Death Penalty Bears Down on O'Malley, Kaine

Legislatures Are Preparing to Debate Bills on Repealing or Expanding Executions

By John Wagner and Tim Craig

Washington Post Staff Writers
Saturday, February 10, 2007; Page A01

The governors of Maryland and Virginia have much in common: Both Martin O'Malley and Timothy M. Kaine are considered rising stars in the Democratic Party. Both grappled with violent crime as big-city mayors and have wives who have served as judges. And both are practicing Catholics who have voiced personal opposition to the death penalty.

Now they share something else: Both face decisions on that divisive issue that will be watched closely in their states and beyond.

O'Malley, who was sworn in last month, has pledged to work with lawmakers to repeal Maryland's death penalty -- and could effectively halt executions through the end of his tenure even without their support, given a recent court ruling.

Kaine, who was sworn in last year, presides over a state where executions are far more frequent. He soon could have to decide whether to sign bills to expand capital punishment in Virginia.

With Maryland lawmakers preparing to debate the death penalty in coming weeks, O'Malley said in an interview yesterday that his office has started researching the amount of money that the state has spent prosecuting such cases.

"I think the facts are on the side of those who say this is neither a deterrent nor is it cost-effective and in fact we may be wasting dollars that could be spent saving lives," O'Malley said.

Kaine, who has allowed four executions to proceed, would not say in a recent interview what he would do when the anticipated legislation reaches his desk, but he allowed that he does "not look at the expansion of the death penalty with a favorable eye."

"I would not say the problem in Virginia is that the death penalty is not applied enough," Kaine said.

The posture on both sides of the Potomac River -- and the openness of the governors on the issue -- is testament to the changing politics of the death penalty, analysts say.

"It wasn't long ago that if you were a Democrat and against the death penalty, you'd run a hundred miles from it," said Steve Jarding, a party strategist who gained prominence running Mark Warner's successful 2001 bid for Virginia governor. "It's still a polarizing issue, and you never want the polarizing issues to be the dominant ones. But the climate really has changed."

Although polls show that a majority of Americans support capital punishment, there is also evidence of growing unease about executions. That may make O'Malley's and Kaine's views less of a political liability than they would have been in years past.

Nationally, the number of death sentences dropped last year to the lowest level since capital punishment was reinstated by the U.S. Supreme Court 30 years ago. Of the 38 states that allow capital punishment, only 14 carried it out last year.

A dozen states, including Maryland, have suspended executions amid questions about the use of lethal injection. And last month, a New Jersey commission recommended that the state abandon capital punishment altogether, an idea embraced by the state's Democratic governor, Jon S. Corzine.

Anita Dunn, a national Democratic consultant, said "a sea shift" started in 2000 when Illinois's Republican governor, George Ryan, imposed a moratorium after a series of cases in which people sentenced to death had been wrongly convicted.

Since 1976, Virginia has put 98 people to death, second only to Texas, according to the Death Penalty Information Center. (Maryland has executed five.)

Kaine was dogged during his 2005 bid for governor about whether he would implement the state's ultimate punishment. In an interview a month before the election, he made it clear that he embraced the Catholic Church's teachings that the death penalty is inhumane. He referred to Pope John Paul II, who said in 1999 that the United States' use of the death penalty was "cruel and unnecessary."

But Kaine also sought to draw distinctions between his personal beliefs and the policy of the state, saying the law requires the governor to implement the death penalty unless there are extraordinary circumstances.

Virginia's Republican nominee for governor, Jerry W. Kilgore, then the attorney general, seized on Kaine's personal opposition, running an ad stating, "Tim Kaine says that Adolf Hitler doesn't qualify for the death penalty."

Even though a Washington Poll that year showed that 76 percent of Virginia voters favored capital punishment, many observers believe the ads backfired and helped Kaine win the election.

Kaine has continued to wrestle with the death penalty since taking office last January. In interviews, he said the hardest part of his job is having to decide whether to let an execution proceed.

But he has largely done what he campaigned on. Four times, he has said he found no "compelling reason" to overturn the decision of the jury and appellate courts. Kaine has so far spared one man, at least temporarily.

Kaine has also spoken out against a state policy that allows death row inmates to decide if they want to die by lethal injection or the electric chair.

Last summer, convicted killer Brandon W. Hedrick chose to die by electric chair, making national headlines.

Kaine will soon face another tough decision relating to the death penalty: The Virginia Senate and House, both dominated by law-and-order conservatives, have approved bills to expand the use of capital punishment by making accomplices and the killers of judges and court witnesses eligible for the penalty.

"It's like how many ways can you ban gay marriage?" Kaine said. "Virginia would like to do it nine times rather than eight times. The death penalty statute is kind of the same way. . . . I've got to be convinced there is a problem, and I've got to be convinced that the bill fixes a problem."

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Opposition to the death penalty "used to be used against Democrats to show they were out-of-touch liberals," said Dunn, whose recent clients included O'Malley's Democratic primary opponent, former Montgomery County Executive Douglas M. Duncan.

Dunn said using the death penalty against a Democrat like O'Malley would be difficult because the former Baltimore mayor "built his career as a crime fighter."

Unlike Kaine, who has called his Catholic faith the underpinning of his opposition to the death penalty, O'Malley has not cast his opposition in religious terms. "Certainly on an issue like this, there's absolutely a moral aspect to it," he said. "But there are good people on both sides of this debate."

During last year's campaign in Maryland, neither Duncan nor then-Gov. Robert L. Ehrlich Jr. (R) sought to use O'Malley's views on the death penalty against him, and the issue rarely came up. O'Malley offered his views when asked, but he did not make any promises about repealing the death penalty.

Aides say O'Malley likely would not have joined the debate so early in his term if not for a December court ruling that effectively halts executions until the state adopts new regulations on lethal injection. The ruling emboldened death penalty opponents, who introduced legislation last month that would replace the death penalty with life without parole.

Even with O'Malley's involvement, some supporters of a repeal are skeptical that it could survive a likely filibuster on the Senate floor -- if it gets that far.

"On the death penalty, I don't think people are persuadable or malleable," said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee.

If the legislation fails, the short-term future of Maryland's death penalty is likely to rest squarely on O'Malley.

Under the court ruling, executions cannot resume until his administration drafts new regulations or until the legislature passes a bill allowing executions without new regulations. There is widespread speculation that O'Malley may decide not to put forward regulations, leaving a de facto moratorium in place as long as he is in office. He declined to discuss that prospect yesterday.

Capital punishment has also been a sensitive subject for Kaine, Virginia's first Catholic governor.