Death penalty debate may become Md. campaign issue

Ehrlich takes issue with O'Malley's delays on death penalty

By: John Wagner
The Washington Post
Saturday, May 8, 2010

Maryland Gov. Martin O'Malley (D) has repeatedly fallen short in his attempts to persuade lawmakers to abolish capital punishment. But as he nears the end of his term, O'Malley is close to achieving through delay and inertia what he could not change in the law.

Three-and-a-half years after the state's highest court halted use of the death penalty on a technicality, O'Malley has yet to implement regulations required for executions to resume. Although O'Malley says his administration is working diligently in that direction, advocates on both sides of the issue say they strongly doubt that any of Maryland's five condemned prisoners will be put to death before the governor stands for reelection this fall.

With jobs and the economy dominating the political debate, there is little evidence that O'Malley's posture on the death penalty has hurt him politically to this point. But his leading opponent, former governor Robert L. Ehrlich Jr. (R), said that he plans to make it an issue, accusing O'Malley and other death penalty opponents of "shenanigans" to avoid carrying out the law.

"This is the kind of thing that makes people cynical about the criminal justice system," said Ehrlich, who presided over the state's last execution, in 2005. "Governor O'Malley took an oath to uphold the law. He's certainly violating the spirit of it."

The debate in Maryland, one of 35 states with a death penalty statute, comes as capital punishment continues to draw attention across the country. Executions nationwide increased somewhat last year, but the number of new death sentences handed down fell to the lowest total since the death penalty was reinstated in 1976, according to the Death Penalty Information Center.

O'Malley bristled at Ehrlich's characterization, attributing part of the delay to a legislative review committee that six months ago raised numerous questions about regulations drafted by the administration, including its choice of a three-drug cocktail for lethal injections. Administration officials said a formal response was mailed to the committee Friday morning.

"We are following the process for putting the new regulations in place," O'Malley said. "Everything about the death penalty is cumbersome and can be slow."

Ehrlich's emphasis could help shore up support among conservative Democrats, a key constituency that he courted far more successfully in his 2002 victory than his 2006 defeat. Although O'Malley's stance puts him at odds with many of those voters, his advisers say that some will appreciate the governor's conviction on the issue, even if they disagree with him.

O'Malley, who rose to political prominence as a tough-on-crime mayor of Baltimore, said he has a strong record on public safety as governor, including a sharp decrease in violent crime statewide. On Tuesday, he signed bills toughening restrictions on sex offenders and giving law enforcement new tools to monitor gangs.

"He may define public safety success by how many people are executed," O'Malley said of Ehrlich. "I define it by how many lives we save."

In December 2006, during Ehrlich's last full month in office, Maryland's highest court ruled that the state's death penalty procedures had not been properly adopted, halting executions until new regulations were issued by the administration.

Focus on repeal

O'Malley focused instead on lobbying the legislature to repeal the death penalty. In high-profile testimony shortly after he took office in 2007, the governor, a Catholic, argued that capital punishment is "inherently unjust," does not serve as a deterrent to murder and consumes resources that could be better used preventing crime.

It was not until July of last year, after the legislature balked at repealing the death penalty for the third year in a row, that O'Malley's administration proposed regulations that would allow executions to resume.

In September, the co-chairmen of the legislative review committee, both of whom oppose capital punishment, asked that the regulations be put on hold to allow more study. O'Malley's administration agreed. In October, the committee submitted a four-page letter, asking detailed questions about aspects of the proposal.

A response was mailed Friday morning, administration officials said. Neither the committee leaders nor Rick Binetti, a spokesman for the Department of Public Safety and Correctional Services, which drafted the regulations, would predict how quickly the process might move forward.

"Getting this right is more important than any sort of timeline," Binetti said.

By law, O'Malley could implement the death penalty regulations over the objections of the 20-member legislative committee, but few involved in the process expect that. Nothing in Maryland law dictates how quickly a governor must implement regulations.

Sen. Paul G. Pinsky (D-Prince George's), a co-chairman of the legislative panel, said that neither he nor his co-chairman is trying to speed up the process and that he would not mind waiting to act until after the elections.

"On a visceral level, we haven't heard much out there," Pinsky said. "People aren't saying, 'You've got to get on this.' . . . If it takes another six months, so be it. I'm not in a hurry to allow the needle to be inserted."

Del. Anne Healey (D-Prince George's), the panel's co-chairman, said she is reserving judgment until she sees the administration's responses. Healey also said the draft regulations are so flawed that they need to be reworked, not just better explained.

New review possible

In all likelihood, the committee will try to schedule a public hearing as part of its deliberations, no easy task during the summer of an election year, Healey and other lawmakers said. Moreover, if the regulations are reworked, or not adopted by July 31, the anniversary of their introduction, the review process must start over with a fresh public comment period.

"If they want to get it right, they should start over," said Jane Henderson, executive director of Maryland Citizens Against State Executions.

Among her group's concerns: 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.

"I know people will say the administration is dragging its feet, but practically every state in the country has struggled with this," Henderson said. "I think the legislators are taking their jobs very seriously and saying we don't have enough evidence that Maryland won't botch an execution."

Henderson also suggested there could be enough votes to repeal the death penalty after the elections, when several new legislators will be seated. "We're probably wasting time on a method that will never be used," she said.

Supporters of capital punishment have voiced frustration with O'Malley but acknowledge there is little they can do.

"He's utilizing inertia to further his position," said Del. Michael D. Smigiel Sr. (R-Cecil), a member of the legislative review panel. But Smigiel and other death penalty supporters question how many votes might be swayed by the issue in November, given the prominence of economic issues this year.

"It's certainly fair game," Sen. James Brochin (D-Baltimore County) said of O'Malley stance on the issue. "It's public policy we need to move forward on, one way or another."

But Brochin, whose county has been the most aggressive in pursuing the death penalty, said he thinks the chance of it becoming a defining issue in the governor's race is "pretty low, except if a really heinous crime happens," focusing public attention on the issue in a way it hasn't thus far.