Activists Encouraged by New Jersey, but Key Senate Panel Remains in the Way
By John Wagner
Washington Post Staff Writer
Wednesday, December 26, 2007
Advocates of repealing Maryland's death penalty are hopeful that New Jersey's landmark decision to end capital punishment will provide momentum heading into next month's legislative session. But interviews with key lawmakers suggest that a permanent repeal during the 90-day session remains a long shot.
A bid to replace Maryland's death penalty with life without parole failed by a single vote in a Senate committee during the last regular session, which ended in April, despite high-profile support from Gov. Martin O'Malley (D). In testimony before the legislature, O'Malley argued that capital punishment is "inherently unjust" and that money is wasted on appeals that could be better spent fighting violent crime.
In the months since then, repeal advocates have arranged meetings between lawmakers and well-known death penalty opponents, including David Kaczynski, brother of Theodore Kaczynski, the Unabomber. They have hired as a lobbyist the former chief of staff to Senate President Thomas V. Mike Miller Jr. (D-Calvert). They are planning several events to spotlight the issue after lawmakers return to Annapolis on Jan. 9, including a visit by suspense novelist Scott Turow, a death penalty opponent.
And they are urging opponents of capital punishment to write lawmakers, pointing out similarities between Maryland and New Jersey, which this month became the first state in more than 40 years to abolish the death penalty.
There is little evidence, however, that any of their efforts have changed minds on the Senate Judicial Proceedings Committee, which killed the repeal bill last session and whose 11 members remain the same.
"The burden of proof on changing the law is on those who want the law changed, and I've not yet been convinced to vote for a full repeal," said Sen. Alex X. Mooney (R-Frederick), who was considered the swing vote on the committee last session. Mooney, a Catholic, has said he is conflicted about the issue.
Jane Henderson, executive director of Maryland Citizens Against State Executions, said she remains optimistic about repeal prospects during the coming session, however.
"There's movement," Henderson said. "There are people leaning our way who may not say so before session. . . . We're going to continue to push. It's no longer a question of 'if' in Maryland. It's a question of 'when.' "
The legislative debate will take place against uncertain backdrops in Maryland and nationally.
Maryland has had an effective moratorium on capital punishment since last December, when the Court of Appeals, the state's highest court, ruled that the state's procedures for lethal injections had not been properly adopted. Five prisoners currently sit on Maryland's death row.
For executions to resume, the O'Malley administration must issue new regulations -- a step the governor has resisted. If the legislature tries to abolish the death penalty and fails for a second year in a row, pressure will mount on O'Malley to issue the rules, some lawmakers said. Miller, who supports the death penalty, said O'Malley should have done so already.
"When he took the oath of office, he swore to uphold the laws of Maryland, and the law of Maryland is now being subverted," Miller said.
Others, including Henderson, said that it is important to change the law but that it would be surprising if O'Malley, who has not signaled his intentions, lets executions resume during his tenure.
"It's hard for me to believe he's going to step out there and say, 'Oh, well, let's start killing people again,' " Henderson said.
There has also been a de facto moratorium on the death penalty nationally since late September, when the U.S. Supreme Court agreed to hear a challenge from two Kentucky death row inmates who contend that lethal injection violates the Eighth Amendment's protection against cruel and unusual punishment.
Arguments in that case are scheduled for Jan. 7 -- two days before the Maryland legislature convenes -- with a decision expected by the court's adjournment in June. Lawmakers said they would be surprised to see a decision before the legislature adjourns in mid-April, however.
In part because of the Kentucky case, the number of executions nationally hit a 13-year low in 2007, dropping from 53 a year before to 42, according to the Death Penalty Information Center.
Since the U.S. Supreme Court reinstated capital punishment in 1976, five inmates have been put to death in Maryland, with the most recent execution in December 2005.
In the months ahead, the future of capital punishment in Maryland could rest squarely on a small number of senators on the Judicial Proceedings Committee.
Del. Samuel I. Rosenberg (D-Baltimore), the leading repeal advocate in the House of Delegates, said it is unlikely that his chamber will act on a repeal bill before action in the Senate, given the bill's demise there last session.
Sen. Brian E. Frosh (D-Montgomery), chairman of the Senate panel and a death penalty opponent, said that he is hopeful that minds will change but that he is not aware of any members who plan to change their votes.
Seven Democrats and four Republicans sit on the committee.
Repeal advocates said they are targeting Sen. James Brochin (D-Baltimore County), one of two committee Democrats who did not support repeal last session.
In an interview, however, Brochin said he has no intention of changing his vote. Brochin is considered a maverick and displays little loyalty to either O'Malley or the Senate's Democratic leadership. In the recent special session on the state budget, Brochin joined Republicans in a failed filibuster on a tax bill.
Brochin said death penalty opponents "have lobbied me very, very heavily." But, he said, "I just think there are some people who deserve to be executed. . . . It's really up to Alex Mooney."
Mooney, who was heavily courted by O'Malley aides last session, said that he remains open to compromise on the issue but that repeal advocates do not seem interested in compromising.
Under Maryland law, those guilty of first-degree murder are eligible for execution if prosecutors can prove at least one of 10 aggravating factors, such as killing a law enforcement officer or committing murder while in prison. Last session, Mooney expressed a willingness to reduce the number of aggravating factors and narrow eligibility for the death penalty, an idea that few senators would support.
"The problem is they want all or nothing," Mooney said.
View all comments that have been posted about this article.