Seldom in the quarter-century since Maryland reinstated capital punishment has this deeply contentious issue presented lawmakers with as much conflict as it did during the just-ended General Assembly.
The new governor lifted his predecessor's moratorium on executions, even as a state-funded study revealed disparities in how Maryland decides who should be put to death. Within weeks, an execution warrant was signed for one of the 12 men on death row -- followed days later by the state attorney general's impassioned call for outright abolition of such sentences.
Legislators responded with a score of bills that seemed to cover every possible approach, from narrowing or expanding use of the death penalty to requiring that a prosecutor seek it.
Yet in the end, virtually nothing changed.
Not a single piece of legislation made it out of either chamber by last week's adjournment -- though one Senate proposal fell short 24 to 23, a result that both sides managed to claim as a measure of victory. Gov. Robert L. Ehrlich Jr. (R) quickly fulfilled his campaign promise and ended the ban on executions, but inmate Steven H. Oken's countdown was stayed not long after by the state's highest court.
That ambiguous outcome may be fine with many Marylanders, death penalty experts say. "It may not be a failure of government to do something. It may be a reflection of the minds of the people," said Richard Dieter, executive director of the Death Penalty Information Center. "They seem to want the death penalty on the books but not a lot of executions." Maryland has executed only three people since 1961.
Still, looking back to the start of the session, it would have been hard to predict this kind of stalemate.
With the possibility that Ehrlich's move could lead to as many as seven executions this year, anti-death penalty momentum appeared to be building even before University of Maryland criminologist Raymond Paternoster released his research in early January.
His study of nearly 6,000 homicide cases across the state from 1978 to 1999 concluded that prosecutors were far more likely to pursue the death penalty for black suspects charged with killing white victims. Paternoster also found that geography was a major factor in determining whether a suspect faced a capital charge. The disparities were systemic, he stressed. "They cannot be identified on a case-by-case analysis."
Numerous lawmakers pushed for further review of the research. Lt. Gov. Michael S. Steele (R) said he would urge Ehrlich not to dismiss it. Paternoster welcomed the outside scrutiny because, as he repeated several days ago, "these facts are troubling."
Paternoster said he anticipated a commission being formed to investigate the findings.
"I thought that was a noncontroversial position," he said. But efforts at follow-up went nowhere. (Steele, who has been meeting with prosecutors and others at Ehrlich's request, declined through a spokesman to talk about the issue last week.) University of Iowa law professor David C. Baldus, who also has studied Maryland's system, said he expects the reaction would have been far different had Paternoster found significant disparity flowing from defendants' backgrounds.
While the distinctions shouldn't matter legally -- "both violate the Constitution," Baldus said -- "a claim based on the race of the defendant carries much greater weight from a moral standpoint than disparity based on the race of the victim."
Given that, legislating a moratorium was always a long shot. Supporters such as Del. Salima Siler Marriott (D-Baltimore) say they believe that they made strides even in defeat: "In the Senate, we lost by one vote. They filibustered it to death two years ago. That's progress."
And though opponents know the debate is not over, blocking the moratorium bills was key for them this year. In fact, Sen. Nancy Jacobs (R-Harford) came to the State House intent on doing nothing else if that were what the task demanded.
The brother of Oken's first victim lives in her district, and she kept Dawn Marie Garvin's gruesome rape and murder in mind as she led the floor fight against the Senate measure.
"Sometimes stopping something is just as important as passing something," Jacobs said.
Once Oken's execution was stayed, the pressure to address the death penalty eased, several legislators suggested.
The 90-day session was packed with other critical concerns, which allowed little time to delve into Paternoster's findings.
Gary Bair, solicitor general in the state attorney general's criminal appeals division, watched from afar as the many bills stalled. "There were just a lot of cross currents and no clear consensus," he said.
The attention now shifts to the courts, state and federal.
One week after the Senate refused to temporarily halt executions, Bair was at the U.S. Supreme Court to defend the death sentence of an inmate convicted of drowning an elderly Baltimore County woman in her bathtub in 1988. Kevin Wiggins contends he was incompetently represented at sentencing when his trial attorneys failed to tell jurors about the horrific abuse he had endured as a child.
Next month, Bair will go before the Maryland Court of Appeals on a case that could upend capital punishment in the state far beyond the General Assembly's recent considerations.
Oken, a three-time murderer, is arguing that Maryland's statute is unconstitutional because of the standard it directs judges or juries to use when deciding whether a convicted killer should be put to death.
"I'm hoping we don't need [future] political action if the appeals court bites the bullet," his attorney, Fred Bennett, acknowledged.
Indeed, if the court finds for Oken, it could force resentencing in all of Maryland's current death row cases. That would restart the appeals process for each man. "It would effectively stop executions," said Jane Henderson, co-director of the Quixote Center, a Maryland-based social justice organization. "We would definitely be years away from the next one."