That's the title of an OpEd in the Sunday Washington Post. It's written by Michael Wein. LINK
When New Jersey abolished the death penalty last month, it was the first state to do so since the death penalty was reinstituted in 1976. Maryland, like New Jersey, is an infrequent user of the death penalty, with five executions since 1976 and five prisoners on death row.
Should Maryland follow New Jersey's lead on ending the death penalty? Personally, I say sure. But given the difficulty in a repeal bill passing out of the Senate Judicial Proceedings Committee and a recent poll showing that 57 percent of Marylanders support the death penalty (with 33 percent opposed), Gov. Martin O'Malley should instead take the lead against the death penalty in a way that may be adopted by states unlikely to rescind the law. He should support strengthening the standard for sentencing a person to death to at least a "reasonable doubt" standard, or use an even higher standard of "beyond a lingering doubt."
The standard for conviction down to the lowliest criminal offense has long been that a person may not be convicted without proof of guilt "beyond a reasonable doubt." Yet current law in Maryland is that jurors need only find by a "preponderance of the evidence" that the aggravating factors outweigh the mitigating factors in order for someone to be executed (the same standard as in a regular civil case). In 2003, three out of seven members of the Court of Appeals of Maryland in the Oken case held that a constitutional standard should instead be "beyond a reasonable doubt."
Last January, in State v. Borchardt, the Court of Appeals discussed an alternative but related standard of "beyond a lingering doubt." The court, quoting the U.S. Supreme Court, defined this doubt as "a lingering uncertainty about facts, a state of mind that exists somewhere between beyond a reasonable doubt and absolute certainty."
And:
If Maryland adopted a higher standard of guilt, other states might follow. In particular, Virginia might follow suit by adopting a reasonable- or lingering-doubt standard. This would probably be the best that opponents of the death penalty could hope for from Virginia, with a populace that staunchly endorses the death penalty and with the most executions in the United States after Texas.
If O'Malley wants to continue to take a stand against any death penalty on moral, practical and legal grounds, he should do so. But he should also consider reasonable alternatives. A higher standard of proof for execution would go a long way toward ensuring the important societal and judicial goal of reducing the possibility that states will execute the innocent.
Former Oklahoma governor Frank Keating has proposed a "a moral certainty standard," for death penalty cases. Keating said he applied that standard to his clemency review while has was governor. Keating articulated this standard at the Pew Forum's 2002 conference "Religion and the Death Penalty: A Call for Reckoning." His remarks are here.
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