Maryland's Death Penalty

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Maryland's Death Penalty


THE MARYLAND COURT of Appeals has thrown a big wrench into the state's already anemic death penalty enforcement. It ruled last week that Maryland's procedures for lethal injection were adopted without adequate legislative oversight. With that ruling, which will effectively halt executions until new procedures are adopted, the Maryland court joined what is fast becoming a national trend.

Earlier this month, Florida Gov. Jeb Bush (R) halted executions there after a botched lethal injection took over half an hour. A court in California blocked use of that state's execution cocktail. Nationally, there have been fewer executions this year than in any in the past decade -- and delays associated with challenges to lethal-injection protocols, which are now said to cause significant pain, constitute one of the reasons for the low figure....

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Md. executions halted
State court finds procedures established improperly

By Jennifer McMenamin
Sun reporter

Originally published December 20, 2006

In a narrowly tailored decision with potentially sweeping consequences,
Maryland's highest court ordered a halt yesterday to executions in the
state, ruling that procedures for putting prisoners to death were never
submitted for the public review required by law.

Under the Court of Appeals ruling, state prison officials face the prospect
of having to submit the execution protocols to the scrutiny of a joint
legislative committee and schedule a public hearing on the issue.
Alternatively, the court ruled, the legislature could exempt the execution
procedures from that review process - something that one state senator
characterized as "very unlikely."

"One way or another, the legislature is going to need to look at the issue
again," said Carl W. Tobias, a law professor at the University of Richmond
whose specialty includes federal administrative procedure law, and who has
followed the debate surrounding lethal injection procedures in states across
the country.

"They're going to want to have hearings, and that could potentially open up
the whole death penalty issue for debate," he said. "Then, I guess, most
anything could be fair game."

Executions were halted in Florida and California this week amid concerns
that lethal injection, as carried out, violates the constitutional ban on
cruel and unusual punishment.

Although that argument was not a part of the appeals decided yesterday by
the Maryland court in the case of death row inmate Vernon L. Evans Jr., the
convicted killer has raised the issue in a federal lawsuit pending in U.S.
District Court in Baltimore.

In the opinion handed down yesterday, the judges of the state appeals court
rejected three of the convicted killer's four challenges - including one
raising questions about racial disparities in the application of the death
penalty - and declined to grant him either the new trial or the new
sentencing hearing that he had requested. Rather, the court dealt
exclusively with the mechanics of how Maryland's execution procedures were
drafted.

Those procedures - still deemed confidential but filed as court exhibits in
litigation brought in recent years on behalf of death row inmates - were not
written or implemented with the required layers of legislative oversight and
public scrutiny, so they are "ineffective and may not be used until such
time as they are properly adopted," the court unanimously wrote.

Some death penalty opponents, legal experts and capital defense attorneys
said the court's decision has paved the way for a debate on the state's
method of putting convicted killers to death.

"The Court of Appeals' decision falls in line completely with how lethal
injection has just ripped across the nation as an issue that really has
turned out to be much more substantive than people initially thought," said
Michael Stark, an organizer with the Campaign to End the Death Penalty.

"What the court appears to be mandating is that the process of putting a
person to death - the gruesome techniques of putting a person to death - is
going to be up to public debate and scrutiny. When really tasked with the
details of laying out what is the most efficient way of killing someone, no
one is going to be able to stomach that," he said.

A. Stephen Hut Jr., an attorney representing Evans, said the ruling has
"significant implications, particularly in light of the events related to
lethal injection over the last several days."

"This will allow some of that information and some of the science and
expert input to inform the process and the policymakers' decision about what
kind of execution procedure Maryland wants to have," he said.

Some activists seized on the ruling as an opportunity to push for Maryland
to join the 13 states that do not have capital punishment.

"Don't bother to try to fix this. Maryland can avoid this whole mess by
repealing the death penalty," said Jane Henderson, executive director of
Maryland Citizens Against State Executions.

"This is a great moment for [Gov.-elect Martin] O'Malley to step up and
take some leadership," she said. "If you've got a governor who doesn't like
the death penalty and a public that is vastly in favor of instituting life
without parole in place of the death penalty, why would you go through the
trouble of rewriting execution protocol that may never get used?"

O'Malley, who said yesterday that he had not yet read the court's decision,
personally opposes capital punishment.

"I'd like to see us evolve to the point in time where we understand the
death penalty does not deter violent crime ... and the resources we put
toward it could better be invested elsewhere," the governor-elect said. He
added, however, that his personal views would not prevent him from signing a
death warrant.

"I'll take an oath to uphold the laws of the state of Maryland," O'Malley
said. "That doesn't mean those laws can't be made better and more
effective."

Sen. Brian E. Frosh, a Montgomery County Democrat who heads the judiciary
committee, said yesterday that he agreed with the appeals court's finding
that the legislature never intended to give the Division of Correction free
rein in implementing lethal injection procedures. He also said that he
expects the "usual panoply" of death penalty-related bills, both to expand
and eliminate the practice, to be introduced at the coming legislative
session.

He said that while the General Assembly would "get a turn at bat" on the
matter raised by the Court of Appeals, the executive branch would have to
resolve the issue.

Evans, 57, was sentenced to death for the 1983 contract killings of David
Scott Piechowicz and his wife's sister, Susan Kennedy, at the Pikesville
motel where they worked. Piechowicz and his wife, Cheryl, had been scheduled
to testify in federal court against a Baltimore drug lord.

The ruling in his case extends what has effectively been a ban on
Maryland's use of its death chamber since the court postponed his execution
in February and agreed to hear four appeals.

Lawyers for Evans were unsuccessful in their arguments that he should be
granted a hearing to explore whether he was unfairly sentenced because of
the death penalty policy of Baltimore County's top prosecutor and because of
statewide racial and geographic disparities in the use of capital
punishment. They also failed to persuade the judges that lawyers who
represented Evans at his 1992 sentencing hearing did not meet the minimum
standards for effective assistance of counsel.

In ruling in Evans' favor on the need for oversight of the execution
protocols, the court rejected the state's arguments that the detailed
checklist of tasks in Maryland's Execution Operations Manual is not subject
to review because the procedures concern "only the internal management" of
the Division of Correction and do not "directly affect the rights of the
public."

Judge Alan M. Wilner, who authored the court's 102-page majority opinion,
wrote: "We are unwilling to assume that the legislature intended to leave to
DOC, on its own and without any ... oversight, unbridled authority to
determine and then change at will, as a matter of internal management, how
that statute is to be implemented. "

Karen V. Poe, a spokeswoman for the state's Department of Public Safety and
Correctional Services, said the agency's lawyers will review the decision
and advise the secretary on what to do.

jennifer.mcmenamin@ baltsun.com
Sun reporter Andrew A. Green contributed to this article.