Death penalty limbo [Editorial]

Our view: With prospects for O'Malley to commute capital sentences uncertain, those running to replace him should address the issue of Md.'s death row

April 29, 2014

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.

O'Malley's role

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.

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