BACKGROUND MEMO ON THE CASE OF OKEN V. STATE OF MARYLAND

On Thursday, May 1, the Maryland Court of Appeals will hear oral arguments in the case of Oken v. Maryland. While some of the reporting on this case is likely to center on the facts of the case and the appropriateness of the death penalty in general, this case raises a larger overarching legal issue that directly affects the fairness of the outcomes in capital trials in Maryland. The key issue before the court is what standard should be applied to make the determination about whether the facts in a particular case justify a death sentence.

Currently, the standard for determining whether to impose a death sentence is "by a preponderance of the evidence" - the equivalent of using a balancing scale where on an otherwise equal scale you placed a feather's weight" and it tipped in that direction. This means in Maryland, if the scales are tipped in the direction of death by no more than the weight of a feather, a death sentence may be imposed.

In practical terms this means that juries who must determine whether sufficient facts exist to impose a death sentence and balance those factors against evidence that argues for mercy now impose the death penalty with the slimmest margin of certainty. Life and death decisions are being made on relatively close calls-- hardly the kind of overwhelming condemnation that most people think about when they say they support the death penalty.

Many legal scholars feel that the standard should be higher and the Supreme Court recently strengthened the case for this premise. Last year, the Court, in a 7-2 opinion, decided the case of Ring v. Arizona, where the Court struck down the death sentence of an Arizona man after a judge, not a jury, decided that an aggravating factor existed that warranted giving the man the death sentence. In its decision, the Court held that any factors that authorize increasing a defendant's punishment, must be found by a jury, beyond a reasonable doubt.

Maryland, along with Delaware, are the only two states that allow a death sentence to be imposed on the low "preponderance of the evidence" standard. As Judge Raker pointed out in her dissent in Borchardt v. Maryland, many other legal determinations, much less important than deciding whether to impose the death penalty, must be made by a higher standard of proof than preponderance of the evidence. For example, before a utility company in Maryland can shut off a customer's gas and electric service, it must prove nonpayment by the significantly higher standard of clear and convincing evidence.

The other important question that the court will be deciding in this case is when rules applying important constitutional protections should be applied to already pending cases. If a court announces a new legal principle or a legislature passes a new law, that law should be applied to already pending criminal cases if it is a change that is so significant that it would be unfair not to apply it to already existing cases. An example of this is another recent Supreme Court case, Atkins v. Virginia, where the Court ruled that the constitution prevented executing mentally retarded people. It would be unfair, and prohibited by the constitution, to proceed with the execution of a mentally retarded person who had been convicted before the Atkins decision.