Joseph Lentol
Chair, Assembly Committee on Codes
Helene Weinstein
Chair, Assembly Committee on Judiciary
Jeffrion Aubry
Chair, Assembly Committee on Correction
April 3, 2005
The Death Penalty
In New York
A report on five public hearings on the death penalty in New York
conducted by the Assembly standing committees on Codes,
Judiciary and Correction, December 15, 2004 - February 11, 2005
i
Table of Contents
Page
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A Brief History of the Death Penalty in New York. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Issues Presented at the Public Hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
1. Traditional Rationales for the Death Penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
B. Deterrence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
C. Incapacitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2. Reliability of Capital Convictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3. Cost of the Death Penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
4. Aggravating Factors and the Scope of New York’s Death Penalty Law. . . . . . . . . . 31
5. Life Imprisonment Without the Possibility of Parole (LWOP). . . . . . . . . . . . . . . . 33
6. Mental Retardation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7. Mental Illness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8. Race and the Death Penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .38
9. Claims of Class and Socio-Economic Discrimination. . . . . . . . . . . . . . . . . . . . . . . .43
10. Prosecutorial Discretion and Geographic Inconsistencies. . . . . . . . . . . . . . . . . . . . .44
11. Competence and Effectiveness of Defense Counsel. . . . . . . . . . . . . . . . . . . . . . . .. .45
12. Religious-based Views. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
13. National and International Trends in the Use of the Death Penalty. . . . . . . . . . . . . 48
14. Prosecution, Jury Selection and the Capital Trial Process. . . . . . . . . . . . . . . . . . . . . 51
ii
Page
15. Appeals and Post-conviction Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
16. Conditions on New York’s Death Row. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
17. Execution Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
18. Proposed Legislative Amendments Addressing People v. LaValle. . . . . . . . . . . . . . 56
Appendix
1
Introduction
On June 24, 2004, in People v. LaValle, the New York Court of Appeals struck down the
required “deadlock” instruction provision of New York’s 1995 death penalty law, essentially
invalidating the operation of the death penalty in New York.
1
The Court left intact, however,
provisions of the law that authorized a sentence of life imprisonment without the possibility of
parole to be imposed upon any defendant convicted of first degree murder. The Court’s actions
in LaValle left the legislature with two possible options.
First, we could have acted quickly to:
• restore the death penalty;
• restore the death penalty in a modified form; or
• formally abolish capital punishment in New York, without any formal review of how the
law had worked during its nine year history.
We chose a second option. We decided that, rather than act quickly, we would act
deliberately. We decided to review New York’s death penalty statute in all of its dimensions and
solicit the widest range of views possible before considering which action to take, if any.
As the vehicle for that review, we scheduled a series of public hearings on the death
penalty by the three standing Assembly committees we chair, all of which have jurisdiction over
portions of the various statutes that together comprise New York's death penalty law. This report
summarizes the testimony presented at those hearings.
New York’s Current Death Penalty Law
New York’s current death penalty statute has had a troubled history. In the past ten
years, the state and local governments have spent over $170 million administering the law. Yet,
not a single person has been executed. Only seven persons have been sentenced to death. Of
these, the first four sentences to reach the Court of Appeals were struck down on various
grounds. One sentence was converted to a sentence of life imprisonment without the possibility
of parole after the LaValle
decision. Two sentences are awaiting review.
1
People v. LaValle, 3 NY 2d 88 (2004). Under the 1995 death penalty law, jurors in penalty phase
proceedings were given two sentencing options: death or life imprisonment without the possibility of parole. Jurors
were also told that, in the event the jury was unable to unanimously agree on a sentence, the court would sentence
the defendant to a maximum term of life and a minimum term of between 20 and 25 years incarceration. The
LaValle
court held that the possibility that a defendant could be paroled and released from prison after serving 20-25
years under the “deadlock” sentence created a substantial risk that jurors would be coerced into sentencing a
defendant to death to avoid the possibility that the defendant could someday be released from prison if a unanimous
verdict was not reached. See additional discussion under “A Brief History of the Death Penalty” below.
New York’s death penalty deadlock instruction, which is unique in the nation, was first proposed by
Governor Pataki in program legislation which was passed by the Senate prior to the final legislative agreement to
enact the death penalty in 1995 (See S. 2649 [1995]). The Governor’s deadlock instruction proposal was later
included in the final death penalty law enacted by the legislature on March 7, 1995.
2
Opponents of capital punishment have continued to strongly oppose the death penalty.
But death penalty proponents have been frustrated with the operation of the law as well.
Moreover, much has changed in the past ten years. Public attitudes about the death penalty have
evolved. The use of capital punishment in this country and throughout the world has changed.
A wave of exonerations of sentenced inmates, some through the use of newly analyzed DNA
evidence, has raised new concerns about wrongful convictions. In New York, the sentence of
life imprisonment without the possibility of parole has become widely applied in first degree
murder cases. That sentencing option did not exist in New York prior to 1995.
New York’s Death Penalty at a Crossroads
Today we have the opportunity to review whether the death penalty should be enacted not
only through the prism of our moral, ethical and legal beliefs, but with the benefit of the real-
world experience which the past nine years of practice in New York has given us.
When we originally scheduled two days of public hearings on the death penalty, we
expected a significant response. What we received was an outpouring of testimony and evidence
about the death penalty that was stunning in its breadth, intelligence and passion. Legal scholars
debated whether New York’s current statute comported with constitutional due process and
fundamental fairness. Religious leaders discussed the morality of capital punishment. Death
row inmates who had been exonerated, some after many years of imprisonment, described how
that experience had robbed them of years of their lives. Prosecutors testified both for and against
the death penalty, described their views on its deterrent effect and outlined their struggles with
New York’s unique statutory design.
Experts testified about whether there are racial disparities in the administration of capital
punishment in New York and around the country. And the family members of murder victims
shared their enduring grief and talked about whether the death penalty was the appropriate
response to the horrific crimes which had been perpetrated upon their families and loved ones.
After originally scheduling two days of hearings, it was necessary to add three more days
to accommodate the large number of persons who asked to testify. The hearings were conducted
between December 15, 2004 and February 11, 2005. Everyone who asked to testify at our
hearings was invited to do so. A hearing notice
2
included 22 specific questions to which
witnesses could direct their testimony. The hearing notice and accompanying publicity made
clear that the Committees were seeking testimony from a wide range of sources, representing all
views.
3
2
Attached in the appendix to this report.
3
The formal hearing notice, inviting the submission of testimony, was widely distributed to persons and
organizations that might be interested in providing testimony or further publicizing the hearings. Among those who
were sent hearing notices were the Governor and the commissioners or directors of all of the State’s criminal justice
agencies, the State Crime Victims Board, the Lieutenant Governor, Attorney General, Comptroller, New York’s two
United States Senators and all members of the Assembly, all of the State’s elected district attorneys, public
defenders, legal aid societies, assigned counsel plans and various law enforcement organizations such as the New
York State Association of Chiefs of Police and the New York State Sheriffs' Association. Notice of the hearing was
provided on the Assembly’s official website, through Assembly press releases and advisories, and through the
3
146 witnesses testified in person for over 35 hours of oral testimony; written submissions
were received by the Committees from 24 additional persons and groups.
The testimony of these 170 hearing witnesses fills more than 1,500 transcribed pages.
Written submissions received by the Committees exceed 2,500 pages.
Of the persons who presented oral or written testimony, 148 opposed the death penalty,
nine argued in favor of the death penalty, five argued in favor of the death penalty but suggested
specific changes in the statute (other than those necessary to address the LaValle
decision) and
eight did not express an explicit view for or against the death penalty.
The Report on the Hearings
This report is not an exhaustive summary of the hearing transcripts. It is also not a
comprehensive research study of the death penalty. It is not intended to present a position for or
against the death penalty. Rather, the report is intended to objectively highlight the issues and
controversies that were presented and discussed at these extraordinary public hearings.
The Committees invite interested parties considering this important policy question to
read the transcripts of these public hearings and the written materials submitted to the
Committees, as well as other relevant, published works concerning the death penalty in New
York and elsewhere.
We express our gratitude to all of the persons and organizations who presented testimony
at our hearings and would also like to thank the many members of our Committees who
participated. The following pages present the views of the individuals and organizations who
took the time to share with us their thoughts and deeply held beliefs about capital punishment.
Hearing these voices has helped us come to important new insights about the death penalty. We
hope reviewing the points these witnesses made will be equally illuminating for you.
Joseph R. Lentol,
Chair, Assembly Committee on Codes
Helene Weinstein,
Chair, Assembly Committee on Judiciary
Jeffrion Aubry,
Chair, Assembly Committee on Correction
“Public Hearing Calendar”, which was mailed to all members of the State Senate. Notice of the hearings and the
testimony presented was also widely publicized in the print and electronic media during the two months the hearings
were conducted.
4
Executive Summary
On June 24, 2004, the New York Court of Appeals, in People v. LaValle, struck down the
required deadlock instruction provision of New York's 1995 death penalty law, essentially
invalidating the operation of the death penalty in New York. The Court left intact, however,
provisions of New York law which authorize a sentence of life imprisonment without the
possibility of parole to be imposed on any defendant convicted of first degree murder.
The Assembly Committees on Codes, Judiciary and Correction subsequently commenced
a series of five public hearings to solicit the widest range of views possible on the death penalty
in order to determine what action to take, if any, with respect to the statute. The hearings were
conducted between December 15, 2004 and February 11, 2005. Every person who asked to
testify at the hearings was invited to do so.
The Committees received oral testimony from 146 witnesses and written testimony from
24 witnesses. Of the witnesses who presented oral or written testimony, 148 opposed the death
penalty, nine argued in favor of the death penalty, five argued in favor of the death penalty but
suggested specific changes in the statute (other than those necessary to address the LaValle
decision) and eight did not express an explicit view for or against the death penalty.
This report begins with an introduction which describes why we convened these hearings
and how they were conducted. The introduction is followed by this Executive Summary and a
brief section which traces the history of the death penalty in New York. The bulk of the report
then summarizes the testimony presented at the hearings, grouped by subject area.
The testimony presented at these public hearings was extraordinary in its breadth,
intelligence and passion. This report does not present a position for or against the death penalty.
Rather, it is intended to objectively highlight the issues and controversies that were presented
and discussed at the hearings. Those issues are briefly summarized below and discussed in much
greater depth in the body of this report.
Section 1. Retribution, Deterrence and Incapacitation
Arguments for the death penalty generally focus on one of three broad grounds:
• The death penalty is appropriate societal retribution against those who commit certain
intentional murders;
• The death penalty deters the commission of crimes subject to capital punishment; or
• The death penalty is necessary to ensure, by incapacitation, that persons who commit
capital crimes never do so again.
The Committees received testimony on each of these points.
5
A. Retribution
A large number of family members of murder victims testified regarding their views
about capital punishment. Many of these family members argued against the death penalty.
Among those who argued against the death penalty were Carolyn McCarthy, a Long Island
Congresswoman whose husband was killed and son seriously wounded in a 1993 attack on the
Long Island Railroad; Bruce and Janice Grieshaber, whose daughter Jenna's murder helped lead
to the enactment of "Jenna's Law", which, in 1998, barred the parole release of violent felons in
New York; and Pat Webdale, whose daughter Kendra was pushed to her death in front of a
Manhattan subway train and who subsequently advocated successfully for the enactment of New
York's Assisted Outpatient Treatment Law for persons with mental illness, known as "Kendra's
Law".
Kate Lowenstein, whose father, former Congressman Allard K. Lowenstein, was shot to
death by a mentally ill former student, spoke in opposition to the death penalty arguing that
"nothing we do to the killer will bring back our family member from being dead." Carole Lee
Brooks, whose son David was murdered at age 28, urged the Committees to "honor my son and
other victims of murder by acting with the highest regard of human life."
Several family members testified in favor of the death penalty, based on retributive
principles. Debra Jaeger, whose sister Jill was brutally beaten and later murdered in 1998 by her
estranged husband, asserted that the death penalty is needed as the ultimate penalty to punish
such horrific killings. Joan Truman-Smith passionately told of the painful loss of her daughter,
and her support for the execution of certain killers.
Jeff Frayler, on behalf of the New York State Association of Police Benevolent
Associations, recalled the murder of NYPD police detectives Patrick Rafferty and Robert Parker
in 2004, and said, "as the removal of capital punishment becomes more of a reality, [the killer's]
lethal actions will probably guarantee him permanent lodging, clean clothing, food and, more
importantly, his life". Professor Robert Blecker of New York Law School argued that the death
penalty is appropriate retribution in just proportion to the seriousness of the crimes it punishes.
B. Deterrence
The Committees heard conflicting views and studies about whether the death penalty is
an effective deterrent against murder. Professor Robert Blecker cited studies which he asserted
indicate that the death penalty is a more effective deterrent than life imprisonment without
parole. Sean Byrne from the New York State Prosecutors Training Institute and Michael
Palladino of the Detectives Endowment Association argued that the vast decline in murder rates
in New York since the enactment of the death penalty provides strong evidence that the death
penalty has deterred persons from committing murder.
Professor John Blume of Cornell University testified that the "overwhelming weight of
the scholarly research indicates that the death penalty does not deter persons from committing
murder." Jeffrey Fagan, a Professor of Law and Health at Columbia University, provided an
extensive analysis of death penalty deterrence studies and asserted that there is no reliable
6
evidence that the death penalty has deterred murder in New York. He asserted that, "Murder is a
complex and multiply-determined phenomenon."
C. Incapacitation
Witnesses offered conflicting views about whether the currently available sentence of life
imprisonment without the possibility of parole is sufficient to protect society from persons who
commit intentional murder. Some witnesses asserted that a sentence of life imprisonment
without the possibility of parole provides sufficient protection. Other witnesses argued that life
without parole laws could always be changed in the future and therefore did not offer as much
protection as the imposition of the death penalty.
Section 2: The Reliability of Capital Convictions
Barry Scheck, Co-Director of the Innocence Project at Cardozo Law School, testified that
since 1995, 153 people in the United States convicted of serious crimes, including 14 on death
row, have been exonerated by post-conviction DNA testing. Citing one study, he also asserted
that since 1989, 329 convicted persons have been exonerated nationwide. Stephen Saloom of the
Innocence Project testified that since 1973, 117 persons sentenced to death have had their capital
convictions overturned and been released from prison.
A number of persons who were convicted of murder but later exonerated or pardoned and
released testified before the Committees. Madison Hobley testified about his 16 years of
imprisonment and time on Illinois' death row before being released. John Restivo said that he
had been convicted of rape and murder in Nassau County and served 18 years in prison before
DNA testing showed that another man had committed the crime.
Richard J. Bartlett, a former Assembly member and Albany Law School Dean, said that
erroneous convictions are inevitable and, in a death penalty jurisdiction, sometimes cannot be
demonstrated until it is too late. A number of witnesses also suggested statutory changes that
could be made to New York's criminal laws which, they said, would reduce the likelihood of
wrongful convictions in the future.
Professor Robert Blecker, arguing in favor of the death penalty, acknowledged that an
innocent person may have been wrongly executed in recent years. But, he said, no instance of a
wrongful execution has ever been proven. Sean Byrne of the New York Prosecutors Training
Institute asserted that every defendant convicted under New York’s 1995 death penalty statute is
“indisputably guilty.”
7
Section 3: Cost of the Death Penalty
A number of witnesses testified about the high cost of the death penalty and asserted that
capital punishment is significantly more expensive than life imprisonment without the possibility
of parole (“LWOP”).
Among the testimony presented at the hearing:
• Richard Dieter of the Death Penalty Information Center said that a North Carolina study
concluded that it cost North Carolina $2.6 million more per case for each conviction that
resulted in a defendant's execution than for each similar case which did not.
• Mr. Dieter asserted that the cost of an execution in California is nearly $90 million.
• James Liebman, a Columbia Law School professor, predicted that reinstatement of the
death penalty would cost New York taxpayers about $500 million over the next twenty
years, with two or three executions during that time.
• Jonathan Gradess of the New York State Defenders Association said that New York has
spent, based on conservative estimates, $170 million in the past decade on death penalty
prosecutions. With seven death sentences imposed, the law has thus cost taxpayers
approximately $24 million per death sentence.
Professor Robert Blecker argued, alternatively, that analyses which indicate the death
penalty is a more expensive punishment than life imprisonment without parole fail to take into
account the savings the death penalty generates because of crimes deterred. He also argued that
these analyses fail to consider that guilty defendants in death penalty jurisdictions will often
plead guilty, avoiding trial and appellate costs, rather than risk execution.
Sections 4 and 5: Aggravating Factors and Life Without Parole
New York’s death penalty law allows prosecutors to seek capital punishment when one
of twelve statutory aggravating factors is present. Some witnesses suggested specific ways in
which this list of aggravating factors should be expanded. Other witnesses argued the list should
be reduced.
Most presenters supported the continued availability of life imprisonment without the
possibility of parole as a sentencing option in New York. Several witnesses contended that
LWOP is a sufficient penalty for the worst offenders. Some also argued that LWOP is a more
severe sanction than execution.
8
Sections 6: Mental Retardation
A recent U.S. Supreme Court decision bars the execution of persons with mental
retardation. New York’s death penalty law permits such executions, but only when the
defendant was a jail or prison inmate, the victim was an employee of the jail or prison engaged in
official duties, and the defendant knew or reasonably should have known that the person was so
employed. Witnesses who commented on this question concluded that, in view of the Supreme
Court’s ruling, a New York defendant found to be mentally retarded under these circumstances
could not be executed for this crime, even if the death penalty were reinstated in New York.
Section 7: Mental Illness
Ron Honberg of the National Alliance for the Mentally Ill estimated that 20 percent of
persons sentenced to death in the United States have a serious mental illness. Professor John
Blume of Cornell University testified that severe mental illness can make a defendant appear to
be more dangerous. Mr. Honberg testified that in New York, as in most other states with death
penalty laws, mental illness is a statutory mitigating factor which the jury is directed to consider
when deciding whether or not to impose the death penalty. However, Mr. Honberg said, there is
a growing view among experts that juries inappropriately consider mental illness as an
aggravating rather than mitigating factor in capital cases. Mr. Honberg cited studies which he
said indicate that capital defendants with serious mental illness are more likely to be sentenced to
death than non-mentally ill capital defendants.
Sections 8 and 9: Race and Socio-Economic Issues
Several witnesses asserted that there is evidence of racial discrimination in the use of the
death penalty. They contended that in death eligible cases, death sentences are
disproportionately imposed on black defendants.
A number of witnesses also presented detailed statistical evidence from New York and
other states indicating that murder cases in which the victim was white are significantly more
likely to result in death sentences than murder cases in which the victim was black. Among the
evidence presented on this point:
• Attorney George Kendall said a 1990 United States General Accounting Office Study
evaluating 28 race-and-the-death penalty studies found that, in 82 percent of the studies,
the victim's race was a significant factor in determining whether a death sentence was
imposed.
• Mr. Kendall cited a later study by Professors Baldus and Woodworth of three-fourths of
the states with death sentenced defendants. In this study, he said, Professors Baldus and
Woodworth found a similar correlation between victim race and the imposition of the
death penalty in 93 percent of these states. In cases in which the victim was white, the
defendant was much more likely to be sentenced to death than in cases in which the
victim was non-white.
9
• Professor David Baldus of the University of Iowa found that of the seven defendants
sentenced to death in New York, white victim cases outnumbered non-white victim cases
by a 2 to 1 margin (62 percent vs. 29 percent).
Professor Robert Blecker argued that to the extent white victim cases were treated as
capital crimes more often than black victim crimes, the reason had nothing to do with racism.
Rather, he argued, it arises from the fact that prosecutors in suburban counties seek capital
punishment more frequently than prosecutors in urban counties. "Capital murders are more
frequently of white victims in suburban counties [and] more frequently of minority victims in
urban counties," he said. Professor Blecker also maintained that this disparity arises in part from
the fact that suburban counties have greater financial resources with which to prosecute capital
crimes.
Several witnesses opposed to capital punishment claimed the death penalty is used
disproportionately against poor and working-class persons. As a result of economic
disadvantage, these witnesses said, these defendants are unable to retain qualified legal counsel
and expert testimony. Other witnesses asserted that New York has provided skilled teams of
counsel at the trial level and on direct appeal, as well as expert assistance at the trial phase.
Section 10: Prosecutorial Discretion; Geographic Inconsistencies
Prosecutors have broad discretion to designate who among those prosecuted for murder
will be exposed to a possible death sentence. Several witnesses expressed concern about this
broad discretion, and that it may be exercised in ways that reflect racial or class bias. Other
witnesses asserted that New York prosecutors and juries have shown appropriate restraint and
have made relatively limited use of the 1995 death penalty law.
A few witnesses expressed concern about geographic inconsistencies in the use of the
death penalty. Statistics offered showed that the death sentence has been sought most frequently
in Kings, Queens and Monroe counties. To some witnesses, it was illogical that for identical
crimes committed under similar circumstances, the prosecutor in one New York county may seek
a death sentence, while the prosecutor in an adjoining New York county does not. Other
witnesses identified this as an appropriate matter for the exercise of discretion by locally-elected
prosecutors.
Sections 12 and 13: Religious-based Views; National and International Use of the Death
Penalty
Religious leaders and other persons of faith who offered testimony overwhelmingly
opposed capital punishment. One religious organization strongly favored the death penalty.
Thirty-eight states have enacted the death penalty. The death penalty has been essentially
halted by court rulings in two states: Kansas and New York. Twelve states and the District of
Columbia do not authorize the death penalty. The states with the most executions since 1976 are
Texas (340), Virginia (94) and Oklahoma (76). Thirteen people believed to be innocent were
10
recently released from death row in Illinois; that state currently has a moratorium on the use of
the death penalty.
Dr. William Schulz, of Amnesty International USA, said the United States is one of the
few industrialized nations that retain the death penalty. Frequently, he said, countries that are
moving toward democracy abolish the death penalty. He said that China, Iran, Vietnam and the
United States account for 84 percent of judicial executions worldwide. Sean Byrne of the
Prosecutors Training Institute noted, however, that the largest democracy in the world (India),
the most populated country in the world (China) and the largest country geographically (Russia)
all allow capital punishment.
Sections 11, 14 and 15: Trials, Appeals and Post-Conviction Proceedings
Witnesses said that New York’s Capital Defender Office and other organizations have
helped provide effective defense representation in New York. Some witnesses urged that New
York law be amended to ensure that two or more lawyers are appointed for all post-conviction
stages, through consideration of executive clemency and up to execution.
A few witnesses urged that discovery laws be changed to ensure greater disclosure and
earlier access by the defense to evidence and witness statements, in advance of capital trials.
Several witnesses opposed current laws that allow prosecutors to strike jurors who are firmly
opposed to capital punishment from both the guilt/innocence and sentencing phases of capital
trials.
Professor William Bowers of the Capital Jury Project at Northeastern University
submitted a study he authored with Professor Wanda Foglia concerning the sentencing behavior
of capital juries. Based on his study, Bowers asserted that capital juries make premature
sentencing decisions at the guilt phase of capital trials (before penalty phase evidence is
presented), incorrectly believe they must impose a death sentence if certain aggravating factors
are present and wrongly believe they are not responsible for the ultimate sentencing decision.
Schenectady County District Attorney Robert Carney expressed concern that appellate
courts have used strained legal reasoning to reverse death sentences. This, he said, has the
potential to negatively impact appellate precedent and the fair adjudication of non-capital cases.
He supports capital punishment, but for pragmatic reasons, urged the Legislature not to restore it
in New York.
Sections 16 and 17: Death Row and the Execution Process
New York’s death row is located at the Clinton Correctional Facility. Two witnesses
testified about what they said were unduly severe conditions at the facility. Several witnesses,
including David Kaczynski, the brother of convicted "Unabomber" Ted Kaczynski and Robert
Meeropol, the son of Julius and Ethel Rosenberg, who were executed for conspiracy to commit
espionage in 1953, testified about the impact which execution or the potential for execution has
on the close family members of persons subject to the death penalty.
11
Mr. Byrne of the Prosecutors Training Institute countered that conditions on New York's
death row are neither substandard nor inappropriate and that death row inmates in New York live
in a "humane environment" accredited by the American Correctional Association.
Section 18: Proposed Legislative Amendments to the Death Penalty Law
Sean Byrne of the New York Prosecutors Training Institute supports legislation to
immediately address the Court of Appeals ruling in LaValle and restore the death penalty.
The State Senate has passed a Governor’s Program Bill designed to address the LaValle
ruling. The bill would require that capital case penalty phase jurors deliberate on three options: a
death sentence, LWOP or a life sentence with parole consideration after between 20 to 25 years
of imprisonment. Under the bill, if the jurors failed to reach unanimous agreement on one of
these sentencing options, the judge would sentence the defendant to LWOP. The jury would be
told, prior to penalty-phase deliberations, that in the event of a deadlock, the sentence would be
LWOP.
The Governor’s Program Bill would apply these same rules retroactively to crimes
committed before enactment of the new law. As a result, the deadlock sentence for past crimes
would be elevated from 20-25 years to life, to LWOP. Sean Byrne and Professor Blecker
asserted that this change would not violate the ex post facto clause of the United States
Constitution. Other witnesses asserted that the Governor's program bill would be vulnerable to a
constitutional challenge on ex post facto or other grounds.
12
A Brief History of the Death Penalty in New York
The existence of the death penalty in New York dates to the Colonial period.
4
During
that time, many crimes were punishable by death. In the late 1700's and early 1800's, the number
of crimes for which a defendant was eligible for the death penalty was reduced to murder,
treason and arson of an occupied dwelling.
5
In the mid-1800's, murder was divided into two
categories or degrees, with only the first-degree crime punishable by the death penalty.
A 1937 amendment made the death penalty mandatory for first degree murder, unless the
jury recommended life imprisonment.
6
Legislation enacted in 1963 reversed the sentencing
language so that murder in the first degree was punishable by life imprisonment, unless the jury
recommended a death sentence.
7
In addition, under the 1963 revision, if the defendant was under
eighteen at the time the crime was committed or if the sentence of death was not warranted
because of substantial mitigating circumstances, the court was required to discharge the jury and
sentence the defendant to life imprisonment.
8
Also of procedural importance, the amended 1963
law bifurcated the fact-finding and sentencing phases of trial to require a separate proceeding to
determine whether the defendant should be sentenced to life imprisonment or to death (assuming
the court had not already sentenced the defendant to life imprisonment as a matter of law).
9
In 1965, legislation was enacted to limit the death penalty to murder in the first degree
when the victim was a peace officer
10
performing his or her official duties, when the defendant
was serving a life sentence at the time the crime was committed, if the crime was committed
when the defendant was serving an indeterminate sentence of at least fifteen years to life, or if
the defendant was in immediate flight from penal custody or confinement when the crime was
committed.
11
The 1965 law expressly prohibited the death penalty for persons under the age of
eighteen when the crime was committed and also did not impose the death penalty when
substantial mitigating circumstances existed.
12
In 1967, the death penalty law was amended to include intentional murder, depraved
indifference to human life murder and felony murder, and made a defendant convicted of such
crimes eligible for the death penalty if either: (A) the victim was a peace officer killed while
performing his official duties, or (B) the defendant was confined to a state prison for a term of
life or an indeterminate term of at least fifteen years, or in immediate flight after escape from
such custody when the crime was committed. The death penalty was only available in such
cases if the defendant was more than eighteen years old at the time of the commission of the
4
STATE OF N.Y. TEMPORARY COMMISSION ON REVISION OF THE PENAL LAW AND CRIMINAL CODE,
SPECIAL REPORT ON CAPITAL PUNISHMENT, March 19, 1965, at 81 (hereinafter referred to as the “1965 report”).
5
Donnino, PRACTICE COMMENTARIES, N.Y. PENAL LAW § 125.27, McKinney’s Consolidated Laws of
New York (1998) at 381-82 (quoting 1965 Report).
6
N.Y. Sess. Laws 1937, ch. 67.
7
N.Y. Sess. Laws 1963, ch. 994.
8
Id.
9
Id.
10
The statutory definition of a "peace officer" under New York law has been significantly modified since
the 1960's.
11
N.Y. Sess. Laws 1965, ch. 321.
12
Id.
13
crime and there were no substantial mitigating circumstances that rendered a sentence of death
unwarranted.
13
In 1968, the act of recklessly engaging in conduct evincing a depraved
indifference to human life that results in the killing of another was removed from the list of death
eligible crimes.
14
And, in 1971, the legislature added the killing of an employee of a local jail,
penitentiary or correctional institution performing his official duties to the list of crimes eligible
for the death penalty.
15
In 1972, the United States Supreme Court in Furman v. Georgia
16
invalidated Georgia's
death penalty law. In a one-page per curiam opinion, followed by several concurrences, the
court held that the imposition of the death penalty in the three cases before it constituted cruel
and unusual punishment in violation of the Constitution. In concurring opinions, Justices
Brennan and Marshall argued that the death penalty was unconstitutional in all instances; other
concurrences focused on the arbitrary nature with which death sentences had been imposed and
some concurrences found that the death penalty had been imposed with unlawful racial bias
against black defendants.
17
In response to Furman, states enacted revised legislation tailored to satisfy constitutional
concerns regarding the arbitrary imposition of capital punishment. These laws were of two
major types. The first type provided for a mandatory death penalty for specified crimes and
allowed for no judicial or jury discretion beyond the determination of guilt. Statutes of this kind
were declared unconstitutional by the Supreme Court in Woodson v. North Carolina
18
and
Roberts v. Louisiana.
19
The second type provided for “guided discretion” in sentencing, and statutes of this
nature were upheld by the Supreme Court in three related cases: Gregg v. Georgia;
20
Jurek v.
Texas;
21
and Proffitt v. Florida.
22
The Georgia, Texas, and Florida statutes validated by the
Supreme Court allowed the sentencing court discretion in imposing death sentences for specified
crimes and provided for bifurcated trial phases, where the first stage would determine the
defendant’s guilt or innocence and the second stage would determine the defendant's sentence,
after considering aggravating and mitigating factors. In 1978, the Supreme Court further
articulated the constitutional requirements of sentencing by stating that a sentencing authority in
a capital case must consider every possible mitigating factor to the crime.
23
Because the Furman decision declared unconstitutional various death penalty statutes, but
not the punishment itself, on “cruel and unusual” punishment grounds, an effort was made in
13
N.Y. Sess. Laws 1967, ch. 791.
14
N.Y. Sess. Laws 1968, ch. 949.
15
N.Y. Sess. Laws 1971, ch. 1205.
16
Furman v. Georgia, 408 U.S. 238 (1972).
17
Id.
18
Woodson v. North Carolina, 428 U.S. 280 (1976).
19
Roberts v. Louisiana, 428 U.S. 325 (1976).
20
Gregg v. Georgia, 428 U.S. 153 (1976).
21
Jurek v. Texas, 428 U.S. 262 (1976).
22
Proffitt v. Florida, 428 U.S. 242 (1976).
23
Lockett v. Ohio, 438 U.S. 586 (1978).
14
New York, as in many other states, to enact a new death penalty statute that would comply with
Furman and the Supreme Court's later death penalty holdings.
Beginning in 1975, legislation to restore capital punishment was passed over a period of
twenty years by the legislature, but vetoed by Governors Carey (1975-82) and Cuomo (1983-94).
None of the vetoes were overridden by the legislature. In 1995, the legislature passed a newly
revised and expanded death penalty statute which was signed into law by Governor Pataki.
24
As
amended through 2004, the law authorized the death penalty for thirteen categories of intentional
murder, including murders committed in furtherance of other crimes like robbery, rape or
burglary.
The 1995 Death Penalty Law
Since New York's most recent death penalty law was enacted on September 1, 1995, as
noted earlier, seven persons have been sentenced to death in New York. The sentences of
Darrell Harris, Angel Mateo and James Cahill were reversed after separate appeals to the New
York Court of Appeals.
25
Appeals by two death row inmates, John Taylor and Robert Shulman,
are now pending before the New York Court of Appeals.
On June 24, 2004, the Court of Appeals declared New York’s death penalty statute
unconstitutional in People v. LaValle.
26
Stephen LaValle had been convicted of the brutal rape,
stabbing and murder of Cynthia Quinn in the village of Yaphank, in Suffolk County. Following
the Court's holding in LaValle, the defendant was sentenced to a term of life imprisonment
without the possibility of parole.
The constitutional flaw identified by the Court in LaValle arises in the penalty phase of a
capital trial. Under New York law, if the jury is unable to unanimously decide between the two
sentencing options presented, death or life imprisonment without parole, then the jury must be
told that the judge will sentence the defendant to a third, less severe sentence that the jury may
not select: life imprisonment with a possibility of parole after between twenty and twenty-five
years of imprisonment.
27
By a 5-4 vote, the Court of Appeals in LaValle
found that this “deadlock” instruction
violated due process under the New York State Constitution.
28
The court ruled that the
instruction created an unacceptable risk that jurors favoring life without parole would be induced
to vote for execution, out of concern that the failure to reach unanimous agreement would result
in a third, unacceptable outcome: life with
a possibility of the defendant’s release on parole after
twenty or twenty-five years.
24
N.Y. Sess. Laws 1995, ch. 1.
25
See People v. Harris, 98 N.Y.2d 452 (2002); People v. Mateo, 2 N.Y.3d 383 (2004); People v. Cahill, 2
N.Y.3d 14 (2003).
26
People v. LaValle, 3 N.Y.3d 88 (2004).
27
N.Y. CRIM. PROC. LAW 400.27 (10).
28
See LaValle supra at 128.
15
Additionally, the court ruled that it could not cure the statute by forbidding or eliminating
this instruction because, in a capital case, as a matter of state constitutional due process, a
penalty phase jury must be instructed as to the consequences of a deadlock. An instruction is
required, the court ruled, because a failure to instruct under these circumstances could lead to
inappropriate speculation by the jury that, absent unanimous agreement, the defendant could be
released, and possibly endanger the community.
29
ISSUES PRESENTED AT THE PUBLIC HEARINGS
1. Traditional Rationales for the Death Penalty: Retribution, Deterrence and
Incapacitation
Arguments in favor of the death penalty generally focus on one of three broad grounds:
• The death penalty is an appropriate exercise of societal retribution against those
who commit certain intentional murders;
• The death penalty deters the commission of crimes subject to capital punishment;
or,
• The death penalty is necessary to ensure, through incapacitation, that persons who
commit such crimes will never do so again.
During the public hearings, the Committees received testimony on each of these points.
A. Retribution
Professor Robert Blecker of New York Law School argued in favor of the death penalty
based on retributive principles. Retribution, Professor Blecker testified, means just punishment
in the form of pain and suffering proportional to the seriousness of the crime. Proportional
application of the death penalty must address the seriousness of the crime and the moral
character of the defendant. The nature of murder and the victim’s suffering invoke a profound
emotional response from society, he said, that justifies society’s application of the death penalty
as retribution.
“Do not confuse retribution with revenge,” Professor Blecker said. “Revenge can be
limitless and misdirected or collectively applied to many who don’t deserve it; retribution is
limited, proportionate and directed only at the morally culpable actor.”
Many witnesses appearing before the Committees expressed understanding and sympathy
for retributive thoughts among survivors of murder victims, but argued that, in the end, execution
of the killer does not take away the pain family members experience. Bud Welch, who lost a
29
Id; It should be noted that in one of the two cases now on appeal to the Court of Appeals, People v.
Taylor, the prosecution argues that the specific instruction given by the trial court to the jury in that case avoided
any coercive effect and therefore should result in the defendant’s death sentence being upheld, notwithstanding the
LaValle
holding.
16
daughter in the 1995 Oklahoma City bombing, opposes the death penalty, in part because it
provides no closure to family members of crime victims. In fact, Mr. Welch testified, the death
penalty causes more pain and loss because it results in an additional killing.
The Committees heard similar sentiments expressed by Patricia Perry, who lost her police
officer son, John William Perry, in the September 11, 2001 World Trade Center attack. S. Jean
Smith and Sister Camille D’Arienzo also opposed the death penalty on these grounds.
A report from the League of Women Voters stated that when a family member is lost to
murder, the healing process for some in the family includes recognition that executing the killer
will not bring the loved one back. For some survivors, the report said, the death penalty brings
closure while for others, it prolongs grief.
Kate Lowenstein and Bill Pelke who lost, respectively, a father and grandmother to
murder, told Committee members that government efforts and resources used to exact vengeance
against murderers should instead be used to help the people who live in the aftermath of these
tragedies.
Kate Lowenstein’s father was Allard K. Lowenstein, a former United States
Representative from New York's Fifth Congressional district. Congressman Lowenstein was
shot to death in his office by a mentally ill former student. Ms. Lowenstein spoke of the range of
emotions she experienced after this devastating loss:
We have all been filled with a consuming anger and horror and fury at the killer.
We want the murderer caught and punished. I know the rage and sense of justice
that lead people to support the death penalty. I also know, from working with
murder victim family members for the past four years, that what victim's families
need is help to heal and learn how to live with a mangled heart. They need
support and counseling. We need the killer to be caught and brought to justice.
We do not need an execution.
...Those of us who have gone through it are forced to realize, maybe slowly, but
inevitably that nothing we do to the killer will bring back our family member
from being dead. The state offers victims the death penalty as if it is some kind of
scale they can use to correct the loss, but you can't, and in the process of trying,
we buy into a system that we all know by now, does no honor to the victims or to
our society.
In a statement, Carolyn McCarthy, the U.S. Representative for the Fourth Congressional
District in Nassau County, expressed opposition to the death penalty. Representative
McCarthy’s husband was murdered on a Long Island Railroad train in 1993; her son was
seriously wounded in the same attack.
Carole Lee Brooks, whose son David was murdered at age 28, also testified against the
death penalty. Ms. Brooks appeared as a representative of “Parents of Murdered Children,” and
noted that there is a national organization, “Murder Victim [Families] for Reconciliation.” She
17
urged the Committees to “honor my son and other victims of murder by acting with the highest
regard of human life.”
Janice and Bruce Grieshaber lost their daughter Jenna to murder several years ago. In
1998, their efforts in the State Legislature helped lead to the enactment of “Jenna’s Law”, which
eliminated parole release for first time violent felons. The Grieshabers support life imprisonment
without the possibility of parole, but oppose capital punishment.
Pat Webdale, whose daughter Kendra was pushed to her death in front of a Manhattan
subway train, testified against capital punishment. Ms. Webdale’s advocacy led to the enactment
of New York’s Assisted Outpatient Treatment law for persons with mental illness, known as
“Kendra’s Law”.
Marguerite Marsh’s daughter Cathy, was murdered more than seven years ago. She died
before her thirtieth birthday. The perpetrator of this crime was sentenced to life imprisonment
without the possibility of parole under the 1995 New York law. Ms. Marsh is "satisfied" with
the sentence. Ms. Marsh said she is “grateful that I will not have to bear the pain of going
through appeal after appeal, and Cathy’s two little daughters will not have to grow up subjected
to accounts of their mother’s murder over and over again in the newspapers and on TV.”
Other victims’ survivors told Committee members that the death penalty is necessary
because otherwise the killer – unlike their family members – can continue to breathe and
experience life.
Joan Truman-Smith, whose daughter was murdered in the 2000 “Wendy’s Massacre” in
Queens, New York, told Committee members that nothing short of the death penalty is needed to
ensure that justice is served:
Until it’s at your door, you are [not] going to feel the same thing I am saying . . .
Think of the crime these people committed and if the evidence fit[s] … kill them.
Debra Jaeger, whose sister Jill Cahill was murdered by her estranged husband in 1998,
testified for herself and her brother David. Debra Jaeger told Committee members she believes
the death penalty is needed as the ultimate penalty to punish such horrific crimes.
Sean Byrne of the NY Prosecutors Training Institute argued that the death penalty is
appropriate retribution for the most violent crimes. Jeff Frayler, on behalf of the NYS
Association of Police Benevolent Associations, agreed:
Just look at the faces of [three children], who, on September 10, 2004 had their
lives forever altered when their father, Detective Patrick Rafferty, along with his
patrol partner, Detective Robert Parker, was senselessly gunned down on a
Brooklyn Street by Marlon Legere, who had previously served time on three
separate occasions for other criminal activities. Legere, who was no stranger to
the criminal justice system, committed these ruthless murders while two of New
York’s finest were faithfully carrying out their public duties.
18
Unfortunately, as the removal of capital punishment becomes more of a reality,
his lethal actions will probably guarantee him permanent lodging, clean clothing,
food and, more importantly, his life.
Richard Harcrow of the New York State Correctional Officers and Police Benevolent
Association asked, “Why should the felon who kills a dedicated law enforcement professional be
comforted into thinking that they will not suffer the ultimate penalty for this crime?” Mr.
Harcrow believes capital punishment is necessary so that, when a law enforcement official is
killed in the course of his or her sworn duties, surviving family members will know that the
death of their loved one “was not in vain.”
A few death penalty opponents warned that calls for retribution can turn to vengeance
and a frenzy misdirected against innocent persons. Lawyer Myron Beldock represented Yusef
Salaam who, along with hearing witness Karey Wise, was convicted but later freed in the rape
and brutal beating of the “Central Park Jogger.” Beldock told Committee members that in some
instances, the “court” of public opinion condemns suspects even before any prosecution begins.
Former New York City Public Advocate Mark Green expressed similar concerns about
pretrial publicity. And to those who support the death penalty based on retributivist principles,
Green asked rhetorically, “If someone tortured a victim, should the state then comparably torture
the defendant?”
B. Deterrence
Testimony received by the Committees indicates that there are conflicting views and
studies on whether or not the death penalty is an effective deterrent against murder. Some
witnesses also addressed the question of whether, if the death penalty does deter, it deters more
effectively than life imprisonment without the possibility of parole.
New York County District Attorney Robert Morgenthau noted that for punishment to
serve as an effective deterrent, it must be “prompt and certain.” The death penalty, he said, “is
neither". District Attorney Morgenthau urged the Legislature not to reinstate capital
punishment.
Professor John Blume of Cornell University Law School testified that the “overwhelming
weight of the scholarly research indicates that the death penalty does not deter persons from
committing murder." He also noted that:
• Cornell University research indicates that states which have abolished capital punishment
“by and large have lower murder rates than states that retain capital punishment”;
• The deadliest and most notorious serial killers, such as Ted Bundy, Donald Gaskins, John
Gacey and Ailleen Wornos, committed their crimes in states with active death penalties.
“The threat of capital punishment, in short, was no deterrent to them”; and
19
• Professor Blume’s study of death row “volunteers” revealed that some individuals
committed their crimes “for the purpose of being apprehended and sentenced to death.”
Essentially, Professor Blume said, these persons committed their crimes in a death
penalty jurisdiction “as a form of suicide.”
Professor Sam Donnelly of Syracuse University Law School noted that an increased
police presence and new programs prosecuting gang members under organized crime laws have
reduced murder rates in some upstate cities. Crime rates have been dropping in New York City
since the early 1990s, and Professor Donnelly attributes this to community policing and
improved crime control measures. He testified that, “Capital punishment is a distraction from
the measures that can most effectively control murder and other crimes.”
Raymond A. Kelly, Jr. of the New York State Association of Criminal Defense Lawyers
is an experienced criminal defense attorney. He is convinced, based on his experience
representing many persons charged with homicide, that the death penalty is not a deterrent.
Most murders, he argued, result from non-premeditated events that develop from competition
between criminals over turf.
Most of the accused killers he has represented, Mr. Kelly said, did not believe they would
be caught, and so would not have been deterred by harsher penalties. Once arrested, Mr. Kelly
testified, many defendants he has represented would prefer a death sentence to life imprisonment
without parole.
In separate testimony, Russell Neufeld agreed, based on twenty-five years representing
criminal defendants, that in the overwhelming majority of homicide cases the killing was an
unplanned, irrational act. These killings, he said, would not have been deterred if a death penalty
were in place.
Sean Byrne of the New York Prosecutors Training Institute called the debate over
whether the death penalty deters “diversionary and over emphasized.” “Nonetheless,” he noted
several studies that, he said, “prove that capital punishment has a deterrent effect.” Mr. Byrne
acknowledged that there are studies that reached the opposite view, but cited one study that, he
said, shows that the death penalty “deters as many as 14 homicides for each person executed.”
Murders in New York declined, Mr. Byrne said, from 1,980 in 1994 to 923 in 2003, rates
not seen since the 1960’s.
30
“To turn the prove-a-negative deterrence argument around,” he said,
“death penalty opponents cannot prove that the re-enactment of the death penalty did not
contribute to the rapid decline in murders in New York.”
Similarly, Professor Robert Blecker of New York Law School believes the death penalty
deters some murders. In his written testimony, Professor Blecker cited several published articles
which, he said, indicate the death penalty deters “most effectively.” “Those studies,” he said,
“have their critics among the abolitionists – but on balance, the informed best guess is that a real
death penalty operates as a marginally more effective deterrent than [life without parole].”
30
The rate spiked higher in 2001 due to the World Trade Center attack on September 11.
20
Professor Blecker told the Committees that he has interviewed hundreds of prisoners over
thousands of hours. On one occasion, he said, he learned that persons living near the nation’s
capital sometimes killed in Washington D.C., but not in Maryland or Virginia, because they were
aware that Washington D.C., unlike Maryland or Virginia, did not have capital punishment.
Professor Jeffrey Fagan, a Professor of Law and Health at Columbia University has
studied capital punishment in the U.S. and homicide rates in American cities “over the past three
decades.” New studies claiming that executions reduce murders, Professor Fagan wrote to the
Committees, “are fraught with technical and conceptual errors: inappropriate methods of
statistical analysis, failures to consider all the relevant factors that drive up murder rates, missing
data on key variables in key states, the tyranny of a few outlier states and years, and the absence
of any direct test of deterrence". He added:
[C]areful analysis of the experience in New York State compared to others,
lead[s] to a rejection of the idea that either death sentences or executions deter
murder.
According to Professor Fagan, a published 1975 study by Professor Isaac Ehrlich claimed
that executions in the 1950’s and 1960’s prevented approximately eight murders. Professor
Ehrlich’s study, Professor Fagan said, was noted in Gregg v. Georgia and is cited frequently by
death penalty proponents. However, Professor Fagan claimed Professor Ehrlich’s findings
were disputed by articles published, for example, in the Yale Law Journal and by an expert panel
appointed by the National Academy of Sciences. There have been several attempts to replicate
Professor Erhlich’s study without success, Professor Fagan said.
Since 1995, Professor Fagan testified, there have been approximately a dozen studies that
claim the death penalty acts as a deterrent. Professor Fagan said there are serious scientific flaws
in these studies. According to Professor Fagan, all but one of these studies groups all types of
murder in the same category. The claim is that regardless of motivation, the threat of the death
penalty would be an equally effective deterrent. This logic, Professor Fagan said, fails when
dealing with crimes of passion or jealousy.
According to Professor Fagan, many of the studies produce contradictory results. One
study, he said, found that in some states it appears executions are as likely to produce an increase
in homicides following an execution, as they are to produce a reduction in homicides. In
addition, some states show an increase in homicides, or a “brutalization” effect, following an
execution but at other times, a correlation to a deterrent effect is seen.
Professor Fagan asserted that there is no direct test of deterrence in any of these studies.
The studies, Professor Fagan said, do not show that defendants are aware of the status of the
death penalty in the state in which they are accused of committing the crime. The studies also do
not show that defendants rationally decide to forego homicide and use less lethal forms of
violence.
Professor Fagan said the research performed by Professor Berk shows that the proven
deterrent effect of executions, if any, are confined to the state of Texas. This, he said, is shown
21
only during years in which there were more than five executions per year. Most states never
reach these levels of executions per year. According to Professor Fagan, Professor Berk’s
research shows that when Texas is excluded, there is no evidence of a deterrent relationship
between executions and homicides.
Professor Fagan asserted that recent deterrence studies fail to account for whether any of
the presumed deterrent effect of the death penalty may be due to the much more frequently
imposed sentence of life imprisonment without parole applicable in the jurisdictions studied.
Professor Fagan said:
Murder is a complex and multiply-determined phenomenon . . . . [T]here is no
reliable, scientifically sound evidence that execution can exert an effect that either
acts separately and sufficiently powerfully to overwhelm . . . these patterns.
Michael Palladino of the Detectives Endowment Association argued that the death
penalty deters crime, even though it is difficult to prove that proposition by statistical methods:
From my experience, I believe capital punishment is most definitely a deterrent.
The problem is the difficulty in tracking or accurately measuring that statistic.
However, what can be tracked is the crime and murder statistics when the death
penalty is in favor. When capital punishment is law, the murder rate is lower.
Mr. Palladino described a surge of crime and murder in New York City beginning in the
1970s, through the 1980s and into the 1990s. He contends that with enactment of the death
penalty, “the crime and murder rates began to quickly and steadily decline to rates not seen
since the “good old days of the 60s.” “The common denominator,” he said, “linking those two
lowest crime periods is capital punishment as a deterrent.”
C. Incapacitation
Incapacitation is also a frequently-cited basis for the application the death penalty.
Death penalty supporters argued to the Committees that capital punishment protects potential
victims against future violence because, for example, there may not be perfect certainty that a
sentence of life imprisonment without parole will be upheld for the duration of the prisoner’s
life. The death penalty, these supporters asserted, incapacitates the most egregious offenders and
effectively removes the potential for them to harm anyone again.
Professor Blecker also advanced the view of some capital punishment supporters that
prisons provide particularly insidious offenders with the further opportunity to murder innocent
people.
Opponents of capital punishment argued to the Committees that persons sentenced to life
imprisonment without parole are denied the opportunity to return to society, and so life without
the possibility of parole (“LWOP”) is sufficient protection for the public. Citing a recent study
22
by her organization, Kathryn Kase of the Texas Defender Service argued that predictions about
who among convicted persons will be dangerous in the future are often wildly imprecise.
31
Others argued there is no solid assurance that a life-without-parole sentence will never be
changed or modified. Monroe County District Attorney Michael Green noted the case of a
Monroe County man sentenced for rape and murder in the early 1960's. The man pled guilty to
avoid the death penalty and was, D.A. Green claimed, sentenced to LWOP but, D.A. Green said,
the law was later changed to allow for the possibility of parole. Recently, forty-two years after
this crime, 8,000 people responded to a petition drive, and urged the Division of Parole to
continue to deny this offender parole release.
2. Reliability of Capital Convictions
The Committees heard testimony from several witnesses concerning the reliability of
capital trials. Barry Scheck, Co-Director of the Innocence Project at Cardozo Law School, said
that since 1995, 153 people in the United States, including fourteen men under sentence of death,
have been exonerated by post-conviction DNA testing. However, Mr. Scheck contended, there
is evidence available for possible DNA testing (and potential exoneration of the defendant) in
only 20 percent of all serious felony prosecutions.
Citing a University of Michigan study,
32
Mr. Scheck testified that since 1989, there have
been more than 329 post-conviction exonerations nationwide. Most were based on new
information, not DNA evidence. Death row inmates, Mr. Scheck said, account for one half of
one percent of America’s prison population, yet 22 percent of all post-conviction exonerations.
Professor Sam Gross of the University of Michigan Law School advised the Committees
that since 1989, 205 persons convicted of murder have been exonerated nationwide. Of these, he
wrote, 74 persons sentenced to death had their capital convictions overturned and were released
from prison. Attorney Stephen Saloom of the Innocence Project, and others, testified that 117
people have been released from death row and, they said, exonerated since 1973.
Mr. Scheck argued that unfavorable publicity and strong community sentiments promote
a rush to judgment in cases involving violent crimes, sometimes leading to erroneous
convictions. Over the course of modern history, Mr. Scheck said, scores of New Yorkers each
decade have been found to have been wrongly convicted; many of these persons, Mr. Scheck
said, would have faced the death penalty, had it been in effect in New York prior to 1995.
Mr. Scheck offered several proposals he said would help reduce instances of wrongful
conviction and which should be enacted before lawmakers consider re-instituting the death
penalty. Among the proposals:
31
See TEXAS DEFENDER SERVICE, Deadly Speculation: Misleading Texas Capital Juries with False
Predictions of Future Dangerousness, (2004).
32
Samuel Gross et al., Exonerations in the United States, 1989 through 2003, 95 J. CRIM. L. &
CRIMINOLOGY 2005 (on file with the Committees).
23
• Establish new procedures to decrease mistaken eyewitness identifications, while
preserving the number of correct identifications;
• Reduce instances of false confessions by videotaping interrogations;
• Increase funding to improve the accuracy of forensic tests conducted by crime
laboratories; and
• Adopt measures designed to assure fair investigations and trials.
33
Scott Christianson, a former Deputy Commissioner of the NYS Division of Criminal
Justice Services, authored two books: Inside the Sing Sing Death House
(2000) and Innocent:
Inside Wrongful Conviction Cases (2003). Mr. Christianson noted that New York executed 614
persons from 1891 to 1963. Several studies, he said, have ranked New York high on the list of
states with large numbers of wrongful convictions, including capital convictions. Mr.
Christianson made several recommendations:
• State agencies, including the Court of Claims, should maintain records and annually
report on wrongful convictions;
• A blue-ribbon panel should be appointed to review and address the problem;
• Police should use sequential line-ups and special record-keeping procedures; and
• Prosecutors should not be immune from civil liability.
The NYS League of Women Voters recently conducted a study of the death penalty. The
League noted that poor quality investigations have led to many wrongful convictions. Marsha
Weissman of the Center for Community Alternatives asserted that inevitable human error leads
inexorably to the execution of innocent persons.
In written testimony, Professor Sam Gross of the University of Michigan Law School
contended there has been a rapid increase in reported exonerations in the past fifteen years.
According to Professor Gross, this likely reflects the combined effects of three trends:
First, the growing availability and sophistication of DNA identification
technology has, of course, produced an increase in DNA exonerations over time.
Second, the singular importance of the DNA revolution has made exonerations
increasingly newsworthy; as a result, we are probably aware of a higher
proportion of the exonerations that occurred in 2003 than in 1989. And third, this
increase in attention has in turn led to a substantial increase in the number of false
33
In testimony before the Committees, Professor Evan Mandery of John Jay College of Criminal Justice,
Bettina Plevan of the Association of the Bar of the City of New York and attorneys Russell Neufeld and Colleen
Brady also recommended several of these reforms.
24
convictions that in fact do come to light and end in exonerations, by DNA or other
means.
34
According to Professor Gross, the average time between conviction and exoneration for those
identified in this study was more than eleven years.
New York County District Attorney Robert Morgenthau testified that post-conviction
exonerations often result from dogged efforts by public officials determined to ensure that a
conviction was not obtained in error. District Attorney Morgenthau cited cases his office
prosecuted in which the defendant was ultimately exonerated, years later. Regarding one case,
he said, “[T]his exoneration came after the defendant had already served a substantial portion of
his sentence but if this had been a capital case, it may well have come too late to do the
defendant any good at all."
Others offered testimony that exonerations come as frequently by happenstance, or
without the cooperation of local officials. Thomas P. Sullivan, a member of the so-called “Ryan
Commission” established by Illinois Governor George Ryan to investigate wrongful convictions
under Illinois law, told the Committees thirteen persons were freed from Illinois’ death row
before Governor Ryan appointed a commission to study the problem. In several cases, evidence
that exonerated the defendant was uncovered not by lawyers or police officers, but by journalism
students in an investigative clinic at Northwestern University.
Bishop Jack McKelvey of the Episcopal Diocese of Rochester also noted the
extraordinary circumstance of journalism students uncovering evidence that exonerated
condemned persons.
Professor William Hellerstein of Brooklyn Law School has represented several persons
who were convicted of murder in New York, but later freed. Professor Hellerstein represented
Eric Jackson, who was convicted in 1981 of causing the death of six firefighters in a Brooklyn
supermarket fire. As a result of discovery information obtained as part of a civil lawsuit brought
by the firefighters’ widows, Jackson was able to offer proof that the fire was not arson, and that
he had been wrongly convicted. After several years of litigation, Jackson’s conviction was
vacated and he was freed from prison.
Professor Hellerstein represented Nathaniel Carter, who was convicted in 1982 of
murdering his mother-in-law. Professor Hellerstein testified that he was later able to uncover
evidence that Carter’s ex-wife framed Carter for the murder. Professor Hellerstein’s motion to
vacate Carter’s conviction was ultimately granted and Carter was freed.
Professor Hellerstein recently represented David Wong, who was convicted of murder in
the 1986 stabbing death of a fellow inmate at New York’s Clinton Correctional Facility.
Professor Hellerstein said students working with him at Brooklyn Law School uncovered
evidence that another inmate, not Wong, committed the murder. On December 20, 2004,
Professor Hellerstein testified, Acting Clinton County Judge Richard Giardino dismissed the
34
See Gross supra 32.
25
indictment against Wong, ruling, according to Professor Hellerstein, that “the defense contends
and, while not stating so specifically, the prosecution essentially admits that a trial at this
juncture would likely result in an acquittal.”
Richard J. Bartlett, a former member of the N.Y.S. Assembly, a former chair of the New
York State Penal Law Revision Commission and a former Dean of Albany Law School, testified
before the Committees. Dean Bartlett is convinced that erroneous convictions are inevitable and
these errors, he said, sometimes cannot be demonstrated until it is too late.
Stephen Dalsheim retired as Superintendent of New York’s Sing Sing prison after forty-
two years with the Department of Correctional Services. Superintendent Dalshiem testified that
during his twenty year tenure as warden, he met numerous governmental officials who were
convicted of crimes related to their work:
This included a few commissioners, a few judges and quite a few police officers
and detectives. Some of these men spoke quite freely to me, quite openly and
they admitted placing false evidence and making false statements in order to get
convictions. Believing strongly in their cases, they committed perjury in order to
get convictions. Some said you have to be creative, especially when dealing with
liberal judges. You have to build a solid case. Some said it was a common
practice.
Now I don’t know how common it is but I know there were innocent people in
prison and I met a few of them . . .
The Committees heard testimony from several individuals who were convicted of murder
or other serious felony charges, but later freed. Madison Hobley, a former Illinois death row
inmate, testified before the Committees. Mr. Hobley was convicted of starting a fire that killed
his wife, his infant son and five other persons. Mr. Hobley testified that there was no physical
evidence linking him to the crime. Mr. Hobley was freed from prison after sixteen years.
35
Ernest Shujaa Graham was freed from California’s death row after serving 15 years in
prison. His first trial ended in a hung jury. He told the Committees that his conviction in the
second trial was overturned, after it was shown that prosecutors had systematically excluded
African-American jurors from the jury panel. A third trial resulted in a hung jury; he was
acquitted after a fourth trial.
36
Robert McLaughlin and his father, Harold Hohne, also testified. Mr. McLaughlin served
six and one-half years in a New York State prison before he was freed, after persistent efforts by
his father and several volunteer attorneys. Mr. Hohne and Mr. McLaughlin explained that Mr.
McLaughlin was misidentified by the single eyewitness in the case. Mr. McLaughlin received a
35
Jodi Wilgoren, 4 Death Row Inmates Are Pardoned, THE NEW YORK TIMES, January 11, 2003.
36
Cases of Innocence 1973 - Present, DEATH PENALTY INFORMATION CENTER, Washington, D.C.,
available at http://www.deathpenaltyinfo.org/article.php?scid=6&did=109
, (March 29, 2005).
26
$1.93 million financial settlement to compensate him for his wrongful conviction.
37
Mr. Hohne
was once a supporter of capital punishment, but this experience has caused him to change his
view and oppose the death penalty.
Juan Melendez told the Committees that he is the 99
th
of 117 death row inmates
exonerated and released since 1973. DNA evidence was not available in his case, he said, and
only played a role in 14 out of the 117 cases where the defendant was exonerated. After several
appeals to the Supreme Court of Florida, he was able to get his case into a different county, he
said, where he was finally able to reverse the conviction and win his freedom.
Sammie Thomas was wrongly convicted of murder in Auburn, New York. Mr. Thomas
told the Committees he was imprisoned for more than four years. After the Court of Appeals
ordered the prosecution to turn over certain exculpatory documents, he said, Mr. Thomas was
retried and promptly acquitted.
John Restivo was convicted of rape and murder in Nassau County and served 18 years in
prison. In 2003, his conviction was overturned and Mr. Restivo was freed. DNA tests, he told
the Committees, showed that another man committed the crime. He testified that, "I served
6,566 days in New York’s toughest prisons for a crime I did not commit".
Yusef Salaam and Karey Wise were convicted of participating in the brutal rape and
beating of a woman in New York’s Central Park, a case which became known as the “Central
Park Jogger” case. The two were freed when DNA evidence identified another man as the
attacker. Mr. Salaam and Mr. Wise testified before the Committees. Mr. Salaam said he
believes widespread publicity about the case prejudiced the jury and contributed to their
erroneous convictions.
Several witnesses disputed contentions that the conviction of innocent persons is
commonplace. Professor Robert Blecker of New York Law School acknowledged that an
innocent person may have been executed in the modern era. But he noted that not one such
instance of wrongful execution has been documented or proven.
Reports that up to 130 people have been released from death row due to innocence are
exaggerated, he said. Professor Blecker’s informed estimate is that in recent years, 30 people
released from death row did not commit the crime. Professor Blecker testified that Professor
James Liebman’s study citing a 68 percent error rate in capital cases is erroneous because,
Professor Blecker said, in many instances where a death sentence was overturned, a new death
sentence was imposed after later appeals or after a new sentencing proceeding.
As currently constructed, Professor Blecker believes New York’s death penalty law goes
quite far toward protecting against the conviction of innocent persons. Professor Blecker offered
two suggestions he said would help protect against persons not deserving the death penalty from
being sentenced to death. First, he suggested that jurors be specifically instructed that they may
37
McLaughlin v. State, N.Y.L.J. Oct. 27, 1989, at 25, col. 4; see also N.Y. TIMES, Oct. 19, 1989, at B28,
col. 1.
27
extend mercy by sparing the defendant’s life. Jurors, he said, should also be told that “righteous
anger or indignation can help inform the morally correct verdict of life or death.”
Professor Blecker also stated that penalty phase jurors should be instructed that they may
spare the defendant’s life if they harbor lingering or residual doubt about the defendant’s guilt.
Professor Blecker would require that judges instruct the jury that no death sentence may be
imposed unless the jury is “convinced to a moral certainty” that the defendant deserves to die.
According to Sean Byrne of the New York Prosecutors Training Institute, every
defendant convicted under New York’s 1995 death penalty statute was “indisputably guilty.”
“Their attorneys,” Mr. Byrne said, “routinely admitted their clients’ guilt in opening statements
of their trials.” Furthermore, Mr. Byrne said, studies by prosecutors around the country have
shown that the majority of persons allegedly “exonerated” in the United States, as reported in
various studies, were “factually guilty” but were freed because key evidence proving their guilt
was suppressed, or because retrial was not possible for other reasons.
3. Cost of the Death Penalty
The Committees heard testimony from witnesses who asserted that the financial cost of a
state criminal justice system with a death penalty greatly exceeds the financial cost of a non-
capital system, including a system that includes sentences of life imprisonment without parole.
Many of these witnesses argued that if crime prevention is the goal, the money earmarked for
capital prosecution could be better spent on improved policing, including crime prevention and
investments in efforts to solve and punish crimes.
Other witnesses disputed these claims and contended that cost-savings generated by
capital punishment were substantial.
Professor Blecker told Committee members that a fair analysis of the cost of the death
penalty must credit the savings accrued from crimes prevented and deterred. Additionally,
Professor Blecker asserted that substantial savings (which, in his view, decidedly tip the fiscal
balance in favor of the death penalty) accrue from trials avoided, that is, when guilty defendants
plead guilty to non-capital charges, rather than face the prospect of a capital trial and possible
execution.
Regarding New York’s expenditures to administer the capital punishment law, Sean
Byrne of the NY Prosecutors Training Institute asserted that “[t]remendously more money is
made available for the defense of capital cases (four to five times more) than for capital
prosecution, but prosecutors appear to have been adequately funded to date." Mr. Byrne pointed
out one key area that was overlooked by the 1995 law: funding for police agencies “that have to
handle massive workload increases in capital cases.”
Schenectady County District Attorney Robert Carney noted that expenditures for death
penalty prosecution and defense have cost New Yorkers as much as $200 million since 1995.
“There are,” he said, “many criminal justice initiatives that are effective in reducing crime that
could be enhanced for a fraction of this money.”
28
Testimony submitted by Thomas P. Sullivan, a former member of the Ryan Commission
in Illinois, offered the view of one judge: “The death penalty has great popular appeal, but I
don’t think the taxpayers have looked at the bottom line. The death penalty is damn
expensive.”
38
Mr. Sullivan presented a state-by-state analysis of the cost of capital cases. He
stated that it costs states from a third to as much as three times more for a death penalty case than
to adjudicate a non-death penalty case.
Richard Dieter of the Death Penalty Information Center, who also is an adjunct professor
at Catholic University Law School, believes the question of cost as it relates to the death penalty
is a central issue. He argued that having the death penalty means sacrificing compensation for
victims’ families, funds for more police and even more prison space. Mr. Dieter noted that the
Ryan Commission in Illinois made eighty-five recommendations, most of which, he said, would
make the Illinois death penalty even more expensive.
Mr. Dieter argued that most states have a symbolic death penalty. He said that in most
jurisdictions, a significant majority of death sentences are overturned and life sentences are
imposed instead. Thus, he asserted, most states that have the death penalty pay the significantly
higher costs associated with trying a death penalty case, but frequently end up with a non-death
sentence anyway.
Mr. Dieter also argued that expenses associated with the death penalty are “top heavy,”
meaning that most costs occur quickly during the trial and early appeals, rather than being spread
out over a long period of time, as in the case of a person who is sentenced to a life term for
murder. Special procedures, including the fact that capital trials have two phases, add to the
costs. Mr. Dieter asserted that with so significant a portion of the cost of capital cases coming
early in the representation, the cost of death penalty cases quickly surpass those of non-death
penalty cases, eclipsing even the costs associated with forty years or more of imprisonment for
non-capital defendants.
Mr. Dieter testified that a two-year North Carolina study concluded that it cost North
Carolina $2.6 million more per case for each conviction that resulted in the defendant’s
execution than for each similar North Carolina case that did not result in execution. Also, he
asserted that the cost of an execution in California is $90 million.
A Dallas Morning News report, he said, concluded that a death penalty case costs an
average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the
highest security level for forty years. A Miami Herald report, he said, estimated that Florida
spends $51 million a year more for death penalty cases than it would cost to punish all first-
degree murderers with life in prison without parole.
Mr. Dieter added that the higher costs of capital prosecution are concentrated on a small
group of people. He argued that instead, government should spend these funds on programs that
might benefit a much larger group.
38
Testimony of Thomas P. Sullivan, December 15, 2004 (quoting Fulton County, Georgia, Superior Court
Judge Stephanie Manis, A
TLANTA JOURNAL-CONSTITUTION, May 12, 2002).
29
Mr. Dieter contended that significant costs associated with trying a death penalty case are
paid by county governments which, he asserts, can least afford them. These circumstances,
Dieter argued, also have racial implications: wealthier counties with wealthier governments are
more likely to seek the death penalty. So, he concluded, cost issues associated with the death
penalty can lead to the arbitrary administration of capital punishment.
Mr. Dieter added that if New York reinstates the death penalty, an execution likely will
not occur for at least ten to fifteen years. The cost will exceed hundreds of millions of dollars,
and these expenditures will not necessarily make the streets safer. He also reasoned that
taxpayer resources can be better used for crime prevention and to address other societal
concerns.
James Rogers of the Association of Legal Aid Attorneys (“ALAA”) in New York City
claimed the costs associated with the death penalty in New York are “astronomical.” In one case
defended by ALAA members, he said, each side spent more than $100,000 on jury consultants
alone. Mr. Rogers pointed out that resources for the needs of the entire indigent defense system
are lacking. He too asserted that monies diverted to death penalty cases could be better spent
improving resources for the rest of the criminal justice system.
James Liebman, a Columbia University Law School professor, predicted that
reinstatement of the death penalty, over a term of about twenty years, would cost New York
taxpayers approximately $500 million, likely with only two or three executions during that time.
This, he calculates, means the added cost to taxpayers of each New York capital case that results
in execution would be approximately $200 million per execution.
Several witnesses asserted that capital punishment is more expensive than life
imprisonment without parole. Mr. Sullivan of the Illinois Commission offered several reasons
why, in his view, the cost of capital prosecutions is greater than the cost of non-capital LWOP
prosecutions, including:
• Investigations are longer and more costly;
• Representation costs are higher;
• Every procedural phase is longer, involving more experts;
• Many jurisdictions require a separate sentencing phase;
• Appeals are generally automatic;
• There are usually extensive post-conviction proceedings in state and federal court; and
• Death row cells are more expensive and death row inmates require greater security.
30
Kathryn Kase, a criminal defense lawyer who has worked in both New York and Texas,
described Waller County, Texas, a rural county outside Houston. Waller County, she said, has
not prosecuted a capital murder in recent memory, although murders do occur in the county.
Ms. Kase said the death penalty is not sought in Waller County because the county simply
cannot afford it.
Questions about the cost of the death penalty overlap with questions about fairness and
consistency. Ms. Kase asserted that in New York more populated counties with higher land
values and, therefore, greater tax revenues, are more able to pay capital costs, and thus, she
believes, more likely to seek the death penalty. Ms. Kase asserted that this reason for seeking or
not seeking a death sentence is at odds with the United States Supreme Court decision in Gregg
v. Georgia) (death penalty may not be imposed arbitrarily or capriciously).
Since 1996, New York State has provided "Capital Prosecution Extraordinary
Assistance" funds to some counties to partially offset the cost of capital prosecutions. In
addition, under Judiciary Law Section 35-b, death penalty defense costs in New York are paid by
the state.
Professor Bennett Gershman of Pace University Law School indicated that the cost for a
recent eight-month capital murder trial in Westchester County (People v. Alvarez, which resulted
in an LWOP verdict) was $4 million. At the time, Professor Gershman wrote, the county budget
was being cut and the District Attorney announced that she had insufficient funds to prosecute
probation violators and other serious offenders.
Jonathan Gradess of the New York State Defenders Association argued that New York’s
system for defending poor persons is stretched beyond capacity, even without considering capital
cases. Mr. Gradess said that a study prepared by his association shows that in the last New York
capital case tried in 1984, before the passage of the present death penalty law, the prosecution
outspent the defense by a ratio of ten to one. Mr. Gradess finds appropriations to fund death
penalty prosecutions untenable in light of rising health care costs. He argues that diverting
monies to execute one nineteen-year old, impoverished youth would place thousands of elderly
New Yorkers at medical risk.
Mr. Gradess said conservative estimates are that New York has spent $170 million in the
past decade on death penalty prosecution and defense. With seven death sentences imposed, he
said, the 1995 death penalty law has thus far cost taxpayers approximately $24 million per death
sentence.
Kate Lowenstein, the daughter of murder victim Allard K. Lowenstein, criticized the
“millions of dollars” capital states spend to try to kill one person. She argued that such resources
are better used to support law enforcement and investigate unsolved crimes. Similarly, Marsha
Weissman of the Center for Community Alternatives suggested diverting these large amounts of
money to education, crime prevention and family support programs.
31
4. Aggravating Factors and the Scope of New York’s Death Penalty Law
New York’s death penalty law allows prosecutors to seek capital punishment when one
of twelve statutory aggravating factors is present.
39
Some witnesses thought this list of twelve
qualifying factors should be expanded; others thought the list should be reduced.
Professor Russell Murphy of Suffolk University Law School accompanied Debra Jaeger
during her testimony. As noted earlier, Debra Jaeger's sister, Jill Cahill, was killed by her
estranged husband in 1998. In his written submission, Professor Murphy argued that the list of
aggravating factors under New York’s death penalty law should be expanded in four respects.
40
First, Professor Murphy urged that deliberate, premeditated, cold blooded, calculated murders be
added to the list of death-eligible killings.
Second, Professor Murphy recommended a new distinct aggravating category, allowing
the death penalty when intentional murder is the “culminating event in a pattern” of domestic
abuse or domestic violence. Third, Professor Murphy urged that the intentional murder of a
“highly vulnerable or incapacitated victim” should qualify the defendant for capital punishment,
when the defendant knew or should have known of that condition.
Fourth, to address one basis for the reversal of the death sentence of Jeffrey Cahill,
41
the
killer of Ms. Jaeger’s sister, Professor Murphy argued that burglary killings -- when killing alone
was the object of the defendant’s entry -- should be added to the list of death eligible murders.
Onondaga District Attorney William Fitzpatrick, who prosecuted Jeffrey Cahill, agreed.
District Attorney Fitzpatrick explained that Jeffrey Cahill brutally beat his estranged wife with a
bat. Six months later, as she lay in a hospital bed slowly recovering, Jeffrey Cahill disguised
himself as hospital janitor, entered her room and forced a lethal poison down her throat. District
Attorney Fitzpatrick unsuccessfully argued in the Court of Appeals that the defendant’s entry
into the room, when the underlying motive for entering was to commit murder, should qualify as
an aggravating under the burglary-murder provision of the death penalty law.
Professor Blecker urged lawmakers to expand the categories of death-eligible murders in
some ways, but narrow the categories in others. Among Professor Blecker’s suggestions:
39
See Donnino, Practice Commentaries, MCKINNEY’S CONSOLIDATED LAWS OF NEW YORK, N.Y. PENAL
LAW § 125.27 (2004).
40
A legislative package which would implement Professor Murphy's four recommendations and also
address the Court of Appeals holding in LaValle
has been introduced in the Assembly by Assemblyman Robin
Schimminger (see A. 5523, A. 5524 and A. 5525 [2005 Legislative Session]).
41
In People v. Cahill, 2 N.Y.3d 14 (2003), the Court of Appeals held that while murder committed in the
course of a burglary is death-eligible, a (death-eligible) first degree murder charge may not be brought when the
object or purpose of the defendant’s unlawful entry was to accomplish the killing, not to commit a separate crime
such as robbery or theft.
32
• Abolish the felony murder aggravator (murder committed in the course of crimes such as
robbery or burglary) and expressly define rape murder as “torture murder” qualifying the
defendant for death;
• Expand and redefine torture killings;
• Add killings that are particularly cruel;
• Eliminate death sentences for life-sentenced inmates who kill;
42
• Narrow the categories of law enforcement officer killings to encompass only those
persons who kill police officials because they are police officials;
• Add killings of especially vulnerable persons;
• Refine the witness elimination killing rule to apply only to the killing of innocent
witnesses (not co-perpetrators or “professional snitch” witnesses);
• Add “depraved indifference recklessness” as a mental state qualifying a murder
defendant for death.
District Attorney Michael Green of Monroe County noted than only seven persons have
been sentenced to death in the first ten years of the New York death penalty law. The death
penalty, he said, has been sought at trial in only eighteen of more than 8,000 murders. District
Attorney Green assured the Committees that prosecutors and juries have shown appropriate
restraint in applying the death penalty to the worst offenders. In the interest of expediency, D.A.
Green recommended that the Legislature address the deadlock issue LaValle presents, but not
consider other changes to the death penalty law at this time.
Sean Byrne of the NY Prosecutors Training Institute agreed that amendment of the first
degree murder statute in New York is “not immediately necessary.” “The immediate need facing
the State,” Mr. Byrne wrote in his submitted statement, “is to remedy the flaw created by the
Court of Appeals in LaValle
so New York can again have a workable death penalty statute.”
Other witnesses testifying before the Committees urged a narrowing of the list of
aggravating factors. Testifying for New Yorkers for Fairness in Capital Punishment, Michael
Whiteman, a former counsel to Governors Rockefeller and Wilson, urged that New York’s list of
aggravators be significantly scaled back.
Professor William Bowers of Northeastern University discussed several studies
conducted in states outside New York by the Capital Jury Project. One recent study, Professor
Bowers said, revealed that in capital cases, jurors mistakenly believed they were required to
42
Professor Blecker argued that this group is most likely to be deterred by punitive segregation or prison
transfer, and that the death penalty should apply in this context only if another aggravating factor is present.
33
impose a death sentence if the crime was heinous, vile or depraved. The use of aggravating
factors to mandate a death sentence is unconstitutional, Professor Bowers said, yet jurors
frequently mistakenly believe a death sentence is required.
Representatives of several law enforcement groups testified for and against the death
penalty, particularly as it relates to the killing of a law enforcement officer. In a letter to the
Committees, Jeff Frayler of the New York State Association of Police Benevolent Associations
urged that the death penalty be available for the killers of police officers, judges, witnesses and
family members, contract and serial killers, heinous killers and persons who commit terrorist
acts.
Michael Palladino of the Detectives Endowment Association also urged that the death
penalty be retained. Mr. Palladino reported that in the past three years, six detectives of the New
York City Police Department have been killed. Mr. Palladino reminded the Committees that the
men and women of law enforcement place their lives at great risk every day to protect New
Yorkers. The death penalty is needed, he said, to give these officers better odds of returning
home to their loved ones at the end of a dangerous tour of duty.
Lou Matarazzo, former president of the Police Benevolent Association, noted that several
years ago, thirteen police officers were murdered in one year on the streets of New York.
Mr. Matarazzo believes the death penalty is needed to assure that police officers are protected.
Ron Stalling, a retired officer of the uniformed U.S. Secret Service representing the
National Black Police Association, urged that the death penalty not be used in New York.
Anthony Miranda of the National Latino Officers Association decried the killing of any official.
But his association strongly opposes the death penalty because of inherent injustices in the
criminal justice system.
Marsha Lee Watson of the NYS Correction and Law Enforcement Guardians Association
testified in opposition to the death penalty. Ms. Watson believes all life is sacred. She believes
the law should not elevate the value of a police officer’s life above that of other individuals.
Randy Jurgenson, a retired NYPD homicide detective, does not believe capital
punishment deters murder. Detective Jurgenson recalled a murder arrest he made more than 36
years ago. The defendants were convicted and sentenced to 25 years to life imprisonment. They
have been continuously denied parole. This, and the additional sentence of LWOP now on the
books, convinces him that the death penalty is not needed.
Charles Billups, on behalf of the Grand Council of Guardians, a coalition of New York’s
African-American police, correctional, parole and probation officers also voiced opposition to
the death penalty in New York.
5. Life Imprisonment Without the Possibility of Parole (LWOP)
Most presenters at the Committee hearings supported the availability of life
imprisonment without the possibility of parole (LWOP) as a sentence option in New York.
34
148 persons have reportedly been sentenced to life imprisonment without the possibility of
parole since the enactment of the 1995 law.
43
This stands in sharp contrast to the seven
defendants who initially received death sentences.
Several witnesses contended that LWOP is a sufficiently harsh penalty for the worst
offenders. Some identified LWOP as a more severe sanction than execution. Bill Pelke, a
founding member of Murder Victim Families for Human Rights, said LWOP is no “picnic”;
“anybody who thinks that it’s some sort of country club,” he said, “has not been in a prison and
seen people on death row.”
Catherine Abate, a former NY State Senator and former Commissioner of the NYC
Departments of Correction and Probation, pointed out that opinion polls show a majority of
Americans oppose the death penalty when offered the alternative of life imprisonment without
the possibility of parole. Andrew Cuomo, former Secretary of the U.S. Department of Housing
and Urban Development, told the Committees he believes public opinion has turned strongly
away from the death penalty in recent years.
Professor Robert Blecker of New York Law School agreed that, like the death penalty,
LWOP can be a deterrent. He mentioned several studies which, he asserted, show that capital
punishment is a greater deterrent than LWOP. Professor Blecker believes execution is the
ultimate threat. There are behaviors, he testified, that a person might not engage in for fear of
dying, that a person would engage in even if it meant a possible loss of liberty.
Professor Blecker noted that persons sentenced to prison often have access to regular
activities like reading, exercise, watching television and developing friendships. The people who
are the worst of the worst, Professor Blecker testified, do not deserve all of these privileges.
John Dunne, a New York State Senator for twenty-three years and a former Assistant
Attorney General for Civil Rights at the United States Department of Justice, voted “twelve
times to establish the death penalty in New York.” During the hearing, Senator Dunne spoke of
“struggl[ing] for more than forty years with this issue” and urged the Committees to “use those
bloodless means that are associated with life imprisonment without parole, to cap our
punishment for a first degree murderer with that sentence, and to use the resources thereby saved
to improve the quality of life for all our citizens.”
6. Mental Retardation
In 1989, in Penry v. Lynaugh
,
44
the U.S. Supreme Court, analyzing Eighth Amendment
questions involving “evolving standards of decency,” determined that there was not a sufficient
national consensus to require an end to the application of the death penalty to mentally retarded
43
See Jonathan Gradess, testimony February 8, 2005; see also The Meaning of Life: Long Prison
Sentences in Context, THE SENTENCING PROJECT, Washington, D.C. (reporting that as of May, 2004, New York had
110 people serving LWOP).
44
492 U.S. 302 (1989).
35
defendants.
45
Late in 2004 however, in Atkins v. Virginia,
46
the Court concluded that executing
persons with mental retardation would violate the Eight Amendment prohibition against cruel
and unusual punishment.
New York’s death penalty law permits capital prosecution and the execution of mentally
retarded persons, but only when the defendant was a jail or prison inmate, the victim was an
employee of the jail or prison engaged in official duties, and the defendant knew or reasonably
should have known that the person was so employed. Asked whether, in light of Atkins, New
York’s limited exception allowing the execution of mentally retarded prisoners would pass
federal constitutional muster, Professor Blecker concluded that the U.S. Supreme Court has
ruled on the issue, and no state may execute a mentally retarded person under any circumstances.
No witness disagreed. Professor Blecker noted, however, that the high court had left it to each
state to determine what, in fact, constitutes mental retardation.
7. Mental Illness
The Bureau of Justice Statistics estimated in 1998 that, on average, 283,000 persons with
mental illness are incarcerated in jails and prisons in the United States.
47
Ron Honberg of the
National Alliance for the Mentally Ill (NAMI) testified that, in his view, the criminal justice
system in many of the nation’s communities has become the de facto mental health treatment
provider.
Mr. Honberg estimates that twenty percent of the persons sentenced to death in the U.S.
have a serious mental illness. “[O]nly … after [these] crimes were committed, was treatment
provided, usually for the purpose of achieving competence to stand trial. Frequently, more
money is spent executing people with severe mental illness than was [spent] on providing
treatment.”
45
According to the NYS Office of Mental Retardation and Developmental Disabilities:
People with mental retardation show delays in learning, a slower pace of learning, and difficulty in
applying learning. Approximately 200,000 people in New York are thought to have mental retardation.
Mental retardation can result from a variety of factors, among them premature birth, genetic abnormalities,
malnutrition, exposure to toxic agents, and social deprivation. Assistance for people with mental
retardation usually includes diagnosis and help early in their life, family counseling and training, education,
job training, and housing services, available at http://www.omr.state.ny.us/hp_faqs.jsp#q9
(March 27,
2005); See also N.Y.
MENTAL HYG. LAW § 1.03 (21) (defining “mental retardation" as “subaverage
intellectual functioning which originates during the developmental period and is associated with
impairment in adaptive behavior”).
46
536 U.S. 304 (2004).
47
N.Y. MENTAL HYG. LAW § 1.03 (20), defines "mental illness" as “an affliction with a mental disease
or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or
judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.”
36
Professor John Blume of Cornell University Law School testified that severe mental
illness can make a defendant appear more dangerous. In many cases, he said, jurors’ perception
of the defendant’s dangerousness drives a juror’s life or death decision. In addition, a mentally
ill defendant is less likely to appear remorseful, as a result of medication or the illness itself, yet
research shows that jurors’ perceptions concerning a defendant’s remorse (or apparent lack of
remorse) can be a significant factor in the choice between life and death.
On a related topic, Professor Xavier Amador of Columbia University contended that the
competency standard under New York law in most proceedings is much too low. “As a New
York attorney described it,” Professor Amador said, “if the defendant can tell the difference
between a grapefruit and a judge[,] he’s competent.”
Due to the adversarial nature of criminal proceedings, Professor Amador explained,
psychologists and psychiatrists are generally pitted against one another and pushed toward a
“battle of the experts.” This, according to Professor Amador, erodes the faith of judges and
jurors in the ability of experts to offer objective testimony. The adversarial system, according to
Professor Amador, is inappropriate and ill equipped to the task of uncovering the truth about a
defendant’s mental illness, and its relevance to his or her behavior.
Mr. Honberg testified that in the vast majority of death penalty states, including New
York, mental illness is among the statutory factors that may be considered as mitigating against
the death penalty. Yet, according to Honberg, there is a growing view among experts that in
capital cases, jurors inappropriately view mental illness as an aggravating, rather than mitigating
factor.
Mr. Honberg noted a report by Professor Chris Slobogin, whom Mr. Honberg identified
as an expert on mental illness and the law. According to Mr. Honberg, Professor Slobogin’s
report cites several studies showing this trend. For example, he said, a study of 175 capital cases
in Pennsylvania demonstrated that all aggravating and mitigating factors listed in that state’s
death penalty statute correlated positively with the eventual sentence, with the exception of
extreme mental or emotional disturbance, which correlated positively with a death sentence.
This, Mr. Honberg opined, means that if a defendant had a serious psychiatric diagnosis, he or
she was statistically more likely to be sentenced to death. Mr. Honberg said other studies
produced similar results.
According to Mr. Honberg, the research suggests two possible reasons jurors view mental
illness as an aggravating, rather than mitigating factor. First, lay persons often perceive persons
with mental illness as being abnormally dangerous. Jurors may view a capital defendant with
schizophrenia as beyond redemption, and may conclude that no amount of treatment is likely to
reduce what jurors perceive to be violent tendencies. According to Mr. Honberg, the opposite is
true: psychiatric treatment has been shown to be very effective in reducing any risk of violence.
A second reason jurors may view mental illness as an aggravating rather than a mitigating
factor may be cynicism. Mr. Honberg said, may jurors doubt that the mental illness really exists.
Jurors may incorrectly believe the defendant is malingering, with counsel offering mental illness
37
as a subterfuge designed to aid the defendant in efforts to evade responsibility for his or her
behavior.
Third, Mr. Honberg questioned the ability of capital defendants with active psychiatric
symptoms to receive a fair trial or participate fully in their defense. Although laws in New York
and elsewhere require that defendants be capable of intelligently participating in their defense,
competency standards are low, Mr. Honberg said, and may be misunderstood and unevenly
applied. An additional issue, according to Mr. Honberg, is the susceptibility of defendants with
mental illnesses to coercion. Defendants, he asserted, may be coerced into making false
confessions or waiving the right to counsel.
Attorneys face special challenges in defending capital cases when the defendant has a
serious mental disorder. Mr. Honberg testified that it is common for individuals with
schizophrenia and other severe mental illnesses to deny they are ill or need treatment. Often, this
leads to the defendant’s refusal to permit counsel to raise competency questions or assert an
insanity defense.
For example, Professor Amador testified that accused serial bomber Ted Kaczynski
attempted to dismiss his attorneys when he learned they planned to use evidence of
schizophrenia in an effort to save him from execution.
Michael Whiteman of New Yorkers for Fairness in Capital Punishment testified that New
York’s death penalty law does not expressly allow defense lawyers to override a defendant’s
wishes and present mitigating evidence of severe mental illness. He urged that the New York
law be amended to assure that mitigating evidence can be presented, even over the defendant’s
objection. Moreover, Mr. Whiteman believes “[a] documented past diagnosis or current judicial
finding of significant mental illness should bar a death sentence.”
Mr. Honberg and Professor Blume also testified about the emergence of so-called
“volunteer defendants.” These are defendants who insist on pleading guilty or who forego
appeals in an attempt to hasten their execution. Professor Blume stated, based on his research,
that seventy percent of “volunteer defendants” are persons who have been diagnosed with a
mental illness. He testified that there is a high incidence of the most severe mental illnesses
among “volunteer defendants”, including schizophrenia, depression and bipolar disorder. Mr.
Honberg testified that often, the desire among these defendants to die is symptomatic of the
severity of their illnesses. Further, Professor Blume said, “volunteer defendants” frequently
change their mind once they have received treatment.
In written testimony submitted for the National Alliance for the Mentally Ill, New York
State, Ione Christian, Muriel Sheperd, Judith Beyer, J. David Seay and Robert Corliss urged that
defendants with severe mental illness be exempt from the death penalty, under at least the
following circumstances:
• Individuals with cognitive or functional limitations equivalent to those applied to
defendants with mental retardation in the Atkins case would generally be exempt;
38
• Individuals who, at the time of their offenses, suffer from severe mental illness and act on
impulses or beliefs that are the product of delusions, hallucinations or other
manifestations of psychosis would be exempt; and
• Individuals whose severe mental disabilities manifest or worsen after sentencing to the
extent that they are unable to understand the nature and purpose of the death penalty or to
make rational decisions about legal proceedings relevant to the death penalty would be
exempt.
8. Race and the Death Penalty
Several witnesses asserted that there is evidence in states throughout the nation of racial
discrimination in the application of the death penalty. Many argued that in death eligible cases,
the death penalty is more likely to be imposed on defendants of color than white defendants.
Further, according to these witnesses, when the victim is white there is a much greater possibility
that the defendant will be sentenced to death than when the victim is black.
According to witness George Kendall, the United States General Accounting Office
(GAO) issued a report in 1990 evaluating 28 empirical race-and-the-death-penalty studies that
have been conducted across the country. Mr. Kendall said that according to the GAO report, the
victim’s race was a significant factor in determining whether a defendant received a death
sentence in 82 percent of the studies. For example, Mr. Kendall said, “those who murdered
whites were found to be more likely to be sentenced to death than those who murdered blacks.”
Mr. Kendall cited a later study conducted by Professors Baldus and Woodworth which
expanded on the GAO review.
48
Professors Baldus and Woodworth found relevant data in three-
fourths of the states with prisoners sentenced to death. Upon reviewing this data, Professors
Baldus and Woodworth found that in 93 percent of these states, there was a correlation between
the race of the victim and whether a death sentence would be imposed; that is, cases involving
white murder victims were much more likely to result in a death sentence than cases involving a
victim who was a person of color.
In nearly half of these states, the defendant’s race also served as a predictor of who would
be sentenced to death. Additional materials supplied by Mr. Kendall
49
showed that in capital
states, the racial composition of the key decision maker -- the prosecutor -- is 97.5 percent
white, one percent black, and one percent Latino.
Mr. Kendall identified several reasons why, in his view, it is difficult to eliminate the
specter of racism from the death penalty:
48
D. Baldus & G. Woodworth, Race Discrimination in America’s Capital Punishment System Since
Furman v. Georgia (1972): The Evidence of Race Disparities and the Record of Our Courts and Legislatures in
Addressing This Issue, (1997).
49
See also, Richard C. Dieter, DEATH PENALTY INFORMATION CENTER, The Death Penalty in Black and
White: Who Lives, Who Dies, Who Decides, available at
http://www.deathpeanltyinfo.org/article.php?scid=45&did=539 (collected on January 24, 2005).
39
• Our nation's long history of "tabloid reporting" of disappearances or killings of white
victims followed by the arrest of a racial minority as a suspect. Such coverage, Mr.
Kendall said, creates significant pressure on law enforcement to solve the case promptly
and prosecute aggressively;
• A significant number of attorneys defending death penalty cases are white and some have
not developed racial and ethnic sensitivities; and
• Some prosecutors routinely use peremptory challenges to remove racial minorities and
women from capital juries.
50
Professor William Bowers of Northeastern University discussed recent findings of a
study conducted by the “Capital Jury Project.” The Capital Jury Project study involved
interviews of actual jurors who heard capital cases in fourteen states. According to Professor
Bowers, the study confirmed racial bias in capital sentencing determinations. The death penalty,
he said, was much more likely to be imposed in inter-racial cases involving black defendants and
white victims. In addition, Professor Bowers found, death penalty sentencing is frequently
biased by the juror’s race, and by the racial composition of the jury.
Lillian Rodriguez-Lopez of the Hispanic Federation testified before the Committees. Ms.
Lopez-Rodriguez testified that "[w]hile Latino defendants have not been subject to the death
penalty at the same rate as whites or African Americans,” she believes Latino defendants are
prosecuted through a racially-biased system in New York that weakens democracy and
undermines respect for human rights.
Professor Edward Rodriguez of Seton Hall University School of Law noted that it is
impossible to design a death penalty that is fairly administered and consistently applied and free
from impermissible racial and ethnic bias. Of particular concern, he said, is “the discriminatory
use of peremptory challenges,” which he said is the “single most significant means by which
racial prejudice and bias are injected into the jury selection system.”
Other witnesses submitted testimony analyzing racial data and the use New York’s death
penalty law since September, 1995. Professor David Baldus of the University of Iowa offered
the following from his study of the New York experience:
• Seven of 500, or one percent, of first degree murder case defendants, were sentenced to
death;
• Death notices were filed in 58 of these 500 cases;
• Of the 58 cases in which prosecutors filed a death notice, 12 percent of the defendants
were sentenced to death (seven cases);
50
Richard Dieter cites cases in several states such as Pennsylvania, Alabama, and Georgia. In
Philadelphia, he said, one assistant district attorney prepared a training tape for new prosecutors in which he offered
advice on how to develop race-neutral reasons as a pretext for using preemptory challenges against black jurors.
40
• The first degree murder cases involving white victims were 3.3 times more likely to
receive a death notice than those where the victim was non-white;
• Among the seven defendants who received the death penalty, white victim cases
outnumbered non-white victim cases by a two to one margin (62 percent vs. 29 percent);
and
• Black defendants were 59 percent of first degree murder cases and 43 percent of those
sentenced to death.
51
Several witnesses introduced similar statistics compiled by the New York State Capital
Defender's Office.
52
Based on these records, Ann Brandon of the League of women Voters
reported that of the seven defendants sentenced to death under the 1995 New York law, three are
black, three are white and one is Hispanic.
Several witnesses offered suggestions to reduce racial disparities in New York sentencing
practices. Professor Baldus recommended that a detailed study be conducted of racial
discrimination and the New York death penalty. Other recommendations included:
• Expanding jury pools to assure diversity;
• Requiring that jurors receive express anti-discrimination instructions;
• Assuring private, individualized pre-selection questioning of jurors, to assist the parties
and the courts in uncovering possible biases;
• Providing a mechanism for the review and adjudication of discrimination claims;
53
and
• Assuring that death sentences will be vacated where race-of-defendant and/or race-of-
victim disparity is shown, without requiring proof of discriminatory intent.
51
Professor Baldus asserted: "The reason for this gap is that a substantial majority of New York black
defendant cases involve a black victim which draws down the death-sentencing rate for black defendants as a
group."
52
Of 459 defendants indicted for first degree murder, 59% were Black, 19% were White and 21% were
Hispanic. Death notices were filed in 50 cases; 48% were Black, 40% were White, and 10% were Hispanic. Race
of the victim was known in 446 cases; 42% were Black, 31% were White, and 20% were Hispanic (the remaining
victims were of multiple races). Race of the victim in the death-noticed cases equaled 30% Black, 48% White, and
14% Hispanic (Statement of Ann Brandon, The League of Women Voters of New York State).
53
For example, Kentucky has adopted a Racial Justice Act which authorizes defendants to bring claims of
racial discrimination in the charging of the jury or in the sentencing decision in his or her case. Professor Baldus
claims this law “has made people, made prosecutors, much more sensitive to the racial consequences of what they
have done.”
41
Other witnesses contended that there is little or no evidence of racial bias in the
use of the death penalty. For example, Sean Byrne of the New York Prosecutors
Training Institute referred to a June, 2002 report of the U.S. Justice Department. The
report, he said, analyzed more than 900 federal death-eligible cases, and reportedly found
no evidence of racial bias. A study of proportionality review in New Jersey, he said,
concluded that there was no evidence of bias against black defendants. A 2002 report by
the New Jersey Supreme Court Special Master, David Baime, Mr. Byrne said, found no
evidence of bias during the period of August, 1982 to May 2000. A recent Nebraska
study concluded that race is not a factor in Nebraska death penalty cases, Mr. Byrne said.
Mr. Byrne also cited a report of the U.S. Bureau of Justice Statistics, “Capital Punishment
2003.” Of the persons under a sentence of death in the United States in 2003, Mr. Byrne said,
“56 percent are white, 42 percent are black, and 2 percent are other races.”
Professor Blecker of New York Law School also offered statistical evidence to refute
claims that there is racial bias in the death penalty system in the U.S. He testified:
Does a black killer stand a better chance of being executed because s/he’s black? .
. . Another way of asking it - if you’re black, is Society more ready to execute you
than if you’re white? Happily the answer is clearly and unequivocally no! In the
modern era (1977-2003) 510 [of] 3451 whites sentenced to death have been
executed; 301 [of] 2903 blacks sentenced to death have been executed. In other
words we have executed 14.8 percent of our white condemned, but only 10.4
percent of our black condemned. On average, during the modern era, it has taken
us 8 months longer to execute a black, although this disparity has reversed the
past two years. (Bureau of Justice Statistics, Nov. 2004).
The well-known 1990 study by Professor Baldus regarding Georgia’s death penalty law, he
said, instead shows there is little bias in Georgia’s death penalty:
Specifically the odds that the average black defendant will receive a death
sentence are 56 percent of those faced by a white defendant in a comparable case.
Professor Blecker thus claims that the bias in the modern era, if any, has been against
white defendants, not in their favor, “although adjusted for case culpability, that bias too largely
dissipates.”
. . . Except to score debating points, rarely do informed abolitionists claim
primary racism, i.e. a systemic race-of-defendant bias or impact. Now the attack
is almost exclusively directed to the race-of-victim bias, or effect: Those who kill
whites are sentenced to die more frequently than those who kill blacks, the
evidence does consistently show. Why is that, and what does it mean? . . . [T]he
Maryland study shows [the answer is] primarily found in the likelihood of a
prosecutor seeking the death penalty. After that, there is no additional racial
effect.
42
Why do prosecutors more frequently seek death where there are white victims
than where there are black victims? The Maryland study, Baldus' Nebraska study,
and Judge Baime's recent New Jersey study all show the same thing: [t]he county
- the jurisdiction - in which the murder is committed and thus the particular
prosecutor's office, primarily accounts for the disparity. In populous states,
suburban prosecutors tend to seek death more frequently than urban prosecutors.
Capital murders are more frequently of white victims in suburban counties; more
frequently of minority victims in urban counties. Thus white victim cases more
frequently get prosecuted capitally than black victim cases.
Finally, Professor Blecker argued that differences in the use of the death penalty between
urban and suburban counties reflect fiscal concerns, not racial bias. Urban counties, he said,
generally have less financial resources than suburban counties. Further, Professor Blecker said,
New York’s definition of capital murder includes intentional killings in conjunction with robbery
and burglary, crimes which are disproportionally race and class biased.
Michael Palladino of the Detectives Endowment Association also disavowed the
existence of racial disparities in the use of the death penalty:
[A] popular position of the opponents to capital punishment is that it is selectively
enforced based upon race or ethnicity. I don’t believe that for one minute.
Capital punishment is an issue of old-fashioned good versus evil. It’s about the
just punishment for heinous and egregious acts of murder. It’s about deterring
such reprehensible deeds. Although we cannot definitively measure the statistic,
if capital punishment prevents or deters just one horrible deed, if it saves just one
innocent life, then it has performed its duty.
New York’s death penalty law requires that, on appeal from any death sentence, the
Court of Appeals must review the sentence and consider whether it is disproportionate to other
murder convictions imposed in the state.
54
In its review, the court must determine:
• Whether the sentence imposed was influenced by an arbitrary or legally impermissible
factor including, but not limited to, passion, prejudice, or in the case of the verdict and/or
sentence, the race of the defendant or the race of the victim;
• Whether the sentence is excessive or disproportionate in comparison to similar cases,
including consideration of the race of the defendant and the victim of the crime; and
• Whether the decision to impose the sentence was against the weight of the evidence.
In each first degree murder case that results in a conviction, the clerk of the trial court
must review the record, consult with the prosecutor and defense lawyer, and prepare a data report
to assist the Court in its proportionality analysis.
54
N.Y. CRIM. PROC. LAW § 470.30; N.Y. JUD. LAW § 211-a.
43
Professor Baldus noted significant limitations with respect to New York’s proportionality
review requirement. First, the Court of Appeals does not receive data reports in all death-eligible
cases. Second, the Court does not appear to have developed a system for professional analysis of
its database. Third, it is unclear if the Court is developing a database of detailed and accurate
narrative summaries of the cases, with input from both prosecutors and the defense, which is
crucial to the actual review of cases for purposes of determining comparability. With the
adoption of improvements along these lines, Professor Baldus said, the Court of Appeals would
be better able to appropriately monitor and compare murder case sentences.
Sean Byrne urged that proportionality review by the Court of Appeals for potential racial
bias be limited to an analysis of comparable first degree murder cases. Mr. Byrne noted that of
55 death notices filed under the statute since 1995, racial data is available on 47 cases.
Calculating the percentages based on the 47 cases for which racial data is known, he says, 45
percent of the death noticed defendants in New York are black, 43 percent are white and 11
percent are Hispanic.
9. Claims of Class and Economic Discrimination
Several witnesses claimed the death penalty falls disproportionately on low income
persons. Economic disadvantage, these witnesses claimed, means these defendants cannot obtain
adequate legal counsel and are unable to afford expert assistance in their cases.
According to Robert Perry of the New York Civil Liberties Union, discrimination against
the poor in the administration of the death penalty is well established. What most often
determines the imposition of the death sentence is not the underlying facts of the case, he said,
but the quality of the legal representation. Mr. Perry quoted Justice Ruth Bader Ginsberg as
follows:
I have yet to see a death case among the dozens coming to the Supreme Court on
eve-of-execution stay applications in which the defendant was well-represented at
trial. . . . People who are well represented at trial do not get the death penalty.
Sean Byrne of the New York Prosecutors Training Institute praised the work of New
York’s Capital Defender Office.
55
Mr. Byrne and several other witnesses noted that in New
York capital cases, adequate resources and skilled defense lawyers have been made available to
defendants.
Professor Blecker noted one aspect of the New York law that, he believes,
disproportionately favors wealthy persons and those from upper economic classes. Perpetrators
of killings accompanied by robbery or burglary are eligible for the death penalty, he said, yet
corporate executives who make decisions knowing their actions will cause deaths are not.
55
It should be noted that, in turn, Jonathan Gradess of the N.Y.S. Defenders Association praised the N.Y.
Prosecutors Training Institute: “Prosecutors should not have to support capital punishment in order to achieve
training and support for [their] staff. New York should keep the doors of NYPTI open, even if the death penalty
comes off the … books.” Mr. Gradess continued, “The same should be true for the Capital Defender Office.
Indigent defense services … are in crisis, and that office should be used to help the state address that crisis.”
44
Professor Blecker argues that such “red collar killers,” who, for example, forego improvements
on potentially dangerous products or knowingly maintain potentially hazardous work sites,
should, if death occurs, be eligible for capital punishment.
10. Prosecutorial Discretion and Geographic Inconsistencies
Under most death penalty statutes, prosecutors have broad discretion to designate who
among those prosecuted for murder will be exposed to a possible death sentence. Several
witnesses expressed concern that this discretion could be exercised in ways that reflect class or
racial bias. Professor Acker, for example, argued that the broad discretion prosecutors have to
seek an indictment for first degree murder (which can be made death-eligible by the filing of a
notice) or second degree murder (which is not death eligible) on the same facts, and even in the
same case, represents unbridled discretion that is inappropriate and constitutionally suspect.
On the other hand, Professor Blecker contended there is no evidence anyone sentenced to
death under the 1995 law is innocent, and no evidence that the death penalty in New York has
been sought in a way that discriminates based on race or class.
Since 1995, the death penalty has been sought most frequently in three New York
counties: Kings, Queens and Monroe. Most counties, including some of New York’s most
populous, have not seen any capital prosecutions. In Professor Blecker’s view, resting discretion
with prosecutors reflects democratic principles, since prosecutors are elected officials. Professor
Blecker argues that there is no problem with geographic differences in the use of the death
penalty.
Other witnesses expressed concerns about geographic inconsistencies in the use of New
York’s death penalty. To some, it is illogical that a killing occurring in one town may result in a
death sentence while the same crime committed in another town, just across a county border, is
not considered a capital crime.
Onondaga District Attorney William Fitzpatrick identified the geographic disparity
argument as a classic “Catch-22.” It is unreasonable, he told the Committees, to, on the one
hand, vest independently elected prosecutors with discretion to seek or not seek the death
penalty, and, on the other hand, invalidate convictions and sentences based on differences in the
exercise of that discretion.
Stewart Hancock, a retired judge of the New York Court of Appeals, expressed concern
that in murder cases, each of New York’s sixty-two district attorneys is vested with vast
discretion to seek upgraded first degree charges and file a "death notice" or not. Judge Hancock
believes this formulation “virtually guarantees inequality and arbitrariness” in the application of
the death penalty in New York.
The New York Court of Appeals has not directly addressed the issue of geographic
inconsistencies in the use of the death penalty among New York’s counties. On an arguably
45
related issue, however, the Court of Appeals upheld an executive order by which Governor
Pataki substituted Attorney General Dennis Vacco for Bronx District Attorney Robert Johnson,
in a potentially capital case, because the Governor believed D.A. Johnson was unwilling to seek
the death penalty.
56
11. Competence and Effectiveness of Defense Counsel
Several witnesses commented on the quality of representation by defense counsel in
capital cases in New York and throughout the nation.
Sean Byrne of the New York Prosecutors Training Institute credited the Capital Defender
Office, which was established in New York as a part of the 1995 death penalty law, indigent
defense organizations like the Legal Aid Society and private counsel (appointed pursuant to
section 35-b of the Judiciary Law) with providing “very capable” representation to New York
capital defendants. Mr. Byrne and other witnesses contended that problems with underfunded
and inadequate representation, arguably found in other states, are not present for capital cases in
New York.
Mark Green is with the New Democracy Project and served as Public Advocate for the
City of New York. Referencing When the State Kills, by Austin Sarat, Mr. Green noted that
appointed lawyers provide inadequate representation in many capital cases. “Examples of
incompetent and inexperienced counsel in capital cases abound,” he said, “which helps to
explain why so many convicted defendants in capital cases are later exonerated.”
Michael Whiteman, former counsel to Governors Rockefeller and Wilson, argued in a
memorandum that the New York statute is inappropriately silent on the right to appointed
counsel in federal habeas corpus, state post-conviction proceedings and clemency proceedings.
Kathryn Kase, an attorney with experience in New York and Texas death penalty cases,
recalled the Texas case of Calvin Burdine, whose lawyer, she said, slept through portions of his
client’s capital trial. Burdine’s conviction and death sentence were nonetheless affirmed.
57
Ms.
Kase noted that New York precedent might accept a similar result. In People v. Tippins,
58
she
said, New York’s Appellate Division, Second Department ruled that the standards for effective
assistance of counsel are not necessarily violated when a defense lawyer sleeps through portions
of a criminal trial.
George Goltzer, a board member of the New York State Association of Criminal Defense
Lawyers, acknowledged that death sentences throughout the country have been reversed because
a lawyer was constitutionally or otherwise legally inadequate. But in other cases, he said, even
the most experienced attorneys make “strategic errors, forget to raise an objection . . . miss an
56
See Johnson v. Pataki, 91 N.Y.2d 214 (1997).
57
See Ex parte Burdine, 901 S.W.2d 456 (Tex. Ct. of Crim. App. 1995) (Maloney, J., dissenting).
58
173 A.D.2d 512, 513, lv. denied, 78 N.Y.2d 1015 (1991).
46
issue, or have a bad day.” One defendant, he said, will get a new trial because his lawyer
objected, preserving the issue for review on appeal, while another defendant will be executed
because his trial lawyer did not promptly object to the error. Mr. Goltzer asserted that this is
fundamentally unfair, particularly in capital cases.
12. Religious-based Views
Testimony concerning religious views on the death penalty was primarily in opposition to
capital punishment. Several witnesses urged that long sentences and life without parole are a
better alternative than the death penalty. Many witnesses identified their God as sovereign, wise
and omnipotent; only God, these witnesses contended, can give life and take it away.
In addition, witnesses testified that mistakes can be made through human error possibly
leading to an innocent person being executed. Several testified that the hope of an execution
giving peace of mind is rarely, if ever, realized.
The Steering Committee of New York Religious Leaders Against the Death Penalty
59
(hereinafter “Steering Committee”), in its “Interfaith Statement on Capital Punishment” stated
that “much more can and must be done by the religious community, in particular, and by society
in general to comfort and care for grieving families of murder victims, without resorting to
vengeful and violent solutions.”
One organization, the Brethren, a Christian Fellowship, voiced support for the death
penalty. Three group members, Robert Walker, Tim Taylor and James Taylor III, spoke at the
hearings. The Brethren believe the biblical phrase “vengeance is mine” means the government
has the authority and responsibility to administer capital punishment for murder. The group does
not believe capital punishment denies a criminal the opportunity for redemption. They believe
God “has delegated to the Governments of men the responsibility to protect life, and to avenge
its violent demise.” Group members testified that they “support capital punishment as a
deterrent to evil; for the protection of the people of New York State.”
Many other speakers argued against the use of the death penalty as vengeance. The
Steering Committee stated, “The death penalty is an act of vengeance that is contrary to our
religious teachings, detrimental to building a civilized and violence-free society, and demeaning
to all of us as citizens. Society has a right to protect itself, but it does not have a right to be
vengeful.”
“[T]he death penalty system is replete with fatal flaws and constant errors,” the group
said. “Too often it is not the crime itself but such factors as race, economics, and geography,
59
Members of the “Steering Committee” include: Bishop Howard J. Hubbard, Roman Catholic Bishop of
Albany; Rabbi Peter J. Rubinstein, Co-Chair Senior Rabbi Central Synagogue, Manhattan; Sr. Camille D’Arienzo,
RSM, Co-Founder, the Cherish Life Circle, Brooklyn; Bishop Violet L. Fisher, Resident Bishop of the New York
West Area of the United Methodist Church, Rochester; Rev. Thomas W. Goodhue, Executive Director, The Long
Island Council of Churches, Hempstead; Rev. Daniel B. Hahn, Director, Lutheran Statewide Advocacy, Albany;
The Rt. Rev. Jack McKelvey, Bishop of the Episcopal Diocese of Rochester.
47
politics, or the defendant’s mental capacity that are ultimately significant in determining the
application of the death penalty.” The Steering Committee statement went on to explain, “Our
legal system is a very good one, but it is nonetheless a human institution… Even a small
percentage of irreversible errors is intolerable. The only way to prevent the execution of the
innocent is not to execute anyone.”
Roman Catholic Bishop Howard J. Hubbard of Albany and Dominick Lagonegro,
Auxiliary Bishop of the Archdiocese of New York testified to the futility of vengeance. Bishop
Hubbard stated, “[M]y experience and my faith lead me to conclude that while justice most
certainly demands corrective punishment for those who have done grave harm, we as civilized
people must not resort to vengeance, which is not only unhealthy for a society but ultimately
unsatisfying for those who have been harmed.”
Reverend Geoffrey A. Black of the New York Conference of the United Church of Christ
stated , “Jesus teaches us to not return evil for evil. Of course this is not always the way of the
world in which we live, but as Christians we are challenged not to conform to the ways of the
world and the requirement of retribution is one of those ways.”
Several speakers opposed the death penalty on grounds that it devalues human life.
Wanda Goldstein of the Unitarian Universalist Congregation of the Catskills believes there is no
system of jurisprudence that can “guarantee absolutely that no innocent person will ever be
executed. Our system is designed by human beings; at every level it is human beings making the
decisions. This is the strength of our system of justice. We rely upon the professionalism of our
police force, prosecutors, defenders and judges, and upon the reasoned judgment of citizen
juries.”
Hal Weiner of the St. Saviour Chapter of the Episcopal Peace Fellowship said, “when we
deliberately take a life, we are no better than the person we choose to deprive of it. We are
saying that we know for a fact that this person is beyond redemption; no way that they will ever
show remorse, be repentant, or show any sign of humanity. We are deciding that the person has
nothing to contribute to society. There is no way to know that we are second guessing God. To
God, every life is precious.”
Bishop Dominick Lagonegro of the New York State Catholic Conference, Chaplains
Apostle Committee, testified that “at the heart of Catholic social teaching is the knowledge that
[a] human being is central, the clearest reflection of God among us. Every human being
possesses a basic dignity that comes from God, not from any human quality or accomplishment,
not from race or gender or age or economic status. Human life is inherently precious.”
As a chaplain liaison, Bishop Lagonegro has visited correctional facilities, including
Clinton Correctional Facility in Dannemora, which houses those inmates who have been
condemned to death. He described this as “a very sobering experience, to put it mildly.” He
stated, “it is extremely challenging to bring hope when there is no room for rehabilitation. Our
Chaplains advocate for basic human rights, a life of dignity and the possibility of healing and
conversion. But all of these objectives are in a collision course with a death penalty law.”
48
Strong opposition to the death penalty was voiced by, among others, Anzetta Adams,
Baptist Ministers Conference of Greater New York; Bishop Jack M. McKelvey, Episcopal
Diocese of Rochester; Rev. Daniel B. Hahn, Lutheran Statewide Advocacy; Rev. Thomas W.
Goodhue, Long Island Council of Churches; Michael Kendall, Arch Deacon, Episcopal Diocese
of New York; Ruth S. Klepper, Interfaith Impact of N.Y.S.; Rev. N.J. (Skip) L'Heureux Jr.,
Queens Federation of Churches; Rev. John Marsh, Unitarian Universalists for Alternatives to the
Death Penalty; and Jim Morgan, Virgil to End the Death Penalty, Brooklyn.
Sister Camille D’Arienzo of the Institute of the Sisters of Mercy of the Americas and the
Cherish Life Circle of Brooklyn stated, “If we exclude anyone from God’s redemptive grasp, we
reject God’s promises and invalidate the power of Christ’s crucifixion. Of course, as we learn of
innocent people who have faced the death penalty, we remember that Jesus was an innocent
victim of capital punishment.”
The Committees heard testimony from several members of the Religious Society of
Friends (also known as the Quakers). Lee Haring of the Bulls Head-Oswego Religious Society
of Friends said they “try to work toward removing the causes of misery and suffering.” The
group urges members to support efforts to overcome racial, social, economic, and educational
discrimination; bear testimony against all forms of oppression; exert influence for such
treatment of prisoners as may help reconstruct their lives; and work for the abolition of the death
penalty.
The Committees also heard opposition to the death penalty from Rabbi Marc Gruber,
Rabbi Shlomo Blickstein and representatives of Reform Jewish Voice of New York. Rabbi
Blickstein pointed out that the Bible is “obsessed with the possibility of a . . . wrongful execution
. . . .” He emphasized that “ . . . circumstantial evidence is not admitted in the biblical Jewish
court of law . . . and in capital cases the testimony of at least two eyewitnesses is required.”
Rabbi Gruber added a caution from the Sanhedrin, that one “who takes vengeance destroys his or
her own house.” “Capital punishment,” Rabbi Gruber said, “will not address the problem of
violent crime; it will only help us to be more callous in the face of killings.”
13. National and International Trends in the Use of the Death Penalty
Thirty-eight states have enacted the death penalty. Since 1976, the following states have
conducted the most executions: Texas (340 executions), Virginia (94) and Oklahoma (76).
Connecticut, New Hampshire, New Jersey and South Dakota all have active death penalty laws
but have performed no executions.
Twelve states -- Alaska, Massachusetts, Rhode Island, Hawaii, Michigan, Vermont,
Iowa, Minnesota, W. Virginia, Maine, N. Dakota, Wisconsin -- and the District of Columbia
have abolished the death penalty.
On December 17, 2004 the Kansas Supreme Court struck down that state’s death penalty
law.
60
The Court ruled unconstitutional a provision that appeared to require jurors to impose a
60
Kansas v. Marsh, 102 P.2d 445 (2004).
49
death sentence if the jurors found aggravating and mitigating factors to have equal significance
and weight.
Professor William Hellerstein of Brooklyn Law School identified states with the most
exonerations of wrongly convicted defendants from 1989 to 2003. These are Illinois (54), New
York (35), Texas (28), and California (22). He noted that these are among the states with death
penalty laws.
Professor James Liebman of Columbia University School of Law testified concerning the
research he conducted with colleague Jeffrey Fagan. Professors Liebman and Fagan examined
the outcome of 6,000 death sentences imposed and reviewed in the United States. Professors
Liebman and Fagan found that in the death penalty states they studied, the error rate for capital
cases was 50 percent or more. Moreover, a person on death row had a greater chance of having
his or her death sentence overturned than having it upheld on appeal. New Jersey had a reversal
rate of 87 percent; Connecticut and New York had capital case reversal rates of 100 percent for
the period studied.
61
Robert Perry of the New York Civil Liberties Union testified concerning the Illinois
moratorium. In 2000, Governor George Ryan declared a statewide moratorium on executions
after it was established that thirteen people sentenced to death under Illinois’ most recent death
penalty law were not guilty of their crimes. A bipartisan commission appointed by Governor
Ryan made eighty-five recommendations it said were necessary to help prevent such wrongful
convictions.
Gerald Kogan, a retired Chief Justice of the Florida Supreme Court, testified concerning
his experience with the death penalty in Florida. During Judge Kogan’s tenure on Florida’s high
court, twenty-eight persons were executed in that state. In most of those cases, Judge Kogan
voted to uphold the verdict and death sentence.
Judge Kogan acknowledged that “not only … guilty people get convicted in a court of
law, but there are innocent people who are also convicted. “ DNA evidence, he said, has brought
an objective way to demonstrate certain wrongful convictions. According to Jusdge Kogan,
twenty-five persons have been released from death row in Florida, not only due to DNA
evidence, but also due to faulty eyewitness identifications and evidence of coerced confessions.
Judge Kogan urged the legislature not to restore the death penalty in New York.
Professor James Liebman identified what he considers three distinct state death penalty
models. First, he said, is the “Texas model.” States following this model have a high number of
executions. Procedural shortcuts are taken to save time and money. This results in poor trial and
appellate procedures. These states run a higher risk of error, reversals and retrials.
The second model reflects the practices of California and Pennsylvania. These states
make heavy use of their death penalty statutes but also make a concerted effort to control error at
61
It should be noted that the New York reversal rate cited here reflects only four cases, all of which were
reversed on appeal.
50
both the trial and appellate stages. This results in few executions with a moderate risk of
executing innocent persons.
For example, Professor Liebman said, California in the past twenty-seven years has had
650 people on death row. During that time, eleven persons have been executed. In the same
period, Pennsylvania had 250 people on death row. But, according to Professor Liebman,
Pennsylvania executed only three persons, each of whom requested that further appeals be
withdrawn.
The third model, Professor Liebman said, is one that New York (“besides Monroe and
Suffolk County”) appears to have been following. This involves relatively careful trial and
appellate procedures and concomitant high costs. This also means low numbers of death verdicts
and executions. Professor Liebman projected that if New York were to continue with this
approach, it would likely see one or two executions each year.
Dr. William Schulz of Amnesty International, USA testified about international trends in
the use of the death penalty. The United States, he said, is one of the few industrialized nations
in the world that retains the death penalty. Countries like Argentina, Australia, France, Hungary
and Mozambique have abolished the death penalty. China, Iran, Vietnam and the United States,
he said, account for 84% of judicial executions worldwide.
Dr. Schulz contended that when countries move toward a more democratic form of
government, they often abolish the death penalty. Countries such as Haiti, Paraguay and
Romania, he said, recently abolished capital punishment. In 1991, the South African
government declared a moratorium on the death penalty when it released Nelson Mandela and
opened negotiations with the African National Congress. This resulted in the abolition of the
death penalty in South Africa in 1995, Dr. Schulz said. Sean Byrne of the Prosecutors Training
Institute noted, however, that the largest democracy in the world (India), the most populated
country in the world (China) and the largest country geographically (Russia) all allow capital
punishment.
Dorit Radzin of Human Rights Watch contends that by retaining the death penalty, the
United States undermines its ability to promote democracy and human rights in other nations.
According to Ms. Radzin, since 1990 more than thirty-five countries have abolished the death
penalty. Ms. Radzin also pointed to international human rights law, as codified in the
International Covenant on Civil and Political Rights, which, she said, favors the abolition of
capital punishment, although it does not prohibit executions categorically. The United Nations
Commission on Human Rights, she said, has approved resolutions opposing the death penalty.
Most European nations, Ms. Radzin said, have long opposed the death penalty. Protocol
13 to the European Convention on Human Rights went into effect in 2003, and calls for abolition
of the death penalty in all circumstances, without exception, she said. Professor Blecker
expressed the view that European political opposition to the death penalty does not reflect the
views of the majority of the European people.
51
14. Prosecution, Jury Selection and the Capital Trial Process
Russell Neufeld, an attorney who has defended persons charged with capital crimes,
noted that New York’s death penalty law does not include different or expanded rules or
procedures for the disclosure of information, or “discovery”, in advance of trial when compared
to other criminal cases. Mr. Neufeld argued that more expansive disclosure laws are needed to
help avoid erroneous convictions.
Michael Whiteman, who served as counsel to Governors Rockefeller and Wilson and
testified for New Yorkers for Fairness in Capital Punishment, agreed. His group, first formed in
1995, continues to believe “reliable trials require comprehensive pretrial discovery.”
Several witnesses commented on the different procedures for jury selection in capital
cases as opposed to other criminal cases. Professor James Acker of SUNY Albany argued that it
is unfair that persons with strong convictions against capital punishment are not allowed to
participate in any aspect of a capital trial. Professor Bennett Gershman of Pace University Law
School agreed. Under Wainwright v. Witt,
62
he said, prosecutors can “skew” the fact-finding
process in the guilt/innocence phase by striking jurors who, though fair minded, oppose capital
punishment.
Michael Whiteman shared these concerns as well. According to Mr. Whiteman,
dismissal of a single qualified prospective juror due to his or her opposition to the death penalty
should require reversal of any death sentence and a new trial.
During capital trials (as in most trials), judges generally give preliminary instructions
explaining the trial process and the jurors’ role in it. Jurors also receive instructions or
information from the court as the trial proceeds. Additionally, jurors are instructed concerning
the law and their duties at the close of evidence, before retiring to consider a verdict and, in
capital cases, before the jury’s penalty phase deliberations. Several witnesses commented on
whether capital case jurors comprehend and are able to follow instructions given by the court.
Professor Bowers submitted a study he wrote with Professor Wanda Foglia. Based on
that study, Professor Bowers contended that jurors make premature sentencing decisions at the
guilt phase (before penalty phase evidence is presented), that jurors significantly underestimate
how long a defendant will serve in prison if not sentenced to death, that jurors frequently do not
understand the judge’s instructions at the sentencing phase, and that jurors incorrectly believe
they must impose a death sentence if certain aggravating factors are present. Furthermore,
Professor Bowers contended, many jurors wrongly believe they are not responsible for the
ultimate sentencing decision.
62
469 U.S. 412 (1985).
52
15. Appeals and Post-Conviction Proceedings
Professor Bennett Gershman of Pace University Law School expressed concern that
appellate rules, such as the “harmless error” doctrine, encourage prosecutors to deliberately
engage in prejudicial conduct, in the expectation that an appellate court will overlook the
misconduct. Professor Gershman also urged the Legislature to statutorily relax preservation
rules, thereby assuring that appellate courts may consider trial errors even when defense counsel
failed to register a contemporaneous objection.
Ronald Tabak chairs the Death Penalty Committee of the American Bar Association’s
Section on Individual Rights and Responsibilities. Mr. Tabak testified on behalf of New York
Lawyers Against the Death Penalty. He told the Committees that several reforms are needed to
assure that trial, appellate and post-conviction courts can hear valid post-conviction claims.
These reforms include: permit only “knowing and voluntary” waivers of issues and claims by
trial and appellate counsel; apply appellate decisions retroactively when beneficial to the
defendant; and permit successive applications for relief, including successive habeas corpus
petitions, in capital cases. Professor Eric Freedman of Hofstra University Law School added that
state law should recognize an enforceable right to effective assistance of counsel in all post-
conviction proceedings.
Schenectady County District Attorney Robert Carney supports the death penalty in
principle, but believes the Legislature should not restore it in New York. District Attorney
Carney believes appellate courts use strained legal reasoning to reverse death sentences, and this
has the potential to negatively affect both capital and non-capital trial and appellate case law.
District Attorney Carney notes, too, that due to the finality of capital punishment,
lawyers defending these cases demand procedural changes, such as the videotaping of
confessions, sequential photo arrays and double-blind identification procedures, which most
prosecutors oppose. District Attorney Carney believes that momentum for these changes grows
with a death penalty in place. Without capital punishment, he said, “the prosecutor’s brief
against this trend is strengthened.”
Bettina Plevan of the Association of the Bar of the City New York noted that New York's
death penalty statute does not assure a right to counsel during every phase of a post-conviction
proceeding in a death penalty case.
63
Ms. Plevan pointed out that often, post-conviction
63
N.Y. JUD. LAW § 35-b provides for the appointment of counsel for accused persons unable to afford
counsel in capital cases. Subdivision 12 of section 35-b provides as follows:
Nothing in this section shall be construed to authorize the appointment of counsel, investigative, expert or
other services or the provision of assistance, other than continuing legal education, training and advice,
with respect to the filing, litigation, or appeal of a petition for a writ of habeas corpus in any federal court;
nor shall anything in this section be construed to authorize the appointment of attorneys, investigative,
expert or other services in connection with any proceedings other than trials, including separate sentencing
proceedings, of defendants charged with murder in the first degree, appeals from judgments including a
sentence of death, and initial motions pursuant to section 440.10 or 440.20 of the criminal procedure law
and any appeals therefrom.
53
proceedings are the forum in which new evidence emerges, particularly evidence of innocence.
New York’s failure to assure a right to counsel throughout all post conviction phases, she said,
puts New York out of compliance with standards of representation developed by the American
Bar Association.
Professor Eric Freedman of Hofstra University Law School agreed that New York’s laws
need to be amended to assure a right to counsel in all post-conviction litigation. According to
Professor Freedman, the ABA Guidelines call for representation in capital cases by a team of
lawyers and specialists at every stage of the case. But, he said, New York provides only a single
lawyer for an initial C.P.L. Article 440 post-conviction motion.
Professor Freedman contended that post-conviction review helps uncover evidence of
wrongful convictions and, particularly in capital cases, inappropriate sentences. Relief can be
obtained in state collateral review proceedings, federal habeas corpus actions or via executive
clemency. Appointed counsel, he said, is needed at each of these stages. Professor Freedman
analogized the need for effective counsel in post-conviction proceedings to the holding of the
United States Supreme Court in Wiggins v. Smith,
64
in which a death sentence was reversed
because of ineffective sentencing representation by Wiggins’s capital trial counsel.
16. Conditions on New York’s Death Row
New York State's "death row" is known as the "Unit for Condemned Persons" or "UCP".
Men on death row are housed at the Clinton Correctional Facility in Dannermora, located fifteen
miles south of the Canadian border. No women are on death row in New York. However, a
facility for death-sentenced women is maintained at the Bedford Hills Correctional Facility in
Westchester County.
65
Professor Michael Mushlin of Pace University Law School testified before the
Committees. In Professor Mushlin’s opinion, the conditions on New York’s death row are
unduly harsh. He described New York’s UCP as the most restrictive type of solitary
confinement that is possible in a modern penal environment.
According to Professor Mushlin, New York’s death row inmates are jailed in nearly
complete isolation, locked in individual cells for twenty-three hours each day. All exercise is
solitary, one hour or less per day, and occurs in an outdoor caged area regardless of weather
conditions. The cells are illuminated 24-hours a day. There is uninterrupted video and audio
surveillance.
Professor Mushlin also said that, Dr. Craig Haney, a professor of psychology at the
University of California, Santa Cruz, has written that “conditions [such as these] that we know
64
539 U.S. 510 (2003).
65
See generally Assoc. of the Bar of the City of N.Y., Dying Twice: Conditions on New York’s Death
Row (2001). Professor Michael Mushlin was Chair of the Committee on Corrections of the ASSOC. OF THE BAR OF
THE
CITY OF N.Y., which jointly engaged in the study of conditions on New York’s death row with the Association's
Committee on Capital Punishment.
54
we are likely to lead to cognitive, emotional and behavioral deterioration and . . . result in other
forms of potentially disabling psychological harm.” Professor Haney continued by testifying
that these “conditions can have a ‘direct effect on whether or not [a condemned prisoner] will
continue to challenge the legal proceedings that led to their death sentence.’”
Professor Mushlin testified that some people sent to death row will not ultimately be
executed . He also stated that some “will have their sentences changed or overturned, and will
return to the general prison population or society.” There are thus practical reasons, Professor
Mushlin said, why disabling death row conditions should be avoided.
Professor Robert Blecker believes that prison conditions for “the worst of the worst”
should indeed be spartan, even severe. Punishment should not be only about duration, he told
the Committees, but also about the quality of life while confined.
When a person is imprisoned for 70 years or LWOP, Professor Blecker said, “life takes
on new meaning. There are new joys and satisfactions.” He testified that inmates exercise, read,
watch television. Small things create new pleasures: new clothing, a toothbrush, snacks,
friendship. According to Professor Blecker, many inmates sentenced to lengthy prison terms,
including LWOP, are the worst of the worst, and the “worst among them don’t deserve”
comforts and privileges.
Russell Neufeld has regularly visited a client on death row at the Clinton Correctional
Facility. He testified that Professor Blecker’s description of less austere death row conditions in
some states has no application to death row in New York. The conditions Mr. Neufeld
described are similar to those described by Professor Mushlin. The inmates, he said, have no
contact with other prisoners, and virtually no human contact. Only recently, Mr. Neufeld
testified, has he been permitted to converse with a client directly, rather than shout through a
Plexiglas partition.
Mr. Byrne of the Prosecutors Training Institute countered that conditions on New York's
death row are neither substandard nor inappropriate and that death row inmates in New York live
in a "humane environment" accredited by the American Correctional Association.
17. Execution Process
New York law provides that the punishment of death shall be inflicted by lethal injection,
defined as "the intravenous injection of a substance or substances in a lethal quantity into the
body of a person convicted until such person is dead."
66
Section 659 of the Correction Law
provides that the commissioner “shall provide and maintain a suitable and efficient facility,
enclosed from public view, within the confines of a designated correctional institution for the
imposition of the punishment of death. That facility shall contain the apparatus and equipment
necessary for the carrying out of executions by lethal injection.”
Pursuant to Correction Law Section 655, the Governor may reprieve the execution of a
person sentenced to death. Pursuant to Correction Law section 654, the governor is authorized
66
N. Y. CORRECT. LAW § 658.
55
to request the opinion of the attorney general, the district attorney, or the convicted person’s
counsel as to whether the execution of a person should be reprieved or suspended.
A few witnesses testified concerning the effects of execution on family members and
others who interact with the condemned man or woman.
Robert Meeropol was born Robert Rosenberg. His parents were Ethel and Julius
Rosenberg. The Rosenbergs were convicted of conspiracy to commit espionage and were
executed at New York’s Sing Sing Prison in 1953.
Robert Meeropol (who changed his name when he was adopted) was six years old when
his parents were executed. Mr. Meeropol’s testimony focused on the impact an execution has on
the defendant’s children. Mr. Meeropol grew up with a general sense of anxiety. He survived
due to a supportive community and adoptive family. Nationally, Mr. Meeropol said, little
attention is paid to the children of condemned persons. Mr. Meeropol opposed the death penalty
and urged legislators to consider the impact on the children of condemned persons before
enacting any death penalty legislation.
Bill Babbitt discovered evidence that his brother Manny was responsible for the death of
a woman, Leah Schendel. According to Mr. Babbitt, Manny Babbitt suffered from post-
traumatic stress disorder caused by his service in the Vietnam conflict. Bill Babbitt testified that
he informed Sacramento Police, and advised the police that his brother suffered from a mental
illness. Bill Babbitt says he was assured his brother would receive mental health treatment.
Manny Babbitt was apprehended, but Bill Babbitt was surprised when the District
Attorney announced that he would be seeking the death penalty. Manny Babbitt was convicted
and subsequently executed by the State of California. Bill Babbitt testified that he knows the
community is a safer place with his brother off the streets, but, “I feel that I have my brother’s
blood on my hands.”
Although his brother was not executed, David Kaczynski of New Yorkers Against the
Death Penalty told of a similar experience. David Kaczynski is the brother of Ted Kaczynski,
known as the “Unabomber”. Mr. Kaczynski and his wife provided information to the FBI, which
led to the arrest and eventual conviction of Ted Kaczynski. David Kaczynski testified that after
his brother was arrested, he was shocked to discover that the Justice Department intended to seek
the death penalty. “[I]it didn’t seem to concern prosecutors,” David Kaczynski testified, “that
my brother was mentally ill with schizophrenia, or that executing him would discourage other
families from following our example in the future.” Ted Kaczynski is now serving a life
sentence in federal prison.
Bianca Jagger, a member of the Leadership Council of Amnesty International, USA,
witnessed the Texas execution of Gary Graham. Mr. Graham, she said, was sentenced to death
based on the testimony of one eyewitness, and maintained his innocence up to and including the
moment of his execution. “It is difficult to describe my horror at witnessing his death,” she told
the Committees. “I could see Gary Graham was tied to a hospital trolley and about to be killed.
It reminded me of a modern day cross and I was there to witness the execution of a man I believe
56
to be innocent. I was in a state of disarray and I was revolted and terrified at the thought of
witnessing another human being killed.”
As noted earlier, Stephen Dalsheim worked for the New York State Department of
Correctional Services for 42 years, the last 20 as superintendent in charge of various prison
facilities. Superintendent Dalsheim was responsible for many inmates sentenced to death, and
was in charge of Sing Sing prison during numerous executions.
Superintendent Dalsheim testified that executions had a palpable effect on staff at the
“death house”. Many of the officers who guarded death row drank excessively. Superintendent
Dalsheim recalled one officer, who was in charge of the unit for condemned men and in charge
of the procedures for carrying out executions. The officer took his job seriously, but also talked
about having to kill people. He also told Superintendent Dalsheim that he was “never quite sure
whether the person he was killing was guilty or innocent.”
18. Proposed Legislative Amendments to the Death Penalty Law
Several witnesses offered recommendations concerning legislation to address the LaValle
decision, including Governor’s program legislation passed by the Senate in 2004 and 2005.
67
The legislation passed by the Senate is designed to address the LaValle decision in three
ways. First, the bill would provide that, after finding a defendant guilty of murder in the first
degree, jurors would be instructed that they must by unanimous vote determine one of three
penalty phase options: death, LWOP, or life imprisonment with a minimum term of at least
twenty and up to twenty-five years. Second, the jurors would be instructed that if they fail to
unanimously agree on one of these three sentences, the judge would sentence the defendant to
life imprisonment without parole.
Third, this legislation seeks to apply these new procedures not only to future cases, but
also retroactively “to crimes committed prior to . . . the effective date” of the new law.
68
Comments on Senate Bill # 7720 (2004)/ Senate Bill # 2727 (2005)
Sean Byrne of the NY Prosecutors Training Institute contended that S. 7720/S. 2727
would correct the problem identified by the Court in LaValle, and that the correction could be
applied retroactively as proposed by the bill. Mr. Byrne argued that applying the new law to
older cases, including those committed after LaValle
but before enactment of the new legislation,
would not violate the federal prohibition against ex post facto laws, even though the deadlock
67
Governor’s Program Bill No. 78, S. 7720 (Volker, et al.) was introduced in the Senate on August 9,
2004, and passed by the Senate on August 11, 2004. The bill was reintroduced during the 2005 legislative session
on February 25, 2005 and passed by the Senate on March 9, 2005. (Governor’s Program Bill No. 27, S. 2727
(Volker, et al.). Assembly Bill 1452 (Nesbitt, et al.) contains nearly identical provisions. As noted earlier,
Assemblyman Robin Schimminger has also introduced legislation that would enact similar amendments to address
the LaValle
decision and also make other changes to the death penalty law (A. 5523; A. 5524; A. 5525).
68
See S. 7720, § 5; S. 2727, § 5.
57
sentence would be retroactively elevated, from a parole-eligible sentence of 20-25 years-to-life,
to a sentence of life imprisonment without parole.
Mr. Byrne expressed confidence that these changes could constitutionally be applied
retroactively because the changes are “ameliorative” and procedural (presumably, to correct the
coercive nature of the present instruction). Professor Blecker agreed, “[b]ased on no well-
developed expertise in retroactivity,” that retroactive application of the Senate bill appears to be
constitutional under the decision of the U.S. Supreme Court in Dobbert v. Florida,
69
While Mr. Byrne supported the Senate-passed legislation, he also advocated an
alternative approach:
[W]ith respect to first degree murders committed prior to the effective date of the
corrective legislation, the deadlock charge should be amended to require that the
court must charge the jury to determine whether the defendant should be
sentenced to death, to life imprisonment without parole, or to an indeterminate
term of imprisonment with a minimum term to be determined by the court, of
between 20 and 25 years, and a maximum term of life. If the jury is unable to
reach a unanimous verdict, the court must sentence the defendant to the
indeterminate term, with a minimum between 20 and 25 years, and a maximum of
life.
70
Mr. Byrne went on to suggest that first degree murders committed after the effective date of the
legislation should be treated differently. For these future cases, he said:
[T]he deadlock charge statute should be amended to require that the court charge
the jury to determine whether the defendant should be sentenced to death, or to
life imprisonment without parole. If the jury is unable to reach a unanimous
verdict [between these two options], the court must sentence the defendant to life
imprisonment without parole.
Professor James Acker of the State University of New York at Albany expressed concern
about the type of legislative changes discussed above. Professor Acker said any legislation that
would give jurors only two options (death or LWOP) but judges three options (death, LWOP and
20-25 years to life) would be constitutionally suspect because, he said, prosecutors would be
empowered to eliminate the opportunity for a parole eligible-sentence by filing a death notice.
69
432 U.S. 282 (1977).
70
The deadlock instruction under this formulation is the same as the instruction struck down by the Court
of Appeals in the LaValle decision. Mr. Byrne added, however, (in an apparent effort to address the coercive effect
of the required deadlock instruction as found by the Court in LaValle
) that, with respect to first degree murders
committed before enactment of the new legislation, jurors should be instructed that they could consider, as a
mitigating factor, that the defendant would not pose a risk if released in the future. In response to questioning, Mr.
Byrne also said he believed a defendant could be permitted to waive this instruction, (if, for example, the defense
concluded it might be prejudicial to raise the question of future dangerousness before the jury).
58
Professor Acker questioned whether constitutional principles of due process, equal protection
and separation of powers would permit legislation that allows the prosecutor to unilaterally deny
eligibility for possible, eventual release.
Professor Acker posited that giving three options to the penalty phase jury (death, LWOP
and 20 to 25 years to life imprisonment) with LWOP on deadlock would be flawed as well. If a
deliberating jury rejects death and, in its penalty phase vote, splits eleven to one in favor of a 20-
25 years-to-life sentence, he asked, why should a deadlock sentence of LWOP (which was
opposed by 11 of 12 jurors) be statutorily required? According to Professor Acker, “this
proposed solution to jury deadlocks appears to be unprecedented in other state death penalty
legislation that includes three sentencing options.”
Finally, Jonathan Zimet provided a memorandum in which he reviews several approaches
the Legislature could take in an attempt to address the LaValle
ruling.
71
Mr. Zimet analyzed a
variety of options but he made no specific recommendation. Mr. Zimet did conclude, however,
that retroactively elevating the deadlock/ default sentence (for crimes committed before
enactment of any amendatory legislation) from the previous deadlock sentence of 20 to 25 years
to life, to a new deadlock sentence of LWOP, “would likely be invalidated under the Ex Post
Facto clauses of the federal constitution.”
72
71
Mr. Zimet emphasized in a footnote that “the views and opinions expressed [in the memorandum] are
solely those of the author . . . .”
72
This retroactive approach is proposed in the Governor’s program legislation passed by the Senate
discussed earlier. In testimony before the Committees, Monroe County D.A. Michael Green also expressed
concerns about the validity of this retroactive approach.
Appendix
ASSEMBLY STANDING COMMITTEE ON CODES,
ASSEMBLY STANDING COMMITTEE ON JUDICIARY AND
ASSEMBLY STANDING COMMITTEE ON CORRECTION
HEARING ON THE DEATH PENALTY WITNESS LIST
(Persons Who Actually Testified)
#1
NEW YORK CITY
WEDNESDAY, DECEMBER 15, 2004
10:00AM
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
MEETING HALL, 42 WEST 44
TH
STREET
1. Hon. Robert Morgenthau
District Attorney, New York County
2. Robert Blecker, Esq.
Professor, New York Law School
3. Panel
Barry Scheck, Esq., Co-Director
Innocence Project
Thomas Sullivan, Esq. (Ryan Commission)
Jenner & Block
Russell Neufeld, Esq.
Defense Attorney
Juan Melendez
Madison Hobley
4. Panel (Family members of murder victims)
Joan Truman-Smith
Bill Pelke
Murder Victims Families for Human Rights
5. Panel (Family members of murder victims)
Kate Lowenstein
Murder Victims Families for Reconciliation
Patricia J. Perry
Bill Babbitt
6. Panel
Howard Hohne
Ernest Shujaa Graham
Campaign to End the Death Penalty
7. Panel
David Baldus, Esq.
Professor of Law, University of Iowa College of Law
Eric Freedman, Esq.
Hofstra University
Isaiah Skip Gant, Esq.
Federal Death Penalty Resource Counsel
8. Panel
Jennifer Cunningham, Esq.
Executive Vice President, 1199 SEIU Service Employees Int’l Union
9. Panel
Christina Swarns, Esq.
NAACP Legal Defense Fund
S. Jean Smith, Esq.
The Cherish Life Circle
Sister Camille D’Arienzo, Co-Founder
The Cherish Life Circle, Brooklyn
Rev. N.J. (Skip) L'Heureux Jr., Executive Director
Queens Federation of Churches
Michael Kendall
Arch Deacon, Episcopal Diocese of New York
Vice President of the Counsel of Churches in New York City
Dr. James Fitzgerald
Minister for Social Justice at the Riverside Church in New York City
10. Bishop Dominick Lagonegro
Archdiocese of New York
NYS Catholic Conference Chaplains Apostle Committee
11. Andrew Cuomo, Esq.
#2
NEW YORK CITY
FRIDAY, JANUARY 21, 2005
10:00AM
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
MEETING HALL, 42 WEST 44
TH
STREET
1. Bettina Plevan
President, Association of the Bar of the City of New York
Jeffrey Kirchmer
Association of the Bar of the City of New York
3. Michael Palladino
President, Detectives’ Endowment Association, Inc.
4. Lou Matarazzo
Former President, Police Benevolent Association
5. Panel
Pat Webdale
Mother of murder victim
Carol Lee Brooks
Parents of Murdered Children, Queens
4. Panel
Ron Stalling
Retired officer, uniformed division of U.S. Secret Service
Anthony Miranda
Retired Sergeant, NYPD
Marsha Lee Watson
President, Guardians Association of State Correctional Officers
Randy Jurgenson
Retired homicide detective, NYPD
Rabbi Marc Gruber
Reform Jewish Voice of NYS
5. Panel
Robert Walker
Brethren
6. Panel
Colleen Brady
Legal Aid Society (NYC)
William Hellerstein
Professor, Brooklyn Law School
Jeffrey Fagan
Professor, Columbia University
Ursula Bentele
Professor, Brooklyn Law School
James S. Liebman
Professor, Columbia University School of law
7. Panel
Rev. Thomas W. Goodhue, Executive Director
The Long Island Council of Churches
Rev. Chloe Breyer
Associate Minister, St. Mary’s Episcopal Church
Jim Morgan
Convenor, Virgil to End the Death Penalty, Brooklyn
Hal Weiner
Convenor, St. Saviour Chapter Episcopal Peace Fellowship
Evelyn Wyfka
Sister to Sister, Human Rights
8. Panel
Ron Honberg
Legal Director, National Alliance for the Mentally Ill
Dr. Xavier Amador
Columbia University
9. Panel
Bennett Gershman
Professor, Pace University Law School
Michael Mushlin
Professor, Pace University Law School
Evan Mandery
Assistant Professor, John Jay College of Criminal Justice
10. Panel
Sundiata Sadiq
1st Vice President, NAACP, Ossining Chapter
Robert Perry,
Legislative Director, New York Civil Liberties Union
Dr. William Schultz
Executive Director, Amnesty International USA
Edward Rodriguez
Associate Professor, Seton Hall University
11. Panel
Dorit Radzin
Advocacy Associate, Human Rights Watch
Delphine Selles
Campaign to End the Death Penalty
12. Panel
Claire Laura Hogenauer
Attorney-at-Law
Christine Japely
Assistant Professor, Norfolk Community College, CT
#3
ALBANY
TUESDAY, JANUARY 25, 2005
10:00AM
ROOSEVELT HEARING ROOM, ROOM C, 2
ND
FLOOR
LEGISLATIVE OFFICE BUILDING
1. Panel
William J. Fitzpatrick
Onondaga County District Attorney
2. Bishop Howard J. Hubbard
Roman Catholic Bishop of Albany, NYS Catholic Conference
3. Panel
Gerald Kogan
Retired Chief Justice, Florida Supreme Court
Stewart Hancock
Retired Justice, New York State Court of Appeals
David Kaczynski
New Yorkers Against the Death Penalty
James R. Acker
Professor, School of Criminal Justice, SUNY at Albany
4. Panel
Debra Jaeger
Sister of murder victim
Russell Murphy
Professor, Suffolk University School of Law
5. Panel
Janice Grieshaber
Bruce Grieshaber
Parents of murder victim
6. Michael C. Green
Monroe County District Attorney
7. Bishop Jack M. McKelvey
Episcopal Diocese of Rochester
8. Bill Kurtis
Court-TV/ Author
9. Richard J. Bartlett
Former member, New York State Assembly
Former chair, New York State Penal Law Revision Commission
10. Panel
Jeffrey Blake
Robert McLaughlin
Stephen Saloom
Policy Director, Innocence Project, NY
11. Panel
Dick Dieter
Death Penalty Information Center
Kathryn M. Kase
Texas Defender Association
12. Panel
Marguerite Marsh
Family member of murder victim
Robert Brignola
Diane-Marie Frappier
13. Panel
John Blume
Cornell University Law School
Steve Garvey
Cornell University Law School
Sherri Johnson
Cornell University Law School
Samuel J. M. Donnelly
Professor, Syracuse University School of Law
14. Panel
Ruth S. Klepper
Executive Director, Interfaith Impact of NYS
Anzetta Adams
Baptist Ministers Conference of Greater New York
Linda Chidsey
Clerk of Yearly Meeting, New York Religious Society of Friends
Sonia Ivette Dueno
Coordinator, Racial Economic & Gender Justice Fellowship Reconciliation
Tim Taylor
Brethren
James Taylor III
Brethren
#4
ALBANY
TUESDAY, FEBRUARY 8, 2005
11:00AM
ROOSEVELT HEARING ROOM, ROOM C, 2
ND
FLOOR
LEGISLATIVE OFFICE BUILDING
1. Robert Carney
District Attorney, Schenectady County
2. Sean M. Byrne
Executive Director, New York Prosecutors Training Institute
3. Panel
Michael Whiteman
Former Counsel to Governors Nelson Rockefeller and Malcolm Wilson
John Dunne
Former New York State Senator
Former Assistant Attorney General in Charge, Civil Rights Division,
U.S .Department of Justice
4. Panel
Cheryl Coleman
Former Albany County Assistant District Attorney/ Former Albany City Court Judge
Bud Welch
Father of Oklahoma City bombing victim
Robert Meerpol
Rosenberg Fund for Children
Jonathan E. Gradess
New York State Defenders Association
5. Panel
John Restivo
Sammie Thomas
Scott Christianson
Author
Nina Morrison, Innocence Project, New York City
6. Panel
Gary Abramson
Legal Aid Society of Orange County
Professor William Bowers
Capital Jury Project, Northeastern University
Marsha Weissman
Executive Director, Center for Community Alternatives
7. George Kendall
Holland & Knight
8. Panel
Raymond A. Kelly, Jr,
New York State Association of Criminal Defense Lawyers
Ronald Tabak
NY Lawyers Against the Death Penalty
Ann M. Brandon
Chair, Capital Punishment Study Committee, New York League of Women Voters
9. Panel
Rev. Daniel B. Hahn
Director, Lutheran Statewide Advocacy
Reverend Geoffrey Black
President, NYS Council of Churches
Barbara Zaron, Arleen Urell
Members, Steering Committee, Reform Jewish Voice of New York State
10. Barbara Barry
Tompkins County Coalition Against the Death Penalty
11. Panel
Dominic Candido
Clerk, Matinecock Monthly Meeting, Religious Society of Friends (Quakers)
Lee Haring
Religious Society of Friends, Oswego
Anita Paul
Schenectady Friends Meeting
12. Panel
Rev. John Marsh
Unitarian Universalists for Alternatives to the Death Penalty
Wanda Goldstein
Chair, Restorative Justice Group, Unitarian Universalists Congregation, Kingston
#5
NEW YORK CITY
FRIDAY, FEBRUARY 11, 2005
10:00AM
PACE UNIVERSITY
MICHAEL SCHIMMEL CENTER FOR THE ARTS
3 SPRUCE STREET
(BETWEEN PARK ROW AND GOLD STREET)
NEW YORK, NEW YORK
1. Panel
Catherine Abate
Former New York State Senator
Former Commissioner, NYC Departments of Correction and Probation
Former Chair, NYS Crime Victims Board
Bianca Jagger
Goodwill Ambassador for the Fight Against the Death Penalty, Council of Europe
Stephen Dalsheim
Superintendent (ret.), Sing Sing and Downstate Correctional Facilities
Charles Billups
Chairman, Grand Council of Guardians
2. Mark Green
Former NYC Public Advocate
President, New Democracy Project
3. Panel
Myron Beldock
Lawyer for Yusef Salaam
Yusef Salaam
Sharonne Salaam
Karey Wise
George Goltzer
Board of Directors, NYS Association of Criminal Defense Lawyers
4. Panel
Rabbi Shlomo Blickstein
William Mordhorst
5. John Payne
President, NYS Chapter Democrats for Life
6. Panel
Barbara Bernstein
Executive Director, New York Civil Liberties Union, Nassau County Chapter
Kenneth Diamondstone
Vice Chair Central Brooklyn Independent Democrats
7. Bell Gale Chevigny
Professor Emerita, Purchase College
8. Panel
Queen Mother Dr. Delois Blakely
Community Mayor of Harlem, President New Foundation
Harlem Women National Chairperson
Liliana Segura
Campaign to End the Death Penalty
Leonara Wengraf
Campaign to End the Death Penalty
9. Panel
Frederic Pratt
Legal Aid Society Capital Division
James Rogers
President, Association of Legal Aid Attorneys
10. Lawrence C. Moss
11. Darryl King
12. Linda Guillebeaux
THE FOLLOWING PERSONS DID NOT TESTIFY IN PERSON BUT SUBMITTED
WRITTEN TESTIMONY TO THE COMMITTEES:
1. Robert K. Corliss
Associate Director for Criminal Justice, National Alliance for the Mentally Ill of New
York State (NAMI NYS)
2. Rudy Cypser (letter statement)
CURE-NY
3. Louise de Leeuw
Poughkeepsie Monthly Meeting of the Religious Society of Friends
4. Jose A. Garcia
Policy Analysis and Advocacy Coordinator
Puerto Rican Legal Defense and Education Fund (PRLDEF)
5. Alice Green, Ph.D.
Executive Director, Center for Law and Justice, Inc.
6. Samuel R. Gross
Professor of Law, University of Michigan
7. Jeff Frayler, President, New York State Association of PBAs, Inc.
8. Richard Harcrow
President, New York State Correctional Officers and Police Benevolent Association, Inc.
9. Evan Kelley
Capital Punishment Seminar, Fall 2004
10. Charles S. Lanier, Ph.D.
Co-Director, Capital Punishment Research Initiative (CPRI), University of Albany
11. Alexander Lesyk, Esq.
Northern Franklin County Public Defender
12. Karen E. Mallam
Poughkeepsie Monthly Meeting of the Religious Society of Friends
13. Carolyn McCarthy (letter statement)
United States House of Representatives
14. Roy Neville
Board of Directors, National Alliance for the Mentally Ill (NAMI-New York State)
15. Lillian Roberts
Director of New York City – District Council 37
16. Lillian Rodriguez-Lopez
Hispanic Federation
17. George Rosquist
Executive Director, Freedom NOW, New York City
18. Ajamu K. Sankofa, Esq.
Executive Director, New York City Chapter of Physicians for Social Responsibility
(NYC/PSR)
19. Reverend James Coy Sheehan
Roman Catholic Priest, Archdiocese of New York
20. Stephen Singer
Co-Chair, Criminal Courts Committee, Queens County Bar
Association
21. Scott Turow, Esq.
Attorney, Writer
22. Eugene G. Wanger
Co-Chair, Michigan Committee Against Capital Punishment
23. Women’s Bar Association of the State of New York (WBASNY)
Statement Regarding New York’s Death Penalty
24. Jonathan D. Zimet, Esq.
ASSEMBLY STANDING COMMITTEE ON CODES,
ASSEMBLY STANDING COMMITTEE ON THE JUDICIARY
AND
ASSEMBLY STANDING COMMITTEE ON CORRECTION
NOTICE OF JOINT PUBLIC HEARING
SUBJECT
: The Death Penalty in New York
PURPOSE
: To examine the future of capital punishment in New York State.
NEW YORK CITY ALBANY
Wednesday, December 15, 2004 Tuesday, January 25, 2005
10:00 a.m. 10:00 a.m.
Association of the Bar of the City Roosevelt Hearing Room
of New York Room C, 2
nd
Floor
Meeting Hall, 42 West 44
th
Street Legislative Office Building
*Additional hearing dates and locations may be scheduled if sufficient interest exists and will be
announced in a subsequent public hearing notice.
New York's most recent death penalty statute was enacted by the Legislature on March 7th, 1995
and became effective on September 1st of that year. The statute, as amended, provided for the
imposition of the death penalty, life imprisonment without parole or life imprisonment with the
possibility of parole for thirteen specific categories of intentional murder, created judicial
procedures for imposing and reviewing death sentences, established a system of public defense
for indigent death penalty defendants and implemented correctional system procedures for
housing death row inmates and imposing death sentences.
On June 24th, 2004, the New York Court of Appeals in People v. LaValle invalidated the
deadlock instruction provision of New York's death penalty law, holding that the instruction
created a "substantial risk of coercing jurors into sentencing a defendant to death" in violation of
the Due Process clause of the New York State Constitution. The Court also held that the absence
of any deadlock instruction would be constitutionally impermissible and that the Court was not
judicially empowered to create a new deadlock instruction. The Court thus found that "under the
present statute, the death penalty may not be imposed" under New York law, but that first degree
murder prosecutions could continue to go forward as non-capital cases under the current statute.
As noted above, New York's current first degree murder law authorizes a sentence of life
imprisonment without parole to be imposed in any case.
The jury deadlock instruction was first proposed by Governor Pataki in program legislation
which was passed by the Senate prior to the final legislative agreement on the death penalty.
(See
S-2649 of 1995). The Governor's deadlock instruction proposal was later included in the
final death penalty law enacted by the Legislature on March 7th, 1995.
New York's death penalty law was in effect for slightly less than nine years before it was struck
down this past June. In that time, it is estimated that the state and local governments have spent
approximately $170 million administering the statute. Not a single person has been executed in
New York since the law's enactment. Seven persons have been sentenced to death. Of these:
• the first four sentences to reach the Court of Appeals were struck down on various
grounds;
• an additional sentence was converted to a sentence of life imprisonment without
parole after the LaValle decision; and
• two death sentences are awaiting review.
New York's death penalty statute has remained highly controversial since its enactment and
continues to be roundly criticized. The question of whether the statute should now be revived
and, if so, in what form, has also been the subject of intense interest and debate since the Court
of Appeals decision in LaValle.
These hearings are intended to provide a public forum to review what New York's experience
with the death penalty over the past nine years has been and what that experience has taught us.
It is intended to solicit views on how the experience of other states, the federal government and
other nations can help inform New York's actions on this issue. Finally, the hearings are
intended to foster a public dialogue on the ultimate question of whether New York's death
penalty law should be reinstated and, if so, what form any new law should take.
November 22, 2004
Joseph R. Lentol Helene E. Weinstein Jeffrion L. Aubry
Member of Assembly Member of Assembly Member of Assembly
Chair Chair Chair
Committee on Codes Committee on the Judiciary Committee on Correction
Note:
Persons wishing to present pertinent testimony to the Committees at the joint public hearings should complete and
return the enclosed reply form as soon as possible. It is important that the reply form be fully completed and
returned so that persons may be notified in the event of emergency postponement or cancellation.
Oral testimony will be limited to ten (10) minutes’ duration and will be by invitation only. In preparing the order of
witnesses, the Committees will attempt to accommodate individual requests to speak at particular times in view of
special circumstances. These requests should be made on the attached reply form or communicated to the
Committees’ staff as early as possible.
Thirty (30) copies of any prepared testimony should be submitted at the hearing registration desk.
The Committees would appreciate advance receipt of prepared statements.
In order to further publicize these hearings, please inform interested parties and organizations of the Committees’
interest in receiving testimony from all sources.
In order to meet the needs of those who may have a disability, the Assembly, in accordance with its policy of non-
discrimination on the basis of disability, as well as the 1990 Americans with Disabilities Act (ADA), has made its
facilities and services available to all individuals with disabilities. For individuals with disabilities, accommodations
will be provided, upon reasonable request, to afford such individuals access and admission to Assembly facilities
and activities.
SELECT QUESTIONS TO WHICH WITNESSES MAY DIRECT THEIR TESTIMONY:
I. Should the Death Penalty be Reinstated in New York?
1. Is it possible to design a death penalty law which is fairly administered and
consistently applied, free from impermissible racial, ethnic or geographic bias and
prevents the conviction of the innocent?
2. Is the death penalty an appropriate societal exercise of retribution against persons who
commit intentional murder?
3. What evidence is there that New York's death penalty or the death penalty in general
deters intentional murder more effectively than other sentencing options?
4. Are the results which New York has achieved over the past nine years in administering
the death penalty worth the significant public resources which have been expended?
Could those resources have been used more effectively for other crime control or public
purposes?
5. Is the currently available sentence of life imprisonment without the possibility of
parole an effective alternative to the death penalty in New York? Or is it imperative that
this current sentencing option be supplemented with the death penalty?
6. What do the trends and experiences of other states and nations which have considered
or implemented the death penalty or life imprisonment without parole teach us about
whether capital punishment should be reinstated in New York?
II. If the Death Penalty in New York Were Reinstated, What Should it Provide for?
1. Did the 1995 statute provide appropriate safeguards to ensure that innocent persons
would not be convicted and subject to the death penalty in New York? If not, what
additional safeguards would be needed to meet that goal?
2. Have the close family members and loved ones of deceased murder victims been
given appropriate input and involvement in decisions about seeking the death penalty and
in the death penalty process under the 1995 law? How could the role of these family
members and loved ones be improved?
3. Did the 1995 statute provide appropriate protections against convictions and the
imposition of the death penalty by virtue of bias applicable to the race or ethnicity of
death penalty defendants or murder victims? If not, what additional steps would be
necessary to achieve that goal?
4. As noted above, New York's death penalty law, as amended, provided a death penalty
option for thirteen kinds of intentional murder. Should those categories be expanded,
contracted or otherwise modified if the death penalty is reinstated?
5. New York's law provided a system of capital defense through a Capital Defender
Office and contracts with other institutional defenders and private attorneys. Has this
system worked effectively? How might it be improved?
6. Under New York's death penalty law, prosecutors were given unfettered discretion to
seek or not seek the death penalty in any first degree murder case. Is such unlimited
discretion appropriate? Did this system of prosecutorial discretion work effectively and
fairly?
7. Three death sentences imposed under the 1995 law came from Suffolk County with
one each coming from Kings, Queens, Onondaga and Monroe counties. The chances that
a defendant would be subject to a death penalty prosecution in New York over the past
nine years varied widely, depending upon the county in which a defendant's crime
occurred. Is this a permissible result in a death penalty system? Should the imposition of
the death penalty vary, depending upon the county in which a defendant is prosecuted?
8. Has the state provided sufficient financial resources to law enforcement, victims’
services, defense providers and the judicial system to administer the death penalty over
the past nine years? What changes in state funding for administering the death penalty
could be considered?
9. What do the experiences of other states with death penalty laws and the federal
government teach us about how any death penalty statute should be structured in this
state?
10. What changes in evidentiary rules or the appellate process might be considered if the
1995 law were reinstated?
11. On August 11th of this year, the Senate passed Governor's program legislation which
seeks to remedy the unconstitutional jury deadlock instruction identified by the Court of
Appeals in the LaValle
decision (S-7720). The bill would seek not only to reinstate the
death penalty for future cases, but would also purport to retroactively apply the new
statute, both to crimes which occurred prior to the LaValle
decision and crimes which
occurred subsequent to LaValle
but prior to the law's enactment, during a time period
when no valid death penalty law was in effect in New York. The bill's retroactive
provisions have been criticized as being violative of the Ex Post Facto clause of the
United States Constitution and therefore invalid, particularly with respect to cases
occurring subsequent to LaValle
.
(a) Should the prospective provisions of S-7720, which seek to reinstate the death penalty
be adopted without any further modifications to the statute?
(b) Are the retroactive provisions of S-7720 which seek to reinstate the death penalty
with respect to prior crimes constitutionally valid? Should these provisions be adopted?
12. The 1995 statute generally barred the execution of mentally retarded persons but
contained an exception for the first degree murder of a corrections officer committed by a
prison or jail inmate. The United States Supreme Court, in its 2002 decision in Atkins v.
Virginia, barred the execution of mentally retarded persons. How does the Atkins
holding impact the ’95 law’s limited provisions authorizing the execution of mentally
retarded persons?
13. The 1995 statute contained extensive provisions related to a jury's consideration of a
defendant's possible mental impairment when determining whether the death penalty
should be imposed. How well did these provisions operate? Would these provisions
need to be revised if the death penalty in New York were reinstated?
14. The 1995 law set 18 as the minimum age for the imposition of the death penalty.
Should that minimum age be modified if the death penalty is reinstated?
15. The 1995 law contained provisions for disqualifying jurors from death penalty guilt
and penalty phase proceedings who harbored opinions for or against the death penalty
which would preclude them from rendering an impartial verdict or exercising their
discretion to determine an appropriate sentence. Has this provision, as it has been
interpreted by New York's courts, been applied fairly and appropriately? Should this
provision be modified in the event the death penalty is reinstated?
16. The 1995 statute established procedures for housing death sentenced inmates and
carrying out death sentences. The State Department of Correctional Services has also
implemented a number of policies in administering the 1995 law. Should any of these
laws or policies be changed, in the event the death penalty is reinstated?
PUBLIC HEARING REPLY FORM
Persons wishing to present testimony at the joint public hearing on “The Death Penalty in New York” are
requested to complete this reply form as soon as possible and mail, email or fax it to:
Seth H. Agata, Counsel
Assembly Committee on Codes
Room 508 – The Capitol
Albany, New York 12248
Email: [email protected]
Phone: (518) 455-4313
Fax: (518) 455-4682
I plan to attend the joint public hearing on “The Death Penalty in New York” to be conducted by
the Assembly Committees on Codes, the Judiciary and Correction in New York City on
December 15, 2004.
I plan to attend the joint public hearing on “The Death Penalty in New York” to be conducted by
the Assembly Committees on Codes, the Judiciary and Correction in Albany on January 25,
2005.
I would like to make a public statement at the joint hearing in ___ NYC or ___ Albany. My
statement will be limited to ten (10) minutes, and I will answer any questions which may arise. I
will provide thirty (30) copies of my prepared statement.
I will address my remarks to the following subjects:
____________________________________________________________________________
____________________________________________________________________________
I do not plan to attend either of the above hearings.
I would like to be added to the Committees’ mailing lists for notices and reports.
I would like to be removed from the Committees’ mailing lists.
I will require assistance and/or handicapped accessibility information.
Please specify the type of assistance required:
____________________________________________________________________________
____________________________________________________________________________
IF YOU PLAN TO ATTEND, YOU MUST BRING A FORM OF PHOTO IDENTIFICATION
NAME: ______________________________________________________________________
TITLE: ______________________________________________________________________
ORGANIZATION: _____________________________________________________________
ADDRESS: __________________________________________________________________
E-MAIL: _____________________________________________________________________
TELEPHONE: ________________________________________________________________
FAX TELEPHONE: ____________________________________________________________
ASSEMBLY STANDING COMMITTEE ON CODES,
ASSEMBLY STANDING COMMITTEE ON THE JUDICIARY
AND
ASSEMBLY STANDING COMMITTEE ON CORRECTION
NOTICE OF JOINT PUBLIC HEARING
SUBJECT
: The Death Penalty in New York
PURPOSE
: To examine the future of capital punishment in New York State.
NEW YORK CITY
Friday, January 21, 2005
10:00 a.m.
Association of the Bar of the City
of New York
Meeting Hall, 42 West 44
th
Street
SPECIAL NOTE: This is an additional hearing date for the Assembly's hearings on the Death
Penalty in New York. One previous hearing was held on the subject on December 15th, 2004 in New York
City. An additional hearing will also be held in Albany on January 25th, 2005. Both of these hearing dates
were announced in a previous hearing notice.
The Assembly has scheduled this additional New York City hearing because of the large number of
people who have asked to testify at these hearings. The subject, purpose, questions and hearing procedures
outlined below for the January 21st hearing are identical to those previously announced for the December
15th and January 25th hearings.
New York's most recent death penalty statute was enacted by the Legislature on March 7th, 1995
and became effective on September 1st of that year. The statute, as amended, provided for the
imposition of the death penalty, life imprisonment without parole or life imprisonment with the
possibility of parole for thirteen specific categories of intentional murder, created judicial
procedures for imposing and reviewing death sentences, established a system of public defense
for indigent death penalty defendants and implemented correctional system procedures for
housing death row inmates and imposing death sentences.
ASSEMBLY STANDING COMMITTEE ON CODES,
ASSEMBLY STANDING COMMITTEE ON JUDICIARY
AND
ASSEMBLY STANDING COMMITTEE ON CORRECTION
NOTICE OF JOINT PUBLIC HEARING
ORAL TESTIMONY BY INVITATION ONLY
SUBJECT
: The Death Penalty in New York
PURPOSE
: To examine the future of capital punishment in New York State.
ALBANY NEW YORK CITY
Tuesday, February 8, 2004 Friday, February 11, 2005
11:00 a.m. 10:00 a.m.
Roosevelt Hearing Room Pace University
Room C, 2
nd
Floor Michael Schimmel Center for the Arts
Legislative Office Building 3 Spruce Street
(between Park Row and Gold Street)
New York, New York
*These two hearings are a continuation of the New York City and Albany hearings
previously held on December 15
th
, January 21
st
and January 25
th
and are being scheduled to
allow persons who previously asked to testify at the earlier hearings and were not able to
testify due to time constraints to present testimony to the committees. Oral testimony will
be by invitation only.
New York's most recent death penalty statute was enacted by the Legislature on March 7th, 1995
and became effective on September 1st of that year. The statute, as amended, provided for the
imposition of the death penalty, life imprisonment without parole or life imprisonment with the
possibility of parole for thirteen specific categories of intentional murder, created judicial
procedures for imposing and reviewing death sentences, established a system of public defense
for indigent death penalty defendants and implemented correctional system procedures for
housing death row inmates and imposing death sentences.
