Moratorium On The Death Penalty And To Examining The Role Of DNA Evidence In Law Enforcement

The Council Of The City Of New York Committee On Fire And Criminal Justice Services Moratorium On The Death Penalty And To Examining The Role Of DNA Evidence In Law Enforcement Testimony of Donna Lieberman, Interim Executive Director on behalf of the New York Civil Liberties Union

Thank you for holding these hearings, and for your recognition of the need to pay immediate attention to the very serious issues raised by the implementation of the death penalty both in this state and nationwide.

As we sit here today, six people have been sentenced to death under New York’s death penalty statute, enacted in 1995. All those sentences are currently being appealed. It is imperative that we not wait until someone is killed before moving to address the problems raised by the implementation of capital punishment.

The New York statute has a critically important provision that requires that no defendant be executed until it is determined that the statute is being administered fairly. In light of that provision and substantial preliminary evidence that the statute is not operating fairly, the New York Civil Liberties Union has called on the New York Court of Appeals not to authorize any executions until far more work is done to assure the fair operation of the statute. These same concerns support the Resolution now before the Council.

Throughout the United States, and indeed throughout the world, there are increasing calls to end, or at a minimum to suspend, implementation of the death penalty because of the grave concerns it raises both in principle and practice. For many this is an issue of conscience: the state should not be in the business of premeditated executions. But even for those who do not oppose the death penalty in principle, there is an increasing recognition that systemic failures lead to discriminatory application of capital punishment and, most shocking, the sentencing to death of those who are actually innocent of the crime. The time to pause and examine this issue is now: before anyone is wrongfully executed or unfairly singled out to face death.

It is increasingly apparent that the often standard-free discretion given to individual prosecutors as to when to seek the death penalty leads to unequal application of capital punishment. Problems of racial bias have permeated the system for years. For example, the study of prosecutorial decisions at issue in the Supreme Court case of McKlesky v. Kemp established that in Georgia "prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims."

Gender and socioeconomic status are also factors that may affect whether or not a prosecutor seeks the death penalty, and geographic disparities are increasingly gaining national attention. In January 1999, The New York Times reported that "[g]eographic distinctions have cropped up in many of the 37 other states with the death penalty." Specifically The Times reported that a study of murder cases in New Jersey from 1983 to 1991 revealed that defendants in rural areas were far more likely to receive death sentences. Similarly a study of prosecutorial charging decisions in Florida revealed that prosecutors in rural counties "sought the death penalty far more often" than their urban counterparts.

Beyond the issues of geographic and other disparities are increasing concerns about the unfairness of death-penalty administration. A study released in June 2000 examined the cases of every defendant sentenced to death in the United States between 1973 and 1995. That study reported that in 68% of the cases in which an appeal was taken the death sentence was overturned either because of questions about the fairness of the sentence or the guilt of the defendant. In three states (Kentucky, Maryland, and Tennessee) every single capital appeal resulted in the death sentence being overturned, and in ten additional states (Mississippi, Wyoming, California, Montana, Idaho, Georgia, Arizona, Alabama, Indiana, and Oklahoma), 75% or more of death sentences were overturned on appeal. Even more remarkable is what the study disclosed about the fate of the many defendants whose initial death sentences were overturned on appeal. According to the study, of those cases in which the death sentence was overturned through post-conviction appeal, 82% of defendants were not resentenced to death, with 75% of them receiving a lesser sentence and 7% actually being acquitted.

These revelations about problems permeating the administration of death penalty statutes have led to unprecedented calls for death penalty moratoriums around the country. In January of last year Republican Governor James Ryan of Illinois, who supports the death penalty, declared a statewide moratorium on executions after it was established that thirteen people sentenced to death in Illinois after the state reenacted its death-penalty statute in 1977 in fact were innocent. In May 1999 the conservative Nebraska legislature passed bills adopting a two-year moratorium on executions out of a concern that the death penalty was being applied unfairly, and directing that a study be undertaken of the operation of the statute. And two months after Governor Ryan instituted the moratorium in Illinois, the New Hampshire Legislature passed a bill – which the Governor vetoed – banning capital punishment entirely.

New York should not expect to be immune from these problems. New York has 62 different District Attorneys across the state who make the decision when to seek the death penalty. Not only are there no statutory or judicial criteria governing these prosecutorial decisions, but District Attorneys reportedly have refused to disclose publicly the criteria they are actually using to make these decisions. The extent of prosecutorial discretion is evident in even the preliminary information currently available about the operation of New York’s new statute. Only a small proportion of individuals across the state are being singled out for capital prosecutions, with the Capital Defender Office reporting that death notices were filed against 14% (one in seven) of the defendants indicted of first degree murder between September 1, 19995 and August 31, 2000. The number is even lower, only 7.8%, when one considers all defendants who prosecutors indicated at arraignment were being considered for capital prosecutions.

Of even greater concern is New York State’s deeply troubling history in its implementation of capital punishment. A 1987 study published in the Stanford Law Review reported that between 1905 and 1974 New York executed more innocent people than any other state in the country. It is intolerable to contemplate that we will execute even one more. We urge you to join the other voices raised against capital punishment and call for a moratorium now.

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I would also like to make a brief comment on your question regarding the use of DNA evidence in capital cases.
We support the right of those convicted of capital crimes to request, and receive, DNA testing of evidence that might exonerate them or that might have cast sufficient doubt to lead to a different verdict. DNA testing can provide important evidence tending to show the guilt or innocence of a particular accused individual.

We do urge you, however, to bear in mind that the use of DNA as evidence for or against a particular suspect in a particular crime is very different from the databanking of DNA without that individualized suspicion. New York State’s DNA database goes beyond the gathering and testing of evidence that links suspects to specific crimes and allows that evidence to be gathered whether or not it is relevant to a crime.

When New York State first created the DNA criminal database the public was assured that it would include DNA samples only for persons convicted of a limited number of crimes of a violent or sexual nature where DNA samples would be relevant in connection with future prosecutions. We should strenuously resist any efforts to expand that database. Our DNA contains intensely private information about our health and our families. As DNA technology advances, the extent of that information is likely to increase. The consequences of misuse of that information are enormous. Where there is no logical connection between the offense committed and the collection of genetic information, compelling an individual to turn over that information becomes an act of intimidation that must necessarily provoke fear over the potential for misuse by the government.