The Senate's first full debate on the death penalty in more than three decades was cut short when amendments stripped the word repeal out of a repeal initiative, prompting confusion on the floor. Exasperated senators rose one after another to say that they weren't sure what they were voting on.
Debate was to resume this morning. There is a pile of amendments for senators to sort through, followed by a preliminary vote on the amended plan.
Senate President Thomas V. Mike Miller had predicted such disorder. Earlier in the day, death penalty opponents used a rare procedural move to resurrect repeal legislation even though a Senate committee had killed the measure last week. Miller, a death penalty supporter who typically keeps tight control over the Senate, said he allowed the unusual maneuver as a courtesy to Gov. Martin O'Malley, a fellow Democrat who wants repeal.
Miller noted a wave of e-mail messages by O'Malley and the governor's use of Democratic Party resources to further the repeal effort. "I don't think any previous governor has politicized the death penalty in such a manner," Miller said.
In response, O'Malley said that he was proud of having fostered "civil debate" on death penalty repeal. "I don't think any senator I've met with would tell you that I've been twisting arms or breaking legs," he said.
The governor said restrictions on the death penalty such as those approved yesterday were a "move forward" and an "improvement," though he held out hope that repeal might be considered again this morning.
Many senators said they have heard from both Miller and O'Malley, who were pulling them in opposite directions, and have fielded dozens of calls from activists and residents. A slim majority of Marylanders support capital punishment, opinion polls show.
Sen. Bobby A. Zirkin, who was considered a potential swing vote, said he had received a phone call Monday from Elie Wiesel, a prominent writer, death penalty opponent and Holocaust survivor.
Since 1978, when Maryland reinstated capital punishment, the state has executed five convicted murderers. Five men are on death row. Last year, O'Malley asked former U.S. Attorney General Benjamin R. Civiletti to lead a study of capital punishment in Maryland. The commission recommended abolishing the death penalty, noting the costs involved, the potential of executing an innocent person, and racial and geographic disparity in its use.
Baltimore County prosecutors have been the most aggressive in the state in seeking the death penalty, accounting for 45 percent of the death sentences but only 12 percent of eligible murder cases from 1978 to 1999, a 2003 state-funded study found.
Yesterday, two Democratic senators from that county changed the nature of the death penalty debate, quickly silencing discussion of repeal.
By a 25-21 vote, the 47-member Senate adopted Sen. James Brochin's amendment to reject repeal and instead prohibit the death penalty in cases where there is only eyewitness testimony. Then, Zirkin proposed restricting the death penalty to murder cases in which there is conclusive DNA evidence, video evidence or a videotaped voluntary confession.
Buoyed by support from some death penalty opponents who recognized that the repeal effort had failed, Zirkin's amendment passed easily.
"This may be the high-water mark of what can be achieved this year," Sen. Brian E. Frosh, a Montgomery County Democrat and death penalty opponent who heads the Judicial Proceedings Committee, said later.
It was clear that some senators might not have understood the implications of the amendments from Baltimore County.
Sen. John C. Astle, an Anne Arundel County Democrat, and Sen. Rona E. Kramer, a Montgomery County Democrat, voted yesterday morning to move forward with repeal. Both then voted to adopt Brochin's amendment. Astle said afterward that he planned to change his vote on the Brochin amendment. Asked whether she was confused about what Brochin's amendment would do, Kramer said, "Right now, I'm not going to discuss it."
Jane Henderson, director of Maryland Citizens Against State Executions, said it took her a moment to realize what Brochin's amendment had done. "It was quite a comedy of errors," she said. "I don't hold out much hope that they know what they're doing."