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August 11, 2004
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Legislators May Address “Deadlock Instructions” With Equally Flawed Measure

WASHINGTON, DC – Constitutional experts, law enforcement officials, and leading civic organizations have raised serious concerns about a proposed “quick fix” to New York’s flawed death penalty statute. Legal experts say the bill fails to address a lengthy list of other problems in the state’s capital punishment law, and the reform measure itself is likely to be found unconstitutional when tested.

The controversial proposed legislation aims to address problems raised in June when the New York Court of Appeals ruled that the state’s “deadlock instructions” were unconstitutional and that this legal defect could only be cured by passage of a new law. The faulty law required a judge to instruct jurors that if they failed to unanimously agree to impose the death penalty or a sentence of life without parole, the court would sentence the defendant to life imprisonment with parole eligibility after a minimum of 20 to 25 years. The state’s highest court struck down the provision because it might be coercive to jurors.

After reviewing the proposed legislation, constitutional law expert James Acker of the School of Criminal Justice at the University of Albany found that “the bill’s response to the jury ‘deadlock’ situation that was the original law’s fatal flaw, creates profoundly troubling new problems.” He said the bill is unconstitutional because it violates a defendant’s due process rights by creating an unprecedented sentencing mechanism. The bill would provide three sentencing options for jurors: life with parole, life without parole (LWOP), and the death penalty. Of these options, it would establish life without parole as the default sentencing alternative when a jury cannot reach a unanimous sentencing verdict.

“Under the Senate bill, without any inquiry into how the jury was divided, the jury’s failure to arrive at a unanimous verdict would result in a sentence of LWOP…The automatic imposition of LWOP when the jury is deadlocked would appear to be a clear violation of due process principles,” Acker said. “No other state, to my knowledge, resolves deadlocks in such a fashion when the jury is given three sentencing options.”

Acker’s analysis of the bill also found that its retroactivity provision for “crimes committed prior to…the effective date of this act” is at odds with the constitutional prohibition against ex post facto laws. In addition, the legislation creates a capital murder sentencing system that is directly contrary to the general design of New York’s 1995 first-degree murder law.

Since New York reinstated the death penalty nearly nine years ago, jurors have had the option of sentencing defendants to life without parole. That part of the law was not struck down. Moreover, experts have indicated that the death penalty provision has cost tens of millions of taxpayer dollars while other pressing needs were unfunded. Many state leaders, including law enforcement officers, the League of Women Voters, former prosecutors and defense attorneys, believe the Court of Appeals decision provides a window of opportunity to study whether the death penalty meets a careful cost-benefit test.

“We now have a unique opportunity to re-examine the use of the death penalty in New York,” said Marcia Merrins, president of the League of Women Voters.

A letter submitted today to the New York state legislature by New York law enforcement officials and former prosecuting attorneys noted that the death penalty is expensive, imperfect, and tainted by racial and geographic disparities. “Since New York reinstated the death penalty in 1995, New York taxpayers have spent at least $170 million on the pursuit of capital cases although not a single execution has taken place. This money would have been better spent on crime prevention strategies, such as putting more police officers on the streets…We know the system makes mistakes, and that innocent people are sometimes wrongfully convicted… Disparity in the application of the death penalty causes the public to lose faith in the criminal justice system and to be more distrustful of law enforcement generally. This drains public support for law enforcement and makes our jobs more difficult. For all these reasons we believe that New Yorkers are better served by leaving capital punishment out of its criminal justice system, and we urge you to oppose any legislation that aims to remedy it,” the co-signers wrote. Among those signing the letter were former U.S. Attorney Zachary Carter and former First Deputy Police Commissioner of New York City John Pritchard.

The law enforcement community letter also cited a Quinnipiac University Poll that found that concerns about the fairness and accuracy of capital punishment have decreased support for the sentence in New York. The poll revealed that 53% of New Yorkers prefer a sentence of life without parole over a sentence of death and only 38% prefer the death penalty.

There were four people on New York’s death row at the time the statute was struck down. The state has not carried out an execution since it reinstated the death penalty in 1995. The last execution in New York was in 1963.

For more information about the proposed legislation, please contact Professor James Acker at (518) 442-5317 or David Kaczynski, Executive Director of New Yorkers Against the Death Penalty, at 518-453-6797.

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