No fatal mistakes

As a lawyer and former U.S. attorney, I have both prosecuted and defended death penalty cases. As a member of the Maryland House of Delegates and as a U.S. senator, I have studied and dealt with this issue for more than 40 years. While I have never been philosophically opposed to the death penalty, and have supported it in special cases, I now have deep concerns about the failures in our criminal justice system in capital cases.

The Maryland Commission on Capital Punishment - which is holding public hearings in Annapolis and must submit a final report in December - can play a vital role in educating the public and the General Assembly that our present failure to provide competent lawyers for the accused who can't afford one will likely lead to the execution of innocent defendants. The fact that Maryland pays less than any state other than Mississippi for such representation underscores the seriousness of this problem.

The commission needs to address two key issues: First, what is the present risk that Maryland will execute innocent people over the next decade? Second, can and will Maryland ensure that indigent defendants facing the death penalty - generally minorities, frequently mentally impaired - are provided with a competent lawyer and fair trial, as required by the Constitution?

We now know that in recent years, 129 people in the United States who were found guilty of capital offenses in a trial and were facing a sentence of death were later found to be innocent. In some of these cases, witnesses lied; in others, police or prosecutors took constitutionally unlawful shortcuts; in some, the defense lawyer did not put on a defense.

As pro bono counsel, I unsuccessfully litigated a Virginia appeal of a mentally retarded minor who had been convicted and sentenced to death for a crime that I firmly believe he didn't commit, because his court-appointed attorney didn't want to represent him and was basically worthless as his lawyer. After 7 years, the Virginia governor ultimately lacked the courage to stay the sentence, and my client was executed.

Maryland is not immune to this type of miscarriage of justice. Kirk Bloodsworth, a resident of our Eastern Shore, was sentenced to death and later found to be innocent. Mr. Bloodsworth is a member of the state study commission today. Too many Marylanders have been prosecuted, convicted and sentenced to life for crimes they did not commit - and in some of those cases, it was only a matter of chance that they were not sentenced to death and executed.

Americans are just beginning to focus on miscarriages of justice in capital offenses and the fact that our nation, in all likelihood, continues to execute innocent people. Former Supreme Court Justice Sandra Day O'Connor - like myself, a supporter of capital punishment - in 2001 stated: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Since she made that comment, several more people have been shown to be innocent after being sentenced to death.

An accused innocent is most likely to be charged in a highly emotional atmosphere after a heinous crime has been committed, when there is tremendous public pressure on prosecutors and police to find and charge a defendant. The targets in many of these situations have no financial or family resources and are forced to rely on state-paid attorneys, who often are inexperienced and unprepared to defend them in this type of case. Defendants with substantial wealth seldom face a risk of execution.

The defense of a person accused in a death penalty case is enormously time-consuming and professionally demanding for a lawyer. When a state fails to provide the funds necessary to retain a competent lawyer, our state justice system is forced to rely on the altruism of a dwindling number of pro bono attorneys willing to endure the economic sacrifice and emotionally draining task of defending a capital case. Without a competent lawyer, the likelihood of a wrongful conviction rises drastically.

Like Ms. O'Connor, I see the deep and irrefutable flaws that are built into our present system of capital punishment. These flaws hold the most risk for those at the margins of society.

I am very skeptical that these flaws can be fairly repaired in today's fiscal climate, where Maryland's state budget is as crunched as any state. A study this year released by the Abell Foundation revealed that the present death penalty system in Maryland has cost the state nearly $200 million over the last 30 years because of "extra" costs of incarceration and prosecution.

Unless we are prepared to invest even more in the future for competent lawyers, I believe that there is a very real risk that Maryland (and other states that still have death penalty statutes) will execute innocent people. The commission has heard testimony from veteran defense attorneys about the inadequacy of the pay the state provides to attorneys in capital cases. Maryland pays the second-lowest rate in the nation for such attorneys - far below what it costs a lawyer to take on such a case.

Today, the system relies on a dwindling number of lawyers who take the cases at a financial sacrifice because they believe in the importance of providing good counsel to capital defendants.

We must honor America's fundamental democratic and constitutional principle that innocent people shall not be executed. The penalty for conviction in capital cases should be changed to life imprisonment without the possibility of parole until we are willing or able to provide the resources to stop these frightfully tragic miscarriages of justice.

Source: Opinion, Baltimore Sun; Joseph D. Tydings is a former U.S. senator from Maryland, a former U.S. attorney and a former member of Maryland's General Assembly. He is now a partner in a law firm)