Md. Executions Halted

State court finds procedures established improperly

December 20, 2006|By Jennifer McMenamin | Jennifer McMenamin,SUN REPORTER

In a narrowly tailored decision with potentially sweeping consequences, Maryland's highest court ordered a halt yesterday to executions in the state, ruling that procedures for putting prisoners to death were never submitted for the public review required by law.

Under the Court of Appeals ruling, state prison officials face the prospect of having to submit the execution protocols to the scrutiny of a joint legislative committee and schedule a public hearing on the issue. Alternatively, the court ruled, the legislature could exempt the execution procedures from that review process - something that one state senator characterized as "very unlikely."

"One way or another, the legislature is going to need to look at the issue again," said Carl W. Tobias, a law professor at the University of Richmond whose specialty includes federal administrative procedure law, and who has followed the debate surrounding lethal injection procedures in states across the country.

"They're going to want to have hearings, and that could potentially open up the whole death penalty issue for debate," he said. "Then, I guess, most anything could be fair game."

Executions were halted in Florida and California this week amid concerns that lethal injection, as carried out, violates the constitutional ban on cruel and unusual punishment.

Although that argument was not a part of the appeals decided yesterday by the Maryland court in the case of death row inmate Vernon L. Evans Jr., the convicted killer has raised the issue in a federal lawsuit pending in U.S. District Court in Baltimore.

In the opinion handed down yesterday, the judges of the state appeals court rejected three of the convicted killer's four challenges - including one raising questions about racial disparities in the application of the death penalty - and declined to grant him either the new trial or the new sentencing hearing that he had requested. Rather, the court dealt exclusively with the mechanics of how Maryland's execution procedures were drafted.

Those procedures - still deemed confidential but filed as court exhibits in litigation brought in recent years on behalf of death row inmates - were not written or implemented with the required layers of legislative oversight and public scrutiny, so they are "ineffective and may not be used until such time as they are properly adopted," the court unanimously wrote.

Some death penalty opponents, legal experts and capital defense attorneys said the court's decision has paved the way for a debate on the state's method of putting convicted killers to death.

"The Court of Appeals' decision falls in line completely with how lethal injection has just ripped across the nation as an issue that really has turned out to be much more substantive than people initially thought," said Michael Stark, an organizer with the Campaign to End the Death Penalty.

"What the court appears to be mandating is that the process of putting a person to death - the gruesome techniques of putting a person to death - is going to be up to public debate and scrutiny. When really tasked with the details of laying out what is the most efficient way of killing someone, no one is going to be able to stomach that," he said.

A. Stephen Hut Jr., an attorney representing Evans, said the ruling has "significant implications, particularly in light of the events related to lethal injection over the last several days."

"This will allow some of that information and some of the science and expert input to inform the process and the policymakers' decision about what kind of execution procedure Maryland wants to have," he said.

Some activists seized on the ruling as an opportunity to push for Maryland to join the 13 states that do not have capital punishment.

"Don't bother to try to fix this. Maryland can avoid this whole mess by repealing the death penalty," said Jane Henderson, executive director of Maryland Citizens Against State Executions.

"This is a great moment for [Gov.-elect Martin] O'Malley to step up and take some leadership," she said. "If you've got a governor who doesn't like the death penalty and a public that is vastly in favor of instituting life without parole in place of the death penalty, why would you go through the trouble of rewriting execution protocol that may never get used?"

O'Malley, who said yesterday that he had not yet read the court's decision, personally opposes capital punishment.

"I'd like to see us evolve to the point in time where we understand the death penalty does not deter violent crime ... and the resources we put toward it could better be invested elsewhere," the governor-elect said. He added, however, that his personal views would not prevent him from signing a death warrant.

"I'll take an oath to uphold the laws of the state of Maryland," O'Malley said. "That doesn't mean those laws can't be made better and more effective."

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