When Maryland Gov. Parris N. Glendening declared a one-year moratorium on executions last week, he was driven in part by concern that the death penalty had become "a lottery of jurisdiction." Nine of 13 death row inmates are condemned for crimes committed in Baltimore County, where a popular prosecutor insists on seeking a death sentence whenever the law allows.
Legally, there is nothing wrong with Baltimore County State's Attorney Sandra O'Connor's vigorous pursuit of the death penalty.
Nor is there anything legally wrong with the more lenient approach taken in the Washington suburbs and Baltimore City, where prosecutors have not sought a death sentence since 1998.
But the result gives capital punishment in Maryland a sheen of injustice, Glendening (D) said: "When nine out of 13 people on death row come from one jurisdiction -- and a jurisdiction that does not have a particularly high homicide rate -- it does raise some questions."
Maryland is not the only state wrestling with the issue. Geographic disparity in capital punishment has emerged as a major concern in New Jersey, Nebraska and Illinois. In Virginia, a legislative study last year found that the location of a murder is the most important factor in determining whether it will be punished by execution, outweighing the race of the killer and the victim as well as the brutality of the crime.
A University of Maryland criminologist is asking similar questions about murder prosecutions in Maryland; his study is expected to be complete in September.
In the meantime, Glendening and Lt. Gov. Kathleen Kennedy Townsend (D), the frontrunner in this year's gubernatorial campaign, are calling on lawmakers to consider reforms such as those proposed by a commission appointed by Gov. George H. Ryan (R) in Illinois, the only other state that has suspended the use of the death penalty because of doubts about its fairness.
Last month, the Illinois commission recommended a major overhaul of capital punishment, proposing 85 reforms. Among them: creation of a state panel that would have the power to approve or reject requests by prosecutors to pursue the death penalty in any case.
Prosecutors hate the idea of anyone looking over their shoulders. Montgomery County State's Attorney Douglas F. Gansler, who heads the legislative committee of the state prosecutors association, said punishing a community's most heinous crimes is an inherently local matter.
"You don't want prosecutors making life-and-death decisions based on politics or pressure from anyone. If people don't like what they're doing in Baltimore County, they can elect a new state's attorney," Gansler said.
But there is growing tension between those who advocate prosecutorial discretion and those who contend that the state has a strong interest in ensuring that the ultimate punishment is meted out fairly and uniformly.
"There are some things we should look at, particularly . . . some type of statewide standard for the application of the death penalty," Glendening said at last week's news conference. "I think it is fair to say the use of the death penalty ought not to be a lottery of jurisdiction."
In Maryland, as elsewhere, the issue of geography is complicated by the issue of race.
One of the most common criticisms of capital punishment in Maryland is that the system disproportionately selects black killers of white victims for the ultimate punishment. All but one of the 13 men on death row was sent there for killing white victims, though 80 percent of the state's homicide victims are black. And nine of the 13 condemned men are black, the highest proportion on any death row in the nation.
Of the Baltimore County killers, six are black, three are white and all nine had white victims.
Assistant Baltimore County State's Attorney Ann Brobst called the racial statistics "sort of meaningless."
The vast majority of murders -- and black victims -- are found in Baltimore City and Prince George's County, where prosecutors "don't seek the death penalty," Brobst said. The most aggressive death-penalty jurisdiction, meanwhile, is largely white and has mostly white victims, she said.
Brobst said her office seeks the death penalty in every case where there's "competent, credible evidence" to produce a guilty verdict for first-degree murder and to prove certain aggravating circumstances.
"Sandy O'Connor is committed to using all the tools the legislature gives her, and that includes, at times, seeking the maximum penalty for crimes the law designates as death-penalty cases," Brobst said. "Beyond that, we don't look to the race of anybody."
Brobst noted that there have been about 850 murders in Baltimore County since the death penalty was reinstated in 1978. Of those, about 100 fit the legal definition of a capital crime.
"We have had 11 men on death row," Brobst said, including two who have been executed. "I don't think we can be accused of overreaching."
Brobst did not criticize the methods of prosecutors elsewhere. But the differences are stark.
Neighboring Baltimore, for example, records the majority of the state's murders -- 261 of 438 in 2000, the most recent year for which statistics are available.
But Baltimore City State's Attorney Patricia Coats Jessamy has not sought a death sentence since 1998. That case was overturned on appeal, and the city's only death row inmate was sentenced nearly 20 years ago.
"My position on the death penalty is that I believe it should be reserved for those individuals who commit the most heinous crimes," Jessamy said. "And we don't ask courts or juries to make that decision for us. We try to be as reasonable as possible."
To that end, a team of prosecutors conducts quarterly reviews of every murder case, reviewing the facts of the crime, the strength of the evidence, the criminal history of the killer and any aggravating or mitigating circumstances. Sometimes, Jessamy even invites defense attorneys "to sit down with us and help us reach a conclusion."
During the last such review, in April, the team examined 58 murder cases. State law would have allowed prosecutors to seek the death penalty in four of those 58 cases, Jessamy said. "But we decided not on a single one would we pursue the death penalty."
Through the years, Jessamy said, "we've had a few cases where we would have considered the death penalty, but for other things." Shawn E. Brown, for example, had a history of quasi-sexual attacks on children when he strangled two boys, ages 8 and 16, in 1996.
But Brown "had mental problems," Jessamy said, "and we decided the mitigation was so great, we would not seek the death penalty."
In Montgomery County, where there were 12 murders in 2000, Gansler said he takes a similar approach. He has never sought the death penalty, not even for Albert W. Cook Jr., who confessed on videotape to the rape, torture and murder of jogger Sue Wen Stottmeister, whom he left to die in the snow in 2001.
"The crime could not have been more egregious," Gansler said. "But he had mental health issues and no criminal record." Cook pleaded guilty and accepted a sentence of life without parole.
In Prince George's County, where there were 72 murders in 2000, State's Attorney Jack B. Johnson did not return telephone calls. The single death row inmate from Prince George's was convicted in 1996.
"Obviously, every prosecutor in Maryland has a different standard than the one applied in Baltimore County," Gansler said. "But I don't think what Sandy O'Connor does is wrong. She has discretion to do that, and her methods are race-blind."
The University of Maryland study will shed light on whether blacks and whites are treated equally by Maryland prosecutors. (A previous, more limited Maryland study by University of Iowa law professor David C. Baldus found prosecutors more likely to charge killers of whites with capital crimes.)
The next question will be whether differing prosecutorial standards make the imposition of the death penalty seem arbitrary statewide.
If so, the next governor and General Assembly will have to decide which they value more: independent prosecutors or a more rational path to death row.
Death Penalty
