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Op-Ed: The Death Penalty Skips Across County Lines (New York Newsday)

By Christopher Dunn — The last time a New Yorker was executed was in 1963, when Eddie Lee Mays was put to death in the electric chair at Sing Sing Prison. As a result of subsequent federal and state court decisions in the 1970s and then legislative vetoes by Gov. Mario Cuomo, the state had no death penalty until 1995, after Cuomo’s Republican challenger George Pataki came into office running on a campaign highlighting his own support for capital punishment.

Nevertheless, as even Gov. Pataki must be aware, these are tumultuous times for the death penalty. Across the country scores of individuals sentenced to death have been exonerated in recent years through DNA testing and other means. Two of the 38 states with a death penalty have adopted temporary bans on all executions, and last month outgoing Illinois Gov. George Ryan commuted the death sentence of every person on that state’s Death Row.

Last summer the U.S. Supreme Court ruled that it was cruel and unusual punishment to execute the mentally retarded. And in a decision that since has been reversed but may go to the Supreme Court, a federal court in Manhattan last spring declared the federal death penalty unconstitutional because of the substantial risk that innocent people might be executed. Recent public-opinion surveys indicate that nearly a majority of Americans harbor serious concerns about the fairness of the death penalty, with those concerns particularly pronounced within minority communities.

Meanwhile, Attorney General John Ashcroft has been overruling federal prosecutors in New York City and the metropolitan area and directing them to seek death sentences in cases in which the local federal prosecutors had concluded that capital prosecutions were unwise or even unjustified in light of questions about the defendants’ guilt.

Despite this turmoil, New York State is gearing up to start executions for the first time in 40 years. When John Taylor was sentenced to death in December for his role in the Wendy’s massacre in Queens, he joined five other men on New York’s Death Row: Stephen LaValle of Shirley, Robert Shulman of Hicksville, Nicholson McCoy of East Patchogue, James Cahill of Syracuse and Angel Luis Mateo of Rochester.

Since Pataki signed the death penalty into law on Sept. 1, 1995, more than 400 New Yorkers have been charged with the type of murder for which the death penalty may be sought. The application of the death-penalty statute in these cases aptly illustrates the widespread concerns about the unfair administration of capital-punishment regimes around the country.

Under the New York law, each of the state’s 62 elected district attorneys has complete discretion to decide whether to pursue a capital prosecution in any particular qualifying murder case, and the death-penalty practices of individual district attorneys vary widely. For some district attorneys, pursuing capital cases is a political imperative, and as a result the accused in those counties are almost certain to face the prospect of a death sentence. For other district attorneys, who may have reservations about the death penalty or may be concerned about the cost of capital prosecutions (which are paid by the county not the state), no defendant in their county has faced or will face a capital prosecution.

In other words, whether death is pursued in any particular case in New York turns not on the seriousness of the crime or the culpability of the defendant but rather on the county in which the crime occurred. This arbitrariness is best illustrated by the fact that since the law went into effect, defendants charged with death-eligible crimes outside New York City have been four times more likely than New York City defendants to face a capital prosecution. In the Empire State’s capital-punishment world, geography is everything.

So far, according to news reports, Manhattan District Attorney Robert Morgenthau, Staten Island District Attorney William L. Murphy and Bronx District Attorney Robert Johnson have not pursued capital punishment in any of their death penalty eligible homicide cases. Brooklyn’s District Attorney Charles J. Hynes has sought the penalty in seven cases and passed in 68 others, while Queens District Attorney Richard Brown has passed on 35 homicide cases and sought the death penalty in four.

Perhaps the most dramatic example of politics driving death prosecutions in New York is provided by one of the first death-eligible cases under Pataki’s new statute: that of Angel Diaz, who shortly after the law went into effect was accused of shooting to death New York City Police Officer Kevin Gillespie in the Bronx. Bronx District Attorney Johnson had expressed serious concerns about the fairness of the death penalty before Pataki signed it into law. Before Johnson could even make a decision about whether to proceed with a capital prosecution against Diaz, Pataki took the extraordinary step of removing him from the case and giving it to then-Attorney General Dennis Vacco, who promptly announced his intention to seek the death penalty. (The prosecution never took place because Diaz committed suicide in jail.)

Many believe that it is inhumane and wrong for the state to execute people. But even those who do not oppose the death penalty in principle are rightly troubled by death-penalty schemes that operate unfairly or arbitrarily. A system in which defendants are selected for death for reasons of politics and geography is the essence of arbitrariness.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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