By Eric Rich and John Wagner
Washington Post Staff Writers
Wednesday, December 20, 2006; B01
Maryland's highest court ruled yesterday that the state's procedure for carrying out executions was adopted improperly, a defect that the court said must be addressed before any more condemned inmates are put to death.
The unanimous ruling by the Court of Appeals moved the debate squarely into the political realm, where Gov. Robert L. Ehrlich Jr. (R) or his Democratic successor, Martin O'Malley, must act if executions are to resume.
Last night, O'Malley, who takes office Jan. 17, called on Ehrlich to leave the issue for the incoming administration. "I'm sure all of this will spark a renewed debate as to whether all of the money we spend prosecuting death penalty cases might be better spent fighting violent crime and saving lives," O'Malley said.
An Ehrlich aide said the administration was reviewing the matter and had not decided how to proceed.
Because of the effort required to correct the defect identified by the court, many death penalty opponents said they expect that O'Malley would ultimately chart the state's course.
O'Malley has taken a nuanced position on the issue, saying that he is personally opposed to the death penalty but that his opposition would not prevent him from signing a death warrant. "I'm very much in favor of life without parole for people that shoot, maim and kill others time and time again," he said yesterday.
Cindy Boersma, legislative director for the American Civil Liberties Union in Maryland, one of several plaintiffs in the case, said of the situation: "This is a perfect opportunity for the O'Malley administration to conclude that it's not possible to have capital punishment in Maryland consistent with standards of human dignity."
In ordering that the execution of Vernon L. Evans be postponed indefinitely, the Court of Appeals did not find that the three-drug cocktail that Maryland uses in lethal injections is unconstitutionally cruel.
Rather, the court held that the process was developed by state prison authorities without legislative oversight and thus was not adopted, as regulations are supposed to be, in accordance with the Administrative Procedure Act.
The court offered two paths to remedy the defect. The procedure could be adopted properly, a step that would require action by the secretary of public safety, a gubernatorial appointee, and a legislative panel; or the legislature could exempt the execution protocol from the requirements of the act.
A. Stephen Hut Jr., the attorney who argued the case in May on Evans's behalf, said yesterday that mounting scrutiny over the pain lethal injection may cause should have a sobering effect on either process.
"I think all of the botched processes in other states become highly relevant," he said.
Gov. Jeb Bush (R) suspended the death penalty in Florida on Friday after a botched execution took 34 minutes and a second injection to kill convicted murderer Angel Nieves Diaz. In the Northern District of California, Judge Jeremy D. Fogel ruled on the same day that the state must overhaul its lethal injection procedures, calling the current protocol unconstitutional because of the pain it might inflict.
Hut has brought a challenge similar to the one in California in U.S. District Court in Baltimore, arguing that the state's method of execution risks causing excruciating but undetectable pain and would not be permitted under state law even "to euthanize household pets or barnyard animals." Judge Benson E. Legg has not ruled in that case.
Virginia Gov. Timothy M. Kaine (D) reiterated yesterday that he remains personally opposed to the death penalty, but he said he will not push for a review of lethal injection because state courts have upheld the practice.
Evans, of Baltimore, was convicted of the 1983 murders of David S. Piechowicz, 27, and Piechowicz's sister-in-law, Susan Kennedy, 19, at a hotel that Piechowicz managed in Pikesville. He is one of six inmates on death row in Maryland.
Wesley E. Baker died by lethal injection in December 2005 in the first execution in the state since June 2004 and the fifth in Maryland since the U.S. Supreme Court reinstated the death penalty in 1976.
Although yesterday's ruling had the effect of halting executions on technical grounds, a majority of the court rejected arguments that have been widely embraced by opponents of execution, including that the death penalty as applied in Maryland is unconstitutional because of racial bias.
To bring the execution process into compliance with the administrative procedure law would require a review by a joint committee of 20 legislators, who could significantly slow or even block implementation, depending upon on how the rules are presented by the administration.
If designated as "emergency" regulations by the administration, the rules would need the approval of the panel -- the Joint Committee on Administrative, Executive and Legislative Review -- and any one of the 20 members could call for a public hearing, the date of which would be set by the House and Senate chairmen. One of those is Sen. Paul G. Pinsky (D-Prince George's), a death penalty opponent.
"I'm not going to be in a hurry to push the plunger or let anyone else push the plunger," Pinsky said yesterday.
If the regulations are put forward without an "emergency" designation, they would be subject to a public comment period and could take several months to implement, Pinsky said. Ultimately, though, if there is no emergency designation, the administration could ignore the will of the legislative panel.
To exempt the execution protocol from the administrative procedures law -- the second course suggested by the high court -- would require legislation, and it is hard to gauge the likely support for such a measure. In recent years, the General Assembly has considered contradictory bills on the death penalty, and consensus has been in short supply.
Staff writer Tim Craig contributed to this report.