By PATRICK D. HEALY
ALBANY, Feb. 10 — A solid majority of Democrats in the State Assembly now oppose resurrecting the death penalty, including key leaders who voted for the law in 1995, making it more likely that it will not be revived, according to lawmakers on both sides.
After two months of hearings into the issue, the chairman of the Assembly Codes Committee, Joseph R. Lentol, said on Thursday that he now supported life without parole instead of restoring the death penalty, for which he voted in 1995. The Assembly speaker, Sheldon Silver, said he would not be cowed into having the Assembly vote on restoring the death penalty, despite pressure from Republicans.
Their remarks come as a debate has erupted in the Capitol over whether the measure should reach the Assembly floor. Gov. George E. Pataki and Republican leaders in the Senate want a vote as a last opportunity to restore the death penalty, which was virtually suspended last June by a state court.
The Democrats have delayed action on the issue by taking more than 40 hours of intense, often emotional testimony at the public hearings, which have been decidedly opposed to the death penalty. The hearings are to conclude on Friday, after which pressure from all sides is expected to start increasing on Mr. Silver.
Many of his Assembly allies — particularly liberal, black and Hispanic Democrats who helped save him from a coup in 2000 — strongly prefer the alternative of life without parole and want Mr. Silver to bottle up any death penalty bill and avoid risking a floor vote.
Yet if Republicans do not get a vote in the full Assembly, they may turn the death penalty into the first test — and a potentially embarrassing one — of Mr. Silver’s newly avowed commitment to
democratizing the Legislature.
In an interview on Thursday, Mr. Silver said that the hearings would be used as a guide to decide whether there would be a floor vote, but that in the end the Democratic caucus would determine if the full Assembly would vote.
Echoing several colleagues, Mr. Silver added that he had growing doubts about the practical need, expense and infallibility of the death penalty, especially since defendants can now be sentenced to life without parole. He also argued that since 1995 — when Mr. Pataki took office on a wave of support for the death penalty that helped to sweep out his predecessor, Mario M. Cuomo — public sentiment appeared to have shifted against capital punishment.
“It clearly seems to be moving in a direction away from the death penalty in the last 10 years, now that you have life without parole gaining more acceptance,” said Mr. Silver, who remains a supporter of the death penalty. “Maybe it just shouldn’t be,” he added, referring to the death penalty.
Significantly, Mr. Lentol, a Brooklyn Democrat, predicted that the three committees sponsoring the public hearings would recommend sticking to life without parole, giving Mr. Silver and the Democratic leaders a chance to sideline the death penalty.
“My guess is that there will never be an Assembly floor vote on this issue — that if we did anything, it would be nothing, and that would kill the death penalty,” said Mr. Lentol, whose Codes Committee reviews death penalty bills.
A powerful chairwoman leading the hearings, Helene E. Weinstein of the Judiciary Committee, who has in the past supported the death penalty, indicated in an interview that she, too, was leaning toward a shift on the issue.
“My vote 10 years ago was 10 years ago,” said Ms. Weinstein, a Brooklyn Democrat. “There’s a lot of new information, important information, about DNA testing, about innocent people being convicted, and so on.“
The third leader of the death penalty hearings, Assemblyman Jeffrion L. Aubry of Queens, strongly opposes the death penalty.
Of the 104 Democrats in the 150-member Assembly, between 60 and 70 favor shelving the death penalty, according to lawmakers who have been informally polling members.
But Charles H. Nesbitt, the Republican leader in the Assembly, said he was certain the death penalty would pass in a vote before the full Assembly, with support from virtually all 46 Republicans and more than 30 Democrats. He said he hoped Mr. Silver, in the spirit of reform, would allow a vote. If not, he said, Republicans would probably use procedural tactics to try to force a vote this spring.
“We may find ourselves in a position where it takes some public pressure, as in other times, to bring this up for a vote,” Mr. Nesbitt said on Thursday.
Still, he added, “Last year I would have said restoring the death penalty was going to happen, but right now, I don’t know.“
New York became the 38th state with capital punishment in March 1995, after the Assembly voted 94 to 52 in favor, with 41 Democrats joining 53 Republicans to vote yes. Since then, nearly half those 41 Democrats have left office and 5 others said in interviews they now prefer life without parole. More death penalty opponents have been elected, and the Republican minority has shrunk.
Since 1995, an estimated $175 million or more has been spent on death penalty cases, but there have been no executions. Prosecutors have sought death against at least 55 defendants, and juries have sentenced seven to death. Of those, five sentences were reversed by the Court of Appeals, and two are still on appeal.
Last June, a 4 to 3 majority of the Court of Appeals ruled that a central provision of the law, dealing with jury instructions, was unconstitutional, and it issued a de facto moratorium until defects were corrected.
Mr. Pataki and Senate Republicans are supporting amendments to correct these flaws. There is fear among Assembly leaders that Mr. Pataki, who has called the hearings “obstructionist,” could try to whip up interest among voters over the issue.
In the Assembly, in district attorneys’ offices, and elsewhere, officials on both sides have raised several concerns: that some prosecutors will seek death when others do not, that racial and ethnic disparities in capital cases raise constitutional questions, and that crime has fallen in New York without any executions.
“A moratorium on the death penalty, or doing nothing to restore it, seems the best way to go, because there’s very little evidence the death penalty has helped New York these 10 years,” said Assemblyman Ron Canestrari of Albany County, who supported the 1995 law.
“Look at what’s happening over in Connecticut; it’s a circus over there with all those delays in a death penalty case,” added Assemblywoman Sandy Galef of Westchester County, who also voted for the law and now opposes it. “Why do we need that?“
Copyright 2005 The New York Times Company
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