While public support for the death penalty has waned, attitudes have not changed nearly as quickly as on same-sex marriage, among the progressive issues O’Malley successfully championed this month at Maryland’s ballot box.
That was most evident in California, where voters rejected by about 6 percentage points an initiative to repeal that state’s death penalty and clear the country’s largest death row.
In Maryland, the Court of Appeals ruled in December 2006, during Ehrlich’s last full month in office, that the state’s death penalty procedures had not been properly adopted, halting executions until new regulations were issued by the administration.
O’Malley focused instead on lobbying the legislature to repeal the death penalty. In high-profile testimony shortly after he took office in 2007, the governor, a Catholic, argued that capital punishment is “inherently unjust,” does not serve as a deterrent to murder and consumes resources that could be better used to prevent crime.
It was not until July of 2009, after the legislature balked at repealing the death penalty for the third year in a row, that O’Malley’s administration proposed regulations that would allow executions to resume.
Those regulations were later withdrawn after a legislative review panel raised numerous questions about them. Revised regulations have not been issued since.
The bottleneck to repeal efforts in the legislature in recent years had been the Senate Judicial Proceedings Committee, whose members have broken 6 to 5 in favor of keeping the existing law. That has prevented the legislation from reaching the full Senate, where repeal advocates now say they stand a good chance of winning a majority vote.
A repeal bill last reached the Senate floor in 2009, when Senate President Thomas V. Mike Miller Jr. (D-Calvert) allowed debate as a courtesy to O’Malley. Rather than pass the bill, the Senate amended it to tighten evidentiary standards in capital cases but to keep the death penalty on the books.
Sen. Robert A. Zirkin (D-Baltimore County), considered a potential swing vote on the Judicial Proceedings Committee, said he remains fine with the 2009 compromise, which he said limits the chances of an innocent person being executed.
Under that law, the death penalty is only an option in cases that include at least one of three types of evidence: DNA or biological evidence; a videotaped confession; or a videotape linking the suspect to the crime.
“I respect people who find the death penalty immoral. I’m not one of those people,” Zirkin said. “I think if the law exists, it should be utilized.”
Still, anti-death penalty advocates believe the coming year holds promise.
“I think there’s a lot of momentum for it,” said Jane Henderson, executive director of Maryland Citizens Against State Executions. “If it’s going to happen while O’Malley’s still governor, this will be the year to do it.”
Coming off wins this month on ballot measures allowing same-sex marriage and extending in-state tuition rates to illegal immigrants, O’Malley might feel emboldened to try to push through one more progressive measure, some political observers say.
But others caution that the repeal of the death penalty is a mixed bag politically for a politician with national aspirations. Democrats in some early presidential nominating states still support capital punishment in significant numbers, they note.
“If he sees an opening, I think he’ll go for it,” said Mike Morrill, a veteran Democratic strategist. “But it would be a matter of conscience, not politics. And it may be that the status quo is enough to meet his values.”