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 one 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 five 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.