- The Washington Times - Thursday, March 5, 2009

Capital punishment in Maryland would be limited but not banned under compromise legislation backed by the state Senate on Wednesday.

The Senate gave preliminary approval to a bill that stripped out a death penalty repeal, but restricts the use of capital punishment to murder cases with biological or conclusive videotaped evidence. Senate President Thomas V. Mike Miller, who opposed repeal, described the changes as an important compromise to put the matter to rest in a sharply divided Senate.

“We’re moving forward,” Miller said. “We did the very best we could do. We made progress. We made incremental progress, and that’s not all bad.”

Miller, D-Calvert, also said he would not accept amendments from the House of Delegates, which also is considering a repeal bill.

House Speaker Michael Busch said he believed there were enough people in the House to approve a repeal, but he noted the hurdles in the Senate to getting a ban a challenge complicated by a tough budget year with difficult decisions facing the two chambers.

“So you have to make an educated decision whether this is the best status of the bill that you’re going to have as you go forward and take a small victory for trying to do away with the death penalty in Maryland,” said Busch, D-Anne Arundel.

The Senate action was a disappointment to Gov. Martin O’Malley, a Roman Catholic Democrat who no longer believed there was a way to reform the death penalty to ensure it is only carried out in cases of certain guilt. But the governor said the amended bill still improved the law.

“While I do not think we can ever make the application of human justice perfect, the amendments passed in the Senate strengthen the standard of proof required to apply the death penalty in Maryland,” O’Malley said in a statement.

Sen. Brian Frosh, the chairman of the Senate Judicial Proceedings Committee and a repeal supporter, said the bill is not everything he wanted, but he noted that progress was made by putting safeguards in the state’s death penalty law.

“Though in human affairs we can never achieve perfect certainty and that’s the reason for my opposition to the death penalty this bill I think improves the current law and it’s worth passing,” Frosh, D-Montgomery, said.

The decision to reject a ban on executions came a day after the Senate barely mustered the votes to take up the bill in a rarely used parliamentary maneuver to bring it to the Senate floor, despite an unfavorable report from a Senate committee. Senators then brought amendments that stripped out the repeal.

An amendment by Sen. Robert Zirkin, D-Baltimore County, created new standards for prosecutors to seek the death penalty. Under Zirkin’s amendment, biological evidence such as DNA, a voluntary videotaped confession to a murder or a video recording that conclusively links a defendant to a killing would be necessary to seek the death penalty.

The Senate also approved an amendment from Sen. James Brochin, D-Baltimore County, requiring more than eyewitness testimony for prosecutors to pursue a capital case.

The changes would not apply retroactively to the five men currently on Maryland’s death row.

Sen. Alex Mooney, R-Frederick, offered an amendment Wednesday that would have banned the death penalty except for cases when an incarcerated murderer killed while in a correctional institution. The amendment was rejected 14-33. Other senators also were prepared to bring amendments, but they withheld them for the sake of the compromise.

Senators who support capital punishment said they backed the compromise.

“I think that this is the right way to go as long as we have determined, as we have with these amendments, that it is fair,” said Sen. Lowell Stoltzfus, an Eastern Shore Republican. Still, senators seeking repeal were disappointed in the outcome, and some pledged to revisit the issue next year.

Sen. Mike Lenett described it as “an uneasy compromise,” saying he looked forward to finally having a vote on repeal in the future.

“There’s no sense of repose on this issue,” Lenett, D-Montgomery, said. “I don’t think that the people of Maryland or even this body will be fully satisfied until there is an up or down vote on the open question.”

Scott Schellenberger, Baltimore County state’s attorney who supports the death penalty, said the compromise was better than a repeal. He said some of the five men executed in Maryland since the state brought back the death penalty in 1978 would have qualified as capital cases under the more restrictive requirements, but some wouldn’t have.

“Overall, having a death penalty is better than not having a death penalty, even one that is more restrictive,” Schellenberger, who watched the Senate proceedings in the Senate gallery, said. Maryland has five men on death row. Five inmates have been executed since Maryland reinstated the death penalty in 1978. Wesley Baker, who was put to death in December 2005, was the last person executed in Maryland.

There is currently a de facto moratorium against capital punishment in Maryland because of a ruling in late 2006 by the state’s highest court.

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