In a recent edi­to­r­i­al, the Washington Post urged Maryland Governor Martin O’Malley to com­mute the sen­tences of the four men remain­ing on the state’s death row, say­ing, ​“To car­ry out exe­cu­tions post-repeal would be both cru­el, because the leg­is­la­tion under­pin­ning the sen­tence has been scrapped, and unusu­al, because doing so would be his­tor­i­cal­ly unprece­dent­ed.” Maryland is one of three states that have repealed the death penal­ty prospec­tive­ly but still have inmates on death row. The oth­ers are Connecticut and New Mexico. O’Malley, who is leav­ing office in January, was a sup­port­er of repeal. Maryland Attorney Douglas Gansler, who opposed repeal, recent­ly said that car­ry­ing out an exe­cu­tion in Maryland is, ​“ille­gal and fac­tu­al­ly impos­si­ble.” The edi­to­r­i­al con­clud­ed, ​“In sign­ing the abo­li­tion of cap­i­tal pun­ish­ment into law last year, [O’Malley] was unequiv­o­cal: ​‘It’s waste­ful. It’s inef­fec­tive. It doesn’t work to reduce vio­lent crime.’ Having made the moral case for abo­li­tion so elo­quent­ly, he should have no trou­ble mak­ing the prac­ti­cal case for com­mu­ta­tion to life with­out parole for the four remain­ing con­demned men. And he should act with­out fur­ther delay.” Read the editorial below.

Sentences of Maryland’s four death-row inmates should be commuted

NO STATE has car­ried out an exe­cu­tion after repeal­ing cap­i­tal pun­ish­ment, even if the new law didn’t apply to inmates already on death row. The rea­son is clear: Once law­mak­ers have deter­mined that a death sen­tence is inef­fec­tive in deter­ring crime, arbi­trary, unfair or even racist, it makes no sense to go for­ward with a sen­tence arrived at under such a flawed system.

Since 2009, three states — New Mexico, Connecticut and, just last year, Maryland — have abol­ished cap­i­tal pun­ish­ment, leav­ing a total of 17 death-row inmates in legal lim­bo. Governors in each state are empow­ered to com­mute the inmates’ sen­tences to life with­out parole, yet none has done so.

They should. To car­ry out exe­cu­tions post-repeal would be both cru­el, because the leg­is­la­tion under­pin­ning the sen­tence has been scrapped, and unusu­al, because doing so would be historically unprecedented.

The clear­est case is Maryland. Gov. Martin O’Malley (D) should act, before he leaves office in January, to com­mute to life with­out parole the sen­tences of four pris­on­ers con­demned before the state abol­ished capital punishment.

Before it elim­i­nat­ed the death penal­ty, Maryland had exe­cut­ed just five con­victs in four decades and none since 2005, after which the state’s Court of Appeals declared that the pro­ce­dures for lethal injec­tions were unconstitutional.

Those pro­ce­dures were nev­er revised by Mr. O’Malley, who oppos­es the death penal­ty, mean­ing that cap­i­tal pun­ish­ment was effec­tive­ly sus­pend­ed in Maryland. And when law­mak­ers repealed the death penal­ty last year, they left the state with no rules and reg­u­la­tions by which any exist­ing sen­tences might be carried out.

Taking note of that real­i­ty, Attorney General Douglas F. Gansler (D) recent­ly deter­mined that car­ry­ing out a death sen­tence in Maryland is now ​“ille­gal and fac­tu­al­ly impos­si­ble.”

Mr. Gansler’s posi­tion car­ries spe­cial weight. A for­mer top pros­e­cu­tor in Montgomery County, he opposed the 2013 repeal of the death penal­ty, which was not intend­ed to apply retroactively.

Nonetheless, Mr. Gansler rec­og­nized in a legal brief filed in sup­port of com­mut­ing one of the con­demned men’s sen­tences that, since the death penal­ty has been repealed, there is no legal way to imple­ment reg­u­la­tions for exe­cut­ing pris­on­ers at this point.

Gov.-elect Larry Hogan (R), who sup­ports cap­i­tal pun­ish­ment, has said that he would review peti­tions for com­mu­ta­tion on a case-by-case basis. Yet if he were to refuse to com­mute, Maryland would face the same absence of reg­u­la­to­ry means to car­ry out a death sen­tence. Why plunge the state, the leg­is­la­ture and the pris­on­ers into such a legal morass?

Mr. O’Malley has been defin­i­tive and force­ful in oppos­ing the death penal­ty. In sign­ing the abo­li­tion of cap­i­tal pun­ish­ment into law last year, he was unequiv­o­cal: ​“It’s waste­ful. It’s inef­fec­tive. It doesn’t work to reduce violent crime.”

Having made the moral case for abo­li­tion so elo­quent­ly, he should have no trou­ble mak­ing the prac­ti­cal case for com­mu­ta­tion to life with­out parole for the four remain­ing con­demned men. And he should act with­out further delay.

(Editorial, ​“Sentences of Maryland’s four death-row inmates should be com­mut­ed,” Washington Post, November 14, 2014). See Editorials, Clemency, and Recent Legislation.