You asked about the 2009 changes to Maryland's death penalty law and the rationale for them.

SUMMARY

Under Maryland law, a person convicted of 1^st degree murder can be sentenced to death, life without parole (a sentence to prison for the defendant's “natural life”), or life in prison. The court or jury imposing the sentence must weigh aggravating and mitigating factors to decide which penalty to impose. In 2009, legislation limited the cases in which the court or jury could impose a death sentence to those in which the state presents the following types of evidence:

1. biological or DNA evidence that links the defendant to the murder;

2. a videotaped, voluntary interrogation and confession of the defendant to the murder; or

3. a video recording that conclusively links the defendant to the murder.

The 2009 act also specifically prohibited the death penalty if the state relies solely on eyewitness evidence.

For death penalty cases in which the sentence had not been imposed, and the state did not meet the act's criteria, the act removed the death penalty as a sentencing option. The act also expressed the intent that any savings from reducing the number of death penalty cases be used to expand victim services for survivors of homicide.

The act took effect October 1, 2009 (2009 Chapter 186). A copy is attached and is available on-line at http://mlis.state.md.us/2009rs/chapters_noln/Ch_186_sb0279T.pdf

There are few legislative history documents available in Maryland to determine the rationale for adopting the act's restrictions on the death penalty. Unlike Connecticut, Maryland does not transcribe committee hearings or House and Senate debates. Newspaper articles provide some information on the views of public officials and what legislators intended when adopting the restrictions on the death penalty. According to these articles, (1) the Maryland Commission on Capital Punishment recommended abolishing the death penalty (2) Governor Martin O'Malley stated he would push to abolish the death penalty prior to debate on the bills, (3) the restrictions adopted in the bill reflect a compromise between death penalty supporters and opponents, and (4) some viewed the restrictions as a way to avoid executing innocent people while others called them unworkable and effectively a repeal of the death penalty.

MEDIA REPORTS ABOUT THE DEATH PENALTY BILL

As introduced, the bill sought to repeal the death penalty. Previously, in December 2008, the Maryland Commission on Capital Punishment recommended abolishing the death penalty. In January 2009, Gov. O'Malley stated he would do “everything in my power” to abolish the death penalty that year (“O'Malley Vows to Work to End Death Penalty,” Baltimore Sun, January 16, 2009).

A Senate committed voted against the bill but Senate President Thomas V. Mike Miller stated, “Regardless of how the [committee] vote goes, I want to give the governor and his proponents their day on the floor. He's the governor. We're going to allow him to have that vote, even though it is somewhat contrary to the rules and the committee system” (“Senate May Debate Death Penalty Repeal,” Baltimore Sun, February 26, 2009). According to the Baltimore Sun, senators opposed to the death penalty brought the bill up for debate but it was an unusual move to debate a bill rejected by a committee and the motion for doing so was not in the Senate rules (“Senators Turn Away Repeal of Death Penalty in Md.,” Baltimore Sun, March 4, 2009).

The Sun reported that during the Senate debate, Baltimore County senators opposed the effort to abolish the death penalty and instead persuaded lawmakers to restrict when it could be used (“Senators Turn Away Repeal of Death Penalty in Md.,” Baltimore Sun, March 4, 2009). The bill as amended in the Senate eventually became law. According to the Washington Post, senators seeking repeal were disappointed; those who supported capital punishment backed the compromise; and Gov. O'Malley thought the bill improved the law.

Below are some of the remarks we found in newspaper reports about the Senate debate.

● Gov. O'Malley stated, “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” (Md. Death Penalty Bill Has Limits,” March 5, 2009, Washington Times). He called the restrictions “a move forward” and an “improvement” (“Senators Turn Away Repeal of Death Penalty in Md.,” Baltimore Sun, March 4, 2009).

● Sen. Brian E. Frosh stated, “This may be the high-water mark of what can be achieved this year” (“Senators Turn Away Repeal of Death Penalty in Md.,” Baltimore Sun, March 4, 2009). He also stated, “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” (“Md. Death Penalty Bill Has Limits,” Washington Times, March 5, 2009).

● Sen. Rona Kramer said she had been giving “very serious consideration to complete repeal” but decided limiting the death penalty was a better option (“Senate OKs Limits on Use of Death Penalty,” Baltimore Sun, March 5, 2009).

● Sen. Bobby A. Zirkin, who introduced one of the amendments restricting the death penalty after the repeal provisions failed, stated he had no moral objection to the death penalty but was troubled by the possibility of executing an innocent person. He called his amendment “a compromise, a couple of steps in the right direction” (“Senate OKs Limits on Use of Death Penalty,” Baltimore Sun, March 5, 2009).

● Senate President Thomas V. Mike Miller described the changes as an important compromise to put the matter to rest in a divided Senate. “We're moving forward. We did the very best we could do. We made progress. We made incremental progress, and that's not all bad” (“Md. Death Penalty Bill Has Limits,” Washington Times, March 5, 2009).

● Sen. Lowell Stolzfus stated, “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” (“Md. Death Penalty Bill Has Limits,” Washington Times, March 5, 2009).

● Sen. Mike Lenett called it “an uneasy compromise” (“Md. Death Penalty Bill Has Limits,” Washington Times, March 5, 2009).

After the Senate debate, Maryland Attorney General Douglas F. Gansler called the Senate version “ill-prepared, ill-thought-out, awkward, and clumsy” and stated it “significantly limits the death penalty so as to almost nullify it in the state of Maryland.” Baltimore County State's Attorney Scott D. Shellengerger stated, at a House committee hearing on the bill, “These artificial limits do not make sense in the real world of litigation” (“State Attorney General Argues Against Death Penalty Curbs,” Baltimore Sun, March 18, 2009).

Below are some of the remarks we found in media reports by House members regarding the bill.

● Del. Samuel I. Rosenberg stated that the bill would significantly reduce the possibility of wrongly executing people (“Md. Lawmakers Approve Tighter Death Penalty Rules,” Washington Post, March 26, 2009).

● Del. Patrick L. McDonough argued the bill was so strict that prosecutors would not be able to bring capital cases. He stated, “You have cleverly and successfully killed the death penalty in Maryland” (“Md. Lawmakers Approve Tighter Death Penalty Rules,” Washington Post, March 26, 2009).

After the House approved the bill, a Washington Post article called the bill:

hastily crafted in the Senate…as a compromise between death penalty opponents and those who say that capital punishment should remain an option in egregious cases. Although there is disagreement about some practical implications of the bill, supporters and opponents say it will make it more difficult for prosecutors to seek the death penalty (“Md. Lawmakers Approve Tighter Death Penalty Rules,” Washington Post, March 26, 2009).

Fox News reported that some death penalty supporters said the bill would create an arbitrary system that makes capital punishment nearly impossible to implement. It also reported that the restrictions were designed to prevent the recurrence of a case where an individual was sentenced to death largely on eyewitness testimony and exonerated by DNA evidence after two years on death row (“Maryland House Passes Bill Restricting Use of Death Penalty,” Fox News, March 26, 2009).

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