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August 11, 2004
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EXPERTS QUESTION ​“QUICK FIX” TO NEW YORK’S DEATH PENALTY

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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