Who saved Maryland’s execution system?

Maryland!
She is not dead, nor deaf, nor dumb;
Huzza! she spurns the Northern scum!

SO GOES the final stanza of "Maryland, My Maryland." The song's lyrics were written after riots engulfed Baltimore at the beginning of the American Civil War, when federal troops, en route to Washington, passed through the city. This ode to secession, known as the "Marseillaise of the South," was made Maryland's official anthem in 1939. A bill to replace the lyrics with ones celebrating the state's natural beauty was killed in the legislature this year.

Perhaps it should come as no surprise, then, that a body unwilling to shed even that most symbolic remnant of slavery also refused to bury the racist relic of capital punishment.

So while New York, New Jersey and now New Mexico have all ended their state's death penalties in the past five years, Maryland--long one of the front lines in the struggle to abolish the death penalty--remains wedded to the past.

Failing to muster the courage for abolition, the state's General Assembly in March instead passed a shameful compromise bill that tries once again to "tinker with the machinery of death," a tactic which has always failed to remedy the death penalty's intractable problems. Even so, Democratic Gov. Martin O'Malley, a vocal opponent of the death penalty, has signed it into law.

Nevertheless, though hugely disappointing, this defeat has clarified the status of the debate about capital punishment below the Mason-Dixon line.

Earlier, this looked like the year the abolition movement would finally claim victory in Maryland. In 2008, the legislature established the Maryland Study Commission on Capital Punishment to break the perennial deadlock on abolition bills. After hearing some 35 hours of testimony from academics, lawyers, and other experts, the commission found capital punishment in Maryland to be rife with racial and geographic disparities, and prone to sentencing innocent people to die. The commission, therefore, recommended complete repeal of the state's death penalty statute.

Adding to the momentum, Gov. O'Malley made repeal his highest legislative priority, and powerful state Senate President Mike Miller, a stalwart death penalty supporter, promised not to stand in the way.

But the repeal legislation's fate was sealed at a decisive Senate hearing. After the bill failed to get a favorable vote from the Judiciary Proceedings Committee for the sixth year in a row, Miller allowed bill sponsor Lisa Gladden to attempt a rarely used procedural move that calls on the Senate to reject the committee's decision and bring the bill directly to the floor.

Ironically, this move hadn't been used since the death penalty was reinstated in 1978, and the histrionic response it induced--including comparisons to both the opening of Pandora's box and the signing of the Declaration of Independence--revealed how sacrosanct the committee system is to Maryland state legislators.

The freedom to bring a bill to the floor of the Senate that failed in committee should be a basic tenant of democracy. Instead, it is taboo, giving institutionalized lawmakers like Miller--who determines the makeup of the committees--executive-like power and control over the legislative process.

Miller knew exactly what he was doing. After the vote to hear the bill passed, he called a recess. When the Senate reassembled, he immediately opened the floor for amendments. Consequently, no substantive discussion of the death penalty--including the findings of the study commission--took place.

A frenzy of pseudo-democracy ensued. In the end, amendments from Baltimore County Sens. Jim Brochin and Bobby Zirkin were voted up, despite the admission of many senators that they didn't even know what they were voting for. The amendments totally subverted the content of the original bill. Repeal was excised and replaced with increased restrictions on the types of evidence a prosecutor needs to seek a death sentence.

MILLER'S RUSE worked. Significantly, however, his resort to special parliamentary maneuvers to block abolition exposed just how tenuous the grip of pro-death penalty forces really is in Maryland.

It's also important to note that these forces are not defined by party lines--Miller, Brochin and Zirkin are all Democrats.

The fact that Brochin and Zirkin were essentially out to sabotage abolition is hardly surprising. Baltimore County is far and away the jurisdiction that issues the most death sentences in Maryland. Modern politics in that county was forged in the era of white flight from Baltimore City, and its politicians proudly stand in the tradition of the U.S. ruling class' "tough-on-crime" consensus of the past three decades.

Now, however, the foundation of the "law-and-order" strategy is being shaken by twin crises of finances and credibility.

On the latter, the death penalty has become a throbbing sore thumb, swelling larger with each exoneration and botched execution. This dynamic is the basis for a developing rift among politicians: The death penalty has come to be seen as more of a liability than a utility for many of those who wish to salvage the criminal justice system as a whole. On these grounds, the Baltimore County compromise, though short of the real goal of abolition, was deemed a success and fully backed by O'Malley and pro-abolition legislators. It then enjoyed easy passage in the General Assembly.

In reality, the legislature merely ratified into law what the abolition movement had already won in practice. The new evidentiary requirements for capital cases--prosecutors must now have DNA, video of the murder or a taped voluntary confession--are designed to make the embarrassment of exonerations go away. This isn't a bad thing in and of itself. But even without these restrictions, the youngest case on Maryland's death row is already 10 years old.

What Miller and company were not willing to ratify, though, was the complete halt in executions that has been in place since a state appeals court decision in 2006 initiated a de facto moratorium. The court found in favor of an appeal by death row inmate Vernon Evans, ruling that Maryland's lethal injection protocols were not subjected to the required level of public scrutiny before being enacted.

Without the immediate urgency of death sentences to agitate around during the moratorium, focus shifted to legislation and many sections of the abolition movement in Maryland were demobilized. In this climate, lobbyists and legislators changed the terms of the mainstream debate as part of an effort to sell abolition to tough-on-crime lawmakers.

THE CENTRAL plank of this strategy has been to argue that life without the possibility of parole (LWOP) is a better punishment than the death penalty, combining all of its utility with none of the ugly liabilities. In other words, LWOP is promoted as a smarter way to be tough on crime, since it is "worse than death," in the disturbing words of New Mexico Gov. Bill Richardson, who backed that solution.

By this logic, the death penalty isn't wrong because it's unjust and barbaric, but because of its lengthy appeals process, which is expensive for the state and trying for murder victims' family members.

Yet this strategy has failed to convince pro-death penalty politicians like Miller and Brochin. It's also a non-starter for building the kind of opposition movement that could force them to change their votes.

We have seen conclusively that there is no new Maryland. Despite the national tides shifting towards abolition of the death penalty, the combined forces of liberal politicians, lobbyists and academics weren't strong enough to win.

One important reason is that Maryland is different than its counterparts to the North and West in that it still bears the scars of slavery. Thus, African Americans comprise 29 percent of the population, yet account for over 80 percent of murder victims.

Nevertheless, of the five men on currently on death row and the five who have been executed since 1978, seven are Black. All were accused of killing white victims. The abolition movement needs to take on that terrible legacy of racism as part of the effort to build a broad, working-class base in the fight to end the death penalty.

In the near term, the movement needs to guard against threats from the state in the wake of the legislative failure. O'Malley has already green-lighted the process of approving new lethal injection protocols. This would lift the current moratorium on executions. And because the new evidentiary standards aren't retroactive, death warrants could still be signed for the men remaining on Maryland's death row, even though most of them could probably not be sentenced to death under the new laws.

It would require an unimaginable degree of callousness for O'Malley to execute any of these men now, in the name of upholding the law. Nevertheless, abolitionists will have to fight to make sure that the possibility of renewed executions doesn't become reality.

Inmates and their families don't have the luxury of patiently waiting until the state of Maryland chooses not to be "dead, nor deaf, nor dumb" to injustice any longer. Holding out until the next election cycle is untenable, given the central role incumbent Democrats have played in this year's defeat.

Only the actions of abolitionists and other antiracists can light the way out of the dark past, and toward a "Maryland, My Maryland" to be proud of.