Death penalty measure passes, 87-52

STEVE LASH
Daily Record Legal Affairs Writer
March 26, 2009 8:16 PM

ANNAPOLIS — The House of Delegates voted 87-52 to retain Maryland’s death penalty but sharply reduce its application, allowing it only when there is biological evidence, a videotaped confession or other video conclusively linking the defendant to the murder.

Thursday’s vote followed Senate passage of the measure and sends the legislation to the desk of Gov. Martin O’Malley, who said he will sign it.

O’Malley, who favored legislation to repeal the death penalty, has called the measure the best compromise that could be reached this year. In a statement, he thanked the House for giving Maryland “one of the strictest death penalty laws in the nation.”

“I look forward to signing this bill into law in the coming weeks,” he said.

Del. Samuel I. “Sandy” Rosenberg, who had introduced repeal legislation this session, said that the new evidentiary requirements “significantly reduce” the possibility of an innocent person being wrongly convicted and executed.

During floor debate Wednesday and Thursday, Rosenberg, D-Baltimore City, repeatedly and successfully urged fellow death penalty opponents to defeat a number of proposed amendments.

House Minority Leader Del. Anthony J. O’Donnell, R-Calvert and St. Mary’s, voiced frustration at the amendments’ rejection, saying that death penalty supporters were unwilling to back reasonable changes to the bill lest they upset O’Malley.

“It’s clear there was a dictate from the governor” to leave the bill unchanged, O’Donnell said. “It’s clear the fix is in.”

Rejected amendments

Throughout the debate on SB 279, the measure’s opponents mocked its “compromise” label and said its evidentiary burdens essentially make it impossible for the death penalty ever to be imposed.

With dripping sarcasm, many complimented death penalty opponents for “clever” legislating and essentially achieving their goal: a de facto repeal of capital punishment.

“Those who want to nullify the death penalty will get their wish,” said Del. Susan W. Krebs, R-Carroll, a capital punishment supporter who voted against the bill.

Among the rejected amendments was one sponsored by Del. Andrew A. Serafini, R-Washington, which would have eliminated the strict evidentiary requirements in cases involving the murder of a prison guard.

“What will be the deterrent for them to take the life of a correctional officer?” Serafini said. “The death penalty should at least be an option.”

The point was underscored by Del. Michael D. Smigiel Sr., R-Eastern Shore. An individual sentenced to life in prison will become the “go-to person” for gang members who want a guard or inmate killed, because lifers have “nothing to lose,” Smigiel said.

Del. Tanya Thornton Shewell, R-Carroll County, introduced an amendment that would have eliminated the strict evidentiary requirements in cases involving the murder of a police officer.

And Krebs introduced an amendment that would have permitted murderers convicted based on fingerprint evidence, rather than DNA, to be eligible for the death penalty. That amendment, too, was defeated.

In a related event, Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, said Thursday that he will introduce legislation that would add fingerprints to the definition of “DNA and biological evidence” in the state’s Criminal Law Article.

That would put fingerprint evidence on a par with DNA evidence for capital punishment purposes without requiring legislators to return to the acrimonious death penalty debate, Zirkin said.

On death row

Lawyers and legislators are divided on whether the legislation would apply to the five men already on death row: John Booth, Heath Burch, Vernon Evans, Anthony Grandison and Jody Miles.

While some have argued that the measure will apply to those men, Del. Joseph F. Vallario Jr., D-Calvert and Prince George’s, who chairs the House Judiciary Committee, said he believes the law applies prospectively only.

He added that, in any event, O’Malley would have the gubernatorial authority to remove the men from death row.

Wesley Baker, who was put to death on Dec. 5, 2005, was the last man executed in Maryland.

Maryland has had a de facto death penalty moratorium since December 2006, when the Court of Appeals invalidated the state’s execution protocols because they had not been adopted in compliance with the Administrative Procedure Act. The moratorium will stand unless the governor adopts new protocols following the stringent APA requirements — a process the O’Malley administration has initiated — or the legislature amends the APA to exempt execution protocols.

Entering the 2009 General Assembly session, death penalty opponents had expressed hope that this would be the year capital punishment would be abolished in Maryland.

Late last year, a state commission examining the punishment had voted 13-9 to recommend repeal. The Maryland Commission on Capital Punishment found that death sentences are more likely if the defendant is black and the victim was white. The prevalence of death sentences and prosecutors who seek the death penalty vary from county to county, the panel added.

The commission, chaired by former U.S. Attorney General Benjamin R. Civiletti, also found that capital punishment is not an effective deterrent to homicide and that the cost of keeping a murderer in prison for life is not more than the cost of executing him.

Baltimore County State’s Attorney Scott D. Shellenberger, who supports capital punishment, wrote the dissenting opinion. He has said the evidentiary limits under the new bill are too strict.

For example, prosecutors would be unable to seek the death penalty against those who hire killers, because those who put out homicide contracts are not present when the slaying occurs and thus cannot be captured on videotape or leave their DNA, Shellenberger has said.

Seeking repeal

Maryland Citizens Against State Executions, meanwhile, praised the House vote but continues to seek a full repeal of the death penalty.

The changes adopted yesterday “will give Maryland the highest standard of evidence required to seek death of any state, reducing — but not eliminating — the risk of executing an innocent person,” Jane Henderson, the group’s executive director, said in a prepared statement.

“At the same time, we want to be clear: This bill does not fix our state’s death penalty,” she added, citing “racial and judicial disparities in how the death penalty is applied, the excessive cost required to bring death-penalty cases, and the heavy toll capital punishment cases take on the families of murder victims.”