Report fuels death debate

The Baltimore Sun

With a high-powered commission recommending abolition of the death penalty in Maryland, opponents of capital punishment gained fresh momentum yesterday as they ready a repeal effort for the General Assembly session beginning next month.

A debate over the hot-button social issue could quickly become one of the most heated fights in Annapolis, with Gov. Martin O'Malley pledging that ending the death penalty is among his top priorities.

The capital punishment panel, headed 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 the punishment.

"There are so many faults, so many flaws within the system that we could not imagine ... ways in which to cure it," Civiletti said yesterday.

The issue of capital punishment has long divided the legislature, and repeal efforts have failed the past two years. A bill died last year on a tie vote in a Senate committee.

But Del. Samuel I. Rosenberg, a Baltimore Democrat and commission member, said he believes both the House and Senate could reach a consensus next year.

"I believe the overwhelming weight of the evidence in the study will have bearing on my colleagues," Rosenberg said. "And Chairman Civiletti will be an extraordinary advocate for the failures of the death penalty, the impossibility of correcting it and therefore the necessity of repealing it."

O'Malley, a longtime death penalty opponent, selected most of the commission's 23 members - a mix of legislators, lawyers, civilians and clergy. They listened to 35 hours of testimony over five months before releasing their findings to the Assembly.

The study examined disparities in how the death penalty is applied, the impact of DNA evidence and several other issues, reaching clear majorities on each that the death penalty is problematic.

Thirteen commission members voted for repeal. Nine voted against it, and Gary D. Maynard, secretary of the Department of Public Safety and Correctional Services, abstained from voting. Two of the five legislators on the panel opposed abolition.

The repeal recommendation comes as little surprise, since the commission voted on its main finding a month ago.

But the conclusions, detailed in 132 pages, outline specific concerns developed after listening to the testimony of 84 witnesses. Twenty of 23 panel members agreed that racial disparities and differences in how the death penalty is sought from one jurisdiction to the next created significant problems.

"The present administration of capital punishment shows substantial disparities in its application based on race and jurisdiction," the report said. "These disparities are so great among and between comparable cases that the death penalty process is best described as arbitrary and capricious."

Rosenberg said he and Sen. Lisa A. Gladden, a Baltimore Democrat, would likely introduce repeal legislation that reflected the commission's findings.

Baltimore County State's Attorney Scott D. Shellenberger wrote a 22-page dissent, signed by seven other members. Shanetta J. Paskel, representing the Maryland Attorney General's Office, also dissented but did not sign Shellenberger's opinion.

Prosecutors must be able to "reflect the will of the people," Shellenberger said yesterday, arguing that the state should retain the death penalty as a tool to wield against "the worst of the worst."

He said regional disparities - the probability of receiving a death sentence in Baltimore County is nearly 23 times higher than in Baltimore City, according to a 2003 study - can be explained by "local rule."

"[D]ifferent sentences in different counties for the same kind of crime are legal and constitutional," Shellenberger wrote in the dissent. "Disparities in sentencing exist in each county across the entire spectrum of crimes committed in Maryland."

Maynard, who abstained from all votes, said he saw his role as a provider of information about confinement costs and conditions. "I have a personal opinion, but my professional opinion has always been to carry out every law," said Maynard, who has been a corrections official in three states for 25 years.

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 now, 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 U.S. Supreme Court ruled this year that execution by lethal injection is constitutional, a decision that required Maryland to restart its rule-making process. Maynard is reviewing a draft that he plans to give to a legislative review panel by the end of the year, a prison spokesman said.

Shellenberger was initially critical of the commission, testifying against its formation earlier this year. But he said yesterday that his fellow commissioners were fair and open-minded. "I don't at all feel like the deck was stacked," he said.

O'Malley thanked commission members for their work and said he would review its findings.

"It is my hope that we can all take the time to review the facts presented in this report thoroughly and with an open mind," he said in a statement.

O'Malley spokesman Shaun Adamec said yesterday that the governor hopes Assembly members approach the issue thoughtfully.

A decision on a repeal rests with one or two members of the Senate Judicial Proceedings Committee. Senate President Thomas V. Mike Miller, who supports the death penalty, has said he doesn't plan to lobby his colleagues.

House Speaker Michael E. Busch also has supported capital punishment, but he has had concerns in recent years about its disparate application. Busch spokeswoman Alexandra Hughes said he is "keeping an open mind until he sees the full report of the commission."

"The speaker feels strongly that he does not want to influence votes on this issue, that it is a vote of the legislator's conscience," she said.

what's next

Debate about capital punishment is likely to continue in January's legislative session. Some lawmakers predict a bill could pass the House and Senate, and Gov. Martin O'Malley, who is against the death penalty, would likely sign a repeal into law. A key Senate panel, however, still appears deadlocked, so it is uncertain that the full House and Senate will get to vote.

commission votes on abolition:

Yes

Kirk Bloodsworth, exonerated former death row inmate

Matthew Campbell, former prosecutor for Montgomery and Howard counties

Former U.S. Attorney General Benjamin R. Civiletti

Noel Godfrey, correctional officer

The Rev. Alan M. Gould Sr., pastor of Historic Bethel AME Church, Cambridge

Del. Adrienne A. Jones, Baltimore County Democrat

Bishop Denis J. Madden, urban vicar with Archdiocese of Baltimore

David Kendall, attorney

Rabbi Mark G. Loeb, rabbi emeritus with Baltimore County's Beth El Congregation

Katy C. O'Donnell, public defender's capital defense division

Sen. Jamie Raskin, Montgomery County Democrat

Del. Samuel I. Rosenberg, Baltimore Democrat

Vicki A. Schieber, mother of victim

No

Percel Alston Jr., Fraternal Order of Police

Ocean City Police Chief Bernadette DiPino

Del. William J. Frank, Baltimore County Republican

Shanetta J. Paskel, Maryland Attorney General's Office

Rick N. Prothero, brother of victim

Sen. James N. Robey, Howard County Democrat and former police chief

Baltimore County State's Attorney Scott D. Shellenberger

Oliver Smith, father of victim

William B. Spellbring Jr., former Prince George's County Circuit Court judge

Abstain

Department of Public Safety and Correctional Services Secretary Gary D. Maynard

for and against

Reasons against abolishing: "The death penalty is a valid means of protecting the lives of those charged with the responsibility of guarding criminals. ... Geographic disparity is in reality local government in action and a reflection of the will of local communities. ... The repeal of the death penalty will save very little money. ... The majority of the people of Maryland still believe in capital punishment." (from final report dissenting opinion)

Reasons to abolish: "To eliminate racial and jurisdictional bias, to reduce unnecessary costs, to lessen the misery that capital cases force victims of family members to endure, to eliminate the risk that an innocent person can be convicted." (from final report)

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