Miles v. State

RODOWSKY, J. The appellant, Jody Lee Miles (Miles), is a convicted murderer who was condemned to death by a jury in the Circuit Court for Queen Anne’s County on March 19, 1998. After numerous reviews, 1 Miles, in July 2011, filed a second motion to correct his sentence, claiming that it was illegal. 2 Miles asserts that his sentence is illegal because the Maryland death penalty statute violates the Declaration of Rights (MDR) Article 16, which reads: ⁵⁴⁴ “That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.” Appellant’s principal position is that, on November 3, 1776, when the Maryland Constitutional Convention adopted our first Constitution and Declaration of Rights, then MDR Article 14, by its reference to “sanguinary laws,” abolished capital punishment, subject to the State safety exception, without regard to the nature of the crime or the method of imposition of that punishment. Article 14 read: “That sanguinary laws ought to be avoided, as far as is consistent with the safety of the State; and no law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time hereafter.” D. Friedman, The History, Development, and Interpretation of the Maryland Declaration of Rights, 71 Temp. L.Rev. 637, 656 (1998) (Friedman-Temple).

Miles also contends that his sentence is illegal because it violates MDR Article 24, which provides: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” That argument is directed to the provision in the death penalty statute under which his jury determined “whether, by a preponderance of the evidence, the aggravating circumstances outweigh[ed] the mitigating circumstances.” Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 413(h)(1), more recently Maryland Code (2002, 2012 RepLVol.), § 2-303(i)(l) of the Criminal Law Article. 3 The circuit court denied Miles’s motion, and he noted this appeal. He presents two questions: ⁵⁴⁵ “1. Is Mr. Miles’ death sentence unconstitutional and illegal under the ‘sanguinary Laws’ clause of Article 16 of the Maryland Declaration of Rights? “2. Is Mr. Miles’ capital sentence illegal where the jury did not find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors?” We shall affirm for the reasons set forth below.

Motion to Dismiss The State has moved to dismiss the appeal. Maryland Rule 4-345(a) provides that “[t]he court may correct an illegal sentence at any time.” The State correctly observes that Miles’s use of Rule 4-345(a) is not within the letter of our previously decided cases. We have indicated, however, that a sentence may be reviewable under Rule 4-345(a) where a United States Supreme Court decision, promulgated after sentencing, announces a new judicial interpretation of a constitutional provision that brings into question the validity of the statute on which the sentence is based. See Evans v. State, 396 Md. 256, 272 , 914 A.2d 25, 34-35 (2006), cert. denied, 552 U.S. 835 , 128 S.Ct. 65 , 169 L.Ed.2d 53 (2007).

If the death penalty statute does not comply with the Declaration of Rights, the statute fails, and with it, the sentence. Here, Miles asks this Court to declare a constitutional rule of first impression. We hold that this issue of substantive constitutional law is within Rule 4-345(a). We conclude otherwise with respect to the dismissal of Miles’s appeal on the second issue.

His contention is not within Rule 4-345(a) for the reasons ably stated by the circuit court. “As noted supra, Defendant challenged this weighing procedure in his August, 2007 motion to correct illegal sentence. In that motion, defendant primarily relied on Cunningham v. California, 549 U.S. 270 [ 127 S.Ct. 856 , 166 L.Ed.2d 856 ] (2007), a U.S. Supreme Court decision that was published in January, 2007. Defendant argued that, pursuant to Cunningham , Maryland’s capital sentencing ⁵⁴⁶ scheme violates the Sixth Amendment unless it requires that aggravating factors outweigh mitigating factors beyond a reasonable doubt. Defendant additionally asserted that the sentencing procedure violates Article 21 of the Maryland Declaration of Rights.

See Md.Code, Ann., Const. Art. 21 (2003, 2011 Supp.). “This Court denied the motion on January 4, 2008. Defendant timely appealed. Significantly, Defendant never explicitly raised the issue of the constitutionality of the weighing procedure under the Declaration of Rights.

Rather, Defendant focused his argument on the Sixth Amendment. For reasons not directly pertinent to the issues currently before this Court, the Court of Appeals affirmed the denial of Defendant’s motion, holding that ‘Maryland’s capital sentencing procedure does not violate [the] Sixth Amendment.’ Miles v. State, 421 Md. 596, 607 [ 28 A.3d 667, 673 ] (2011). The Court did not address the sentencing procedure’s constitutionality with respect to the Maryland Declaration of Rights. “Defendant’s current motion, again, challenges the sentencing procedure under the Declaration of Rights. Defendant concedes that although Article 21 was mentioned in the 2007 motion, the Declaration of Rights issue was not explicitly raised before the Court of Appeals.

Defendant now ‘requests that this Court vacate his sentence of death on the ground that permitting the death sentence based on a jury finding by a preponderance of the evidence that the aggravating factors outweighed the mitigating factors violated the Maryland Declaration of Rights.’ Revised Supplemental Motion at 2. This time, Defendant primarily relies on Article 24 of the Declaration of Rights which provides, in pertinent part, that ‘no man ought to be ... deprived of his life ... but by the judgment of his peers, or by the Law of the land.’ Md.Code Ann., Const. Art. 24. (2003, 2011 Supp.). “Defendant cites no new judicial interpretation in the case at bar.

Consequently, Defendant’s motion may be cognizable under Rule 4-345(a) only under the general rule, where ⁵⁴⁷ the alleged error resulted in illegality of the sentence itself. Defendant’s Article 24 argument does not challenge the inherent illegality of his death sentence. Rather, it alleges error in the underlying procedure that resulted in the sentence. ‘The notion of an “illegal sentence” ... deals with substantive law, not procedural law.’ Corcoran v. State, 67 Md.App. 252, 255 [ 507 A.2d 200, 202 ] (1986). An error in a sentencing procedure, even if it is of a constitutional dimension, may very well result in an inherently and substantively legal sanction.

Cf. State v. Wilkins, 393 Md. 269, 275 [ 900 A.2d 765, 769 ] (2006) (citing Randall [Book Corp. v. State], 316 Md. [315], 323 [ 558 A.2d 715, 719 (1989) ]) (‘An error committed by the trial court during the sentencing proceeding is not ordinarily cognizable under Rule lp-3b5(a) where the resulting sentence or sanction is itself lawful.’); Evans [ 396 Md. at 271-72 , 914 A.2d at 34 ]. Indeed, ‘a sentence, proper on its face, [does not] become[ ] an “illegal sentence” because of some arguable procedural flaw in the sentencing procedure.’ Corcoran, 67 Md.App. at 255 [ 507 A.2d at 202 ], Therefore, the motion to correct an illegal sentence is not an appropriate vehicle to address Defendant’s Article 24 argument. “The Court’s decision is consistent with the narrow scope of the motion to correct illegal sentence. See Tshiwala [v. State ], 424 Md. [612], 619 [ 37 A.3d 308, 312 (2012) ].

A [Rule] 4-345(a) motion is generally cognizable only where there is no conviction warranting any sentence, see, e.g., Ridgeway v. State, 369 Md. 165 [ 797 A.2d 1287 ] (2002), or where the sentence exceeds the limits imposed by law, see, e.g., Matthews [v. State ], 424 Md. 503 [ 36 A.3d 499 (2012) ]. See Chaney v. State, 397 Md. 460, 466 [ 918 A.2d 506, 509-10 ] (2007). Because imposing a punishment under these circumstances is particularly egregious, Rule 4-345(a) ‘creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court.’ State v. Griffiths, 338 Md. 485, 496 [ 659 A.2d 876, 882 ] (1995). In all other cases, the interests of finality outweigh a defendant’s interests in ⁵⁴⁸ challenging alleged errors beyond a direct appeal and a post-conviction petition.” (Footnotes omitted).

Because Miles’s second contention is not cognizable under Rule 4-345(a), the circuit court was correct in denying relief under that rule on the preponderance argument. That does not result, however, in a dismissal of the appeal on that issue. Rather, we shall affirm. Parties’ Contentions Miles’s Submission The principal argument advanced by Miles is that, textually, Article 14 of the 1776 MDR abrogated capital punishment.

The argument consists of four steps, which we have reordered. 1. “A ‘sanguinary law’ is a law authorizing the imposition of the death penalty”; 2. “The word ‘ought’ means ‘shall’ ”; 3 “ ‘[T]o be avoided’ means ‘to be refrained from’ or ‘to be made void’”; and 4. “The phrase ‘as far as is consistent with the safety of the State’ means ‘unless necessary for the security of the State of Maryland.’ ” 4 Miles undertakes, in the major portion of his brief, to demonstrate that, in 1776, the well understood meaning of “sanguinary,” particularly when modifying “laws,” was capital punishment. His hypothesis is that, in 1776, the constitutional convention proscribed capital punishment for any offense, ⁵⁴⁹ including murder, that did not impact State security, and that the proscription operated without regard to the method of executing the sentence. This absolutist position is essential to Miles’s hypothesis because Maryland’s modern death penalty statute, if applied to Miles, does not infringe constitutional prohibitions against cruel or unusual punishment or against cruel and unusual pains and penalties. See, e.g., Johnson v. State, 303 Md. 487, 542 , 495 A.2d 1, 29 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986); Stebbing v. State, 299 Md. 331, 373 , 473 A.2d 903, 924 , cert. denied, 469 U.S. 900 , 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984); Colvin v. State, 299 Md. 88, 126-27 , 472 A.2d 953, 972 , cert. denied, 469 U.S. 873 , 105 S.Ct. 226 , 83 L.Ed.2d 155 (1984); Calhoun v. State, 297 Md. 563, 606 , 468 A.2d 45, 65 (1983) (holding that modern death penalty statute satisfies Eighth and Fourteenth Amendments to the United States Constitution and MDR Articles 16 and 25), cert. denied, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984); Johnson v. State, 292 Md. 405, 436 , 439 A.2d 542, 559-60 (1982); Tichnell v. State, 287 Md. 695, 729 , 415 A.2d 830, 848 (1980) (finding that modern death penalty statute satisfied Eighth and Fourteenth Amendments to the United States Constitution and MDR Article 25 but remanding for re-sentencing because death sentence had been applied arbitrarily).

The thesis advanced by Miles begins with an intellectually influential work by Cesare Becearia (1738-1794), An Essay on Crimes and Punishments, written in Italian in 1764 and first published in English in 1767 (Becearia). 5 See also XI W. Holdsworth, A History of English Law, at 575, notes 11 & 12 (1938) (Holdsworth). Becearia advocated proportionality in sentencing. Becearia at 21-26. He opposed capital punishment and proposed lifelong slavery as the alternative punishment for murder.

Id. at 102-17. Because of the possibility that a revolutionary might escape, he believed that capital ⁵⁵⁰ punishment was justified only to protect the safety of the state. Id. at 103-04. The term “sanguinary” does not appear in the English translation of Beccaria’s work.

The Legal Classics English edition includes an unsigned commentary, usually attributed to Voltaire, that uses the term “sanguinary” in the title of chapter thirteen, which describes the death sentence imposed on a poor French man for breaking his Lenten fast by eating “a morsel of horse-flesh,” out of “the most intolerable hunger.” Commentary at 43. The point of the commentary is the shocking lack of proportionality in that case. Miles, acknowledging computer searches for his ability to survey the subject, has presented us with an array of quotations using the term “sanguinary” in historical, political, philosophical, legal, and other writings, particularly from the eighteenth and nineteenth centuries. For example, we are referred to eleven writers of those centuries who, as Miles synthesizes their quotations, “say that Solon abolished the sanguinary laws of Draco, except the ones for murder, thereby implying that the death penalty for murder is a sanguinary law.” Brief of Appellant at 16 n. 4. 6 Miles also directs our attention to the use of “sanguinary” by those who opposed capital punishment under any circumstances.

The Maine Constitution, Article I, § 9 (1820), provided: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense ... nor cruel nor unusual punishments inflicted.” In 1836 a Joint Select Committee on Capital Punishment considered this provision and reported, in relevant part: ⁵⁵¹ “Sanguinary is derived from a Latin word which signifies blood, and is synonymous with the Latin sanguinarius and the French sanguinaire, both of which signify bloody, murderous, cruel. These are the definitions given by Webster, and other lexicographers; and it is in this sense that it is here used. If an objection be raised to this construction, on the ground that the law requiring the punishment of death by hanging, for certain offences, is not one requiring the blood of a fellow-being, it will be readily perceived that such an objection is unwarranted by the common use of language. If one man shall put to death another, whether by poisoning, strangulation, or suffocation, he is said to be guilty of the blood of the murdered person, and is even said to have shed his blood, although no blood has literally been spilt.

It is in this sense that the advocates of the punishment of death explain and make the practical application of the passage of Scripture, ‘Whoso sheddeth man’s blood, by man shall his blood be shed.’ Hence, they say, the man who has shed the blood of another should be hung upon the gallows; that is, his blood should be shed to expiate the crime. It is obviously true that the taking of life and the shedding of blood are used synonymously. In this sense, hanging a man with a halter till he is dead is as much a sanguinary punishment as decapitation. The law, therefore, prescribing this mode of punishment is a sanguinary law, and consequently unconstitutional.” T. Purrington, Report of Capital Punishment, Made to the Maine Legislature in 1836, at 28-29 (2d ed. 1852).

Maine abolished the death penalty in 1876, reinstated it for murder in 1883 and permanently abolished it in 1887. See D.W. Denno, Getting to Death, Are Executions Constitutional?, 82 Iowa L.Rev. 319, 448 n. 824 (Jan. 1997). With respect to “ought” in the sanguinary laws clause, Miles asserts that it is mandatory, and not directory. Significantly, Miles recognizes that the clause is a “ ‘restriction’ and ‘limitation’ on the power of the General Assembly.” Appellant’s Brief and Appendix at 8 (quoting Harford County v. Board of Supervisors of Elections, 272 Md. 33, 39-40 , 321 A.2d 151, ⁵⁵² 154-55 (1974)).

Citing to Samuel Johnson’s 1775 dictionary and to Black’s Law Dictionary 136 (6th ed. 1990) for the meaning of “to avoid,” Miles observes that the seventh meaning assigned by the former, and a meaning included by the latter, is “to annul.” He concludes that, in the sanguinary laws clause, it “could mean either ‘to be refrained from’ or ‘to be made void.’ If it means the former, the clause would prohibit the legislature from enacting] ‘sanguinary Laws’ to the extent that such a prohibition was ‘consistent with the safety of the State.’ If the latter, the clause would require that ‘sanguinary Laws’ be voided ‘as far as it is consistent with the safety of the State.’ Under either interpretation, the result is the same.” Appellant’s Brief and Appendix at 8-9. The Circuit Court’s Decision and The State’s Submission In a thirty-nine page opinion, the learned circuit court undertook to define a sanguinary law. Addressing the plain meaning of the text of 1776 MDR Article 14, it reviewed the dictionaries of the era. “The many founding-era dictionaries consulted by the Court do not directly define the phrase ‘sanguinary laws.’ The dictionaries of the time, however, consistently define the word ‘sanguinary’ as ‘cruel; bloody; murderous.’ Samuel Johnson, A Dictionary of the English Language: Abstracted from the Folio Edition (1768); Samuel Johnson, A Dictionary of the English Language: In Which the Words are Deduced from their Originals (1799); William Kendrick, A New Dictionary of the English Language (1773); John Walker, A Dictionary of the English Language (1775); Nathan Bailey, A Universal Etymological English Dictionary (1794); Thomas Sheridan, A Complete Dictionary of the English Language (1796); Noah Webster, A Compendious Dictionary of the English Language (1806). The word ‘sanguinary’ is, indeed, rooted in the Latin word ‘sanguis,’ meaning ‘blood.’ D.P. Simpson, Cassell’s Latin Dictionary ([Funk] & Wagnalls 1977) (1959). ⁵⁵³ “It is instructive to further define the words that comprise the definition of ‘sanguinary.’ The word ‘cruel,’ was defined by founding-era dictionaries as ‘[pjleased with hurting others; inhuman, hard-hearted; barbarous.’ Samuel Johnson, A Dictionary of the English Language: Abstracted prom the Folio Edition (1768); Noah Webster, A Compendious Dictionary of the English Language (1806) (‘hardhearted, inhuman, bloody, fierce’).

The term ‘blood,’ in turn, means ‘stained with blood, murderous, cruel.’ Noah Webster, A Compendious Dictionary of the English Language (1806); Samuel Johnson, A Dictionary of the English Language: In Which the Words are Deduced from their Originals (1799) (‘cruel; murderous: applied either to men or facts’). ‘Inhuman’ was defined as ‘[bjarbarous; savage; cruel; uncompassionate.’ Samuel Johnson, A Dictionary of the English Language: In Which the Words are Deduced from their Originals (1799). Similarly, ‘barbarous’ had a meaning of ‘[cjruel; inhuman’ and ‘[sjtranger to civility; savage; uncivilized.’ Samuel Johnson, A Dictionary of the English Language: Abstracted from the Folio Edition (1768). Finally, ‘murderous’ was defined as ‘[b]loody, guilty of murder.’ Richard Coxe, Walker’s Dictionary, A Critical Pronouncing Dictionary of the English Language (1813).” The court reviewed the historical context of the sanguinary laws clause from “The Bloody Code of England” through the “Harsh Laws in Colonial Maryland,” to “The Age of Enlightment.” It concluded: “The overwhelming weight of evidence reveals that ‘sanguinary laws’ are laws which impose severe, inhumane, barbarous, cruel, and grossly disproportionate punishment. Sanguinary laws are reminiscent of the extreme punishments instituted by the Bloody Code of England.

Through the Sanguinary Laws Clause, Maryland’s founding fathers rejected the harsh punishments characteristic of the Bloody Code and declared that criminal sanctions shall be both humane and proportioned to the offence. The Sanguinary Laws Clause was a mandate to reform the criminal law by ⁵⁵⁴ bringing punishments in line with Enlightment-era principles. “Defendant’s assertion that the phrase ‘sanguinary laws’ means laws that authorize the death penalty is neither consistent with the common usage of the phrase, nor with the historical context of Article 16. Certainly, if a statute made theft a capital crime, that law would be sanguinary. Common founding-era usage of the term ‘sanguinary law,’ however, would not encompass imposition of the death penalty for the most serious and heinous crimes, such as first degree murder.

This interpretation is consistent with history. Despite the reforms to criminal laws that followed the founding of the states whose constitutions limit ‘sanguinary laws,’ the death penalty was never abolished for first degree murder and other serious offenses.” The State agrees with the circuit court’s analysis, but it also points out that it is unnecessary to the decision of this case to define sanguinary laws for all purposes. It is sufficient to decide whether capital punishment for murder, carried out by lethal injection, is prohibited by current MDR Article 16. Rules of Construction In general, the same rules that apply to statutory construction apply to the construction of constitutional provisions.

See, e.g., Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 80 (2004). We look first to the plain meaning of the provision, in the context of the instrument as a whole. See Barbre v. Pope, 402 Md. 157, 172 , 935 A.2d 699, 708 (2007). If the meaning remains ambiguous, we consult the history of the enactment or adoption, which we may consult in any event as a check or verification on the apparent plain meaning.

See Robey v. State, 397 Md. 449, 454 , 918 A.2d 499, 502 (2007). In construing constitutional provisions, “It is not until the means of solution afforded by the entire Constitution have been exhausted without success that the Court is justified in calling outside facts or considerations to its aid. When that becomes necessary, however, it is permissible to inquire into the prior state of the law, the ⁵⁵⁵ previous and contemporary history of the people, the circumstances attending the adoption of the organic law, as well as broad considerations of expediency. The object is to ascertain the reason which induced the framers to enact the provision in dispute and the purpose sought to be accomplished thereby, in order to construe the whole instrument in such way as to effect that purpose.

The Court may avail itself of any light that may be derived from such sources, but it is not bound to adopt it as the sole ground of its decision.” Reed v. McKeldin, 207 Md. 553, 561 , 115 A.2d 281, 287 (1955). Ambiguity Here, as the arguments of, and the authorities cited by, the parties make plain, “sanguinary Laws” is an ambiguous phrase. Further, “ought to be avoided” is an ambiguous phrase. Miles submits that, when used in the MDR, and in current Article 16 in particular, “ought” means “shall.” He claims that the word’s appearance in a constitutional provision must mean that the provision is mandatory, not simply directory.

Such a sweeping generalization is, however, inaccurate. The word “ought” appears in twenty-eight of the forty-seven articles of the current MDR, almost all of which originated in the 1776 MDR. Examination of those provisions reveals a full spectrum of meanings depending on context, ranging in character from a mere statement of policy to an imperative command. In some instances, the word “ought” conveys nothing more than a statement of public policy in the most general of terms.

See MDR Article 43 (“That the Legislature ought to encourage the diffusion of knowledge and virtue, the extension of a judicious system of general education, the promotion of literature, the arts, sciences, agriculture, commerce and manufactures, and the general melioration of the condition of the People.”). 7 ⁵⁵⁶ In other instances, the word “ought” may reasonably be interpreted as conveying a prohibition upon the Executive, General Assembly or Judiciary. See, e.g., Article 17 (“no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required”); 8 Article 18 (“That no Law to attaint particular persons of treason or felony, ought to be made in any case, or at any time, hereafter.”); Article 22 (“That no man ought to be compelled to give evidence against himself in a criminal case.”); Article 24 (“That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”); Article 25 (“That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.”); Article 26 (“all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted”); Article 36 (“no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice ... nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry”); Article 40 (“That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.”). 9 ⁵⁵⁷ It is no coincidence that many of these provisions, specifically Articles 17, 22, 24, 25, 26, and 40, have been read either in pari materia with corresponding, mandatory, provisions in the United States Constitution, or as guaranteeing even greater protection. Miles’s request that the Court read “ought” as the equivalent of “shall” ignores the fact that several provisions of the 1776 MDR that employed “ought” were later changed to “shall,” suggesting that “ought” is more directory than mandatory. See Article 27 (“That no conviction shall work corruption of blood or forfeiture of estate.”); 10 Article 31 (“That no soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, except in the manner prescribed by Law.”); 11 Article 33 (“the Judges shall not be removed, except in the manner, and for the causes provided in this Constitution.

No Judge shall hold any other office, civil or military, or political trust, or employment of any kind, whatsoever, under the Constitution or Laws of this State, or of the United States, or any of them”); 12 Article 35 (“That no person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State; nor shall any person in public trust receive any present from any foreign Prince or State, or from the United States, or any of them, without the approbation of this State.”). 13 ⁵⁵⁸ Indeed, at least one of the “shall” provisions has been interpreted as being not only not mandatory, but of very limited effect, specifically, Article 23’s provision that “the Jury shall be the Judges of Law.” See Unger v. State, 427 Md. 383 , 48 A.3d 242 (2012); Montgomery v. State, 292 Md. 84 , 437 A.2d 654 (1981); Stevenson v. State, 289 Md. 167 , 423 A.2d 558 (1980). It is against this spectrum of meaning that the Court is asked to determine the meaning of “ought to be avoided” in 1776 MDR Article 14. Samuel Johnson gave three alternative definitions of the verb “ought”: 1) the preterite of the verb “owe,” ie., “Owed; was bound to pay; have been indebted”; 2) “To be obliged by duty”; or 3) “To be fit; to be necessary.” S. Johnson, A Dictionary of the English Language, at 1428 (1755). The same definitions appear in Johnson’s 1768 revised third edition.

Usage examples from Johnson’s 1755 edition suggest that the second definition carried more of an aspirational tone (Bacon: “Judges ought to remember, that their office is to interpret law, and not to make or give law”; Pope: “Morals criticks ought to show”; Pope: “She acts just as she ought, But never, never reach’d one generous thought”), whereas the third definition had a somewhat stronger meaning (Locke: “If grammar ought to be taught, it must be to one that can speak the language already”). The accepted meaning of “ought” may have shifted over the centuries. In more modern usage, the auxiliary verb “ought” is “used to express moral obligation, duty, or necessity ... or what is correct, advisable, or expedient ... or what is naturally expected or logically sound.” Webster’s Third New International Dictionary (unabridged), at 1599 (1961, 1976 ed.). In modern legal usage, “Ought should be reserved for expressions of necessity, duty, or obligation; should, the weaker word, expresses mere appropriateness, suitability, or fittingness.” B.A. Garner, A Dictionary of Modem Legal Usage, at 396 (1987).

Furthermore, in the sanguinary Laws clause the auxiliary verb “ought” is paired with the main verb “avoid.” This is the only appearance of the word “avoid” in the MDR. Johnson gives four definitions for the verb “to avoid”: 1) “To shun; to ⁵⁵⁹ escape”; 2) “To endeavour to shun”; 3) “To evacuate; to quit”; 4) “To oppose; to hinder effect.” S. Johnson, A Dictionary of the English Language, at 184 (1755). Modern definitions are similar. In Webster’s unabridged Third Edition, after obsolete, archaic and legal (“to make void: annul, vacate, defeat, evade, invalidate”) definitions, the fourth definition reads: “a) to keep away from: stay clear of ... b) to prevent the occurrence or effectiveness of ... refrain from.” Webster’s Third New International Dictionary (unabridged), at 151 (1961,1976 ed.).

Non-retroactivity of MDR Article 16 In any event, there is no indication that Article 16 was intended to change pre-existing law. The only MDR provision explicitly referring to pre-existing law is Article 5(a)(1), which adopts the common law and statutes of England. Nothing in Article 5(a)(1) purports to change existing law in a self-executing manner. Compare Article 5(c), proposed by 1992 Md. Laws 203 , 204 (“That notwithstanding the Common Law of England, nothing in this Constitution prohibits trial by jury of less than 12 jurors in any civil proceeding in which the right to a jury trial is preserved.”) (emphasis added).

Friedman-Temple at 686 n. 166. Article 16 itself contains no explicit directive that it should be applied retrospectively. On the contrary, the second clause of Article 16 provides: “and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.” (Emphasis added). Although the second clause of Article 16 does not necessarily control the sanguinary Laws clause, there is nothing in the sanguinary Laws clause suggesting it should be treated any differently.

Determining the intent of the sanguinary Laws clause takes us back to the 1776 Constitutional Convention. There is no record of the debates of that Convention. 14 Scholars, however, ⁵⁶⁰ have determined that there were two drafts of the 1776 MDR, the first of August 27, 1776, and the second of September 17, 1776. The MDR was adopted by the convention on November 3, 1776. See Friedman-Temple at 647.

See also D. Friedman, Tracing the Lineage: Textual and Conceptual Similarities in the Revolutionary-Era State Declarations of Rights of Virginia, Maryland, and Delaware, 33 Rutgers L.J. 929 , 941 and n. 47 (2002) (Friedman-Rutgers). DISCUSSION I. Death was the common law penalty for murder. The penalty was not abrogated by 1776 MDR Article 14, which applies only to future legislation. Overview of Analysis I 1776 MDR Article 14 was a non-retroactive limitation on then future legislation by the General Assembly.

It had no effect on the imposition by the judiciary of the penalty of death by hanging for murder that had been in force in the Province of Maryland by the common law of England and that constitutionally became the law of the revolutionary State of Maryland by 1776 MDR Article 3 (now, as amended, Article 5). Murder remains a common law crime in Maryland and, until October 1, 2013, the possible penalty for certain murders continued to be death. Statutory enactments subsequent to 1776 reduced the crimes and the types of murders qualifying for the death penalty and made changes in the method of execution that were intended to make capital punishment more humane. Miles does not contend that, if capital punishment for murder is not a sanguinary law, per se, death by lethal injection makes it sanguinary.

Pre-Revolutionary Criminal Punishments At the time of the 1776 Maryland Constitutional Convention, the law of the newly independent state, including the law of crimes and punishments, consisted of the common law of England, an uncertain number of British statutes, and acts of ⁵⁶¹ the provincial assembly, that might or might not have been repealed by implication. XI Holdsworth at 556 substantially agrees with Blackstone’s description of eighteenth century English criminal punishments. The latter said at IV Blaekstone, Commentaries on the Laws of England, at 376-77 (1765), as quoted by Holds-worth: “ ‘Some punishments are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in very atrocious crimes other circumstances of terror, pain, or disgrace are superadded, as in treasons of all kinds, being drawn or dragged to the place of execution; in high treason affecting the King’s person or government, emboweling alive, beheading, and quartering; and in murder a public dissection. And, in case of any treason committed by a female, the judgment is to be burned alive....

Some punishments consist in exile or banishment, by abjuration of the realm, or transportation: others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands or movables, or both, or of the profits of lands for life: others induce a disability of holding offices or employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by cutting off the hand or ears: others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or cheek. Some are merely pecuniary, by stated or discretionary fines; and lastly there are others, that consist principally in their ignominy, though most of them are mixed with some degree of corporal pain; and these are inflicted chiefly for such crimes, as either arise from indigence, or render even opulence disgraceful.

Such as whipping, hard labour in the house of correction or otherwise, the pillory, the stocks, and the ducking stool.’ ” Criminal punishments enacted by the provincial assembly during and after 1715 are summarized in N. Mereness, Maryland as a Proprietary Province, at 277-78 n. 1 (The MacMillan Co., New York, 1901): ⁵⁶² “The penalties that were imposed by acts of the Maryland Assembly, during or after the year 1715, were, principally, the following: a person convicted of embezzling, impairing, razing, or altering any will or record within the province, whereby the estate or inheritance or freehold of any person should be defeated, injured, or in any ways altered, was to forfeit all his goods, chattels, lands, and tenements, be set in the pillory for two hours, and have both his ears nailed thereto and cut from off his head; a person convicted of stealing that which was valued at less than one thousand pounds of tobacco was to pay fourfold, be put in the pillory, and given not to exceed forty lashes; a person convicted of fornication was to be fined 30s. or six hundred pounds of tobacco; a person convicted of adultery was to be fined £3 or twelve hundred pounds of tobacco; a person convicted of wilfully burning a courthouse was to suffer death without benefit of clergy; a person convicted of blasphemy was for the first offence to be bored through the tongue and fined £20 sterling, or, if unable to pay the fine, be imprisoned for six months; for the second offence, to be stigmatized by burning in the forehead with the letter B and fined £40, or, if unable to pay the fine, be imprisoned for one year; and for the third offence to suffer death without benefit of clergy; a person found guilty of profane swearing was to be fined 2s. 6d. for the first offence and 5s. for every offence after the first; a drunkard was to be fined 5s. for every offence of drunkenness — if the swearer or drunkard was unable to pay the fine, he was to be put in the stocks or given not to exceed thirty-nine lashes; a person convicted of breaking the Sabbath was to be fined two hundred pounds of tobacco; a negro or other slave convicted of petit treason, or murder, or wilfully burning a house, might be sentenced to have his right hand cut off, hanged, head severed from the body, body divided into four quarters and set up in the most public places of the county where the act was committed; a person convicted of breaking into a shop, storehouse, or warehouse, and stealing from thence any goods to the value of 5s., was to suffer death as a felon without benefit of ⁵⁶³ clergy; a person convicted of cutting or destroying tobacco or exciting others to do so was to be fined £100 sterling and be imprisoned for six months; a person convicted of wilfully burning another’s tobacco, or of aiding or abetting in such an offence, was to suffer death as a felon without benefit of clergy; a slave convicted of insurrection, murder, poison, rape of white women, or burning houses, was to suffer death as a felon without benefit of clergy.” With respect to murder and the other common law felonies, XI Holdsworth at 557 traces the penalty of death by hanging to the judges of the thirteenth century. (“The punishment of death by hanging for all felonies was due to the judicial practice of the thirteenth century.”). Coke similarly attributed to the common law, as distinguished from statute, death by hanging as the ordinary penalty for murder. In 3 Edward Coke, Institutes of the Law of England (1797), Coke states at 48: “This offence [poisoning] was so odious, that by act of parliament [22 Henry VIII, c. 9 (1530) ], it was made high treason, and inflicted a more grievous and lingering death then [sic] the common law prescribeth, viz.

That the offender should be boyled [sic] to death in hot water[.]” Further, Coke explained at 210: “Of judgements, some be by the common law, and some by statute law, and some by custome [sic]. “Of judgements by the common law, some be in criminall [sic] causes, or pleas of the crown, concerning the life of man (whereof we are principally to intreat,) and of these some be expressed, and some implied. “All pleas of the crown, concerning the life of a man, are divided into treason and felony.... [I]n all the severall [sic] cases of felony, though some be more hainous [sic] then [sic] other, yet all being but felony, one and the same judgement is given.” ⁵⁶⁴ We need not sort through the inventory of eighteenth century punishments and distinguish those which the framers of 1776 MDR Article 14 considered to be sanguinary from those that were not. It is sufficient for present purposes to note that, under the common law of England and of the Maryland province, death by hanging was the penalty for the common law offense of murder. The 1776 Convention There were five provisions before the 1776 Constitutional Convention that are relevant to the “sanguinary Laws” issue in this case. The governing law for the self-declared sovereignty, or at least the standard for determining governing law, was answered by 1776 MDR Article 3.

It read: “3. That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used, and practised, by the courts of law or equity; and also to all acts of assembly in force on the first of June seventeen hundred and seventy four, except such as may have since expired, or have been, or may be altered by acts of Convention, or this Declaration of Rights, subject nevertheless to the revision of, and amendment or repeal by, the legislature of this state; and the inhabitants of Maryland are also entitled to all property derived to them from or under the charter granted by his majesty Charles the first to Caecilius Calvert baron of Baltimore.” F. Green, A Declaration of Rights, and the Constitution and Form of Government, Agreed to by the Delegates of Maryland, in Free and Full Convention Assembled, at 6 (1776) (available from the Maryland State Archives, MSA SC M ⁵⁶⁵ 3145, at 221, et seq., http://aomol.net/megafile/msa/speccol/sc 4800/sc4872/003145/html/m3145-0221.html). 15 In State v. Buchanan, 5 H. & J. 317 , 1821 WL 482 (Md. 1821), one issue was whether common law conspiracy was a crime in Maryland or whether the common law principles for determining proscribed conspiracies had been limited by 33 Edw. I, c. 2 (1304), so that the indictment against Buchanan did not charge a crime. Overruling dismissal of the charges by the trial court, this Court said: “If there had never been in Maryland, since the original settlement of the colony by our ancestors, a prosecution for murder, arson, assault and battery, libel, with many other common law offences, and consequently no judicial adoption of either of those branches of the common law, could it therefore be contended, that there was now no law in the State for the punishment of such offences?

The third section of the Bill of Rights ... has no reference to adjudications in England anterior to the colonization, or to judicial adoptions here, of any part of the common law, during the continuance of the colonial government, but to the common law in mass, as it