Md. Governor Prepares to Move Forward With Rules to Allow Resumption of Death Penalty

By John Wagner
Washington Post Staff Writer
Thursday, March 5, 2009; B01

Gov. Martin O'Malley is preparing to move forward with regulations to allow executions to resume in Maryland now that his effort to repeal the death penalty appears to have failed, a spokesman said yesterday.

The Senate abruptly ended debate on O'Malley's proposal yesterday morning, instead embracing a bill that would tighten evidence standards in death penalty cases. That bill is expected to pass the Senate today by a wide margin and head to the House of Delegates for consideration.

Maryland has had a de facto moratorium on capital punishment since December 2006, the month before O'Malley (D) took office, after the state's highest court ruled that lethal injection procedures had not been properly adopted.

O'Malley, a longtime capital punishment opponent, has declined to issue regulations since then, saying the legislature deserved a chance to permanently repeal the death penalty. Such bills have been considered during each of the past three years.

"It obviously looks like we won't have a full repeal this session, and the governor has indicated he will move forward with the regulations if the repeal fails," O'Malley spokesman Rick Abbruzzese said. "The governor took an oath to uphold the laws of the state."

Regulations needed to resume executions by lethal injection have been drafted by state corrections officials, but it could be at least several months before they are adopted. Abbruzzese would not offer a timetable on when they might be put in place, saying the governor was weighing his options "about when and how to proceed."

Five inmates are on Maryland's death row. The state has executed five people since reinstating the death penalty in 1978, most recently in 2005, during the administration of former governor Robert L. Ehrlich Jr. (R).

Yesterday morning, senators on both sides of the repeal debate expressed at least tepid support for an amended bill that would prohibit death sentences based solely on eyewitness testimony and require either biological evidence, videotaped confessions or videotaped crimes to proceed with capital cases. Supporters said the provisions were designed to reduce the possibility of executing an innocent person but permit the death penalty in egregious cases.

The fate of that measure during the 90-day legislative session remains unclear.

House leaders indicated that they would consider the Senate bill, which was cobbled together during a chaotic floor session Tuesday, but that they had reached no understanding with the Senate or O'Malley about it. Senate leaders said they would not accept any changes to the legislation in the House.

House Speaker Michael E. Busch (D-Anne Arundel) said that although the Senate bill fell short of O'Malley's objective, "the legislature is a place where it's sometimes better to have incremental victories."

Del. Samuel I. Rosenberg (D-Baltimore), a leading repeal advocate, said he would try to push a bill abolishing capital punishment through the House, adding that "this is not the kind of incremental progress we should be satisfied with."

But other lawmakers said the Senate action effectively killed any chance of a repeal bill reaching O'Malley's desk this year.

Observers had a variety of views about the practical effect of the Senate bill as it stands.

In a statement, O'Malley said, "While I do not think we can ever make the application of human justice perfect, the amendments passed in the Senate strengthen the standard of proof required to apply the death penalty in Maryland."

A leader of the repeal effort dismissed the Senate bill as a "meager little reform thing."

"I would rather they kill the bill in the House than pass it as it is," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "It sends the wrong impression that we're actually doing something to fix the death penalty."

Richard C. Dietor, executive director of the national Death Penalty Information Center, said the bill could reduce the number of cases that become eligible for the death penalty, but to what extent is unclear. "The best I can tell, this would restrict the use of the death penalty to some degree, but even the typical cases might still be eligible," Dietor said.

Dietor said DNA and other biological evidence has become increasingly common in capital cases, for example.

Few states have tried to put similar restrictions in place in recent years, he said. In a couple of states, such as Massachusetts and Wisconsin, such measures have been incorporated into failed proposals to reinstate the death penalty rather than restrict it, he said.

Prince George's County State's Attorney Glenn F. Ivey (D) said the bill that emerged in the Senate "could have an impact on the threshold [for seeking the death penalty], at least in theory." But, he said, "I think most prosecutors were looking for high standards of proof already. I guess at the end of the day, it basically just leaves us in the same place."

In neighboring Montgomery County, State's Attorney John McCarthy (D) said the Senate bill could remove elements of human error from death penalty prosecutions because of the stricter evidence standards. But as a practical matter, he said, no one has been executed in Montgomery for 57 years, and the new bill is not likely to change that.

House Minority Leader Anthony J. O'Donnell (R-Calvert) said he wanted to examine the Senate bill to make sure it is not so restrictive that executions cannot occur at all.

"I'd be concerned if the death penalty becomes so constrained in operation it becomes a de facto repeal," he said.

Staff writers Rosalind S. Helderman and Matt Zapotosky contributed to this report.

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