The fundamental question to be asked about the "serious flaws" that a legislative panel reviewing Maryland's death penalty protocols has found in how the state executes condemned inmates is this: Are there substantive ethical and legal problems with the procedure that require further study before executions can proceed, as panel members insist? Or is the finding merely an excuse to extend the de facto moratorium on executions that has existed since 2006, as death penalty supporters argue?
The Maryland General assembly has repeatedly refused to outlaw capital punishment, most recently this year, when lawmakers approved a compromise that limited the death penalty to cases in which there is either biological or DNA evidence of guilt, a videotaped confession or a videotape linking the defendant to the crime. The compromise left Maryland with one of the most restrictive capital punishment laws in the nation.
But that is not why the state has not proceeded with the executions of the five inmates currently on Maryland's death row. In 2006 the Maryland Court of Appeals halted executions after finding that the process the state used to adopt procedures for administering lethal injections was flawed. The court left it to the administration of Gov. Martin O'Malley - a death penalty opponent - to remedy that, but Mr. O'Malley did not do so until this year. Now an administration spokesman says executions won't resume until the problems in the new regulations are resolved.
It's understandable why death penalty supporters complain the governor is dragging his feet. But there are legitimate questions about the protocols the O'Malley administration drafted. For example, under the new protocols executioners wouldn't be required to have any particular medical training, and there's no guarantee that the condemned would be unconscious before the lethal chemicals are administered. It's also unclear whether the chemical cocktail used in executions is humane.
Those technical objections point to a more fundamental contradiction. Lethal injection is a medical procedure, yet it's unethical for doctors to participate in one because it would violate their oath to "do no harm." Moreover, while lethal injection is often described as more humane than other methods, there's no certainty the condemned person suffers any less.
Given that the advisory panel's leaders oppose capital punishment - a position we share - it is hard to imagine they would devise regulations they would not consider inherently flawed. A "humane" method of killing someone is an oxymoron.
Unfortunately, that point of view has failed to sway the General Assembly. As much as we wish otherwise, the legislature has refused to outlaw capital punishment but has instead restricted its use in future cases. Efforts to sandbag that decision by endless bureaucratic delays seem disengenuous at best.
That leaves the Mr. O'Malley a choice. He can enact regulations for capital punishment, despite legitimate misgivings about them. He can hide behind the review panel's recommendations and allow it to drag matters out indefinitely. Or he can take the intellectually honest approach and commute the sentences of those on death row to life without the possibility of parole. If Mr. O'Malley truly believes the death penalty is wrong as a matter of law and morality, he already has the power to end the practice under his administration whenever he wishes.