Ruling on state execution procedures reversed


Public Safety Secretary Mary Ann Saar reversed a decision yesterday by an administrative law judge that could have forced Maryland prison officials to redevelop procedures for putting to death condemned killers.

In a case stemming from a grievance filed by death row inmate Vernon Lee Evans Jr., Saar rejected the judge's finding that the state's execution protocols are regulations, meaning they need to be developed and adopted with legislative oversight and public input.

"While there is certainly a widespread interest in Maryland and throughout the nation regarding the death penalty, the actual procedures involved in the execution of an individual concern only a very limited number of persons," Saar wrote in her order, reiterating her department's claim that the procedures laid out in the Execution Operations Manual do not have "general application."

Evans, 56, sentenced to death for the 1983 contract killings of two Pikesville motel employees, has challenged the way Maryland executes prisoners and how the procedures were developed by filing an inmate grievance with the prison system, as well as state and federal lawsuits. Saar is named as a defendant in those suits.

Earlier this month, Administrative Law Judge Denise Oakes Shaffer agreed, in part, with Evans' complaints, finding that the state's lethal injection protocols were "legally ineffective" because they were not developed with the public input that the Administrative Procedures Act requires of regulations. She deemed "unpersuasive" the argument by lawyers for the Division of Correction that the execution procedures apply to so few people that they do not need to be adopted under the same public scrutiny afforded more general regulations.

"The protocols apply to all inmates under a sentence of death. If there were hundreds under that sentence, the same protocols would apply," the administrative judge wrote in her decision.

Her "proposed ruling" was a tentative finding that could be accepted or reversed by Saar, head of the state Department of Public Safety and Correctional Services.

In yesterday's order, Saar also addressed the administrative judge's finding that an evidentiary hearing should be held to determine whether Evans' veins leave him at particular risk of a painful death because years of heroin abuse have so damaged them that they might not support the flow of chemicals used in executions. Saar determined that such a hearing should be delayed until a federal judge hears and issues a decision in Evans' lawsuit.

A. Stephen Hut Jr., one of Evans' attorneys, said that decision was "a little hard to follow," considering that lawyers with the Maryland attorney general's office, representing the Division of Correction, have argued in court that Evans' federal lawsuit should be dismissed because he had not exhausted the administrative process for filing an inmate grievance.

"It will be interesting to see if the state continues to assert that, though she won't let us complete the administrative process, our case should be dismissed because we haven't exhausted the administrative process," Hut said.

Evans' attorneys can appeal Saar's decision to Circuit Court.


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