Ruling opens possibility of indefinite end to executions

Death penalty debate shifts to lawmakers

December 22, 2006|By Jennifer McMenamin and Josh Mitchell | Jennifer McMenamin and Josh Mitchell,sun reporters

In a legal swirl with racial overtones and claims of startling evidence being given short shrift, it was perhaps the most technical of findings: The checklist used when executing a prisoner in Maryland is a "regulation."

But that determination was enough for Maryland's highest court to order a temporary halt in executions, possibly opening the way for public debate and legislative oversight.

Now, activists on both sides of the death penalty debate and some state lawmakers wonder whether the ruling could, in a roundabout way, lead to an indefinite freeze on executions in Maryland.

With a death penalty opponent headed to the governor's mansion next month, and questions being raised about lethal injection in states across the country, activists and lawmakers say efforts to address the Maryland Court of Appeals' concerns may simply languish -- and opponents of capital punishment may seize the chance to step up their efforts to repeal the death penalty.

"Certainly it seems like this is an opportunity ... to have a moratorium without having to go through all the angst of having a major debate about it across the state," said state Del. Anne Healey, incoming chairwoman of the joint legislative committee that would review execution procedures. Healey, a Prince George's County Democrat who opposes the death penalty, was among the lawmakers who said that the General Assembly should consider doing away with capital punishment altogether while executions are on hold.

Said her counterpart on the joint legislative review committee, Sen. Paul G. Pinsky, also a death penalty opponent: "I'm not going to be in a rush to move this process. I think it needs some thought or reflection."

While some lawmakers wondered whether Gov. Robert L. Ehrlich Jr. might move quickly to satisfy the Court of Appeals -- and thus remove the court's temporary ban on executions -- the steps required to do so and the current political landscape make that seem unlikely. That being the case, they said, the incoming O'Malley administration could make no moves at all, or at least delay taking action.

But some legislators and activists who support capital punishment say that the issue should not be circumvented.

"I'm sure that death penalty opponents -- of whom the governor-elect is one -- would love to kill the death penalty through inaction in a way that would muddy the issue for voters," said Michael Paranzino, president of Throw Away The Key, a Kensington-based pro-death penalty group. "O'Malley would not want to face the voters in four years having directly repealed the death penalty. So he may try this backhanded, inaction method."

An O'Malley spokesman said the incoming administration was reviewing the court opinion.

"There will be time to discuss this issue in-depth after the transition process," said the spokesman, Rick Abbruzzese.

The high court's ruling came Tuesday in the case of death row inmate Vernon L. Evans Jr., 57, who was convicted of the 1983 contract killings of two Pikesville motel employees.

Evans' scheduled execution in February was postponed when the Court of Appeals agreed to hear four appeals, including one raising questions about racial disparities in the application of the death penalty in Maryland. Evans' attorneys also argued that the jury picked for his trial in 1984 was improperly stripped of nearly all black jurors, and that lawyers who represented him at a 1992 re-sentencing hearing should have presented evidence of a childhood marked by frequent and severe beatings, drug abuse, depression, a suicide attempt and a sexual assault by a stranger.

In its ruling Tuesday, the Court of Appeals rejected three of Evans' four appeals and declined to grant him either the new trial or the new sentencing hearing that he had requested. Instead, the judges dealt exclusively with the mechanics of how Maryland's execution procedures were drafted.

In a unanimous decision, 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.

Alternatively, the judges decided, the General Assembly could exempt the execution procedures from that review process.

Because the Administrative Procedures Act is a state law governing the creation of regulations applicable only in Maryland, it does not appear that the court's unanimous decision on that issue can be appealed to the U.S. Supreme Court.

To comply, the state Division of Correction could send proposed regulations to the legislative panel for review. Any panelist could call a hearing, and two to four months could pass before a vote, according to Pinsky. The panel's vote would not be binding, as the governor would have the power to approve the regulations.

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