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O'Malley vows to work to end death penalty

He raises idea of putting issue before voters

By Julie Bykowicz | julie.bykowicz@baltsun.com

January 16, 2009

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Gov. Martin O'Malley said yesterday that he will do "everything in my power" to abolish the death penalty in Maryland this year and for the first time raised the possibility of allowing voters to decide the divisive issue through a constitutional amendment if legislative repeal efforts fail again.

"It's an issue with grave moral implications, certainly equal to the slots legislation," O'Malley said, referring to the casino gambling referendum that was approved by voters last year. "Maybe that's the way to go."

The governor, a Democrat, said he intends to sponsor a bill to repeal capital punishment, which would put more of his political capital behind the issue. A longtime death penalty opponent, the governor has testified in favor of repeal legislation, but he has never offered his own initiative. His effort comes a month after a gubernatorial commission voted to recommend abolishing capital punishment and issued a report outlining what it saw as fatal flaws in the application of the death penalty.

Some lawmakers and death penalty opponents said the administration's sponsorship could be enough to move a bill out of the Senate Judicial Proceedings Committee, where identical efforts have failed the past two years. Sen. Lisa A. Gladden, a Baltimore Democrat who has sponsored those bills, said she was pleased when the governor told her Wednesday that repeal of the death penalty would be part of his administration's legislative package.

"Having the governor's power and authority behind it is really going to make a difference," she said. In 2007, Gladden's bill died on a 5-5 vote in the committee, of which she is vice chairman. Last year, the bill went nowhere as lawmakers chose instead to establish the study commission. There's no indication any committee members have changed positions, so O'Malley and death penalty opponents have hinted they might consider other ways to move legislation forward.

One possibility is a procedural vote to bring the legislation to the floor for a full House and Senate vote, removing the bill from the Senate committee where it has been bottled up in the past. Such a tactic is considered bad form in Annapolis, and Senate President Thomas V. Mike Miller warned against such a maneuver yesterday, saying he advised O'Malley at a breakfast meeting to find another way.

"I encouraged him to work with the members of the committee," Miller said.

Miller, who supports the death penalty, said he told the governor that he would vote to send the issue to referendum through a constitutional amendment.

Even if a repeal passes, the issue might go to referendum anyway. In Maryland, citizens can attempt to overturn acts of the General Assembly by gathering enough signatures for a ballot question. But other lawmakers -- and some death penalty activists -- questioned the idea of a constitutional amendment.

"I think [legislators] should face this straight on and do their job," said Jane Henderson, director of Maryland Citizens Against State Executions. "They're the ones who gave Maryland capital punishment, and they're the ones who should take it away."

Sen. Bryan W. Simonaire, an Anne Arundel County Republican who voted against the repeal bill last year in committee, said a referendum "would not necessarily be fair." Pointing to slots, he said one side of the issue spent far more money on advertising than the other, possibly skewing the votes.

"I would really, really have to think about that," he said of a referendum. He also said O'Malley's sponsorship this year "certainly validates that it's an important issue for Maryland."

Simonaire said he is still studying the issue and would vote his conscience, even if it means the full Senate would never get to vote on the death penalty. Sen. Alex X. Mooney, a Frederick County Republican who has said his Roman Catholic faith gives him doubts about capital punishment, was the key vote against the 2007 repeal bill but pledged yesterday to keep an open mind as he reads the governor's death penalty commission report and listens to witnesses at the committee hearing, which has not been scheduled.

But he said that concern about the way the death penalty is applied, "doesn't mean you throw it out altogether" and that he favors executions in some circumstances.

The commission, led by former U.S. Attorney General Benjamin R. Civiletti, cited the possibility of executing an innocent person, huge financial costs, and racial and regional biases as compelling reasons to eliminate capital punishment.

Scott D. Shellenberger, a commission member and Baltimore County state's attorney, wrote a dissenting opinion, signed by seven other members. He said prosecutors must be able to "reflect the will of the people."

A Gonzales Research and Marketing Strategies poll showed that 53 percent of Marylanders favor the death penalty.

Since Maryland reinstated capital punishment in 1978, five men have been put to death, most recently Wesley Eugene Baker on Dec. 5, 2005. Five others are on death row, including three men convicted in 1984. State executions have been under an effective moratorium since December 2006, when Maryland's highest court ruled that lethal injection regulations had not been properly adopted. The Department of Public Safety and Correctional Services is still revising the protocols.

Death penalty opponents believe this is the year for a repeal. A lobbyist for the Maryland Catholic Conference vowed he would not "pull any punches. We're going to pull out all the stops."

And Henderson's organization, a coalition of antideath penalty groups, recently hired D. Robert Enten and Timothy A. Perry to support other lobbyists they already have in place. Enten is a longtime fixture in the State House and one of the highest-paid lobbyists in Annapolis; Perry is a former chief of staff to Miller.

Gladden has said "the real challenge to the bill is Mike Miller," though the Senate president has insisted that he would not lobby on the bill or interfere with the legislative process. She said that if the repeal effort makes it out of committee, it would likely face another tough battle on the Senate floor, where it could be filibustered. On the House side, it appears there are enough votes to get it out of committee and passed on the floor.

Henderson said Civiletti and O'Malley would be "great champions" of repeal efforts.

"I think the governor will be able to influence some of the members in the Senate still weighing what they're going to do," she said. "This shows that they have the confidence that it can move through the General Assembly. The governor doesn't put bills in to lose."

Baltimore Sun reporter Laura Smitherman contributed to this article.