More than a year after the repeal of capital punishment in Maryland, Attorney General Douglas F. Gansler says the state has no choice but to change the sentences of its remaining death row inmates.
Gansler has filed a legal brief in support of an appeal by Jody Lee Miles, who is asking to be resentenced for the 1997 murder of an Eastern Shore musical theater director.
Miles' lawyers — and Gansler — argue the state no longer has the authority to execute the four men already on death row because lawmakers abolished capital punishment in 2013. With repeal, they argue, legislators took away the state's power to issue the regulations necessary to put someone to death.
Instead, Miles should be sentenced to life without the possibility of parole, Gansler argued in a brief filed with the Court of Special Appeals.
"Whether or not you agree with the death penalty, the recent repeal of capital punishment in Maryland nevertheless demands that we pursue a prison sentence that ensures Jody Lee Miles dies behind bars, where he belongs," Gansler said in a statement Thursday.
Speaking at a news conference, Gansler called capital punishment in Maryland "illegal and factually impossible." Though the brief relates only to Miles, Gansler acknowledged that his position has implications for the other death row inmates.
His position drew criticism from the family of Miles' victim, Edward Joseph Atkinson, and from the Wicomico County state's attorney, whose office prosecuted the case.
Atkinson's mother, Dottie Atkinson, said Miles should be put to death.
"It's been appeal after appeal. We get some hope each time, and all these appeals have been in our favor, and all of a sudden we get this news. We've been let down," she told reporters on the Eastern Shore, according to The Daily Times. "It's an impact people shouldn't have to go through."
Wicomico County State's Attorney Matt Maciarello also denounced the decision. But he added that, if the state's position is set, Gov. Martin O'Malley should move to commute Miles' sentence and spare the family the court hearings and drawn-out process associated with appeals.
"If the attorney general is committed to this approach, let's give this family some finality," Maciarello said. "It's cruel to put this family through more suffering."
Gansler noted that O'Malley, who supported repeal, could commute the death sentences to life without the possibility of parole. The governor has at least one petition — from inmate Heath William Burch — on his desk that he has yet to take action on, Burch's attorney said.
Through a spokeswoman, O'Malley declined to comment on Gansler's opinion, saying only that the attorney general "has a constitutional obligation to determine how the law applies." Regarding the governor's ability to commute sentences, the spokeswoman said O'Malley "continues to consider each case and will address the issue when a decision has been made."
Gov.-elect Larry Hogan and incoming attorney general Brian Frosh did not respond to requests for comment.
Gansler — who opposed the repeal legislation but never sought the death penalty as the top prosecutor in Montgomery County — said his office was obligated to weigh in on Miles' case before the Court of Special Appeals. He noted that after a court threw out Maryland's lethal injection procedure as unconstitutional in 2006, the state did not adopt new regulations. When his staff researched the issue, the conclusion was that the "uncertain enforceability" of the death penalty in Maryland threatened due process, he said.
"Right now, even if everybody said, 'These are the worst people; they should be executed tomorrow,' there's no ability to do that," Gansler said at the news conference.
His opinion contrasts with that of a Queen Anne's County judge, who rejected Miles' argument last year. In that case, Judge Thomas G. Ross found the lack of rules for executions "troubling" but said even after the repeal went into effect the Division of Correction retained the authority to develop new rules.
Del. Samuel "Sandy" Rosenberg, who for years fought to end executions in Maryland, stood with Gansler at the news conference. The Baltimore Democrat told reporters he hoped the move will bring an end to legal wrangling over the remaining death penalty cases.
"The death penalty is gone in Maryland, but four people still remain on death row. That anomaly should be put to an end," Rosenberg said. "The attorney general's action today begins to put an end to that process."
Miles' attorneys commended Gansler's move but said they believe he should be eligible for release at some point, not sentenced to life without parole. Miles has expressed "extreme remorse" for the killing, had a "devastating childhood history" and has been a model inmate while behind bars, the attorneys say.
Gansler said life without parole is the appropriate sentence because the jury had a choice between that and the death penalty.
Within the prison system, the difference between death row and life without parole won't change much, corrections spokesman Gerard Shields said. In 2010, the death row inmates were moved from the facility once known as Supermax to the North Branch Correctional Institution, a maximum-security facility in Cumberland where they are housed with the general population, Shields said.
But they would become eligible to move to a medium-security facility and become involved in programming, he said.
The cases of death row inmates Anthony Grandison and Vernon Evans are more complicated, Gansler said, because they were sentenced before life without parole was an eligible penalty. He noted, however, that they face a slew of convictions, including at the federal level, and would be unlikely to be released.
The fourth death row inmate, Heath William Burch, submitted a petition for clemency several months ago, according to his attorney, Michael Lawlor.
Lawlor said that his client wanted to remove the uncertainty of his situation.
"I don't know the views of the next governor, but if protocols were put in place and the state's attorney's office in Prince George's County sought a warrant, he could be executed," Lawlor said. "If his sentence is commuted, that would take that possibility off the table."
Gansler said his office was merely enforcing the law, noting that former Attorney General J. Joseph Curran Jr. personally opposed the death penalty but for two decades as the state's top attorney supported it because it was the law.
Maciarello, meanwhile, said the legislature was dishonest when it left the death row inmates in limbo.
"The legislature committed a fraud here," he said. "They gave families some sense that it didn't affect their sons and daughters' killer's cases, and I just think we need to be honest here and do the right things."
He also questioned the timing of the decision, which he said was relayed to him Wednesday.
"Considering the timing of this announcement — one day after the general election — one must wonder how much politics, rather than the law, had to do with the decision to concede to the new sentencing," Maciarello said. He declined to elaborate.