By John Wagner
Washington Post Staff Writer
Saturday, January 15, 2011; 7:32 PM
Maryland lawmakers, who repeatedly debated whether to abolish the death penalty during Gov. Martin O'Malley's first term, are wrestling with a far different proposition at the outset of his second: whether to start using it again.
Maryland Senate President Thomas V. Mike Miller Jr. (D-Calvert) said he will push for action in the coming weeks on regulations needed to resume executions in the state.
Use of the death penalty was halted by the state's highest court in December 2006, the month before O'Malley (D) took office, pending new regulations from the administration spelling out procedures for lethal injection and other issues.
O'Malley instead lobbied the legislature to repeal capital punishment, waiting until 2009 - after those efforts fell short for a third year in a row - to propose new regulations. A legislative review panel headed by two Democrats opposed to capital punishment has yet to take action on the proposal, which they say is flawed.
"To allow this to continue to sit in the drawer is to make a mockery of the democratic and legislative process," Miller, a capital punishment supporter, said in an interview last week. "We swear to uphold the law of the state, and the death penalty is the law."
O'Malley said he, too, thinks the legislative panel "should do something one way or another on this" and acknowledged it is possible that executions could resume during his second four-year term, which starts Wednesday.
The governor, however, said he thinks the death penalty will eventually be repealed and is still assessing whether it makes sense to take another run at doing that in the current 90-day legislative session.
"The line of history sometimes zigs and zags," O'Malley said in an interview. "I think the big picture is our country is moving away from the death penalty, and I think as time goes on, more and more states will realize that it's not an effective tool for reducing violent crime or homicides. It's not a deterrent, it's very, very expensive, and the dollars could be used for other things, and it's ultimately inconsistent with the sort of nation with aspire to be."
As governor, O'Malley also has clemency power that would allow him to commute the sentences of any of the five inmates on Maryland's death row to life in prison - something he said he would consider on a case-by-case basis if the regulations are adopted.
Unlike most high-profile matters that come before the legislature, the death penalty regulations are being considered by a single committee made up of 10 delegates and 10 senators.
Any action by the panel does not need approval of the House or Senate, and technically the panel's role is only advisory. If he wanted to, O'Malley could put the recommendations in place over the panel's objections.
To date, O'Malley has not done so, and in the interview, he gave no indication that he would.
Sen. Paul G. Pinsky (D-Prince George's), one of the panel's co-chairmen, said he does not sense the same urgency to act as Miller.
"Am I in a hurry to get it resolved? No, I'm not," Pinsky said.
Pinsky said officials at the Department of Public Safety and Correctional Services, which drafted the regulations, have done little to address concerns he and others have raised about their substance.
Among the objections cited by death penalty opponents: The regulations require no medical qualifications for execution team members; 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.
Del. Anne Healey (D-Prince George's), the other co-chairman of the panel - called the Joint Committee on Administrative, Executive and Legislative Review - said she had hoped the O'Malley administration would have reworked the regulations by now to reflect such concerns.
The proposed rules that were issued in July 2009 expired a year later. O'Malley's corrections department proposed a second set of regulations in November that were nearly identical to the previous offer.
Healey said she is hopeful that her panel can act on the regulations by next month, but she did not indicate what the outcome might be.
Panel members are thought to be closely split on the issue of the death penalty itself, which doesn't necessarily indicate how they would vote on regulations meant to facilitate its use.
Senate Minority Whip David R. Brinkley (R-Frederick) said he is not sure where the votes would fall, but he said it is clear that Pinsky and other death penalty opponents are doing whatever they can do delay the issue.
"Any mechanism that can be used to block this is being utilized," Brinkley said.
Jane Henderson, executive director of Maryland Citizens Against State Executions, said she thinks a majority of both House and Senate members would support legislation to repeal the death penalty.
But Henderson acknowledged that a repeal bill has a difficult path this year, largely because of the makeup of the Senate Judicial Proceedings Committee, where it has been stuck in the past.
On the committee, Sen. Robert A. Zirkin (D-Baltimore County) is considered the swing vote.
Although the legislature stopped short of repealing the death penalty in 2009, it passed a bill tightening evidentiary standards in capital cases.
To be eligible for the death penalty, there must be biological or DNA evidence, a videotaped confession or a videotape linking the defendant to the crime. If the standards are not met, prosecutors can seek life without parole.
Zirkin, who helped craft the compromise, said in an interview last week that he sees no reason to revisit that. "I think what we did is very good," he said. "I think what we did should be a model for other states."
As far as he's concerned, the regulations to carry out the death penalty should be implemented, Zirkin said. "The state has the death penalty," he said.