Maryland State Archives

Ed received a request at 4:45pm from Sen. Gladden. She needs to know about the following with respect to what is going on with the Death Penalty Bill:

1) What is a Sub Motion?

2) What is the precedent for sub motions?

3) What is the protocol for handling a sub motion and the debate?

4) For how long has it been debated/discussed and what is the specific history of the death penalty in Maryland?

5) Has there ever been any discussion linking it to lynching?

We need to get whatever we can to Ed before noon on Monday, as he has to come up with a polished response to these questions before Tuesday. I have had Leslie place a note holding a space on Ed's schedule for us to speak to him at 11am on Monday. We will need to touch base early Monday morning to see what can be done in the short time frame.

Emily

I will be back to you Monday afternoon with what we can round up for you.on the history/origins of Substitute Motions and the early history of the debate on capital punishment in Maryland.

I know you have seen the Wikipedia article on the Death Penalty in Maryland,

Wikipedia Article

, but it does provide a very good synopsis of its history.

In debate you might want to quote from the other side of the aisle (Governor Agnew). Agnew was known as a hard liner, but was actively opposed to the death penalty and provides some history in his statement presenting his views:

AOMOL

STATEMENT ON CAPITAL PUNISHMENT
October 10, 1967
Since taking office last January 25th, I have given intensive and careful deliberation to the question: Should capital punishment be abolished in Maryland?

It had been my initial thought that I would appoint a committee of penal experts and distinguished citizens to study the subject and make recommendations. But I find it has been studied exhaustively, and there is nothing new to be gained through a retracing of the same ground. Most penal experts are in agreement that the death penalty is NOT a deterrent to crime, and factual information from previous studies is still valid.

The last formal study of capital punishment conducted for the State was in 1962 by a special committee appointed by the Legislative Council and headed by Ralph G. Murdy. This committee held ex- tensive public hearings, compiled a considerable amount of factual data and recommended, by a vote of 5 to 2, that capital punishment be abolished in Maryland.

At present, Maryland permits the death penalty for six offenses: first degree murder, rape, statutory rape, assault with intent to commit rape, kidnapping, kidnapping of a child under 16. In none of these is the death penalty mandatory; and in several cases, the sentence ranges from 18 months or two years to death.

There presently are 21 convicts under sentence of death in this State. The average length of time that each has been under the death penalty is four years and eight months. In 1935 there were 199 execu- tions throughout the United States. Last year there was but one! Maryland has executed only four persons since 1956; the last was six years ago, in 1961. I will recommend to the 1968 session of the Maryland General As- sembly that the death penalty be abolished, with one exception: the commission of murder by a person who already is serving life sentence without possibility of parole.

Ed

Submotions or subsidiary motions are defined in Robert's Rules of Order at:

Robert's Rules

12. Subsidiary Motions are such as are applied to other motions for the purpose of most appropriately disposing of them. By means of them the original motion may be modified, or action postponed, or it may be referred to a committee to investigate and report, etc. They may be applied to any main motion, and when made they supersede the main motion and must be decided before the main motion can be acted upon. None of them, except the motion to amend and those that close or limit or extend the limits of debate, can be applied to a subsidiary, incidental (except an appeal in certain cases), or privileged motion. Subsidiary motions, except to lay on the table, the previous question, and postpone indefinitely, may be amended. The motions affecting the limits of debate may be applied to any debatable question regardless of its privilege, and require a two-thirds vote for their adoption. All those of lower rank than those affecting the limits of debate are debatable, the rest are not. The motion to amend anything that has already been adopted, as by-laws or minutes, is not a subsidiary motion but is a main motion and can be laid on the table or have applied to it any other subsidiary motion without affecting the by-laws or minutes, because the latter are not pending.

In the following list the subsidiary motions are arranged in the order of their precedence, the first one having the highest rank. When one of them is the immediately pending question every motion above it is in order, and every one below it is out of order. They are as follows:

Subsidiary Motions.
Lay on the Table 28
The Previous Question 29
Limit or Extend Limits of Debate 30
Postpone Definitely, or to a Certain Time 31
Commit or Refer, or Recommit 32
Amend 33
Postpone Indefinitely 34

For a full text of Robert's Rules of Order, see: http://www.robertsrules.org/rror--00.htm

In Maryland, in more recent times, debate on the death penalty certainly became focused when bills were introduced and passed to remove:

1) the mentally retarded from execution, and later
2) minors from the execution.

(Code Criminal Law Article, sec. 2-202 http://michie.lexisnexis.com/maryland/lpext.dll?f=templates&fn=main-h.htm&cp=)

I will e-mail to you the years in which the mentally retarded and minors were removed from the death penalty.

Diane Frese Evartt

The snow is doing a good job of getting in the way of my helping on this inquiry. If you get in, do what you can. The two main questions are

1) the history/nature of the procedure by which this defeated issue is being brought back up for debate

2) whether the procedure has ever led to a reversal on an issue (Senator Gladden seemed to think so with regard to the use of the procedure by Senator Coolahan when the death penalty was reinstated? in 1978?

I particularly would like to see the study referred to by Agnew:

The last formal study of capital punishment conducted for the State was in 1962 by a special committee appointed by the Legislative Council and headed by Ralph G. Murdy. This committee held ex- tensive public hearings, compiled a considerable amount of factual data and recommended, by a vote of 5 to 2, that capital punishment be abolished in Maryland.

I suspect that the procedure for the Substitute Motion is derived from procedures in the U. S. Senate and/or House. Jefferson describes the process of a substitute motion at length in his Manual of procedure (especially Rule XIX).

Link to Google Books

Montana has a good explanation of a substitute motion in that State while in Committee:

Link to Archive.org

A member who disagrees with the original motion may make a substitute motion. For example: "As a substitute motion to the motion pending, I move to lay (House) (Senate) Bill No. on the table." However, no more than one substitute motion may be offered on top of the original motion. Adequate discussion should be allowed before voting on each motion, and under rules of parliamentary procedure, the substitute motion offered is voted upon first. If that motion fails, the original motion is reverted to and voted upon. The chairperson may announce that without objection the vote on a substitute motion is considered the reverse of the vote on the main motion if they are opposing motions. (It is possible but rare that a member, feeling that a bill should be further refined before a recommendation is made to the full body for "do pass" or "do not pass", would vote against both motions.)

In Maryland, minors were removed from the death penalty in 1987 (Chapter 626, Acts of 1987).

Life without parole was enacted in Maryland as an alternative to the death penalty in 1987 (Chapter 237, Acts of 1987).

The mentally retarded were removed from the death penalty in Maryland in 1989 (Chapter 677, Acts of 1989).

Also, from the Maryland Manual On-Line's section of the origins of the Department of Public Safety and Correctional Services:

http://msa.maryland.gov/msa/mdmanual/22dpscs/html/dpscsf.html

"In 1922, the General Assembly made the State rather than the individual counties and Baltimore City responsible for carrying out the death penalty. The stated intention was to centralize capital punishment at the Maryland Penitentiary where convicted felons under sentence of death would be hanged. This removed execution from the county or city jails as the law then provided, thus relieving the counties from the mobs that frequented hangings (Chapter 465, Acts of 1922). The law applied to offenses committed on or after January 1, 1923. It further directed the Warden of the Maryland Penitentiary to provide and maintain a permanent death chamber within the confines of the Maryland Penitentiary, where the condemned was to be held in solitary confinement."

Diane Evartt

Nature has gotten in the way today of our being able to help with the research you requested on the substitute motion debate.

For the future, you might suggest to Legislative reference that they place the rules of the Senate on line, as Montana has. We will be placing an older version on line as soon as weather permits. I hope to have it up by Friday in our on-line reference section (mdgovpubs.net).

Under U. S. Senate rules and those of Montana, any legislator can offer a substitute motion for an unfavorable report on a bill from Committee (as I understand the rules) which means that your motion to adopt the bill rejected by committee would take precedence over the motion to adopt the committee report rejecting the bill. The form your motion takes is something I assume legislative reference has told you. I suspect the Senate Secretary or his office has the institutional memory with regard to how frequently the motion has been used and in what cases, but I do not have a quick answer to the question, as it is buried in the journals and proceedings of the Senate which are not yet on line.

I was hoping to be able to send on to you the Legislative Council's 1962 Ralph G. Murdy study and hearings (you may already have it). That was the basis of Governor Agnew's support of the abolition of the death penalty, and the source of Senator Mooney's amendment which the Committee rejected (the use of the death penalty only in the case of the murder of a prison guard). I assume Legislative Reference has a copy of the Murdy study and could get it to you today, if you do not already have it.

Hopefully we will be back in business tomorrow.

Ed Papenfuse

Senator Gladden's questions to us center on the use of the Substitute Motion in the past in the Maryland Senate, and any good material we might have to assist in the debate as to why the full Senate should not adopt the unfavorable report.

Thanks for sending on the Robert's Rules references, etc. It is amazing how little help the Legislative web site is with regard to procedure as well as searching the proceedings they do have on line.

Ed

Thank you. I appreciate your handling this this morning. Please leave a copy of what you faxed in my box (you probably have done so already).

I would like the whole report scanned and available off of ecpclio. Emily/Christine can handle this when they are next in. I also want the Lynching web site updated to refer to this study. You must have read my mind. Senator Gladden asked about how lynching could be worked into the debate and I we discussed how Sherril Ifel (misspelled) could probably help her quickly on the topic (I suspect you know that Lisa is a graduate of the U of Md Law School and former student of Larry Gibson with whom I teach the Race & the Law research seminar).

I assume that the ploy of a substitute motion is at the discretion of the chair (meaning the Senate President)? if not in the rules? That was one of her questions as well.

Ed

Diane Evartt was able to make it in to the Archives today and has sent on some reference material to you. Let us know if there is anything else we can do to be helpful.

{EDIT: Phone numbers removed for privacy} I will be teaching the Race and the Law seminar with Larry Gibson in the morning tomorrow at the U of Md. Law School . If you have not had a chance to talk with Professor Ifill, I could ask her to give you a call or touch base with her for you.

We have a web site devoted to lynching in Maryland:

Lynching website

, in case you need some statistics or specifics.

Ed

Scanning by Jill Ludlum

1962 Report of the Committee on Capital Punishment to the Legislative Council of Maryland

1) First 9 pages of report scanned, ocr'd, pdf created, uploaded and emailed to Ed, original placed in Ed's box on Leslie's desk, Jill Ludlum, 2009/03/02. These 9 pages were sent to Sen. Gladden on 03/02 by Diane E.

2) Full report scanned, ocr'd, pdf created and uploaded, cd burned and given to Ed, original returned to Diane's mailbox, Jill Ludlum, 2009/03/03.

I agree, but Senator Gladden referred specifically to a 'substitute motion' which Jefferson does address. She may have had it wrong, but I would like to know for sure, as her reference to Coolahan specific use of the substitute motion in ca. 1978 to reinstate the death penalty was intriguing. Was it accurate?

Ed

In 1978, HB 604 (later Chapter 3, Acts of 1978) reinstates death penalty in Maryland. Not finding evidence of Senator John C. Coolahan's maneuver in 1978 Senate Journals. Perhaps, on Tuesday, Research staff can check further?

Diane

I would like the Lynching web site to have a section on 'legal' hangings, if we don't have one already. The 1962 report on the death penalty has a fascinating introduction which needs to be incorporated into the site, quoted (checked of course) and cited. I would create a table 8 that would be simply titled "Legal Executions by Hanging In Maryland, 163x-1955''. The Department of Correctional Services and Public Safety has an excellent web site we can draw on and cite: DCSPS

Court Information Office
Angelita Plemmer, Court Information Officer
2009-D Commerce Park Drive
Annapolis, MD 21401
(410)260-1488
Fax: (410) 841-9850
e-mail: cio@mdcourts.gov

They were able to get a message to Judge Coolahan who called the Archives later that day. He provided the following information about his involvement in the submotion process as a Senator in the 1970s which was emailed to Sen. Gladden.

Judge Coolahan stated that in 1977-8 with respect to his substitute motion involving the lottery. Joe Curran was head of the committee that handled lottery issues. He said the Curran's committee killed the bill that he (Coolahan) was supporting. There were about to issue an unfavorable report, which meant that the bill would not get to the Senate floor.

At this point, Coolahan made a motion to Curran to move a substitute bill to the Senate floor in lieu of the unfavorable report. Coolahan said, because Curran was a gentleman, he granted the motion. He said that the substitute motion takes the cooperation of the committee chair. Due to Curran's cooperation, the substitute lottery bill made it to the floor, and there was a debate. Then there was a vote. If there was a positive vote, than the substitute bill remains on the floor and can move forward (rather than being killed by the unfavorable report). So, in addition to cooperation by the chair of the committee, it also takes the votes on the floor to move forward.

He said that there is another way, if you do not have the cooperation of the committee chair. You could force the bill to the floor by making a motion that the Senate President instruct the committee chair to substitute the bill forthwith. Coolahan said that the timing of "forthwith" could be a problem since it is open to interpretation.

Coolahan said that Joe Curran could also give us information from his perspective, if we needed more. He also said that it really is a very simple process if you have cooperation, because the rules really allow any motion. If you do not have cooperation, than you may need to resort to forcing things and that may have an impact on your reputation.

Additional note, not sent on to Sen. Gladden:

Ed, Per Leslie's request, to be clear, when I spoke to Judge Coolahan, he said "Lottery" was the issue that he brought a submotion about. He did not say anything about Death Penalty or Capital Punishment. Although, the information Christine found indicates it was about capital punishment.

I had said that we had received a request about the process of substitute motions, with respect to the current death penalty issue in the General Assembly. I did not give any names or indicate who/where the request was from. I told him that we were looking for more specific information than the Journals could supply about the process.

APC Staff picked up materials and Leslie scanned and uploaded them.