The continued existence of Maryland's death row a year after the General Assembly abolished capital punishment was brought into question by two events this month, one obvious and one less so. The first is the death, apparently of natural causes, of one of the five inmates put in limbo after the death penalty repeal, John Booth-el. As a result, advocates are renewing their questions about whether it would be appropriate for Maryland to go forward with executions now that the legislature has found the death penalty inappropriate.
The second occurred far away in Concord, N.H. That state's House of Representatives overwhelmingly passed a bill to repeal the death penalty this spring, and Gov. Maggie Hassan said she would sign it. But the measure deadlocked in the Senate on a 12-12 tie. The issue: What would happen to the one man — a notorious cop killer — on New Hampshire's death row? The bill explicitly said it did not apply retroactively, but some voted against it anyway on the grounds that it seemed inconceivable that the state would execute someone after repealing the death penalty.
Indeed, it appears that no state has ever done that, though three — Maryland, Connecticut and New Mexico — are now in a position where they could. When Maryland's General Assembly passed the death penalty repeal last year, backers did not pursue the idea of retroactivity. The legality of such an attempt was unclear altogether under the separation of powers in the state constitution, and even if it was possible, advocates were unsure if the penalty of life without the possibility of parole could be imposed through legislation because that punishment did not exist in Maryland law when some of the death row inmates were sentenced. Instead, death penalty foes concluded that the better way to address it would be through the governor's broad powers of pardons and commutations.
One would think that Gov. Martin O'Malley, a strong opponent of capital punishment who repeatedly testified on the issue before the legislature, would be a natural to do what governors in Illinois and New Jersey did and immediately commute the existing death sentences in the state. Opponents of the bill, after recounting the grisly details of the murders those men committed, argued on the floor of the Senate that he would do just that.
But he hasn't. In fact, he's said nothing on the topic at all other than that he will review commutation requests on a case-by-case basis. Given the way commutations typically work in Maryland, that's not much of an answer.
The standard procedure is for commutation requests to be vetted first by the Maryland Parole Commission. If a majority of its members support a commutation (in these case, presumably we're talking about converting a sentence of death to one of life without the possibility of parole), its sends the recommendation to the governor. A recent law requires the governor to act on the commission's parole recommendations within 180 days — prior to that, he had been letting many recommendations languish with no decision at all. Though the law doesn't specifically address commutations, Parole Commission Chairman David R. Blumberg said Mr. O'Malley has been observing that deadline in those cases as well.
Whether any of the four remaining death row cases have gone through that process, we may never know. Parole recommendations are public under Maryland law, but commutation recommendations are not. Perhaps Mr. O'Malley will have the opportunity to review these cases through the normal procedure before he leaves office, but it wouldn't be surprising if he didn't.
There's a strong case to be made that the normal procedure is not appropriate in this circumstance. Whether to recommend commutation of these four sentences involves policy questions that are different from what the parole commission is usually tasked with considering. This is a clear instance in which the governor should be intervening to set the direction for how these cases should be handled, but all indications are that he isn't and doesn't intend to. In as much as he has been vocal in his moral and practical objections to capital punishment, he has also long projected a tough-on-crime image. Given his flirtation with a run for the presidency, it seems altogether conceivable that if he can avoid making a decision on this issue, he will.
The next governor
That raises the possibility that the matter will land in the lap of Maryland's next governor, and as such, it should become an issue in the current campaign. Lt. Gov. Anthony G. Brown and Del. Heather Mizeur both worked to repeal the death penalty, and Ms. Mizeur has specifically urged the commutation of the existing death sentences to life without parole. Their fellow Democrat, Attorney General Douglas F. Gansler, opposed the repeal. A spokeswoman said he would review each of these cases individually.
Three Republicans in the race — Harford County Executive David Craig, Del. Ron George and Larry Hogan — are on record supporting capital punishment to one degree or another. A spokesman says Mr. Hogan has reservations about the possibility of wrongful convictions and would review each of the cases. Mr. George says he would seek to reinstate the death penalty, which he sees as an important tool for prosecutors, and answer the question about these four after that.
In our view, the issue is simple. The people's representatives decided that capital punishment is not appropriate, and that should go for both cases that will be considered in the future and those that were adjudicated in the past. But even if one accepts the notion that the state should respect the decisions juries made decades ago, the logistical hurdles to resuming executions are daunting.
Maryland has been under a de facto capital punishment moratorium for years since the Court of Appeals ruled that the regulations governing executions were not properly adopted. Governor O'Malley certainly can't be accused of rushing to remedy that fault, but even a motivated governor would have trouble now. The Department of Public Safety and Correctional Services ceased working on new regulations when the death penalty was repealed, and a spokesman said the agency's counsel advised it that without capital punishment on the books, it no longer had the legal authority to do so. Executing these four men, then, would presumably take another act of the legislature — an event that is almost politically inconceivable.
Even if that happened, the path to executions would be fraught. The first drug in the three-drug combination Maryland and other states have traditionally used in executions is no longer available in the United States, and physicians elsewhere have been unwilling to participate in the development of new protocols.
Other states have tried to find alternatives, but that has proved problematic. Ohio experimented with a new drug combination in January, but it took 24 minutes to work and caused evident pain and suffering. Oklahoma was recently wrapped up in a legal fight because of a state law keeping the sources of its lethal injection drugs secret. Manufacturers have proved reluctant to be associated with capital punishment for fear of bad publicity, but attorneys for the condemned have argued that they have a right to determine whether the drugs come from a reputable source. Some states have resorted to the use of compounding pharmacies to produce lethal injection drugs, which raises legitimate concern about their effectiveness, given the recent scandal about contaminated drugs produced at a compounding pharmacy in Massachusetts and the general lack of regulation of such facilities. The issue has become so fraught that some states — including Virginia and Tennessee — have seriously contemplated bringing back the electric chair.
Any attempt, at this point, to develop new protocols for carrying out the death sentences against the four killers on Maryland's death row could take years and would not likely be successful, given the need for legislation. Even if the state did adopt new procedures, they would doubtless set off a new round of litigation.
That would be wasteful and likely pointless for the state, and it wouldn't do any favors to the families of these murders' victims either. With every passing development, the debate about how to resolve these four cases would only drag them into the public spotlight over and over. Commuting the sentences, on the other hand, would leave them in the maximum security North Branch Correctional Institution near Cumberland to live out whatever is left of their lives in silence and obscurity.
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