O'Malley OKs step toward executions

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O'Malley OKs step toward executions

Governor 'sadly' orders procedures drafted

By Jennifer McMenamin and Laura Smitherman

Sun reporters

May 23, 2008

Gov. Martin O'Malley moved yesterday toward ending Maryland 's moratorium on executions, saying he "sadly" ordered the drafting of procedures for executing inmates by lethal injection.

The announcement by O'Malley, who has opposed the death penalty, came nearly 18 months after the state's highest court ruled that the Maryland's execution protocols were improperly developed without legislative oversight or public input. And last month, the U.S. Supreme Court upheld Kentucky 's use of lethal injection protocols virtually identical to those Maryland 's.

"I wish we would arrive at a point where we would repeal the death penalty, but I do not have the luxury in this job or the permission in this job only to enforce laws that I'm in favor of and that I agree with," O'Malley, a Democrat, told reporters in Annapolis . "So, sadly, we'll be moving forward with those protocols."

The governor said that Gary D. Maynard, secretary of the Department of Public Safety and Correctional Services, will review the state's existing lethal injection procedures in consultation with "the best advice of medical people in the state."

His comment suggests that the administration intends to go beyond the requirements of the 2006 Maryland Court of Appeals' ruling, which dealt exclusively with the mechanics of how the state's execution procedures were drafted rather than the specific steps involved in putting to death condemned prisoners.

"I hope that's what they will do," said A. Stephen Hut Jr., a defense attorney who challenged Maryland 's execution procedures on behalf of Vernon L. Evans Jr., a death row inmate whose case prompted the state's de facto moratorium on executions.

"Now, there's an opportunity to bring forward new procedures and make them as good as they can be," Hut added. "Whether or not the past procedures complied with the Constitution - and we did not think they did - it's certain that they can do a whole lot better. We hope they will."

The protocols outline the three-drug procedure used for putting prisoners to death: an anesthetic, a drug that paralyzes muscles, including the lungs and diaphragm, and a drug that stops the heart. O'Malley had said he wanted to hold off drafting the new procedures until the legislature had another chance this year to debate a repeal bill - it stalled again in a Senate committee - and until the Supreme Court ruled in the Kentucky case.

The governor's announcement yesterday drew praise - some of it skeptical - from proponents of capital punishment and mild disappointment from activists who have been working to abolish the death penalty in recent years.

"I guess nobody can say the governor is being obstructionist anymore," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "I think the governor is acting in response to the court's decision, but I don't think it changes anything."

She said the more fundamental issues would be studied by a commission the General Assembly established this year to consider the cost of capital punishment in Maryland and whether it deters crime here. And she predicted that drafting new execution procedures would be a lengthy and complicated process.

"I see this as a huge waste of time," Henderson said. "We may have a method proposed just in time for the commission to say, 'Why bother? We should just get rid of the death penalty.'"

Republican legislators - and a prosecutor whose office has sought more death sentences for convicted killers than any other jurisdiction in Maryland - have been calling on O'Malley to issue death penalty regulations for months.

Del. Anthony J. O'Donnell, the House minority leader, said yesterday that he remained skeptical that the state would resume executions any time soon, noting that the governor said the process of developing new procedures would take most of the year. The state, O'Donnell said, "could come up with protocols by the end of this week."

"It's deceptive," he added. "This governor continues to drag his feet. He wants to convince Marylanders he wants to issue regulations to implement our state law when in fact I think he has no intention of ever doing so."

Baltimore County State 's Attorney Scott D. Shellenberger has written twice to O'Malley in the last year and spoken with members of his staff to encourage the governor to issue new procedures.

"It's extremely important to the people in Baltimore County because the executions of two inmates on death row, who have had numerous appeals, are only being held up because the protocols need to go through the proper procedure," he said, referring to Evans and his co-defendant, Anthony Grandison. Both were sentenced to death in the 1983 contract killings of two Pikesville motel workers. "So I think it's really important that that gets done."

There has been an effective ban on Maryland 's use of its death chamber since the Court of Appeals postponed Evans' execution in February 2006 and agreed to hear four appeals.

In a unanimous decision 10 months later, the court found that the state's Execution Operations Manual and its checklist of lethal injection procedures should be considered regulations. As such, they must comply with the Administrative Procedures Act, which generally requires publication in the Maryland Register, public hearings and review by a committee of state senators and delegates.

To bring the execution procedures into compliance, the state Department of Public Safety and Correctional Services could send proposed regulations to the legislative panel for review. Any panelist could call a hearing. And the committee's vote would not be binding, as the governor would have the final say.

State officials could alternatively choose to send "emergency" regulations to the legislative panel. The review process would be much shorter, and the panel's decision would be binding. But the public safety department could reintroduce the regulations on a nonemergency basis, giving the final say back to the governor.

Sen. Paul G. Pinsky, a death penalty opponent who is the Senate chairman of the joint legislative committee that would review the lethal injection regulations, said he planned to look for ways to slow down the process. But he added that he doesn't know whether he could get enough support on the panel to go along with such stall tactics.

Pinsky, a Prince George 's County Democrat , said he was "sympathetic" that O'Malley was caught between his moral opposition to the death penalty and his duties as governor.

Nonetheless, he said, the governor could have kept the de facto ban in place longer.

"He's done it so far, and I have applauded it for him," Pinsky said. "Could he have done it longer? He's done it this long, so I think he could have."

All but one of the 36 states with death penalty laws use lethal injection and most states, including Maryland , simply copied their specific procedures from those drafted in the 1970s by an Oklahoma legislator.

"If a state is going to have a death penalty and lethal injection," said Richard Dieter, executive director of the Death Penalty Information Center, a group in Washington that opposes capital punishment, "it's got to do it right and put it through the right procedures."

jennifer.mcmenamin@baltsun.com

laura.smitherman@baltsun.com

Key Death Penalty Dates

1972: The U.S. Supreme Court invalidates death penalty statutes across the country

1976: The U.S. Supreme Court rules that the death penalty is legal.

1978: The General Assembly reinstates death penalty laws in Maryland .

1987: The General Assembly adds life without the possibility of parole to the books as a sentencing option.

1994: The General Assembly authorizes injection as the state's method of execution.

May 17, 1994, at 1:10 a.m.: John Frederick Thanos is executed for killing three teenagers during a week in 1990.

July 2, 1997, at 12:27 a.m.: Flint Gregory Hunt is executed for gunning down a Baltimore policeman in 1985.

Nov. 16, 1998, at 10:27 p.m.: Tyrone X. Gilliam is executed for kidnapping and killing a Baltimore accountant in 1988.

May 9, 2002: Gov. Parris N. Glendening imposes a moratorium on the death penalty while a state-ordered University of Maryland study of capital punishment is conducted.

The study would conclude there are racial and geographic disparities in the application of the death penalty in the state.

Jan. 15, 2003: The execution moratorium is effectively lifted when Robert L. Ehrlich Jr. is sworn in as governor.

June 17, 2004, at 9:18 p.m.: Steven Howard Oken is executed for the rape and murder of a White Marsh newlywed at the start of a crime spurt in 1987 that included the killings of two other women.

Dec. 5, 2005 at 9:18 p.m.: Wesley Eugene Baker is executed for killing a Baltimore County elementary school teacher's aide in front of her grandchildren in a 1991 robbery.

Dec. 19, 2006: TheMaryland Court of Appeals rules that executions cannot continue in Maryland until the legislature approves regulations for lethal injection procedures, or passes a law saying that such rules are not required.

Jan. 17, 2007: Gov. Martin O'Malley, a death penalty opponent, succeeds Ehrlich in office.

May 22, 2008: O'Malley orders the drafting of new lethal injection procedures.

Jennifer McMenamin

Copyright © 2008, The Baltimore Sun

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