O'Malley-Sponsored Bill to Repeal Death Penalty Runs Into a Reluctant Senate

By John Wagner
Washington Post Staff Writer
Wednesday, March 4, 2009; B01

The Maryland Senate gutted Gov. Martin O'Malley's bill to repeal the death penalty yesterday, moving instead during a chaotic debate toward raising the standards of evidence required in capital cases.

With a pair of amendments, O'Malley's bill was dramatically altered to prohibit death sentences based solely on eyewitness testimony and to require either biological evidence, videotaped confessions or videotaped crimes to proceed with capital cases.

"It may be the best we can do," said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee who supported the repeal sought by O'Malley (D). "I'd like something more, but it will make it harder to get the death penalty."

Debate is set to resume this morning, with consideration of additional amendments and an uncertain outcome.

Speaking to reporters last night, O'Malley said the bill with the new evidence requirement would be "a move forward" but acknowledged that it fell well short of what he is seeking.

"It's not my goal," said O'Malley, a Catholic who has long opposed capital punishment. "You cannot make the human administration of justice perfect."

O'Malley said he would take the night to talk to senators about how to move forward, suggesting that some of them could have been confused on a 24 to 22 vote that stripped the repeal provision out of the bill. The governor cited two procedural votes earlier in the day in which a slim majority of senators voted to consider the legislation he was pushing.

O'Malley said he was uncertain whether a full-scale repeal could be reinstated in the bill today.

Yesterday's late-afternoon votes capped a dramatic and often confusing day focused on an issue that O'Malley has made a priority in the 90-day legislative session.

After the bill was changed, several senators complained from the floor that they were no longer certain how new amendments would affect the legislation and urged Senate President Thomas V. Mike Miller Jr. (D-Calvert) to suspend the proceedings.

"Very obviously, this is not one of the high points in the history of the Senate," said Senate President Pro Tem Nathaniel J. McFadden (D-Baltimore).

Jane Henderson, executive director of Maryland Citizens Against State Executions, was not ready to concede defeat as the debate hastily wrapped up.

"I'm not really clear the body has any idea what they've done," Henderson said. "It's quite a comedy of errors."

Some pro-repeal senators said they would seek ways to revive debate over the issue today. Sen. Jamie B. Raskin (D-Montgomery) said he was eager to air the findings of a state commission that recently recommended repeal.

Supporters of the amendments that altered O'Malley's bill said they were seeking to retain the death penalty but reduce the risk of executing an innocent person. Sen. Robert A. Zirkin (D-Baltimore County), who sponsored one of the measures, said it sought to limit capital cases to those with "the most reliable pieces of evidence."

Baltimore County State's Attorney Scott D. Shellenberger, who has actively lobbied against the repeal, said he thought the evidence restrictions were significant.

"I think it takes Maryland's statute that is already limited and limits it even more," said Shellenberger, who watched yesterday's debate unfold. "These are pretty big limits that I would not prefer."

Maryland has executed five people since reinstating the death penalty in 1978. Five inmates are on death row. The state has had a de facto moratorium on capital punishment since December 2006, the month before O'Malley took office, after the state's highest court ruled that lethal injection procedures had not been properly adopted.

O'Malley has declined to issue regulations allowing executions to resume but has indicated a willingness to do so if his repeal bill is fully considered and defeated this year.

Debate this session has taken place only in the Senate, where similar repeal bills died in committee each of the last two years despite O'Malley's backing. House leaders have said they have enough votes to pass a repeal bill but want the Senate to act first.

The morning began with two relatively quick wins for O'Malley on procedural votes. The Senate voted 25 to 22 to consider his repeal bill despite an unfavorable recommendation last week by the Judicial Proceedings Committee. The rare motion to take up a bill rejected by a committee was last used in 1978 on legislation that reinstated the death penalty.

Sen. Lisa A. Gladden (D-Baltimore), who sponsored the repeal bill with O'Malley, made an appeal to her colleagues on the basis of fairness. "Back 30 years ago, we had a free and open debate about this issue," Gladden said. "It is not about process or procedure. It is about principle."

Most Republicans and some Democrats fought that move, arguing that it was a break with decades of precedent and not explicitly authorized by Senate rules.

"You're saying we're going to play baseball by one set of rules until we don't get the outcome we want," said Sen. David R. Brinkley (R-Frederick). "We don't like the score at the bottom of the ninth inning, so let's play a 1oth."

A second motion passed, 24 to 23, to allow debate to begin on amendments.

Miller, a death penalty supporter, said he was allowing the motions as a courtesy to O'Malley but voted against both of them. He also supported the amendments that gutted the repeal provision.

After the Senate broke for the day, Miller lashed out at O'Malley for having sent thousands of e-mails to supporters, asking them to urge senators to support repeal. Earlier, Miller accused O'Malley of "calling in chits" to win votes.

"This is about a substantive issue," Miller said. "It's not about politics."

O'Malley said none of his conversations with senators had been heavy-handed. "I have no chits to call," he said. "I can only appeal to people's hearts and the values we share."

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