Ruling opens possibility of indefinite end to executions

By Jennifer McMenamin and Josh Mitchell

sun reporters

Originally published December 22, 2006

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.

Prison officials could 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 Division of Correction could reintroduce the regulations on a nonemergency basis, giving the final say back to the governor.

Karen V. Poe, a spokeswoman for the Department of Public Safety and Correctional Services, said that the agency is currently reviewing the court decision as well as existing regulations, relevant case law and other documents. And she said she wouldn't rule out the possibility of additional court appeals.

"It is a tedious, time-consuming process that can take months and months," Poe said of the department's review.

A spokeswoman for Ehrlich said this week that the governor has not decided what steps, if any, he will take in response to Tuesday's court ruling.

There have been five executions in Maryland since the legislature reinstated the death penalty in 1978. In 2002, then-Gov. Parris N. Glendening imposed a moratorium while awaiting the results of a state-funded death penalty study.

That ban on executions was effectively lifted when Ehrlich came into office, and two convicted killers -- Steven H. Oken and Wesley Eugene Baker -- have been put to death since. Five men, including Evans, remain on Maryland's death row.

The ruling in Evans' case came just days after decisions in Florida and California to halt executions amid concerns about lethal injection procedures. Some death penalty activists welcomed the Maryland ruling as a way to return the issue to the forefront.

"What we're hoping will happen is that the governor will see and the legislature will see that this is an unworkable policy and that the time and money that it would take to fix it -- and we believe it is unfixable -- is just a waste of everyone's resources," said Stephanie Gibson, an associate professor at the University of Baltimore and a chairwoman of the board of directors of Maryland Citizens Against State Executions. "We're the third state now that has a de facto moratorium because of problems with lethal injection. There is no good way to execute people."

Some lawmakers said Tuesday's ruling could be a way for death penalty opponents to avoid a debate on the practice.

But Del. Barry Glassman, a Harford County Republican and capital punishment supporter, said he would not be surprised if the General Assembly takes up a proposal on whether to repeal the death penalty.

"This issue is of a magnitude that it's going to require some kind of legislative action to address whether you're for or against the death penalty," Glassman said. "The legislature really has the duty to weigh in on this. It's a big enough policy question that a committee should look at it and a whole body should vote on it."

He added: "You can only sidestep those kind of issues for so long."

jennifer.mcmenamin @baltsun.com
josh.mitchell@baltsun.com