Gov. Martin O'Malley's push to end the death penalty in Maryland would probably fall short if a legislative vote were held today, even though the governor insisted yesterday that the repeal effort "has a real shot this year."
A Baltimore Sun survey of the 47-member state Senate - considered the critical chamber where the issue will be decided - has revealed a narrow majority opposed to repealing capital punishment.
The measure's fate could be determined by a handful of undecided or wavering senators. Some of those senators said they had yet to hear from the governor, even though O'Malley said last month that he would do "everything in my power" to abolish executions in Maryland.
O'Malley, a Democrat, will testify tomorrow before the 11-member Senate Judicial Proceedings Committee, which twice in two years did not advance a repeal bill to the Senate floor, including in a 5-5 vote two years ago.
Two committee members, Republican Sens. Bryan W. Simonaire and Alex X. Mooney, say they are weighing the issue. Both recently said they have no moral objection to capital punishment and believe that it should be used in some circumstances.
"In the most violent, heinous crimes, it is still a good option," said Simonaire, who along with Mooney voted against a repeal two years ago. "My basis is that I am a death penalty proponent."
Simonaire, whose district is in Anne Arundel County, said his chief concern - something he plans to ask questions about at tomorrow's hearing - is the possibility of executing an innocent person.
"That's my struggle," he said. "Are there enough problems to warrant a repeal, or would reforms work?"
Mooney, who represents Washington and Frederick counties, said he opposes a total repeal but would consider approving legislation that retains capital punishment for some kinds of killers, including a prisoner who kills a correctional officer.
Despite O'Malley's pledge to use his considerable influence to abolish the death penalty in Maryland, the governor had not reached out as of yesterday to those two potential swing voters.
"If he is doing everything in his power, it's not with me," Simonaire said.
Mooney said he had not talked to the governor about the death penalty, or any other legislative matter, this year.
The repeal movement gained momentum in December when a gubernatorial commission concluded that the death penalty in Maryland is so flawed that it must be abolished.
The commission, headed by former U.S. Attorney General Benjamin R. Civiletti, cited in a report the possibility of executing an innocent person, huge financial costs, and racial and regional biases as compelling reasons to eliminate capital punishment. Civiletti is expected to testify at tomorrow's hearing.
Sen. Lisa A. Gladden, a Baltimore Democrat and a co-sponsor O'Malley's repeal bill, is pondering a relatively rare procedural move that would bring the legislation to the floor of the Senate before the committee votes. O'Malley has also raised that option.
Gladden would need 16 senators to sign a petition to accomplish the maneuver.
"I have a right to do that," she said. "But do I want to do that? I don't know what 16 people would be brave enough to stand with me."
Such a move would probably anger some Senate leaders and risk scaring off wavering lawmakers.
Getting the measure out of the committee would be the first of several hurdles. The Sun survey found that 19 senators are inclined to vote in favor of O'Malley's bill, while 24 oppose a total repeal of the death penalty. Four - including Simonaire - declined to answer as to how they would vote.
Gladden said her count shows "20 to 25 senators are with us."
Last week, the Senate's 10 black members sent a letter to the governor pledging their help in the repeal effort, based on findings that the death penalty is racially biased. O'Malley's bill has 14 co-sponsors, including several of the black senators.
Beyond those commitments, only a handful of senators strongly favor a repeal. Sen. James "Ed" DeGrange Sr., an Anne Arundel County Democrat who is a Roman Catholic, says he has always been "pro-life," both in terms of abortion and the death penalty. "That's certainly the way I [was] raised," he said.
Others, including Sen. Richard F. Colburn, an Eastern Shore Republican, see capital punishment as a necessary tool for use in the most heinous of crimes. "My only problem with the death penalty is that we don't use it enough," he said.
Five men have been executed in Maryland since capital punishment was reinstated in 1978, and another five remain on death row. 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 protocols.
Some senators, when asked whether they would support a repeal, gave tepid responses. Sen. George W. Della Jr., a Baltimore Democrat, said he was leaning toward voting against it but was considering the issue and reviewing data. Sen. Jennie M. Forehand, a Montgomery County Democrat, said she was "leaning toward" voting in favor of a repeal.
The survey's tight result means that death penalty opponents could be thwarted by a filibuster on the Senate floor. It would take 29 senators to stop debate. Though he is a staunch supporter of the death penalty, Senate President Thomas V. Mike Miller, a Democrat who represents Calvert and Prince George's counties, said he would oppose any filibuster that would tie up the business of the Senate.
On the House side, Speaker Michael E. Busch says enough delegates want an end to capital punishment that O'Malley's bill should pass that chamber without trouble. Busch, an Anne Arundel Democrat, has historically supported the death penalty but said through a spokeswoman that the repeal "deserves strong consideration."
Even if a repeal makes it through the General Assembly, the issue could ultimately be decided by voters. In Maryland, residents can attempt to overturn acts of the General Assembly by gathering about 53,000 signatures for a ballot question.
A poll this year showed that more than half of Marylanders support the death penalty.
O'Malley has also raised the possibility of asking voters to decide the issue if his legislative efforts fail this year, through a constitutional amendment similar to last year's slots vote.
Death penalty opponents and proponents are assembling teams of people to testify tomorrow. In addition to O'Malley and Civiletti, several other commission members are expected to advocate a repeal.
On the other side of the issue, Baltimore State's Attorney Scott D. Shellenberger, who wrote the commission's dissenting opinion, said he will testify. Several relatives of murder victims are expected to make a plea to retain capital punishment.
Yesterday morning, at the African Methodist Episcopal Church's legislative conference, O'Malley urged the audience of about 300 churchgoers and other participants to lobby their legislators.
"I think we're close," he said.
Baltimore Sun reporters Laura Smitherman and Gadi Dechter contributed to this article.
state senate survey
Question: Would you be inclined to vote in favor of a full repeal of the death penalty?
(Members of the Senate Judicial Proceedings Committee are in boldface.)
Joan Carter Conway, Baltimore City (D)
Ulysses Currie, Prince George's (D)
James "Ed" DeGrange Sr., Anne Arundel (D)
Nathaniel Exum, Prince George's (D)
Jennie M. Forehand, Montgomery County (D)
Brian E. Frosh, Montgomery (D)
Lisa A. Gladden, Baltimore City (D)
David C. Harrington, Prince George's (D)
Verna L. Jones, Baltimore City (D)
Delores G. Kelley, Baltimore County (D)
Nancy J. King, Montgomery (D)
Mike Lenett, Montgomery (D)
Richard Madaleno, Montgomery (D)
Nathaniel J. McFadden, Baltimore City (D)
C. Anthony Muse, Prince George's (D)
Douglas J.J. Peters, Prince George's (D)
Paul G. Pinsky, Prince George's (D)
Catherine E. Pugh, Baltimore City (D)
Jamie Raskin, Montgomery (D)
David R. Brinkley, Frederick and Carroll (R)
James Brochin, Baltimore County (D)
Richard F. Colburn, Eastern Shore (R)
George W. Della Jr., Baltimore City (D)
Roy P. Dyson, Southern Maryland (D)
George C. Edwards, Western Maryland (R)
Rob Garagiola, Montgomery (D)
Barry Glassman, Harford (R)
Janet Greenip, Anne Arundel (R)
Larry E. Haines, Carroll and Baltimore counties (R)
Andy Harris, Baltimore and Harford counties (R)
Nancy Jacobs, Harford and Cecil (R)
Edward J. Kasemeyer, Howard and Baltimore counties (D)
Allan H. Kittleman, Howard and Carroll (R)
Katherine A. Klausmeier, Baltimore County (D)
Thomas "Mac" Middleton, Charles (D)
Thomas V. Mike Miller, Calvert and Prince George's (D)
Alex X. Mooney, Frederick and Washington (R)
Donald F. Munson, Washington (R)
E.J. Pipkin, Eastern Shore (R)
James N. Robey, Howard (D)
J. Lowell Stoltzfus, Eastern Shore (R)
Norman R. Stone Jr ., Baltimore County (D)
Bobby A. Zirkin, Baltimore County (D)
DECLINED TO ANSWER (4)
John C. Astle, Anne Arundel (D)
Rona E. Kramer, Montgomery (D)
Jim Rosapepe, Prince George's and Anne Arundel (D)
Bryan W. Simonaire, Anne Arundel (R)