By MICHAEL FROST
ANNAPOLIS (Feb. 13, 2009)—With Gov. Martin O'Malley adding his political capital to the debate, momentum is building for a showdown on the fate of the death penalty in Maryland.
Exactly how that will happen—and what the ultimate result will be—is still very much up in the air. However, the Senate will take the first steps this week.
"It's a discussion worth having, and its time has come," said Sen. Lisa Gladden, D-Baltimore. Gladden co-sponsored a bill with O'Malley for repeal that will be heard by the Senate Judicial Proceedings Committee Wednesday.
Maryland is one of 36 states to still have the death penalty. Five men have been executed since it was reinstated in the state in 1978, and five more remain on death row.
The last execution took place in 2005, and a de facto moratorium has been in place since 2006, when the Maryland Court of Appeals ruled the state's lethal injection protocol did not comply with state law.
In his State of the State address Jan. 29, O'Malley pushed for repeal.
"I ask that you give this important moral question of repeal of the death penalty a fair up-or-down vote in both houses of this legislature," he said.
Jane Henderson, executive director of Maryland Citizens Against State Executions, feels that O'Malley's sponsorship coupled with the findings of the Maryland Commission on Capital Punishment might lead to a repeal vote this year. The commission, led by former U.S. Attorney General Benjamin Civiletti, recommended repealing the death penalty by a 13-9 vote.
"I really think it's going to happen this year," she said.
The most recent bill is the same as the one that stalled in the Senate Judicial Proceedings Committee in 2007 and never made it to the floor, despite O'Malley's supporting testimony. Since the makeup of the committee remains the same, it is unlikely the bill will receive the six-vote majority necessary to take it to the next step.
There may be another option this year. The committee could vote to send the bill to the floor without a recommendation.
While such a move is rare, the chair of the committee, Sen. Brian Frosh, D-Montgomery, said he expected someone to make the proposal.
"It's not my first choice, but I'd consider it," he said.
Past opponents of repeal, including Sen. Alex Mooney, R-Frederick, and Sen. James Brochin, D-Baltimore County, have shown openness toward such a move, but support for it appears to be waning.
"It would be interesting to have this debate on the Senate floor," Brochin said.
The process could also mirror what happened in 1978, when acting Gov. Blair Lee III sponsored a bill to reinstate the death penalty. The chair of the Judicial Proceedings Committee, Joseph Curran Jr., who is now O'Malley's father-in-law, delivered the committee's unfavorable report to the Senate, but a motion was passed on the floor to replace it with the original bill.
The bill eventually passed by a 26-18 vote, and went on to approval in the House of Delegates.
Senators also have the option of taking the bill directly to the Senate floor. While any senator can propose a bill, a more likely scenario would be a petition, which would require the sponsorship of 16 senators.
Frosh didn't think that was a good idea.
"The committee system is in place because it works," he said. "I don't think it's a good idea to end-run it."
Several senators are ready to fight repeal.
"In order to have an open vote in both houses, (O'Malley)'s going to have to pull a little trick," Senate Minority Whip Nancy Jacobs, R-Cecil, said. "And that's avoiding using the democratic system we have with committees."
Jacobs said there would be a filibuster if the bill went around the committee, adding that she had led a previous filibuster against maintaining the moratorium on the death penalty.
Mooney also said that a filibuster was a possibility, but that it would require the support of all fourteen Republican senators and an additional five members of the majority party.
"The question is, do we have five Democrats?" he said.
There is another possibility that could work outside of—or in response to—legislative efforts: a statewide referendum.
This possibility didn't seem to go down well with committee members on either side of the debate.
Sen. Larry Haines, R-Baltimore County, said the outcome of such a vote, rather than reflecting public opinion, "depends on which side has the most resources—just like the slots."
Sen. Bryan Simonaire, R-Anne Arundel, agreed.
"We were elected to make these tough decisions," he said.
A poll by Gonzales Research and Marketing Strategies in early January showed that 53 percent of Marylanders favored the death penalty, while 41 percent stood in opposition. The poll had a margin of error of 3.5 percentage points.
According to previous Gonzales polls, support for the death penalty in Maryland has dropped four points in the past two years, and nine points since 2001.
Even if the bill passes in the legislature, Senate President Thomas V. Mike Miller, D-Calvert, who supports the death penalty in certain cases, said that a referendum may ultimately decide its fate.
"I think eventually the people of the state of Maryland are going to vote on this issue," he said.
Capital News Service contributed to this report.