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November 7, 2014

After state's capital repeal, Maryland AG argues the state cannot execute those already on death row

As reported in this Baltimore Sun piece, headlined "Gansler argues state must vacate sentences of death row inmates," Maryland's Attorney General has concluded that it would not be proper to see execution of those on state's death row after the legislature repealed capital punishment. Here are the details:  

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....

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....

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.

November 7, 2014 at 09:56 AM | Permalink


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Gansler is an ass. Typical 'rat.

Posted by: federalist | Nov 7, 2014 11:26:59 PM

There's no Constitutional rule requiring retoactivity. I think that's clear. Given this, the death penalty was no more uncertain in application at the time the offense was committed that it has been since the beginning of time (obviously, the concerns of Furman v. Georgia remain valid, but I don't think a court would say so). So I really don't think this is a Due Process issue. If the Maryland law change made the death penalty repeal retroactive or even at least hinted it was, I'd agree. But, to me, the ball is in O'Malley's court to commute the death sentences. I hope he does (although I don't think he will), but I really don't think a court is required to do so.

Posted by: Erik M | Nov 8, 2014 9:58:59 AM

It is absolutely appalling that the 'rats are making lives miserable for victims' families. They didn't ask to be in that position, and Gansler, a 'rat bastard, is putting them through hell. What a horrible horrible human being.

Posted by: federalist | Nov 8, 2014 4:21:31 PM

I'm against the death penalty but at first blush the first comment seems sensible to me. Punishments change over the years. This law is a matter of legislative discretion. So, the particulars of the argument would be important. Note this, e.g.:

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.

Is this the core of the problem? Note what a person opposed to the decision is quoted as saying later:

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."


Gansler said his office was merely enforcing the law, noting that former Attorney General J. Joseph Curran Jr.[a Democrat] personally opposed the death penalty but for two decades as the state's top attorney supported it because it was the law.

And, another article does provide details that suggest the issue is that the the abolition is retroactive as a matter of constitutional right:

“The removal of the statutory authority to put those protocols in place has actually made it illegal and a factual impossibility for Mr. Miles to executed,” he said. “It is our view that — under the due process clause of the United States Constitution and the 5th amendment, as applied through the 14th amendment — it is a violation of Mr. Miles’ due process to remain on death row.”


The article noted he opposed a challenge to the sentence itself. The first article shows there are grounds to challenge his interpretation (the actual brief would help there), but that's an important point. And, since even a critic of the AG's argument criticized the legislature, even if the AG is wrong, his argument seems to have some force.

Legislative repeal of the death penalty generally is a matter of grace but it can be motivated by various things including a general concern that the penalty is no longer sound policy. If existing people on death row are to be executed anyway, apparently there has to be some care provided to ensure that is properly secured. Again, since this is not just something that applies to one punishment a certain political party etc, would like, it is a general concern.

Posted by: Joe | Nov 9, 2014 11:27:19 AM

Edit: that should read that the second article shows that the repeal is NOT protected as a matter of right.

TLDR: The argument made is that the repeal didn't provide proper authorization to carry out any more executions, a concern even a critic of the decision flagged.

Posted by: Joe | Nov 9, 2014 11:31:09 AM

You'd think a state AG would know that the Fifth Amendment due process clause doesn't apply to the states and has never been incorporated under the 14th amendment due process clause because, well, that would be really redundant. Unless he's somehow talking about double jeopardy?

Posted by: anon | Nov 12, 2014 12:29:52 PM

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