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Death penalty fails on fairness

The Baltimore Sun

Some death penalty opponents believe they must win the argument on moral grounds - that they have to convince the Maryland General Assembly, for instance, that capital punishment should be abolished because it's just morally wrong. For many Americans, it's the only argument necessary and the only one they offer, and they do so with the stridency approaching that of religious belief.

While I appreciate the poetry of the moralizing abolitionists, and admit to having been in their ranks at one time, I realize that the moral argument doesn't work with everyone. Citizens of a society ruled by law - even one that has sent 124 innocent defendants to Death Row during the past 30 years, according to a count kept by the American Civil Liberties Union - need more than that.

Though polls indicate a drop in support for the death penalty, many of us still struggle with capital punishment; we move from being appalled that it is used at all in 21st-century America to being glad that it's still there when particularly heinous crimes occur in our midst. We're troubled by imperfection, and the prospect of putting an innocent man or woman to death. We're troubled - or at least should be troubled - by the lack of logic in the death penalty's imposition across the land, by the influence of race and geography in sentencing (see Baltimore County).

It's a deeply emotional issue, challenging the best and brightest thinkers among us to remain objective and rational.

One such American, who reflected long and hard on the question, is the acclaimed suspense novelist Scott Turow, visiting Annapolis this week to explain to the legislature how he went from death penalty agnostic to death penalty opponent.

Turow does not bring a set of religious beliefs to the debate, and he eschews what he calls the usual "liberal pieties." He takes a clinical approach to the whole matter. He had to, having been appointed to the Illinois governor's commission on the death penalty seven years ago.

George Ryan, the Republican governor from 1999 to 2003, had become alarmed at the number of Illinois death row inmates who'd been wrongly convicted. "We have now freed more people than we have put to death under our system - 13 people have been exonerated and 12 have been put to death," Ryan said as he declared a moratorium on state executions.

Turow, a former prosecutor who became the best-selling author of Presumed Innocent and other novels, went to work with the commission, researching all aspects of capital punishment - its history, its implementation after the Supreme Court ruling in 1976, the issue of geography, race and gender in sentencing, the question of deterrent effect, the desires and influence of victims' families - in Illinois and across the nation. Turow chronicled his experiences in Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It was published in 2003. It's a fine handbook for moralizing abolitionists who wish to expand their arsenal of argument.

"If my time on the commission taught me one lesson," Turow writes, "it was that I was approaching the question of capital punishment the wrong way. There will always be cases that cry out to me for ultimate punishment. That is not the true issue. The pivotal question instead is whether a system of justice can be constructed that reaches only the rare, right cases, without also occasionally condemning the innocent or the undeserving."

The death penalty might represent an American idea of justice; it might be a grand symbol of our moral instincts, Turow says. But it is also fraught with many inequities and shortcomings that we don't seem to be able to fix or resolve, that persist despite efforts at reform and long, tedious appeals. "You are four times more likely to get a death sentence in a rural area as an urban one," Turow said the other day. "Whether you receive a death sentence depends on whether you kill in an affluent area or a poor one."

He notes that the killing of a white person results in the killer going to death row far more often than when the victim is black. In Illinois, white murderers were sentenced to death at a rate 2 1/2 times that for black murderers - largely because their victims were white.

"In a racially divided society," Turow explains, "whites are more likely to associate with, and thus to murder, someone white, and that - choosing a white victim - turns out to be the controlling variable. Killing a white person made a murderer 3 1/2 times more likely to be punished with a death sentence than if he'd killed someone black."

In Maryland, where 80 percent of murder victims are black, this aspect of capital punishment has been known for a long time, though it doesn't seem to bother nearly enough people. A University of Maryland study found that blacks who kill whites are 2 1/2 times more likely to be sentenced to death than are whites who kill whites, and they are 3 1/2 times more likely to be executed than blacks who kill blacks.

And no jurisdiction in Maryland - and the United States, for that matter - has as high a percentage of inmates on death row as Baltimore County, according to a study by the Death Penalty Information Center in Washington. Whom you kill and where you kill dictates whom the state, in turn, is asked to kill. This is an unfair system that needs to be abolished.

"When the Supreme Court declared the death penalty unconstitutional in 1972," Turow writes, "the prevailing reason among the majority was because there was virtually no logic to who was being selected for execution and who wasn't. Legislatures and courts have spent the last [32 years] since capital punishment was restored attempting to establish more exacting guidelines and procedures, but the results are still wildly inconsistent."

And wildly unfair.

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