“There’s just not a natural constituency to go to,” said Baltimore’s state’s attorney to explain why a pro-death penalty petition drive in Maryland failed. A conservative group that succeeded in delaying marriage equality in Maryland by forcing a ballot referendum on the issue hoped to replicate that success and trigger a similar referendum on the state’s new law repealing the death penalty. Instead, they fell about 3000 signatures short of the 18,579 they needed.
The failure of this ballot referendum lends additional support to arguments that the death penalty is unconstitutional. The Constitution forbids “cruel and unusual punishments.” So as a particular punishment becomes more “unusual” — or, in the Supreme Court’s words, as it ceases to be consistent with “evolving standards of decency that mark the progress of a maturing society” — it become increasingly more difficult to justify under the Constitution. The Baltimore prosecutor’s admission that there is no “natural constituency” for the death penalty in Maryland is evidence that we are moving towards the point where state-sponsored executions can no longer exist under the Constitution.
Lest there be any doubt, Maryland is not alone in moving away from executions. To the contrary, Maryland is the sixth state in as many years to repeat its death penalty. Sixty percent of U.S. counties ceased seeking the death penalty altogether, and between 2004 and 2009 just 10 percent returned a single death sentence. At a national level, the death penalty has largely been isolated to a small number of mostly southern jurisdictions. This does not bode well for its constitutionality.