Tichnell v. State

Cole, J.,

concurring:

I concur with the judgment of the Court in this case. I feel compelled to write separately, however, in order to emphasize what I view as an important aspect of the Court’s holding as to proportionality review.

Under legislative mandate, the Court must determine "whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Md. Code Art. 27, § 414 (e) (4). The Court is obliged, therefore, to compare each death case with other cases to ensure that there is a rational basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not. Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980).

The Court today concludes that the pool of cases from which "similar cases” are to be culled includes all cases in which the death penalty was sought, whether or not it was actually imposed. Simultaneously, the Court holds that:

In so concluding, we do not preclude any defendant whose death sentence is under appellate review from presenting argument, with relevant *483 facts, that designated non-capital murder cases are similar to the cases then under scrutiny, and should be taken into account in the exercise of our proportionality review function.

I take this to mean that the Court, in fact, is not limiting its proportionality review to cases in which the death penalty is sought but places the onus on the defendant to expand the pool of similar cases to include cases in which the death penalty was not sought.

In my view, allowing the Court to review a pool of cases which includes cases where the prosecutor chose not to seek the death penalty, because of plea agreements or because of other tactical reasons, is essential to meaningful proportionality review and fundamental to the constitutional application of the statute. Whether the responsibility for marshalling this data imposes a constitutionally impermissible burden on the defendant is a question for another day. For the present, I am willing to assume that the various prosecutors will maintain such a data bank which they will readily make available to defense counsel, public or private.

The purpose of § 414 (e) (4) is to allow the Court to evaluate meaningfully the proportionality of a death sentence. This purpose is not served if § 414 (e) (4) is interpreted to restrict the availability of all information relevant to that inquiry, specifically the cases in which the death penalty is not sought. Only with a full range of information about the individual defendants potentially but not ultimately exposed to the death penalty can this Court make a sound proportionality decision and thereby be assured that it has given no quarter to disproportionality based solely on factors such as race, sex, or wealth.

The death penalty’s disproportionate impact on racial minorities and the poor has been documented. 1 In Furman *484 v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), two members of the Supreme Court concluded that the state statutes at issue were unconstitutional in part because race appeared to be the only basis for selecting which offenders would be sentenced to die. See id. at 249-52 (Douglas, J., concurring); id. at 364-66 (Marshall, J., concurring). Discrimination in any administrative setting, including discrimination in the prosecutorial decision to seek the death penalty, is difficult to prove. Adequate information is essential; by allowing a defendant to gather and to present to this Court information about cases in which the death penalty was not sought, an informed decision as to proportionality can be made.

Although I assume that the State’s Attorneys in the several jurisdictions of this State approach their duties conscientiously and fairly, this assumption is no substitute for this Court being able to assure itself independently that they adhere to nondiscriminatory standards in distinguishing the few cases in which the death penalty is sought from the many cases in which it is not sought. As Judge Davidson’s dissenting opinion ably demonstrates, there is a wide variation among the several counties and Baltimore City in their respective administration of the death penalty due to the prosecutor’s unlimited discretion. Without an evaluation of the cases in which the capital sanction is not sought, it will be virtually impossible for this Court to detect any untoward discrimination in prosecutorial discretion.

I would prefer that the Court, by Rule, require each State’s Attorney to maintain a file of those cases where the death penalty could have been sought, indicating the aggravating and mitigating factors present therein. This information could then be available to a defendant in a particular case. Although the Court today does not require such a procedure, it does allow a defendant to demonstrate that his sentence is disproportionate by presenting similar cases where the death penalty was not sought. How constitutionally meaningful this concession is will be left to counsel to demonstrate.

. Empirical studies in this area include: Riedel, Discrimination in the Imposition of the Death Penalty: A Comparison of the Characteristics of Offenders Sentenced Pre-Furman and Post-Furman, 49 Temp.L.Q. 261 (1976); Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delinq. 132 (1969); Bedau, Death Sentences in New Jersey, 19 Rutgers L.Rev. 1 (1964); Zimring, Eigen & O’Malley, Punishing Homicide in Philadelphia: Perspectives on the Death Penalty, 43 U.Chi.L.Rev. 227 (1976).