With last month’s vote to repeal the death penalty, Maryland lawmakers handed Gov. Martin O’Malley a long-sought legislative victory — and a question that he has refused to answer: What is he going to do about the five prisoners on death row?
The new law won’t apply to them, and O’Malley (D) is facing a fresh push from his allies in the legislative fight to commute the five sentences to life in prison without the possibility of parole, the harshest penalty that will remain on the books.
Since taking office in 2007, O’Malley, a practicing Catholic, has pressed for repeal of capital punishment with as much passion — and apparent disregard for the political risks — as any issue.
In high-profile testimony to the legislature this year, he said the death penalty is at odds with “our values as a people” and argued it wastes resources that could be spent on other crime-fighting strategies.
“There is no way to reverse our ‘mistake’ if we should execute an innocent person,” he said.
His reluctance to use his commutation powers, and perhaps leave the fate of death-row inmates to a successor, has become a mystery in Annapolis, where the General Assembly wraps up its 90-day session Monday.
O’Malley could have commuted the five sentences anytime since taking office. But with passage of the repeal bill, many are wondering, why not go ahead and do that now if abolishing capital punishment is such a priority?
“What should happen is the sentences should be commuted,” said Jane Henderson, executive director of Maryland Citizens Against State Executions. “He has the power to do that, and he should. It would save a lot of time and energy and angst.”
Her view was echoed by leaders of the NAACP, the Catholic Church and lawmakers in Maryland who fought this year for the repeal legislation that O’Malley plans to sign in coming weeks.
In an interview, O’Malley, whose term ends in January 2015, indicated that he has no immediate plans to use his commutation powers and said little about what might guide his thinking regarding the inmates, all of whom have been convicted of murder.
“I plan on dealing with those cases when they come to my desk, if they ever do come to my desk,” O’Malley said. “I don’t have a timetable for that.”
He declined to elaborate. Aides said that cases could reach O’Malley’s desk under a number of scenarios, including applications by inmates for commutations. None has been submitted to this point, nor are applications necessary under Maryland law for O’Malley to exercise his powers.
Family members of the victims of those on death row appear divided over any potential action by O’Malley.
Phyllis Bricker, whose parents were bound, gagged and stabbed to death in their Baltimore home in 1983, said she would be “offended” if O’Malley changed the sentence of John Booth-El to life in prison without the possibility of parole.
“That’s not the sentence that was given by the courts,” Bricker said. “But the governor is going to do what he wants because he has the power.”
Catherine Kennedy, meanwhile, said she would be at peace if O’Malley granted commutations for those involved in the killing of her brother’s daughter, Susan Kennedy, and David Piechowicz at a Pikesville motel in 1983.
“I would have no objection to that, not that the governor cares what I think,” Catherine Kennedy said.
Vernon Lee Evans Jr., the triggerman, and Anthony Grandison, whom prosecutors say ordered the killing of Piechowicz, are on death row.
In 2011, Illinois Gov. Pat Quinn (D) commuted the sentences of all 15 death row inmates before signing a bill ending capital punishment in his state. In New Jersey, Gov. Jon S. Corzine (D) did the same for eight death row inmates in 2007.
But governors in New Mexico and Connecticut left death row inmates subject to executions when they signed repeal bills. None has been carried out, and it is questionable whether they ever will be, said Richard Dieter, executive director of the Death Penalty Information Center.
Because O’Malley’s views on the death penalty are so well established, political analysts say there is little potential downside for him if he commutes sentences in Maryland.
His calculation could be affected by the potential for a petition drive that, if successful, would put the death penalty repeal law on hold pending a public vote next year. Similar drives put measures on the ballot last fall granting in-state tuition to illegal immigrants, allowing same-sex marriages and redrawing congressional boundaries.
But on Friday, state elections officials said they had received no inquiries from groups interested in overturning the death-penalty repeal in the three weeks since it passed.
In non-death row cases, O’Malley has used his clemency powers far more sparingly than his recent predecessors, including former governor Robert L. Ehrlich Jr. (R). In O’Malley’s first six years as governor, 640 of 690 requests for pardons and scores of requests for commutations died on his desk. In one term, Ehrlich pardoned or commuted the sentences of 249, including several serving life sentences for murder.
Even if O’Malley does nothing about the death-row inmates, it’s unlikely that anyone remaining on death row would be executed without the legislature reversing itself in the future. For one thing, there will no longer be any authority in state law to establish procedures for carrying out lethal injections or other means of execution.
“For all intents and purposes, these sentences are gone,” said Scott D. Shellenberger (D), the state’s attorney in Baltimore County, speaking of the two inmates sentenced to death by juries in his jurisdiction.
Supporters of the repeal bill passed by the General Assembly said it does not apply to prisoners on death row because of a concern that doing so would encroach on executive powers. The legislature has no clear authority to change existing criminal sentences.
But a provision was included in the bill that expresses a “clear preference” for commuting the death sentences to life in prison without the possibility of parole, said Sen. Jamie B. Raskin (D-Montgomery), who shepherded O’Malley’s legislation through his chamber.
Sen. Joseph M. Getty (R-Carroll), who voted against the repeal bill, acknowledged there could be practical problems with executing a death-row inmate but said the sentences should stand.
“My view is once you receive the death penalty, you should still be subject to it,” he said.