and are hesitant to apply the ultimate punishment.
The public perception of the death penalty shifted significantly, they say, when then-Gov. George Ryan of Illinois made national news by placing a moratorium on executions in his state after 13 death row inmates there were exonerated.
That action in 2000 eventually led to Ryan clearing Illinois' death row and calling his state's capital punishment system "haunted by the demon of error." It also prompted legislators across the country to examine their states' capital punishment systems.
In Maryland, then-Gov. Parris N. Glendening issued a death penalty moratorium while a University of Maryland professor, Raymond Paternoster, completed a study analyzing the state's capital punishment system.
The moratorium ended this year under Gov. Robert L. Ehrlich Jr., who is an advocate of capital punishment.
Calls for change
After Paternoster's study was released, showing what some believed were geographic and racial disparities, a number of legislators called for changes in the death penalty law, or for abolishing it all together.
Jeffrey Fagan, a professor of law and public health at Columbia University and an author of his university's death penalty study, said there were similar efforts across the country.
"We were surprised and pleased that virtually every state took up the question of a dysfunctional system and took concrete steps to remedy that system, or considered stopping the system all together," he said.
This public debate, anti-death penalty activists say, must have affected the jury pool.
"As a compromise, juries are often sentencing to life in prison without parole," said Dieter, of the Death Penalty Information Center. "It's a middle ground between death and life with parole. Juries think it is a good compromise given all the doubts."
None of this, however, can predict what Judge Fader will decide in Rollins' case today.
As with all Maryland death penalty cases, to win a death sentence, prosecutors would have to prove beyond a reasonable doubt that Rollins directly caused Ebbert's death and that there was an aggravating circumstance during the crime - such as Rollins committing another felony at the time of the murder.
Then the state would have to prove that the aggravating factors of the crime outweigh any mitigating circumstances.