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Editorial Advisory Board: It’s time to finally repeal Maryland’s death penalty

Two years ago, this Editorial Advisory Board urged the lawmakers to repeal Maryland’s death penalty. We do so once again — and this year, it might actually happen. Already, the House of Delegates’ abolition bill has at least 66 co-sponsors, more than ever before, and perhaps Senate President Thomas V. Mike Miller will allow a floor vote in the Senate this year.

Gov. Martin O’Malley, a longtime advocate for repeal, has already said he will sign a repeal bill if it reaches his desk. If that happens, it will be the first time a death penalty abolition bill has passed both the House of Delegates and the Maryland Senate in the same year and one of the first times such a bill was not held up in the Senate Judicial Proceedings Committee.

In 2012, the repeal bill was stuck in Judicial Proceedings and the House had no floor vote on its version, despite clear majorities for repeal in committee and the full body. The 2012 repeal bill was the first to include an appropriation to redirect some of the savings of endless litigation to aid families of homicide victims, which was also the recommendation of the Maryland Commission on Capital Punishment.

There are five prisoners awaiting execution in Maryland, some of whom have exhausted their last appeals. Yet, the last person to be executed in this state was Wesley Eugene Baker in 2005. Baker was only the fifth person to be executed here since 1976, the year the Supreme Court re-established the death penalty nationwide in Gregg v. Georgia. Meanwhile, 10 people sentenced to death in Maryland have had their convictions overturned on direct appeal or in post-conviction proceedings, and one, Kirk Bloodsworth, was exonerated by DNA testing in 1993.

Since Baker’s execution, Maryland has commissioned a blue ribbon panel — the Maryland Commission on Capital Punishment, chaired by former U.S. Attorney General Benjamin Civiletti — to examine the death penalty. That panel’s 2008 majority report endorsed abolition. So did the Maryland State Bar Association, in 2009. Other advocates for abolition include the Maryland Catholic Conference, scores of religious leaders and religious organizations and many law enforcement officials and former state’s attorneys.

In 2009, the General Assembly passed and the governor signed a compromise bill that imposed strict requirements concerning evidence in a capital case. Specifically, the law restricts death penalty eligibility to those cases where there is biological evidence linking the defendant to the murder, a voluntary videotaped confession to murder or video that conclusively links the defendant to the murder. In other words, eyewitness testimony alone will not suffice.

There’s another wrinkle. The Court of Appeals in 2006 invalidated the state’s lethal injection protocol, finding, among other things, that it was not adopted in accordance with the Administrative Procedures Act. Efforts by death penalty supporters in the General Assembly to exempt the protocols from the APA have so far failed, nor have new regulations been adopted, going on seven years later. That means even if a death warrant is signed, the procedures to enforce it are not fully in place.

In our 2011 column, the most compelling reason cited for repeal was “the soul-chilling possibility that the state might kill an innocent person. Our system of justice is far from perfect, and its flaws have led to wrongs, something that cannot be tolerated when a life is at stake.”

The 2011 editorial continued, “There is no claim that an innocent person has been put to death in our state, and thanks to DNA testing and the increasingly stringent requirements added to Maryland law before someone can be executed, it is unlikely that there will be. But that slimmest of possibilities convinces most of us that execution should never be a sentencing option.”

That possibility still exists. As of January 2013, the Innocence Project has led to the exoneration of 302 persons wrongfully convicted for crimes they did not commit, although not all of these people had been given a sentence of death. And as we noted two years ago, the American Law Institute withdrew Section 210.6 of the Model Penal Code — the template for most modern death penalty statutes — “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

Also, it seems the death penalty is in decline nationally. In 2012, 40 prisoners were executed — down from 85 executions in 2000, according to the Death Penalty Information Center.

Public opinion on the death penalty has shifted. Some polls reveal that 61 percent of Marylanders believe that life without parole is an acceptable alternative to the death penalty. In 2007, a poll of Maryland’s African-American voters found 77 percent supported life without parole to replace the death penalty — up from 69 percent in 2005. We believe that a 2013 poll of Maryland’s voters will yield similar results.

As we said in 2011, “The death penalty is one of the most important issues facing Maryland today.” In terms of abolition, it still is. We urge the repeal of Maryland’s death penalty this year, in this session of the General Assembly.

Editorial Advisory Board members John Bainbridge, Wesley D. Blakeslee, Arthur Fergenson, Frederic Smalkin and Christopher West did not participate in this opinion.

Editorial Advisory BoardJames B. Astrachan, Chair

John Bainbridge

Wesley D. Blakeslee

Eric Easton

Arthur F. Fergenson

Elizabeth Kameen

Michelle Lipkowitz

C. William Michaels

William Reynolds

Frederic Smalkin

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

Christopher West