If there were such a thing as a golden age of capital punishment in America, it peaked in 1999. There were 98 executions in the U.S. that year, the highest number since 1976, when the Supreme Court, which had overturned all death penalty laws in 1972, began approving them again. For most of the 1990s the number of death sentences handed down annually by courts had been humming along in the range of 280 to 300 and above. And it had been years since the Supreme Court had done much to specify whom states could execute and how they could do it.
A decade later, capital punishment has a lot less life in it. Last year saw just 37 executions in the U.S., with only 111 death sentences handed down. Although 36 states and the Federal Government still have death penalty laws on the books, the practice of carrying out executions is limited almost entirely to the South, where all but two of last year's executions took place. (The exceptions were both in Ohio.) Even in Texas, still the state leader in annual executions, only 10 men and one woman were sentenced to death last year, the lowest number since the death penalty was reinstated in 1976. In recent years the Supreme Court has voted to forbid the execution of juveniles and the mentally retarded, and it banned using the death penalty for crimes that did not involve killings. In 2007 the court put executions across the country on hold for eight months while it examined whether lethal injection, the most common means of executing prisoners, violated the Eighth Amendment prohibition against cruel and unusual punishment; in the end it ruled 7-2 that it did not.
Even more significantly, where states once hurried to adopt death penalty laws, the pendulum now appears to be swinging in the other direction. In 2007 New Jersey became the first state in 40 years to abolish its death penalty. In that same year repeal bills were narrowly defeated in Montana, Nebraska and New Mexico, all of which are revisiting the issue this year. Now the focus is on Maryland. After years of failed attempts by death penalty opponents to bring a repeal bill to a vote in the state legislature, Maryland Governor Martin O'Malley is personally sponsoring this year's version, promising that he will fight to have the legislature pass it during the current 90-day session. In his state of the state address last week O'Malley called capital punishment "outdated, expensive and utterly ineffective." (See the top 10 crime stories of 2008.)
Death penalty opponents say the use of DNA evidence, which has led to a number of prisoners being released from death row, is a big part of the reason for the decline in executions generally. "That's had a ripple effect," says Richard Dieter of the Death Penalty Information Center, a Washington-based advocacy group. "The whole legal system has become more cautious about the death penalty. Prosecutors are not seeking it as much. Juries are returning more life sentences. And judges are granting more stays of execution. Last year there were over 40."
Maryland restored its death penalty in 1978, but it was 16 years before the state carried out its first execution under the new law. Since then the state has put to death four more convicted killers, the last of them in 2005. Today there are five men on Maryland's death row, though the state suspended executions two years ago after its highest court ruled that regulations governing lethal injections had been adopted improperly. Until new protocols are in place, no executions can go forward, and the governor, a longtime death penalty opponent, has been in no hurry to issue them.
Last year, after months of public hearings, a Maryland state commission on the death penalty voted 13-9 to recommend that it should be abolished. In its final report the commission, which was headed by former U.S. Attorney General Benjamin Civiletti, cited the usual objections to capital punishment cost, racial and jurisdictional disparities in sentencing, its ineffectiveness as a deterrent against crime and the possibility that innocent people might be put to death. One of the commission's members was Kirk Bloodsworth, who had been on death row in Maryland for two years in the mid-1980s before he was cleared by DNA evidence.
Even so, repealing the Maryland death penalty is by no means a done deal. Bills to repeal it have been introduced repeatedly since the first of them arrived six years ago, only to die every time in the senate's judicial proceedings committee. And the makeup of that committee is no different now than it was two years ago, when the bill fell one vote short of the number needed to release it to the full senate. But supporters of the repeal think that this year, with the governor's support and the commission's verdict still fresh, the bill will make it to the floor for a vote they are confident they will win. "This year we have momentum to move it," says Jane Henderson, director of Maryland Citizen's Against State Executions.
Senator Lisa A. Gladden, a Baltimore Democrat who chairs the committee, also thinks this is the year it will happen. "You have the commission report, which confirms what we already knew," she says. "The death penalty is not a deterrent, it doesn't reduce crime, it's expensive, and it's unfair. And the governor has the ability to persuade some of the swing voters in my committee and I only need one to get the bill onto the floor. " If the bill is passed by the senate, it will then continue to the legislature's other chamber, the house of delegates, where house speaker Michael E. Busch has said he believes there are enough votes for approval.
If Governor O'Malley can't budge any of those swing voters, there are still parliamentary moves at his disposal that could allow him to bring the bill to the full chamber without a committee vote. One of them would be to persuade lawmakers on the committee who oppose the bill to release it anyway without a recommendation of any kind from their body. Some anti-repeal committee members are already said to be warming to that idea.
And O'Malley can get firsthand advice on parliamentary maneuvers from a source very close to home. In 1978, the bill that eventually created Maryland's death penalty was held up for a time by the same senate committee before eventually being forced to a vote. Its chairman back then was a future state attorney general named J. Joseph Curran, a longtime opponent of capital punishment. These days he also happens to be the governor's father-in-law.