New limits on the death penalty in Maryland took a major step Wednesday toward becoming law, even as some state senators acknowledged that refinements are needed in legislation that appears headed to the desk of the governor, who has said he will sign it.
The House of Delegates rejected a Republican-led effort to loosen proposed restrictions, meaning that a Senate plan to limit the death penalty to murder cases that include DNA or other biological evidence, a videotape of the crime or a voluntary, video-recorded confession is scheduled for a final vote Thursday. Death penalty experts say Maryland would then have some of the strictest limits in the nation on when capital punishment could be used.
But even as the plan neared final passage, key senators were working on changes and had settled on a way to craft them without reopening the General Assembly session to another divisive death penalty debate. The Senate rejected Gov. Martin O'Malley's bid to repeal capital punishment this year and hastily composed a reform plan instead.
Sen. Bobby A. Zirkin, a Baltimore County Democrat who drafted the restrictions, said he intends to file a separate bill as soon as this week that would classify fingerprints as biological evidence.
Zirkin said he had presumed that to be the case when he wrote his plan. But the Maryland attorney general's office has said that state law does not classify fingerprints, which are created by skin oils, as biological evidence.
Senate President Thomas V. Mike Miller, a Democrat who supports the death penalty but voted for the reform plan, said he believes that most senators made the same assumption. Miller had previously warned delegates that his chamber would not take up the death penalty again this year, but he said Wednesday that fingerprints "could be addressed this year" through a separate measure.
Although some lawmakers say they consider fingerprint evidence to be as reliable as DNA, the National Academy of Sciences released a report last month calling the reliability of fingerprints into question. Michael Millemann, a law professor at the University of Maryland who represents one of the five men on the state's death row, said he planned to alert Zirkin to the National Academy's study.
Miller and Zirkin mentioned other changes they might like to see - perhaps in future years - including adding photographic evidence and provisions for contract killers.
Del. Samuel I. Rosenberg, who represents Baltimore and worked with O'Malley, a fellow Democrat, on death penalty reform, said his colleagues should pass the Senate bill. "Then we can consider anything else that comes up."
Some Republican delegates complained that they felt forced into accepting the Senate's "haphazard" plan.
Del. Christopher B. Shank, the minority whip from Washington County, warned of endless court battles.
Several Republicans rose in objection to what they said was an effort by O'Malley to silence their chamber. Earlier this month, O'Malley asked a House committee to pass the Senate's plan without amendments because of Miller's unwillingness to reopen the death penalty debate.
"If the governor is going to decide the laws of the state ... we could just stay home and he could dictate to us," said Del. Anthony J. O'Donnell, the minority leader from Southern Maryland.
Doubtful delegates groaned when Rosenberg tried to assure colleagues that "there is no diktat from the second floor," where the governor has his State House office.
Del. Michael D. Smigiel, a Cecil County Republican, offered an amendment that would have ensured that contract killings remain eligible for the death penalty, saying that a person who hires a hit man does so to distance himself from the crime. Del. Craig Rice, a Montgomery County Democrat whose relatives were killed in a murder-for-hire scheme and who supports the death penalty, opposed it.
Rice said that "good policy" required him to speak against the amendment despite his personal story and that lawmakers should focus on only accepting "concrete evidence."
But Rice did support Smigiel's next amendment - one of seven by Republicans - which sought to include audio recordings of the crime as acceptable evidence for capital cases. Smigiel talked about undercover police officers who wear wires. Those recordings, he said, can be convincing evidence and should make a case eligible for the death penalty.
That amendment came the closest to any of passing, failing by a vote of 59-79.