By Maryland State Delegate Sandy Rosenberg, with Tom Waldron
Repealing the death penalty in Maryland was an arduous task that took many years – with many ups and downs. It culminated in 2013, when the General Assembly passed Senate Bill 276, Death Penalty Repeal – Substitution of Life Without the Possibility of Parole, with the crucial support of Gov. Martin O’Malley. But that historic action came after years of work by many individuals, organizations, consultants, and elected officials.
Doing away with capital punishment in Maryland was a milestone in the national abolition movement. Five other states had ended the death penalty in the years leading up to 2013. The decision in Maryland – which sits south of the Mason-Dixon Line and had carried out several executions in the near past –sent a signal across the country that repeal would gain momentum.
The repeal effort began in Maryland years earlier, with a handful of legislators and tireless advocates pointing out problems in its use, most notably racial inequities. The state did take steps to limit capital punishment, for example, making people under the age of 18 ineligible for execution. But the broader issue – should Maryland maintain the ultimate sanction – was never a serious question in Annapolis until recently.
Indeed, during my first six terms in office – 24 years – I never had the opportunity to vote on repealing the death penalty. I would have voted to end the practice, based initially on my belief that our time was better spent – in the legislature and the judiciary – on criminal justice issues that would have a greater impact on the public’s safety.
My formal participation in the effort began in the fall of 2007, when the lobbyist retained by the leading repeal advocacy group – Maryland Citizens Against State Executions (CASE) – told me that there would be a major effort to repeal the death penalty in the subsequent legislative session. Two main factors formed my decision.
The first was the election in 2006 of O’Malley, the former mayor of Baltimore City who had made public his opposition to capital punishment. Secondly, momentum within the state and nationally was growing stronger – legal issues were holding up executions in several states, including Maryland, New York had become the first state to end the death penalty in 2005, and an increasing number of Maryland lawmakers were willing to take another look at the death penalty. For these reasons, the repeal effort in Maryland gained national recognition and received funding from foundations that were devoted to ending the death penalty. This bolstered the work of previously underfunded nonprofits and enabled them to hire organizers, lobbyists and communications consultants to launch a full-fledged advocacy campaign.
The advocates asked me to be the chief House sponsor of the repeal legislation. I was honored and accepted the offer, recognizing that I was now committed to doing the hard work of passing such a consequential bill.
For the next seven years, repeal was my most important legislative issue.
The campaign to repeal the death penalty generated many hard-won lessons. I have distilled those into 10 insights that should prove useful to other legislative efforts focused on capital punishment and other issues.
1. Build the Coalition
Over time in Maryland, we built a broad coalition to advance the repeal legislation. Having that range of organizational voices was important. It demonstrated widespread support for repeal and gave our coalition more capacity to advocate, organize and communicate. Legislators supported repeal for many different reasons, and it was helpful to have a range of organizations to focus on different issues. MDCASE, for example, effectively made the case on the cost of the death penalty, the NAACP focused on racial disparities, and the Maryland Catholic Conference connected on religious issues with some lawmakers. (In the past, I had been on the opposite side of issues from the Catholic Conference but mended fences with the organization’s lobbyist, enabling us to work closely on repeal; it was a good reminder that there are no permanent enemies in the legislative process.) And national advocacy groups, including Equal Justice USA, brought strategy and messaging experience to the coalition and provided critical resources that supported a full-time staffer to coordinate our coalition work. It was the best organized effort during my 30+ years in Annapolis – with the exception of the first time we got to the Senate floor. Fortunately, we had a second chance there as well.
2. Study the Issue
A bill as consequential as repeal of the death penalty is not going to pass the first year it is introduced. We recognized in 2007 that we simply lacked the votes to succeed, but we had clearly raised major concerns about the death penalty’s use in Maryland. Some lawmakers who were not ready to repeal the death penalty nonetheless believed the system was broken and wanted to see those problems addressed. Consequently, we authorized a high-profile study commission of the issue. Even legislators who were not ready for repeal supported review of the issue.
Under this legislation, Governor O’Malley named members to the commission, and he made a bold choice in convincing former U.S. Attorney General Benjamin Civiletti to serve as chair. A Marylander, Mr. Civiletti had a sparkling reputation and was willing to put in the time to make sure the commission’s recommendations were well-founded.
I was also appointed to the commission, which heard compelling testimony about a range of topics, including the effect the death penalty process has on victims’ family members. Our coalition made sure that expert witnesses testified on reach of the issues. In the end, the commission recommended repeal, and our final report laid out the very real problems with the death penalty that our coalition would hammer on for the next five years.
3. Personalize the issue
We knew that many people supported the death penalty theoretically (they did not think it was simply wrong for the state to kill members of the community), but they were opposed to the ways it worked in practice – with particular concerns about cost, racial disparities, and the risk of executing an innocent person. The coalition emphasized those points to create the largest possible tent for people to join us.
There were several reasons my colleagues would give for their support of repeal. Some, whom we considered “no” votes, did so when explaining their vote on the floor of the House just before the final vote. I didn’t care why they voted “yes.” I just wanted them on our side.
Personalizing the issue is important for any bill. Here it was critical. Among those who carried our message effectively was Sister Helen Prejean, the author of “Dead Man Walking,” who brought both religious credentials to the discussion and, more importantly, first-hand observations about the unfairness of capital punishment. Her history with executions got legislators’ attention, and it didn’t hurt that she spent time drinking beer with Governor O’Malley at an Annapolis tavern.
But nobody personalized the issue more effectively than the people directly affected by it. Kirk Bloodsworth, the former Marine from the Eastern Shore of Maryland who was unjustly convicted of a child murder and sentenced to death, was one. Kirk spent nine years in prison, including more than two years under a death sentence, for a crime he had nothing to do with. His matter-of-fact – and tireless – lobbying helped sway a handful of key votes in Annapolis. While some middle-of-the-road legislators may have tuned out some of our arguments, they listened carefully to Kirk’s horrific story of justice gone wrong.
Another personal story that swayed many votes was that of Bonnita Spikes. Bonnita’s husband, Michael, was murdered. She shared the personal pain of losing a loved one, helping her children through their pain and grief without access to victims’ services, and the need to end the death penalty and take care of victims’ families.
4. Give Opponents a Reason to Change their Vote
A perhaps counter-intuitive argument emerged during the repeal debate and proved to be powerful. That is that the death penalty process – trials and round after round of appeals – creates enormous stress and hardship on the surviving family members of murder victims. With each new appeal and court hearing, relatives must relive the crime, with a constant doubt lingering about what could happen to the defendant.
Thanks to the hard work of a number of people who had lost loved ones to murder – and were adamantly against the death penalty – we were able to convince some otherwise reluctant legislators to vote with us.
The coalition also recognized how important it was to take care of those families who had been so harmed by tragedy. Thus we included a provision in the repeal legislation setting up funding for new services for family members of murder victims using the savings from repeal. We were against the death penalty, and we were also advocates for helping those most directly affected by murder.
5. The Importance of Grassroots Lobbying and Media Work
The Maryland repeal effort received significant financial support that allowed the coalition to undertake critically important grassroots outreach efforts and mount a sophisticated media strategy. Nonprofit groups organized events, generated letter-writing and social media outreach, and motivated people to come to Annapolis to support repeal. And our media team generated sustained news coverage of the issue. It’s difficult to gauge the effectiveness of such activities. Did this work sway any legislators’ votes? Probably not in isolation, but counting to 24 and 71, the required constitutional majorities in the two houses of the General Assembly, is cumulative. Creating a backdrop of media attention and spurring grassroots activities elevated the issue and forced legislators to consider the arguments we raised.
Unfortunately, while such external work was a success, our internal legislative strategy was not as well planned the first time we got to the Senate floor. In 2009, the repeal bill was forced to the floor more quickly than the coalition was prepared for. As a result, our strategy was confused and unprepared to counter opposition from the chamber’s presiding officer – a recipe for disaster. Ultimately, the Senate rejected repeal, but passed a confusing, hastily amended bill that sharply restricted when prosecutors could seek the death penalty.
The same day that the amended “no longer a repeal bill” passed the Senate, Governor O’Malley called me into his office. Should we accept this half a loaf and fight for repeal another day? Yes, the advocates and I had decided that we should.
6. Co-sponsors were Worth the Effort
In my 30-plus years of legislating, seeking co-sponsors for my bills is the biggest waste of time in the General Assembly – except when it isn’t. In the case of repeal, it was worth the trouble to demonstrate publicly that we had the support we needed to pass the legislation. Some legislators told us privately that they would support the bill if it reached the floor but they would not, for various reasons, sign on as co-sponsors.
The co-sponsorship issue is a reminder that passing any contentious bill will require its own strategy to meet realities inside the legislative arena.
7. Presiding Officers Rule
In state capitols, the presiding officers are firmly in charge. Passing a major bill without their support is not impossible, but it is very difficult. During the repeal effort in Maryland, the House of Delegates was led by Speaker Michael Busch. A moderate Democrat on many issues, he quietly supported repeal, and he recognized that we had majority support in the House. But as a political pragmatist, Speaker Busch refused to allow the repeal bill to come out of committee and onto the floor of the House for a vote. While we were eager to win House approval – and, we thought, put pressure on the Senate – the Speaker did not want to make his Democratic colleagues cast what many perceived to be a tough vote only to see repeal die in the Senate. He had a firm rule: pass the bill in the Senate first and then we’ll take it up in the House. When we did, he was quietly helpful.
In the Senate, President Thomas V. Mike Miller Jr. was consistently opposed to repeal, and emphatically spoke about the need to execute certain criminals. But Miller is a pragmatic political leader and by 2013, he recognized that repeal was a major priority for many in his Democratic caucus and, most importantly, a majority in the chamber was ready to vote for the bill. Quietly, he became an ally for O’Malley in the repeal effort. A final hurdle was winning a majority in the 11-member committee that considered the repeal legislation. Years of advocacy from both the grassroots and within the legislature with one Democratic member of the Judicial Proceedings Committee led to a 6-5 vote for repeal that sent the bill to the Senate floor for a vote in 2013 – four years after it had been transformed there into “no longer a repeal bill.”
8. The Role of the Governor
Gov. Martin O’Malley set a new standard for how a governor can advocate for death penalty repeal. Unlike any other governor across the nation, O’Malley made repeal a priority and put the power of his office behind the effort. During his first term, he generated enormous media attention by testifying in person before legislative committees, a rare statement for a governor to make. He made the case eloquently in an op-ed in the Washington Post and his lobbyists coordinated their work – for a time – with our coalition.
After his full-court effort failed, the governor backed off the issue. We concluded that his staff talked him out of making repeal a legislative priority to avoid piling up defeats on the issue and looking ineffective. In his second term, which began in 2011, O’Malley was also involved in several other high-profile issues, including same-sex marriage, the Dream Act, and casino gambling. All would turn into referendum fights, consuming his time and energy – and O’Malley won all three.
By 2013, those fights were behind him, and O’Malley returned to the death penalty issue. It’s clear that NAACP President Ben Jealous helped convince O’Malley to try again, and Jealous offered his organization’s full support.
Jealous went on to play a critical role, coming to Annapolis to meet with the skeptical President of the State Senate and reigniting the issue here by saying it was a priority for his organization nationally.
At the committee hearing on the bill, Governor O’Malley testified as to the countries where the majority of executions take place today – Iran, Iraq, North Korea, Saudi Arabia, the People’s Republic of China, Yemen, and the United States. I whispered to Ben Jealous: “Apartheid South Africa used to be on the list.” When I testified, I related that story.
9. The intensity is with repeal
We discovered over the years that all of the energy and intensity on this issue rested with our side. We could generally predict with accuracy just who would turn out to testify against our repeal bills – a couple of pro-execution prosecutors.
That lack of intensity was most evident after we passed the repeal legislation in 2013. A few politicians on the other side vowed to gather enough petitions to take the bill to a statewide referendum. This was our worst fear, since no state in the union had ever voted in favor of repeal. In the very recent past, conservative-leaning groups had successfully taken several issues to referendum, most notably same-sex marriage.
It turned out that everyone involved in the repeal effort was fighting the last war, figuring that the same energy that had developed to take the marriage issue to the ballot box would reemerge. But, the repeal-bill petition drive fizzled; there simply were not enough people who cared strongly enough to stand in front of shopping centers or go door-to-door to collect signatures. In the end, the opponents came nowhere close to gathering enough signatures, and the repeal measure did not have to go before the voters.
10. Pragmatic to Profound
Initially, I decided to oppose the death penalty for pragmatic reasons. It ate up too much time, money and effort within a criminal justice system that badly needed reform and additional resources. In that regard, I was not alone; many legislators could accept the notion of state-sanctioned executions but came to understand how our capital punishment system was unfair, inefficient and wasteful – and, therefore, not worth maintaining.
But my involvement in this effort gave me a broader and deeper understanding. That came from people like Kirk Bloodsworth and Sister Helen, who brought personal stories from death row; victims’ rights advocates Bonnita Spikes and Vicki Scheiber, whose daughter was murdered but nonetheless advocated relentlessly for repeal; and NAACP President Ben Jealous, who reminded us that our justice system is far from colorblind.
In my final remarks on the bill in the House, I invoked the words of Supreme Court Justice Thurgood Marshall, whose statue my colleagues and I pass every day on our way into the State House. As a Justice, he wrote, “The American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable.”
Over several years, we helped to fully inform the people of Maryland about the death penalty and its flaws. After the final vote, a reporter asked for my reaction. “We’re a better state for ending the death penalty,” I said. It was spontaneous, and it is true.
In the end, repeal was the pragmatic solution; it was also the morally right solution. And helping to end the practice of capital punishment in Maryland was the most profound thing I will ever do.
