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Maryland & Virginia Go Separate Ways On Death Penalty

In both Annapolis and Richmond this winter, the coldest winds are those swirling around the devastating budget cuts that both Maryland and Virginia must make as a result of plummeting tax receipts.

Previously sacrosanct areas of government spending are now on the chopping block, including K-12 schooling, public safety and even mental health--an area Virginia Gov. Tim Kaine and the legislature just started rebuilding after the Virginia Tech massacre.

But despite the politically and personally difficult work of eliminating jobs and services, legislators can't stop themselves from delving into the social issues that they like to use to capture headlines and win attention from voters whose eyes glaze over when budget matters take center stage.

In both states, moves are afoot to make big changes in death penalty law. As the states' stereotypes would have it, Virginia is considering expanding use of capital punishment, while Gov. Martin O'Malley is stepping out to press Maryland to end its use of the ultimate sentence.

The Virginia efforts are an annual affair, a move, mainly by Republicans, to widen use of the death penalty to cover accomplices in murder cases. The state's current "triggerman" law limits executions to those who actually commit the deed, rather than those who may have conspired with or helped the killer.

The legislature passed that expansion of the law last year, but Gov. Tim Kaine vetoed the bill (as he had the year before)and its supporters didn't have enough votes to override Kaine's veto.

(Both Kaine and O'Malley are Catholics whose personal opposition to the death penalty is rooted in their faiths. Interestingly, all four of Virginia's gubernatorial candidates this year have a more pro-death penalty approach. Republican Bob McDonnell and Democrats Brian Moran and Creigh Deeds favor expanding capital punishment by scrapping the triggerman rule; Democrat Terry McAuliffe would "not oppose" such a move, according to his spokesman.)

If the 2002 D.C. sniper case, the impetus for last year's expansion effort, wasn't enough to win an enlarged death penalty the support it needed, then it's hardly likely that a recession will do the trick, even if crime rates do start to spike. But that reality won't stop conservatives in Richmond; a Senate committee last week approved not only the triggerman change, but another bill that would expand the death penalty to cover cases in which someone kills a fire marshal or his assistant.

Across the Potomac, however, the politics of capital punishment has less of a broken record feel to it this year, as O'Malley has moved sharply away from his earlier reticence about translating his personal opposition to the death penalty into state policy.

In his campaign three years ago, O'Malley was upfront about his personal objections to the death penalty, but promised that he could and would sign death warrants when necessary. He has continued to speak about his own belief that Maryland ought not be killing prisoners, but this is the first legislative session in which he is preparing to push hard to change state law.

"It would appear that the death penalty is not a deterrent, but very possibly an accelerant, to murder," O'Malley has said in public testimony about his own conclusions. Now, he's taking that fight to a legislature that does not appear to include many changed minds on the subject.

So why now? Certainly such an effort may help the governor gain some goodwill from liberals who were appalled to learn that the state police, during Gov. Bob Ehrlich's tenure, spied on anti-death penalty activists in Maryland, as well as from those on the left who opposed O'Malley's successful push to legalize slots gambling.

It's also true that during this very rough patch in the economy, O'Malley may be looking for ways to remind voters that he's a principled, religious and thoughtful guy. And even among death penalty supporters, the idea of a governor who stands up for his religious principles has some appeal.

The backing of the governor's commission on capital punishment, which last month called for abolition of the death penalty, gives O'Malley a good opening to make his push, but legislators say there's no sign of much give on the part of capital punishment supporters in Annapolis. The state has executed five convicts since the penalty was reinstated in 1978.

Death penalty politics is usually a sideshow, especially in Virginia, where the Republicans' once-winning formula of gays, guns, God and other hot-button social issues has been wearing thin in recent elections.

But lawmakers are eager to find some distraction from budget cutting this session. Since it's hardly likely that any significant new spending programs can be passed this year--at least not until any federal infrastructure initiative gets going later in the year--there may be a resort to some tired old social issues to score political points.

In the end, however, the only action is likely to be rhetorical--Kaine is not about to sign any expansion of the death penalty. (And newly emboldened Democrats in Richmond would dearly love to paint their Republican foes as ever-more isolated social conservatives bent on pushing their agenda on an increasingly moderate population.)

In Maryland, it's the more moderate among O'Malley's fellow Democrats who seem poised to block the governor's big move.

Every politician loves a good distraction when times are tough, but if history is any guide, economic down times will lead to more crime--not exactly the atmosphere in which a repeal of the death penalty is likely to be carried along by a wave of public support.

By Marc Fisher |  January 27, 2009; 12:17 PM ET
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Readers may be interested in attending this upcoming event about the death penalty in Knoxville, Tennessee:

The public is welcome. To assist our planning, we're asking everyone to pre-register using the online form.

James Inman
Editor in Chief, Tennessee Law Review

Posted by: JamesInman1 | January 27, 2009 5:27 PM

Mr. Inman,
Interesting agenda. It is good to see that UT Law is presenting such a balanced and unbiased review of the death penalty during this symposium that awards continuing legal education credit. Not. Tell us, did you learn 'editorial bias' from Fox News or Air America?

My personal favorite on the agenda is, "Effective Capital Defense Representation and the Difficult Client." Would a "difficult client" perhaps be a raving sociopath who threatens the jury to do the same thing to them that he did to his victim(s)? Just wondering.

Posted by: hisroc | January 27, 2009 6:15 PM

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