A recent edi­to­r­i­al in the Baltimore Sun urged Gov. Martin O’Malley to work toward repeal­ing the death penal­ty in Maryland. The paper sug­gest­ed that changes in the com­po­si­tion of the state Senate might make the General Assembly more recep­tive to end­ing cap­i­tal pun­ish­ment. There have also been con­cerns raised about lethal injec­tions on the the state and nation­al lev­el. But it was the fun­da­men­tal unfair­ness and high costs of the death penal­ty that under­scored the paper’s posi­tion: ​“Countless stud­ies have shown that the death penal­ty is no more effec­tive in deter­ring crime than a sen­tence of life with­out parole; that it is so inher­ent­ly dis­crim­i­na­to­ry that it can nev­er be fair­ly or con­sis­tent­ly applied; and that the risk of exe­cut­ing an inno­cent per­son can nev­er be elim­i­nat­ed, even with the strin­gent require­ments Maryland has put in place. Moreover, the lengthy appeals it inspires deprive vic­tims’ fam­i­lies of clo­sure and cost the state mil­lions of dol­lars that could be bet­ter used for oth­er pur­pos­es. As an instru­ment of jus­tice, it is a moral abom­i­na­tion that can nev­er be ren­dered humane except by end­ing it altogether.”

The state has not had an exe­cu­tion since 2006 because of prob­lems in adopt­ing new lethal injec­tion pro­ce­dures. In 2009, the leg­is­la­ture placed fur­ther restric­tions on death sen­tences, requir­ing bio­log­i­cal or DNA evi­dence of guilt, a video­tape of the crime or a video­taped con­fes­sion by the killer. Read full op-ed below.

Inherently inhu­mane
Our view: Gov. O’Malley should take advan­tage of changes in Annapolis and a tem­po­rary short­age of a key lethal injec­tion drug to work toward abol­ish­ing Maryland’s death penalty law

An unex­pect­ed con­flu­ence of events this year has giv­en Gov. Martin O’Malley a chance to advance a much-need­ed reform that he has long cham­pi­oned. Because of changes in the com­po­si­tion of the state Senate after last year’s elec­tions, the General Assembly may be more recep­tive than it has been in years past to end­ing exe­cu­tions in Maryland, not just lim­it­ing their appli­ca­tion. Moreover, the only American man­u­fac­tur­er of a key chem­i­cal used in lethal injec­tions announced last week that it would no longer pro­duce the drug, a move that will like­ly put a de fac­to halt to exe­cu­tions across the U.S., at least tem­porar­i­ly. It is dis­ap­point­ing, then, that Mr. O’Malley has left off his agen­da for the cur­rent leg­isla­tive ses­sion a call to abol­ish the death penal­ty in Maryland.

When Maryland enact­ed changes to its death penal­ty law two years ago that made it effec­tive­ly one of the most restric­tive in the coun­try, many law­mak­ers hoped the com­pro­mise the leg­is­la­tion rep­re­sent­ed would final­ly end the con­tro­ver­sy over cap­i­tal pun­ish­ment. The revised law allowed pros­e­cu­tors to seek the death penal­ty only in cas­es where there is bio­log­i­cal or DNA evi­dence of guilt, a video­tape of the crime or a taped con­fes­sion by the killer. That sat­is­fied death-penal­ty sup­port­ers that the pun­ish­ment would remain avail­able for the most egre­gious crimes, while offer­ing oppo­nents hope that the stricter con­trols would make exe­cu­tions so rare as to become vir­tu­al­ly a thing of the past.

Yet the con­tro­ver­sy has not gone away. If any­thing, it has grown more con­tentious, large­ly because a tem­po­rary mora­to­ri­um on exe­cu­tions imposed by the Maryland Court of Appeals in 2006 remains in effect. The court halt­ed exe­cu­tions that year after find­ing flaws in the process the state used to adopt pro­ce­dures for admin­is­ter­ing lethal injec­tions. It was left to Governor O’Malley, who entered his first term in office a few months after the court’s deci­sion, to come up with new reg­u­la­tions gov­ern­ing the pro­ce­dure. But he did not so until 2009, and since then a joint leg­isla­tive review pan­el has found that the new pro­to­cols also con­tain seri­ous flaws. The leg­is­la­tors are due to take the mat­ter up again next month.

Because the process has been so drawn out, death-penal­ty sup­port­ers like Senate President Thomas V. Mike Miller wor­ry that Mr. O’Malley and the lead­ers of the leg­isla­tive pan­el, Sen. Paul G. Pinsky and Del. Anne Healey, are delib­er­ate­ly drag­ging their feet to keep future exe­cu­tions from going for­ward. Senator Miller says the death penal­ty is still the law in Maryland and must be enforced. He wants the pan­el to vote on the new pro­to­cols without delay.

But in light of the drug com­pa­ny Hospira’s recent announce­ment that it will no longer pro­duce the pow­er­ful anes­thet­ic sodi­um thiopen­tal — one of the key chem­i­cals in the ​“cock­tail” of three drugs Maryland and oth­er states use to admin­is­ter lethal injec­tions — fur­ther delays in resum­ing exe­cu­tions appear inevitable. The Illinois-based com­pa­ny had planned to man­u­fac­ture the drug at a new plant in Milan, Italy. But Italy, which like most European coun­tries does not have cap­i­tal pun­ish­ment, has said it will not per­mit the drug to be export­ed if it might be used in lethal injec­tions. (The German gov­ern­ment is also con­sid­er­ing ban­ning exports of sodi­um thiopen­tal to the U.S. for use in exe­cu­tions. If the drug becomes unavail­able here, states will have to con­sid­er sub­sti­tutes, such as sodi­um pentabar­bi­tal, an ani­mal tran­quil­iz­er not approved for use in exe­cu­tions by the U.S. Food and Drug Administration.)

Senator Pinsky and Delegate Healy, both Prince George’s County Democrats, are out­spo­ken oppo­nents of the death penal­ty, but that does­n’t mean the issues they have raised about the cur­rent pro­ce­dures are triv­ial. One ques­tion involves the lack of a require­ment for any med­ical train­ing on the part of the exe­cu­tion­ers admin­is­ter­ing lethal injec­tions. The law­mak­ers also ques­tion the safe­guards designed to ensure that con­demned inmates are uncon­scious before the lethal chem­i­cals are inject­ed, and whether the par­tic­u­lar com­bi­na­tion of drugs used is humane. Even if they approve the gov­er­nor’s cur­rent pro­to­cols, all these issues will have to be revis­it­ed now that the state almost sure­ly will have to sub­sti­tute anoth­er drug for sodi­um thiopen­tal in its lethal injection cocktail.

In any case, the fun­da­men­tal injus­tices involved in the appli­ca­tion of the death penal­ty described by the Civiletti Commission in 2008 will con­tin­ue, no mat­ter how much law­mak­ers tin­ker with the machin­ery of death. Countless stud­ies have shown that the death penal­ty is no more effec­tive in deter­ring crime than a sen­tence of life with­out parole; that it is so inher­ent­ly dis­crim­i­na­to­ry that it can nev­er be fair­ly or con­sis­tent­ly applied; and that the risk of exe­cut­ing an inno­cent per­son can nev­er be elim­i­nat­ed, even with the strin­gent require­ments Maryland has put in place. Moreover, the lengthy appeals it inspires deprive vic­tims’ fam­i­lies of clo­sure and cost the state mil­lions of dol­lars that could be bet­ter used for oth­er pur­pos­es. As an instru­ment of jus­tice, it is a moral abom­i­na­tion that can nev­er be ren­dered humane expect by end­ing it altogether.

For years, every attempt to abol­ish the death penal­ty in Maryland died in the Senate Judicial Proceedings Committee, whose mem­bers are select­ed by Mr. Miller. The 1 excep­tion was in 2008, when the mat­ter was brought to the floor of the Senate for a vote through an unusu­al par­lia­men­tary pro­ce­dure. The result was the vote to adopt the cur­rent com­pro­mise restrict­ing its use. But the make­up of the com­mit­tee has changed since the last elec­tion, and there are indi­ca­tions the pub­lic’s mood has shift­ed as well.

Mr. O’Malley does­n’t have to wait for a vote by the review pan­el (whose role in any case is only advi­so­ry) in order to decide whether to resume exe­cu­tions in Maryland. Nor does he have to suc­cumb to pres­sure from European law­mak­ers who want to ban the sale of lethal injec­tion drugs to the U.S. because they oppose cap­i­tal pun­ish­ment. If he tru­ly believes the penal­ty is unjust and immoral, he can imme­di­ate­ly com­mute the sen­tences of the 5 inmates cur­rent­ly on the state’s death row to life with­out parole, then take the lead in call­ing on law­mak­ers to per­ma­nent­ly ban the prac­tice. Regardless of what hap­pens else­where, that is some­thing he already has the pow­er to do when­ev­er he wishes.

(“Inherently Inhumane,” Baltimore Sun (edi­to­r­i­al), January 30, 2011). See Editorials.

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