Baltimore County senators rebuffed an effort to abolish Maryland's death penalty yesterday, persuading lawmakers instead to restrict when capital punishment can be used.
The Senate's first full debate on the death penalty in more than three decades was cut short when amendments stripped the word repeal out of a repeal initiative, prompting confusion on the floor. Exasperated senators rose one after another to say that they weren't sure what they were voting on.
"What we are getting is a real mess," said Sen. Delores G. Kelley, a Baltimore County Democrat. Added Sen. Nathaniel J. McFadden, a Baltimore Democrat and a senator for 14 years: "Very obviously, this is not one of the high points in the Senate."
Debate was to resume this morning. There is a pile of amendments for senators to sort through, followed by a preliminary vote on the amended plan.
Senate President Thomas V. Mike Miller had predicted such disorder. Earlier in the day, death penalty opponents used a rare procedural move to resurrect repeal legislation even though a Senate committee had killed the measure last week. Miller, a death penalty supporter who typically keeps tight control over the Senate, said he allowed the unusual maneuver as a courtesy to Gov. Martin O'Malley, a fellow Democrat who wants repeal.
Miller noted a wave of e-mail messages by O'Malley and the governor's use of Democratic Party resources to further the repeal effort. "I don't think any previous governor has politicized the death penalty in such a manner," Miller said.
In response, O'Malley said that he was proud of having fostered "civil debate" on death penalty repeal. "I don't think any senator I've met with would tell you that I've been twisting arms or breaking legs," he said.
The governor said restrictions on the death penalty such as those approved yesterday were a "move forward" and an "improvement," though he held out hope that repeal might be considered again this morning.
Many senators said they have heard from both Miller and O'Malley, who were pulling them in opposite directions, and have fielded dozens of calls from activists and residents. A slim majority of Marylanders support capital punishment, opinion polls show.
Sen. Bobby A. Zirkin, who was considered a potential swing vote, said he had received a phone call Monday from Elie Wiesel, a prominent writer, death penalty opponent and Holocaust survivor.
Since 1978, when Maryland reinstated capital punishment, the state has executed five convicted murderers. Five men are on death row. Last year, O'Malley asked former U.S. Attorney General Benjamin R. Civiletti to lead a study of capital punishment in Maryland. The commission recommended abolishing the death penalty, noting the costs involved, the potential of executing an innocent person, and racial and geographic disparity in its use.
Baltimore County prosecutors have been the most aggressive in the state in seeking the death penalty, accounting for 45 percent of the death sentences but only 12 percent of eligible murder cases from 1978 to 1999, a 2003 state-funded study found.
Yesterday, two Democratic senators from that county changed the nature of the death penalty debate, quickly silencing discussion of repeal.
By a 25-21 vote, the 47-member Senate adopted Sen. James Brochin's amendment to reject repeal and instead prohibit the death penalty in cases where there is only eyewitness testimony. Then, Zirkin proposed restricting the death penalty to murder cases in which there is conclusive DNA evidence, video evidence or a videotaped voluntary confession.
Buoyed by support from some death penalty opponents who recognized that the repeal effort had failed, Zirkin's amendment passed easily.
"This may be the high-water mark of what can be achieved this year," Sen. Brian E. Frosh, a Montgomery County Democrat and death penalty opponent who heads the Judicial Proceedings Committee, said later.
It was clear that some senators might not have understood the implications of the amendments from Baltimore County.
Sen. John C. Astle, an Anne Arundel County Democrat, and Sen. Rona E. Kramer, a Montgomery County Democrat, voted yesterday morning to move forward with repeal. Both then voted to adopt Brochin's amendment. Astle said afterward that he planned to change his vote on the Brochin amendment. Asked whether she was confused about what Brochin's amendment would do, Kramer said, "Right now, I'm not going to discuss it."
Jane Henderson, director of Maryland Citizens Against State Executions, said it took her a moment to realize what Brochin's amendment had done. "It was quite a comedy of errors," she said. "I don't hold out much hope that they know what they're doing."
Brochin said he did not intend to confuse the Senate and that he believed that the lawmakers who voted in favor of his amendment understood its effect. "My intention was to make current law into a stronger statute," he said. "It was clear to me."
Yesterday morning, death penalty opponents had cheered the unusual move to revive O'Malley's failed repeal bill.
In a 25-22 vote that surprised leading Democrats, senators set aside the Judicial Proceedings Committee's decision to kill the repeal bill. Miller appeared visibly uncomfortable yesterday with what was happening and voted against the move to circumvent the committee report. He had told lawmakers the night before, "We shouldn't be doing this."
The motion does not appear in the Senate rule book and undermines the committee system and the influence of Miller, who makes committee assignments.
"From this day on, we're not going to do it again," Miller said several times from the podium.
During a break in the Senate lounge, Sen. Richard F. Colburn, an Eastern Shore Republican, decried the move as unleashing a "Pandora's box" of legislative disorder. Then, to make his point on the floor, Colburn asked the chamber to resurrect a bill of his that had been rejected by the Judicial Proceedings Committee. Miller refused to allow Colburn's motion to advance.
Later, Sen. E.J. Pipkin, an Eastern Shore Republican, called the debate "a live experiment" in why the Senate should not have taken up repeal after the committee had killed it.
Sen. Lisa A. Gladden, the Baltimore Democrat who sponsored the death penalty repeal measure, compared the procedural vote to the righteous "act of treason" practiced by signers of the Declaration of Independence. "This is not about process and procedure," Gladden said. "It is about principle."
Sen. Alex X. Mooney, a Republican representing Frederick and Washington counties, broke ranks with his party to vote in favor of resurrecting the repeal legislation, which he had voted against in committee. He cast the deciding vote that paved the way for last night's debate.
"I have always said and believed that this should come to the Senate floor," Mooney said. "If there's a final vote in the full chamber, whether it passes or fails, at least it is a final vote."
How they voted
The Senate adopted Baltimore County Sen. James Brochin's amendment to restrict the death penalty, rather than to repeal it altogether. Here is the initial vote tally; Sen. John C. Astle later said he wanted to change his vote, and the General Assembly's Web site appears to reflect the change.
Yes to the amendment:
Thomas V. Mike Miller (D); John C. Astle (D); David R. Brinkley (R); James Brochin (D); Richard F. Colburn (R); George W. Della Jr. (D); Roy P. Dyson (D); George C. Edwards (R); Rob Garagiola (D); Barry Glassman (R); Janet Greenip (R); Larry E. Haines (R); Andy Harris (R); Nancy Jacobs (R); Edward J. Kasemeyer (D); Allan H. Kittleman (R); Katherine A. Klausmeier (D); Rona E. Kramer (D); Thomas "Mac" Middleton (D); Alex X. Mooney (R); Donald F. Munson (R); James N. Robey (D); Bryan W. Simonaire (R); J. Lowell Stoltzfus (R); Norman R. Stone Jr.(D)
No to the amendment:
Joan Carter Conway (D); Ulysses Currie (D); James E. "Ed" DeGrange Jr. (D); Nathaniel Exum (D); Brian E. Frosh (D); Lisa A. Gladden (D); David C. Harrington (D); Verna L. Jones (D); Delores G. Kelley (D); Nancy J. King (D); Mike Lenett (D); Richard Madaleno (D); Nathaniel J. McFadden (D); C. Anthony Muse (D); Douglas J.J. Peters (D); Paul G. Pinsky (D); E.J. Pipkin (R); Catherine E. Pugh (D); Jamie Raskin (D); Jim Rosapepe (D); Bobby A. Zirkin (D)