Joseph D. Tydings is a for­mer U.S. Senator from Maryland who has both pros­e­cut­ed and defend­ed death penal­ty cas­es. In a recent op-ed in the Baltimore Sun he wrote of his grow­ing con­cerns about cap­i­tal pun­ish­ment gen­er­al­ly, and about Maryland’s death penal­ty in par­tic­u­lar. His expe­ri­ence with the death penal­ty led him to the con­clu­sion that ​“deep and irrefutable flaws are built into our present sys­tem of cap­i­tal pun­ish­ment. These flaws hold the most risk for those at the mar­gins of soci­ety. Given that insuf­fi­cient pro­tec­tions exist for those fac­ing the death penal­ty he rec­om­mend­ed that ​“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.

Mr. Tydings under­scored the rela­tion­ship between mis­takes in cap­i­tal cas­es and the qual­i­ty of rep­re­sen­ta­tion a defendant receives:

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 full arti­cle, ​“No Fatal Mistakes” is below:

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 sev­en 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.” — - — - — 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. His e‑mail is tydingsj@​dicksteinshapiro.​com. (J. Tydings, ​“No Fatal Mistakes,” Baltimore Sun, August 22, 2008). See also New Voices and Innocence.
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