Gov. Martin O'Malley's administration took a reluctant step Wednesday toward resuming executions in Maryland after the governor failed earlier this year to persuade the General Assembly to outlaw capital punishment.
The state issued revised protocols for lethal injections, which O'Malley had postponed as he sought to build support for a repeal in the legislature. The governor, a Roman Catholic, had made it a personal crusade to end the death penalty. A de facto moratorium has been in place since December 2006, when the state's highest court ruled that the protocols had been improperly developed.
The new protocols largely mirror death-penalty procedures that had been used by the Department of Public Safety and Correctional Services but had not been formally adopted through the regulatory process, which also includes public review. Some changes include extending the time death-row inmates spend with family before being executed, and allowing them to order a special last meal.
But it's unlikely that an execution will be carried out for months or even years.
The regulations must be vetted by a joint legislative committee that is co-chaired by two staunch death penalty opponents, who could delay final approval of the regulations and are likely to hold public hearings. Death penalty foes plan to raise concerns about the drug cocktail used for executions and the presence of medical personnel.
And while O'Malley has said he would uphold the law despite his personal misgivings, he plans to review the cases of the five prisoners on death row before signing their death warrants, and he could decide to commute their sentences. The death-row inmates also may continue their appeals.
"This is the first step toward restarting the machinery of death in Maryland, which is unfortunate," said Cindy Boersma, legislative director for the American Civil Liberties Union of Maryland, which opposes the death penalty. "But to the extent this is moving forward, it's moving forward the way it should - with the opportunity for public review and comment."
Death penalty supporters hailed the promulgation of new regulations. Baltimore County State's Attorney Scott D. Shellenberger said the move "puts the death penalty in Maryland back on track" so that the sentences of the five death-row inmates can be carried out. He said Vernon L. Evans Jr., whose case prompted the state's de facto moratorium, could be the next to become eligible for execution. Shellenberger was a law student in the Baltimore County prosecutor's office in the 1980s when Evans was convicted.
"I truly believe in the old adage that justice delayed is justice denied," Shellenberger said. "All of the inmates on death row have had numerous appeals, and there's no question of their guilt."
The use of the death penalty has been severely restricted by compromise legislation approved by the legislature this year and signed by O'Malley, a Democrat. Under the bill, prosecutors can seek the death penalty only when they have DNA or biological evidence, a videotape of the crime or a video-recorded confession by the killer.
In a statement, O'Malley called the new statute "one of the most restrictive death penalty laws in the nation." He said the new regulations "mark an important step in ensuring that the death penalty in Maryland is carried out in a manner consistent with state and federal law."
O'Malley ordered the drafting of new execution protocols last May after the U.S. Supreme Court ruled that procedures such as those used in Maryland were acceptable. At the same time, a commission established by the General Assembly and partially appointed by O'Malley was convened, held hearings and recommended in November an end to capital punishment. The commission cited racial bias and the possibility of an innocent person's being executed.
O'Malley had hoped the commission's recommendation would give his repeal effort impetus this year, but it died in the Senate, which instead approved the limitations on the death penalty.
The regulations now go before the joint Committee on Administrative, Executive and Legislative Review, which can put them on hold for more in-depth study. Sen. Paul G. Pinsky, a Prince George's County Democrat and co-chair of the panel and a death penalty opponent, said, "There's no big rush" to expedite the process. "We don't want to get this done ASAP," he said.
The regulations also are published in the Maryland Register for public comment.
The regulations ban the use of the "cut down" procedure, during which executioners cut into the vein to insert the lethal chemicals. They also reduce from four hours to three hours the time before an execution that visitors, excluding attorney and clergy, must leave the prisoner. And they allow the prisoner to request a last meal other than what the prison cafeteria is serving that day, at the discretion of prison officials.