Governor Should Make Ban Retroactive for 5 Remaining Death Row Inmates
May 2, 2013
By repealing the death penalty, Maryland joins a growing group of states in rejecting a cruel and inherently unjust practice. Governor O’Malley should build on his tremendous leadership on this issue by commuting the death sentences of the five men still on death row.
Alba Morales, US criminal justice researcher

(Washington, DC) – Maryland on May 2, 2013, became the sixth US state in six years to abolish the death penalty, continuing a trend to end this inherently cruel punishment in the United States. Maryland’s governor should commute the sentences of the five men who remain on the state’s death row.

Gov. Martin O’Malley on May 2 signed a bill abolishing the state’s death penalty and replacing it with the sentence of life in prison without the possibility of parole. However, the law does not directly affect the five inmates in the state awaiting execution. O'Malley has said he will determine on a case-by-case basis whether to commute their sentences.

“By repealing the death penalty, Maryland joins a growing group of states in rejecting a cruel and inherently unjust practice,” said Alba Morales, US criminal justice researcher at Human Rights Watch. “Governor O’Malley should build on his tremendous leadership on this issue by commuting the death sentences of the five men still on death row.”

Maryland’s repeal of the death penalty is just the latest sign of growing momentum against capital punishment in the United States. With the addition of Maryland, 18 states and the District of Columbia have rejected the death penalty. Legislatures in several other states are considering bills to repeal capital punishment. Parallel with these developments, the number of executions in the United States has declined in recent years – with a total of 43 executions nationwide in 2011 and again in 2012, compared with 85 in 2000.

Human Rights Watch opposes the death penalty in all circumstances as an inherently irreversible and inhumane punishment. Furthermore, the death penalty is inevitably plagued with arbitrariness, racial disparities, and error. In the US, 142 people have been released from death row since 1973 after presenting evidence of their innocence. Kirk Bloodworth, the first person in the United States to be released from death row by DNA evidence, was at the May 2 signing ceremony.

In Maryland, as in many US states, application of the death penalty has been marred by significant racial disparities –four of the five men on Maryland’s death row are African-Americans whose victims were white – and wide discrepancies between jurisdictions. People were far more likely to be sentenced to death, for example, if they committed their crimes in Baltimore County as opposed to the neighboring city of Baltimore.

Since the repeal bill makes no provision for the five men on death row, they could still be executed after exhausting all their appeals. Under the Maryland constitution, the governor has the power to commute sentences. O’Malley should ensure that the death penalty is never again used in Maryland by immediately commuting the sentences of all five death row inmates, Human Rights Watch said.

The new law’s failure to make the repeal of the death penalty retroactive is contrary to the International Covenant on Civil and Political Rights, to which the US is a party. All state governments are bound to abide by its provisions. The covenant states that if a law reduces a criminal penalty, that law should be retroactive. The US included a reservation when it ratified the treaty in 1992 that it would not adhere to this provision, stating that, “US law generally applies to an offender the penalty in force at the time the offense was committed.”

“Maryland did the right thing by ending government-sanctioned killing,” Morales said. “The 32 states that still allow the death penalty should follow Maryland’s lead and end this inhumane practice."