Md. again look­ing at death penalty

PRO­CE­DURAL IS­SUES RE­MAIN

The Washington Post Sunday - - METRO - BY JOHN WAG­NER

Se­nate leader to push

for ac­tion on rules

Mary­land law­mak­ers, who dur­ing Gov. Martin O’Mal­ley’s first term re­peat­edly de­bated whether to abol­ish the death penalty, 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. (DCalvert) said he will push for ac­tion in 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 fouryear 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 we 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 cochair­men, said he does not sense the same ur­gency to act asMiller.

“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— 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 to 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 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.

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