« Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation | Main | New York Times makes room for three interesting debates »

December 20, 2011

Maryland Governor talking about using budget tricks to thwart state's death penalty

This new Washington Post piece, headlined "O’Malley weighs budget restriction on death penalty," has me scratching my head about how Maryland's Governor tries to give expression to this opposition to the death penalty. Here are the basics of this latest story:

Maryland Gov. Martin O’Malley (D), a long-time death penalty opponent, in recent months has considered using the state budget to block executions in the coming fiscal year. The “idea of defunding executions” was discussed in a July meeting that included O’Malley and Del. Samuel I. Rosenberg (D-Baltimore), a leading death penalty foe in the legislature, according to O’Malley’s scheduling records.

In an interview, Rosenberg confirmed the meeting took place and said he and the governor had a “positive discussion” about the concept, which would apparently prevent the state from carrying out executions due to budget restrictions.

Rosenberg said O’Malley made no commitments at the time, and on Monday night, an O’Malley aide said the the governor remains unconvinced he should take that approach. “It’s not likely that the governor will do that, but no final decision has been made,” said O’Malley spokeswoman Raquel Guillory.

O’Malley, who must present a budget proposal to the General Assembly next month, unsuccessfully lobbied the legislature to repeal the death penalty during his first term. In 2009, lawmakers instead passed a bill tightening evidentiary standards in capital cases.

House Minority Leader Anthony J. O’Donnell (R-Calvert) said a budget provision on the death penalty would be unacceptable. O’Donnell compared the idea to efforts in Congress to undermine President Obama’s health care law by refusing to fund its key provisions. O’Donnell said he couldn’t imagine O’Malley would approve of such a tactic in Congress and should only pursue straight-up measures to alter the state’s death penalty law.

Maryland has had a de facto moratorium on executions since shortly before O’Malley took office in 2007, and it is unclear how much longer it might continue. In late 2006, Maryland’s highest court ruled that the state’s procedures for lethal injections had not been properly adopted and halted scheduled executions. Efforts since then by the O’Malley administration to craft new rules have been delayed several times....

Rosenberg and other death-penalty opponents are planning another push for repeal in the coming session, but they could be short of the votes needed in a key Senate committee to advance the measure to the full body. This year’s bill is expected to include funding for the families of murder victims.

A budget provision would not be subject to the scrutiny of the same Senate committee skeptical of the repeal legislation.

I find this story a head-scratcher because I believe that the Governor in Maryland has broad clemency authority, and thus I have never understood why Gov. O’Malley does not give expression to his capital punishment opposition by commuting to life the death sentences of the five murderers on the state's death row.  Trying to thwart the death penalty by using legislative tricks like defunding executions (and/or engaging in foot-dragging on the developing a new lethal injection protocol) seems far less honest and consistent with the rule of law than simply using his clemency power and then explaining to the citizens of the state and other interested persons his reasons for exercising this power.

Perhaps I am wrong about the clemency authority held by the Governor in Maryland or perhaps there are some other legitimate legal reasons why Gov. O’Malley cannot or should not give expression to his capital punishment opposition by commuting all death sentences.  On the surface, however, it seems like Gov. O’Malley is looking for a low-profile, back-door way to achieve something he apparently is unwilling to do in a high-profile direct way because of the potential political fall out.  If this is what is going on, it is disappointing to learn that the governor not only lacks the courage of his anti-death-penalty convictions, but also that he is willing to seek a coward's route to still trying to get his way.

December 20, 2011 at 10:10 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Maryland Governor talking about using budget tricks to thwart state's death penalty:


"back-door" is right

Thank you Prof. Berman for displaying integrity by declaring O'Malley's manoeuvres a "coward's route."

Some lesser souls do not respect honesty, e.g., "A sincere diplomat is like dry water or a wooden iron."--Stalin

Posted by: Adamakis | Dec 20, 2011 11:05:18 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB