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O’Malley’s push to repeal Maryland death penalty could be within one vote

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With Maryland lawmakers set to reconvene Wednesday, the powerful Senate president has offered Gov. Martin O’Malley an unusual bargain on legislation to repeal the death penalty, which has remained bottled up in a committee for years.

If O’Malley can show that he has the 24 votes needed to pass the bill on the floor, Thomas V. Mike Miller Jr. (D-Calvert) has promised to spring it from the committee.

So, where are the votes? A Washington Post count suggests that the legislation — a long-stymied objective for O’Malley — could become one of the most dramatic to play out in the 90 days of the General Assembly session.

The Post identified 23 likely Senate votes for a repeal bill, one short of passage. But an additional four members have said they would consider supporting O’Malley-backed legislation, which is also a priority this session for the NAACP and the Catholic Church.

“I think the numbers are very close to a majority, if not already there,” O’Malley (D) told reporters Tuesday as he arrived at an annual pre-session luncheon sponsored by the Maryland Democratic Party.

The governor renewed his criticism of capital punishment, saying, “You shouldn’t do things that are expensive and don’t work.”

But O’Malley stopped short of saying whether he would sponsor a repeal bill this session, a move that would almost certainly increase the chances of nailing down wavering votes, proponents say. “It doesn’t become a priority for the General Assembly unless the governor strongly supports the bill and pushes for it,” said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee.

Repeal activists say that support for the bill is stronger in the House of Delegates, making the Senate the primary battleground.

O’Malley has announced several other priorities this year, including jump-starting the wind power industry and advancing gun-control measures that came to the fore after last month’s mass shootings in Newtown, Conn. He told the luncheon audience that he wants to do what he can to avert “the insanity of the sort of carnage we saw in Connecticut.”

But some lawmakers have suggested that the Connecticut massacre could complicate efforts to repeal the death penalty because it highlights the type of killer who they believe should be eligible for execution.

O’Malley also told reporters Tuesday that he will “probably” introduce another bill this year to increase transportation funding. A bill he sponsored last year to apply the state’s 6 percent sales tax to gasoline went nowhere.

O’Malley is scheduled to unveil his package of initiatives Jan. 17.

The death penalty debate comes at a time when Maryland has not executed a prisoner since 2005, when Robert L. Ehrlich Jr. (R) was governor. There are five people on death row in the state.

In December 2006, during Ehrlich’s last full month in office, the Court of Appeals ruled that the state’s procedures for the death penalty had not been properly adopted, and executions were halted until new regulations could be issued by the administration.

To date, new rules have not been implemented.

The Post’s count of likely Senate votes to repeal the death penalty includes 19 members who co-sponsored a similar bill last year, one senator who voted for a repeal bill previously in committee and two — Sens. James E. DeGrange Sr. (D-Anne Arundel) and Edward R. Reilly (R-Anne Arundel) — who voiced their support in interviews in recent days.

The count also includes Sen. James C. Rosapepe (D-Prince George’s), who was unavailable for an interview but has told colleagues that he is inclined to support a repeal bill.

Four other senators interviewed by The Post expressed mixed views and said they are open to hearing arguments by opponents. They include Sen. Allan H. Kittleman (Howard), the only Republican in his chamber to join a majority of Democrats last year in supporting same-sex marriage legislation.

Kittleman said he has supported use of capital punishment in the past although he “never loved it.” He added that he is particularly open to hearing from the NAACP, given his family’s history with the group: Kittleman’s father, who is white, was president of the Howard County branch of the NAACP.

Others who acknowledged being open on the issue include Sens. John C. Astle (D-Anne Arundel), Ronald N. Young (D-Frederick) and Katherine A. Klausmeier (D-Baltimore County).

“It’s something I’m very conflicted about,” Klausmeier said.

O’Malley has advocated repeal of the death penalty since taking office in 2007.

In high-profile testimony that year, the governor, a Catholic, argued that capital punishment is “inherently unjust,” does not serve as a deterrent to killing and consumes resources that could be better used to prevent crime.

O’Malley has fallen short in persuading the Judicial Proceedings Committee to support the legislation: Its members have broken 6 to 5 against a repeal.

In a move similar to what is being contemplated this year, Miller, a death penalty supporter, allowed a repeal bill to come to the Senate floor in 2009 as a courtesy to O’Malley, even though it lacked committee votes.

During floor debate, senators balked at passing the bill and instead adopted amendments that tightened evidentiary standards on capital punishment. Some senators say that the compromise continues to make sense.

Sen. James Brochin (D-Baltimore County) said sentences of life without parole do not deter killers from going after prison personnel. “I just feel the worst of the worst can’t control themselves and have nothing to lose,” he said.

In an interview last week, Miller said he was willing to allow another round of floor debate if O’Malley can show that he has the votes for a repeal. Several new senators have been seated since then. “If there are the votes to pass the bill, I’m not going to have a committee stand in the way,” Miller said. Miller predicted that a vote would be “very close” but fall short unless O’Malley persuades some members to switch sides.

Jane Henderson, executive director of Maryland Citizens Against State Executions, said she was confident that a repeal bill could get 24 or 25 votes, but she declined to name the supporters.

© The Washington Post Company