For the past four years there has been a stay of executions in the state of Maryland thanks to new regulations put in place one month before Governor O’Malley took office.  Now there is talk about reinstating the practice and it seems like O’Malley might go along with it, despite his feelings that capital punishment is “not a deterrent, it's very, very expensive, and the dollars could be used for other things, and it's ultimately inconsistent with the sort of nation we aspire to be."

It is difficult to get an accurate picture of the death penalty just from searching around on the internet for an hour or two.  This is an issue that everyone (besides, apparently, O’Malley) feels pretty passionately about.  These biases affect research and reporting, like it or not.  We all know that statistics can be manipulated or gathered to support nearly any hypothesis, and that certainly seems to be what has happened here.

Take, for example, the statistic that death penalty opponents often cite: that since 1973 over 100 death row inmates have been released after further investigation proved their innocence.  But is there is distinction between those released based on true innocence (i.e. the individual actually had nothing to do with the crime) and legal innocence (i.e. there was some technicality that allowed the individual to escape justice)?  This article on prodeathpenalty.com suggests that there is not, meaning that these people may not have been quite as “innocent” as they are made out to be.  Still, are we okay with taking that risk?

The question then becomes how comfortable we are with making mistakes; an issue of Type I and Type II error.  We have become increasingly intolerant of error of any kind in this litigious society, but in the case of incarceration (and execution) we are quite wary of Type I error -- sentencing someone for a crime that they did not commit.  For this reason, the state of Maryland requires that there must be biological evidence and either a confession on film or a videotape linking the defendant to the crime.  Without these things the harshest sentence that can be imposed is life without parole.

If the possibility of sending innocent men and women to die for crimes they didn’t commit makes you squeamish enough to say that we should abolish the system entirely, I must simply remind you that life is not fair.  We can take steps to make it less unfair, yes, but the fact is that more people die every day in traffic accidents than were released from death row since 1973, truly innocent or not.  Still, this does not mean that 100 lives is now an “acceptable” error.

The issue, as O’Malley points out, is whether or not the death penalty is a strong enough deterrent.  His point about expense is irrelevant, for the relative costs of executing an inmate and keeping him in prison for the rest of his life are only comparable if they have the same effects on the crime rate.  While it is difficult to say which of the two is more effective, I think outbound Pennsylvania Governor Edward G. Rendell sums up the issue pretty well: “…a 15-, 20-, or 25-year lapse between imposition of a death sentence and the actual execution is no deterrent… To criminals on the street, our death penalty is simply not a reality.”

O’Malley also brings up another issue: are we really the type of country that wants to support the institution of capital punishment?  Only 57 other countries apply the death penalty today, and I’m not sure that China and India are the best company for the United States to keep on this issue.  Even beyond all the debate about the effectiveness of the death penalty and the accuracy of its application, this issue is still a deeply personal one.

I am not a criminal, so perhaps I do not think as criminals do, but the thought of sitting in a jail cell every day for the rest of my life with only my guilt to keep me company would be a much stronger deterrent than a painless execution.  The fact that so many perpetrators of violent crimes choose to take their own lives rather than give themselves up to the police suggests that they feel the same way.

There may come a time when the federal government will make this debate irrelevant, but until that day it is up to us to arm ourselves with the facts and make sure that justice is swiftly carried out with an even hand that makes as few mistakes as possible. I believe the regulations in place in the state of Maryland do a good job keeping these goals at the forefront of criminal trials, which will at least be a source of comfort if executions resume.