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The Maryland high court issued a Dec. 19 opinion that could prompt Maryland to join an increasing number of jurisdictions that are reassessing capital punishment generally and the lethal-injection process specifically. The court found that the Department of Corrections (DOC) had adopted its lethal-injection protocol in a procedurally defective way and discontinued executions pending the deficiency’s remediation. Governor Martin O’Malley and the Maryland Legislature should promptly and thoroughly review the death penalty and the lethal-injection procedures to decide whether change is warranted. The Maryland Court of Appeals’ ruling was very narrow. The court found that the DOC lethal-injection procedures constituted regulations under the Maryland Administrative Procedure Act (APA), but the DOC had not adopted the procedures in accordance with the APA’s requirements. Therefore, the court suspended those procedures until the DOC correctly prescribes them. The court suggested two ways in which its mandate could be satisfied. First, the Legislature might exempt the lethal-injection procedures from the APA’s strictures. Second, the lethal-injection protocol could be properly adopted, an approach that would necessitate action by the secretary of public safety and the General Assembly Joint Legislative Committee on Administrative, Executive and Legislative Review. In late January, lawmakers introduced legislation that would repeal the death penalty, and the governor stated that he would sign it. Should the Legislature choose to abolish the death penalty, this resolution would obviate the necessity to address the lethal-injection procedure. However, O’Malley and numerous observers have expressed skepticism that the Legislature will pass the bill this year. If the Legislature decides to retain the death penalty, lawmakers should reject the court’s proposal that the lethal-injection procedures be exempted from the APA because the issue is too important for exemption from public scrutiny. The Legislature then must systematically collect, analyze and synthesize the maximum relevant data on lethal-injection procedures. Recent developments implicating lethal injections that occurred in Florida and California should furnish valuable sources of information. On Dec. 15, Florida’s Republican governor, Jeb Bush, appointed a commission to evaluate the state’s lethal-injection procedures and issue a report this spring after corrections officers botched the execution of Angel Diaz. Later that day, U.S. District Judge Jeremy Fogel concluded that California’s application of lethal injections was broken, urged the state to fix the system, enumerated many specifics that needed repair and suggested that Republican Governor Arnold Schwarzenegger improve California’s protocol by consulting with other jurisdictions that have implemented more effective approaches. The governor expeditiously responded by pledging to address the concerns that the judge documented. Consult with other states Fogel singled out Virginia’s procedures for special consideration because he found that the commonwealth had carried out more than 60 executions without incident. Thus, Maryland need look no further than its southern neighbor, but Maryland should also consult the efforts in Florida, California and other large states, namely Texas, and additional jurisdictions that have more efficacious lethal-injection protocols or are reassessing their regimes, and cooperate with those states. The Maryland Court of Appeals’ recent narrow procedural decision that suspended use of the lethal-injection protocol affords a valuable opportunity for Maryland to reassess that process. Governor O’Malley and the Legislature should capitalize on this opportunity to fully re-examine the death penalty and lethal injections, particularly by evaluating other states’ approaches, and carefully pass appropriate legislation. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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