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No more executions

Gov. Martin O'Malley needs to act soon to resolve the legal limbo into which the four remaining inmates on Maryland's death row have fallen since the repeal of the state's death penalty last year. State Attorney General Douglas F. Gansler opposed abolishing capital punishment in 2013, but now that it's a fact, he says, to his credit, that the state must change the sentences of the four men whose crimes were committed before the law was changed. In doing so, he has given Gov. Martin O'Malley, a longtime opponent of the death penalty, a golden opportunity. Mr. O'Malley should seize it and commute their sentences to life without the possibility of parole before he leaves office.

The fate of the four remaining men on Maryland's death row is not a new issue, but inexplicably it's one on which the governor — who has made an eloquent moral case against capital punishment — has dithered, seemingly unwilling to take this obvious step. The governor needs to act before he leaves office rather than hand the issue off to his successor. (Governor-elect Larry Hogan opposed the repeal of capital punishment, but he has been non-committal about the remaining inmates, saying he would review their cases individually.)

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Mr. Gansler argues that the state no longer has the authority to execute the condemned men because the legislature abolished capital punishment in 2013. Though the bill repealing the death penalty was not designed to apply retroactively to inmates sentenced before the change, Mr. Gansler argues that the practical effect is the same because by repealing the death penalty legislators took away the state's power to issue the regulations necessary to put inmates to death.

Mr. O'Malley presided over a long-term de facto moratorium on capital punishment even before it was officially repealed. The last Maryland execution was in 2005 because a year later the Court of Appeals threw out the state's procedures for carrying out lethal injections on constitutional grounds. Since then corrections officials have not issued new regulations, and now that the death penalty is no longer legal there is little likelihood they will attempt to do so again.

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The regulations involve such matters as the chemicals used to carry out lethal injections and the personnel authorized to administer them. Without such regulations on the books and under Maryland's new law, capital punishment is "illegal and factually impossible," Mr. Gansler said.

The issue came up because one of the remaining death row inmates has an appeal pending before the state's second-highest court on this issue, and Mr. Gansler's decision to side with his lawyers on the question of whether the state has the legal authority to develop execution protocols is a powerful one. We trust his successor, Brian Frosh, who helped push the death penalty repeal through the legislature, would follow in the same vein. We could wait while this and the inevitable appeals on the same issue from the other three inmates work their way through the courts, but why go through the time and expense? Governor O'Malley can settle this question here and now.

In the past, Mr. O'Malley has said he would review commutation requests on a case-by-case basis. But the issue before him is not the same as in a run-of-the-mill recommendation from the parole board. The issue here is not whether a particular inmate's sentence serves the interests of justice, it's whether an entire class of punishment is appropriate. By saying he's considering these cases individually, is Mr. O'Malley suggesting the possibility that he could commute some death sentences but leave others in place? That would be absurd.

It's understandable that the families of the victims of these four murderers are upset over Mr. Gansler's findings and the prospect that the person who killed their loved ones may avoid the ultimate penalty. We can also understand their desire for closure to an incredibly painful chapter in their lives. But the current situation only guarantees years more of limbo as these cases work their way through the courts. Closure, in capital cases, is a false promise, and Maryland's new legal environment only makes it more so.

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Having established the principle that capital punishment has no place in a humane society, it would be unconscionable for the state to continue even the illusion that it could one day carry it out. Mr. O'Malley could spare all concerned more of the uncertainty and anguish they already have suffered over Maryland's last death penalty cases with a stroke of his pen, and he should do so without further delay.

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