THE MARYLAND House of Delegates has voted down a bill to abolish the death penalty in that state. It was a bad decision. We supported the proposal because we believe that capital punishment is morally repugnant and should not be a tool of the criminal justice system in a civilized society. But at a less fundamental level, there is also the injustice of the current law, whose shortcomings have been documented in recent speeches by Chief Judge Robert C. Murphy of the Maryland Court of Appeals and Judge Alan Wilner of the Court of Special Appeals and in a report submitted to Gov. Schaefer by the state's Office of the Public Defender.

In the past 10 years, there have been more than 3,500 murder arrests in Maryland. In 90 cases, prosecutors have sought the death penalty, and 40 such sentences have been imposed. But only 17 cases have, so far, survived the appeals process. You would think that these 17 would be the most horrible killers, guilty of the most egregious crimes. But that is not necessarily the case. Eleven of the 17 men on death row were convicted in a single jurisdiction -- Baltimore County -- giving rise to a question of whether the presence of a particularly zealous prosecutor is a factor. The prisoners are disproportionately of borderline mentality, and two were under 18 when they committed their crimes. Twelve are black, and all but one victim was white.

The judges point out that the process of defending these sentences is expensive for the state. Cases in which the death penalty has been upheld have cost the taxpayers an average of $1,000,000 each from trial to final appeal. These proceedings involve as many as 23 separate judicial hearings. The expense of litigation is a weak argument for abolishing the penalty, but it is one more factor unanticipated -- or at least underestimated -- when the law was written. Did the citizens of Maryland really want to set up a mechanism that has proven to be unfair, drawn out and terribly expensive? How can it be right to continue on this road?