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Correction to This Article
The article incorrectly described Scott D. Shellenberger as the Baltimore state's attorney. He is the state's attorney for Baltimore County.
Md. Panel Slows Down Draft of Execution Rules
Proposal 'On Hold' With O'Malley's Support

By John Wagner
Washington Post Staff Writer
Monday, October 12, 2009

Maryland's de facto moratorium on capital punishment is likely to extend well into next year after leaders of a state review panel cited "serious flaws" in proposed regulations drafted by Gov. Martin O'Malley's administration that are needed for executions to resume.

A spokesman for O'Malley (D), who opposes the death penalty, said the panel should take whatever time it needs to scrutinize the regulations and suggest changes, given the gravity of the issue. The panel's concerns center on whether there are enough specifics on how lethal injections should be administered and sufficient safeguards against botched executions.

But critics are questioning whether the delay is part of a larger strategy by O'Malley to extend a nearly three-year hiatus on capital punishment that began with a court ruling on a technicality.

"This is something that could have been easily fixed," said Del. Michael D. Smigiel Sr. (R-Cecil), a supporter of capital punishment who is a member of the 20-member legislative review panel. "I'm sure that anything that can be done will be done to continue to subvert the law."

The panel, whose two co-chairmen oppose the death penalty, formally requested last month that the regulations be put "on hold." State law gives the governor authority to move forward over the objections of the panel, which primarily serves in an advisory capacity. But administration spokesmen said that will not happen anytime soon.

"We are going to oblige their request and delay implementation of the regulations," said Rick Binetti, a spokesman for the Department of Public Safety and Correctional Services, which issued the new rules in late July. "It's a review of some pretty complex regulations with some profound implications. . . . I think we would oblige them with as much time as they need."

Binetti's comments were echoed by Rick Abbruzzese, a spokesman for O'Malley, who said "the governor would expect the committee to take its time and take a careful review of these regulations."

Neither Abbruzzese nor Binetti would give a firm deadline for the legislative panel to complete its review, although Abbruzzese said it is reasonable to wait until January, when the legislature reconvenes full time, to begin formal deliberations. Ultimately, it will be up to O'Malley, who is up for reelection next year, to decide whether to accept any changes suggested by the panel.

Maryland's highest court halted the use of capital punishment in December 2006 after ruling that procedures for administering lethal injections had not been properly adopted by the state. O'Malley held off issuing new regulations until after the General Assembly had balked three years in a row at a full repeal of the death penalty.

This year, lawmakers instead agreed to significantly tighten evidence standards in capital cases. As of this month, prosecutors can seek the death penalty only in cases where there is biological or DNA evidence, a videotaped confession or a videotape linking the defendant to the crime.

Maryland has executed five people since reinstating the death penalty in 1978, most recently in 2005, under former governor Robert L. Ehrlich Jr. (R). Five inmates are on death row.

Binetti said the new regulations on execution procedures were drafted after corrections officials "went through an exhaustive process to review best practices across the country."

But Del. Anne Healey (D-Prince George's), a co-chairman of the legislative review panel, said they came up short. "I think there are serious flaws, and they need to be reworked," she said.

Healey's concerns largely mirror those of anti-death penalty groups, which submitted comments in response to the regulations in August.

Among the issues raised by Maryland Citizens Against State Executions: The regulations require no particular medical qualifications for members of the execution team, there are no limits on how much time the team can take to find a prisoner's vein and there are no steps to ensure that a prisoner is unconscious before a painful paralyzing agent is injected.

"The whole point of this was to say, 'The state's killing people. How are you going to do it?' " said Jane Henderson, the group's executive director. "They're keeping an awful lot private. It sort of perplexes me."

Her group and others also objected to the state's use of pancuronium bromide, a chemical that Maryland and some other states outlaw for use in animal euthanasia.

Baltimore State's Attorney Scott D. Shellenberger (D), a death penalty supporter, was largely dismissive of such concerns, saying Henderson's group "wants to throw roadblocks up wherever they can. That's their function."

Shellenberger, whose jurisdiction has pursued the death penalty more aggressively than any other in Maryland, said he has reviewed the regulations and thinks they are ready to be implemented.

"There's no reason why these new regulations, which have been tightened up a little from what we had before, can't go forward," he said. "We've had lethal injections before in Maryland."

Sen. Paul G. Pinsky (D-Prince George's), who co-chairs the legislative review committee with Healey, said the issue is important enough that it should be aired at a time when as many legislators as possible can be present. That might mean waiting until after lawmakers return to Annapolis in January, he said.

"I haven't felt rushed or that there's an urgency to get moving on it," Pinsky said.

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