Maryland attorney general argues state can't carry out death sentence on 4 death row inmates



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ANNAPOLIS, Maryland — Maryland no longer has the ability to carry out the death penalty even against someone who was sentenced before capital punishment was banned last year, the state attorney general and lawyers for a death-row inmate argued Monday.

Their arguments came under repeated questioning during a hearing before a three-judge panel in the Maryland Court of Special Appeals.

Attorney General Doug Gansler contends that inmate Jody Lee Miles should be re-sentenced to life without possibility of parole. He is urging judges on the state's intermediate appellate court to send the case back to circuit court for a new sentence.

Gansler outlined two main reasons. First, Maryland's highest court ruled in Vernon Evans Jr. vs. the State of Maryland in 2006 that a legislative panel needed to approve protocols for lethal injection before an execution could take place, a step that has yet to be taken. Second, when lawmakers banned capital punishment last year, Gansler said they also repealed the law that enabled the Maryland Department of Public Safety and Correctional Services to introduce injection protocols.

"So because of those two instances, we now have in our view a due-process issue, whereas a sentence that was originally imposed, while completely legal and without error, is no longer enforceable," Gansler said.

But Judge Douglas Nazarian question Gansler and attorneys representing Miles about that conclusion. Nazarian asked why the department could not move ahead with issuing new protocols affecting the four men on death row, in a manner similar to policies and procedures it implements to incarcerate inmates.

Nazarian asked: "If it's a legal sentence, why couldn't the Division of Corrections do now — or a new administration — what the division has not done since Evans, which is to ... comply with the administrative procedures and promulgate the regulations that allow it to carry out this otherwise, in your view, legal sentence?"

Gansler said that the ability to carry out an execution has evolved over time outside the realm of the department's inherent authority to incarcerate inmates.

"It would be our position that the department doesn't have the authority now," said Brian Saccenti, an attorney for Miles.

While the case argued Monday only applies to Miles, Gansler has said it opens the door for attorneys of the other inmates to seek a new sentence.

It's unclear when the three-judge panel will decide the case.

Maryland lawmakers voted to ban the death penalty last year, but the law does not directly apply retroactively to the four men who were already on death row.

Miles was convicted in the 1997 robbery and murder of Edward Atkinson in Wicomico County.

Last month, Gov. Martin O'Malley, who led the push to repeal capital punishment, began contacting family members of victims who were murdered by the men on death row, raising speculation the Democratic governor might commute their sentences to life in prison without parole before the end of his tenure next month.

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