Baltimore Sun
By GADI DECHTER and LAURA SMITHERMAN
November 13, 2008
A state commission reviewing capital punishment recommended last night an end to executions in Maryland, prompting hope among death penalty opponents that the General Assembly could soon abolish the 30-year practice.
The Maryland Commission on Capital Punishment voted 13-7 to make the recommendation. It found that the death penalty carries the "real possibility" of executing innocent people and may be biased against blacks.
The final report of the 23-member commission is expected to provide additional ammunition to Gov. Martin O'Malley and other death penalty opponents in their uphill fight to stop state executions. Previous repeal efforts have narrowly failed despite high-profile campaigns by O'Malley, a Roman Catholic and ardent opponent of capital punishment.
An O'Malley spokesman said last night that the Democratic governor looks forward to reading the final report, which is due next month. The governor has lobbied for a death-penalty repeal and vowed to sign it if the legislature passes it.
"I would hope the recommendation of the commission …. would have some persuasive merit before the legislature," said panel chairman Benjamin R. Civiletti, a Baltimore lawyer who served as U.S. attorney general under President Jimmy Carter.
Civiletti said the majority vote, which he joined, reflects a consensus on the panel that "the capital punishment system as it is administered and exists in Maryland doesn't really work" and is "arbitrary and capricious."
But death penalty proponents took comfort in what they characterized as a close vote. Supporters of capital punishment had previously pointed out that a majority of the board, created by the legislature, was appointed by an anti-death penalty governor.
"Tonight was a night to really figure out where people actually stood," said Baltimore County State's Attorney Scott D. Shellenberger, a panel member who plans to write the minority's opinion for the final commission report. "The vote is a testament to how close this issue is in the state of Maryland."
The final decision rests with the General Assembly, where a key Senate panel has voted down a death penalty repeal, preventing it from reaching the chamber floor for a vote.
While executions in Maryland are infrequent, the issue is being scrutinized here and nationwide because of high-profile exonerations of wrongly convicted death-row inmates.
Maryland has had an effective ban on use of its death chamber since December 2006, when the state's highest court ruled that execution protocols that detail the steps to put a condemned prisoner to death were improperly developed.
In May, after the U.S. Supreme Court ruled that lethal injection procedures such as those used in Maryland were acceptable, O'Malley reluctantly took the first step toward ending Maryland's moratorium. He ordered the drafting of new lethal injection procedures but also said the commission would study the practice and investigate whether it was justified.
The commission voted down a proposed amendment to retain the death penalty for people who kill correctional officers or police officers. It voiced unanimous or strong support for seven of eight findings it was charged with exploring. Among these:
•Racial and geographic disparities exist in how the death penalty is applied.
•Death penalty cases are more costly than non-death penalty cases and take a greater toll on the survivors of murder victims.
•There is no persuasive evidence that risk of execution is a deterrent to crime, and the unavailability of DNA evidence in some cases opens the "real possibility" of wrongly executing an innocent person.
The commission did not find sufficient evidence of disparities in death penalty cases based on socioeconomic factors.
Established this year, the panel includes a police chief, a former death row inmate who was exonerated by DNA evidence, a rabbi, a bishop, three relatives of murder victims, several legislators and a county prosecutor who has handled capital cases and made the decision to seek death in others.
State Sen. Jamie Raskin, a Montgomery County Democrat and panel member, said the forthcoming report would improve the chances of a death penalty repeal bill reaching the governor's desk this year.
"The governor's signature would be there, and I think there's a majority in the House [of Delegates]," said Raskin, who voted for the recommendation. "There's a question of whether a majority would form in the Senate and specifically in the Senate Judicial Proceedings Commitee, which has been historically one vote short of bringing a vote to the floor."
One potential swing vote on the issue in the divided committee is Sen. Alex X. Mooney, a Frederick County Republican. As a Catholic, Mooney has expressed reservations about the use of the death penalty but says that the punishment might be warranted in the most egregious cases.
Last night he said he would be "very interested in reading every word" of the commission's report. "I still haven't come to the position where I would ban the death penalty in all circumstances," Mooney said. "I'll continue to pray about it and make up my mind."
Raskin promised that the majority-opinion report would have "very graphic and vivid evidence" of "a system infected with racial disparity and arbitrariness."
Five men in Maryland have been put to death by injection since 1978, when the state resumed the practice after a U.S. Supreme Court ruling. The most recent was Wesley Eugene Baker, executed Dec. 5, 2005.
Of the five inmates on death row, three were convicted of murders that took place in 1983.
Raskin said he was particularly struck by the racial disparities in Maryland's death penalty experience. Despite the fact that two-thirds of homicide victims in Maryland are African-American, "in 30 years, we've executed five people and all of their victims had been white," Raskin said. "There are five on death row now, and all their victims had been white."
The Department of Public Safety and Correctional Services continues to review the execution protocols. Spokesman Rick Binetti said last night that the agency is nearing completion of the process and may submit new regulations in the coming weeks.