Ten years ago a mildly successful Republican state senator in New York won a huge upset — defeating the three-term incumbent governor of New York and Bill Clinton ally, Mario Cuomo. Part of the reason was probably Cuomo fatigue — he had been governor since succeeding Hugh Carey in 1983 and had been Carey’s lieutenant governor before that. But the biggest part of Gov. George Pataki’s victory was his promise to sign into law a statute reinstating the death penalty in New York.
Cuomo had vetoed numerous death penalty statutes. In 1994, New York had terrible crime, especially in New York City (which later dropped precipitously under Mayor Giuliani and Police Commissioner Ray Kelly) and New Yorkers wanted to send the message that the state needed to get tough on crime and, especially, ensure that cop-killers would not walk free after 20-25 years (this was a big issue for supporters of the bills).
True to his word, Pataki signed a death penalty bill. By most measures, it was about as progressive a bill as death penalty provisions could get: requiring instructing jurors of the consequences of their sentencing decisions, setting up an administrative group of lawyers that would set fee rates for defense attorneys in capital cases (to ensure better quality representation), and mandating direct appeals of capital convictions to the New York Court of Appeals (the state’s highest court). Ultimately, the statute seemed designed to insure the rights of the accused, be used only in extreme cases and be constitutional.
Indeed, the NY death penalty statute was rarely invoked — in 799 First and Second Degree murder prosecutions from September 1995 through this report in August 2003 by the New York Capital Defender’s Office, only 50 death penalty notices had been filed, 18 prosecutions for capital murder had been initiated, and seven death sentences handed down.
Six months ago, the New York Court of Appeals invalidated the death penalty statute. The decision in People v. LaValle (and it’s a long one, with a long dissent too) is here in PDF form. The crux of the decision: it is unconstitutional for New York to tell jurors that if they do not unanimously decide for either death or life imprisonment without parole (the lone choices in a death penalty sentence phase), the defendant will be sentenced to 20 or 25 years to life and could go free on parole. The Court said the instruction might make jurors vote for death to ensure no parole (why it is not equally valid that the jurors would unanimously compromise at the life imprisonment choice is not evaluated).
I grew up in New York, where the death penalty is widely distrusted and portrayed as the remnant of a bygone era (even though it was last used in New York in 1963) in American society. I live in Texas, a state where huge numbers of Democrats support the death penalty and executing capital offenders is an integral part of the state justice system. Down here, there is a view that executed capital murderers have the best possible recidivism rate: 0%.
I also prosecuted misdemeanors in North Carolina, a state with a rarely used death penalty statute. At the time I worked in Charlotte, the DA’s office prosecuted a defendant for knowingly killing two police officers after a car theft and chase. The police and sheriff deputies were abuzz about the case and indicated they wanted justice, not retribution, for one of their own.
In New York, however, when Pataki signed the death penalty bill, numerous district attorneys reacted negatively. Robert Johnson, the Bronx DA, famously refused to prosecute a capital charge against a cop killer, and his office replaced by the Attorney General’s office to prosecute a capital charge. (Some details here). In addition, New York County DA Robert Morgenthau openly doubted he could pursue a capital charge.
Pataki immediately sought a new death penalty bill after the LaValle decision, and the state Senate (more conservative than the Assembly) passed one. This week in Albany, the state Assembly is holding hearings on whether to amend the statute and reinstate the death penalty once again. Morgenthau has already voiced his objection, and the majority of witnesses are anti-death penalty. Among the leading anti-death penalty advocates, David Kaczynski (the Unabomber’s brother). See here for the NY Times report (registration is required, but free); and here is the Albany Times-Union report (via Newsday). Advocates for the state senate’s bill include many police representatives.
This will bear watching.