Op-Ed: A Pivotal Time For The Death Penalty (New York Law Journal)

By Christopher Dunn — This is a pivotal time for the death penalty, both here in New York State and on a national level. The New York Court of Appeals this past summer blocked all executions under the current state law, and the Governor and Legislature are now debating how or whether to “fix” the statute. Meanwhile, the Supreme Court of the United States may be about to nullify a broad category of executions for the second time in two years.

The Final Undoing of New York’s Death Penalty

After its enactment in 1995, the death penalty ushered into law by the then-newly-elected Governor George E. Pataki run into a series of constitutionally-based procedural obstacles. Though the Court of Appeals never reached the ultimate issue whether capital punishment is unconstitutionally cruel and unusual punishment, it invalidated every death sentence that came before it, and not a single person was executed. It was not until its ruling this summer, however, that the court barred all executions under the statute, thereby throwing the issue of capital punishment back to the Legislature. Just as significantly, perhaps, the court’s most recent ruling establishes new legal standards governing death-penalty challenges that may make it easier to challenge any new death scheme.

People v. LaValle presented a challenge to the so-called “deadlock instruction” provision of New York’s death penalty. Under the statute, once a defendant had been found guilty of a capital-eligible offense and the case had entered the penalty phase, the jury was required to arrive at a unanimous decision about sentencing the defendant either to death or to life in prison without parole. The statute further provided that the court was required to inform the jury of the consequences of their not reaching unanimity:

The court must also instruct the jury that in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty-five years and a maximum term of life.

It was this deadlock instruction that brought down New York’s death penalty.

In an opinion written by Judge George Bundy Smith and joined by Chief Judge Kaye and Judges Ciparik and Rosenblatt, the court concluded that this instruction introduced an unconstitutional element of coercion into the sentencing process. Noting that the Legislature had prescribed death or life without parole as the two jury options, the court reasoned:

What, then, is the consequence of telling the jury that it may not impose sentence of life with parole eligibility after 20 to 25 years, but that the court will impose that sentence if the jury cannot agree? The deadlock instruction interjects the fear that if jurors do not reach unanimity, the defendant may be paroled in 20 years and pose a threat to society in the future. Yet, in New York a defendant’s future dangerousness is not a statutory aggravator the jury may consider.

By interjecting future dangerousness, the deadlock instruction gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 years will join jurors favoring death in order to avoid the deadlock sentence.

Though many may be familiar with this basic ruling, the Court of Appeals took a number of other steps in LaValle that are less known but quite significant. First, the court based its decision entirely on the New York State Constitution, thereby insulating it from review by the Supreme Court. Second, the court, joining just eight other states, held that “a jury instruction on the consequences of a deadlock is required in a capital case.” And third, in the face of strenuous objections from the three dissenters that its invalidation of the statute usurped Legislative authority, the majority ruled that it could not craft an alternative deadlock instruction “because to do so would usurp legislative prerogative.”

In other words, the only place for the death penalty after LaValle was back to the New York State Legislature, with all executions being barred unless and until a new law is passed that includes a juror deadlock provision that is not potentially coercive. Given the changing death-penalty politics in New York, that is a place from which the statute may not soon emerge.

Beyond this, perhaps the most significant and least appreciated aspect of the LaValle decision was the court’s discussion of the relationship between the New York Constitution and United States Constitution when it comes to capital punishment. As the Supreme Court’s constitutional jurisprudence has become more conservative over the last twenty years, there has been an increasing effort to prompt state courts to construe their constitutions independently of and more expansively than the federal Constitution. Despite some early encouraging signs, New York has not made great strides in this area. LaValle may mark a turning point, however.

One of the principal obstacles facing the challenge to New York’s deadlock provision was a 1999 Supreme Court decision that essentially rejected the same challenge. Rather than attempt to distinguish the deadlock scheme at issue in that case – Jones v. United States – the Court of Appeals discounted the Supreme Court’s ruling as omitting “any mention of the heightened need for reliability in death penalty cases” and declared that the New York Constitution affords capital defendants fundamental protections that exceed the federal constitutional ones recognized by the Supreme Court:

This Court has repeatedly construed the State Constitution’s Due Process Clause to provide greater protection than its federal counterpart as construed by the Supreme Court. In doing so, we have often found that a Supreme Court rule represents a departure from an earlier rule, which was consistent with our own established law or with fundamental justice and fairness.

And lest there be any doubt about its views, the court reiterated this point a second time and went so far as to characterize the differences between federal protections and those of the New York Constitution as fundamental ones of fairness: “We hold that in this case the Due Process Clause of the New York Constitution requires a higher standard of fairness than the Federal Constitution as interpreted by the Jones majority.”

In the wake of LaValle, legislative leaders now are considering new death-penalty bills, and an Assembly hearing is scheduled to take place next week here in New York City. Yet, even if a new statute is passed and signed into law with a constitutionally adequate deadlock-instruction provision, the LaValle decision may provide the basis for challenges to many other aspects of any renewed capital-punishment statute.

The Shifting Federal Landscape

As the death penalty has unraveled in New York, dramatic developments have been unfolding at the federal level. Two years ago the Supreme Court held in Atkins v. Virginia that it was cruel and unusual punishment under the Eighth Amendment for a state to execute the mentally retarded. Atkinsopened the door to important new challenges to the death penalty, and the Court now has before it a case using similar arguments to challenge the constitutionality of the execution of juveniles.

The Supreme Court long ago recognized that the Eighth Amendment must be measured not against some historical benchmark but rather by the “evolving standards of decency that mark the progress of a maturing society.” The elasticity of this concept was starkly illustrated in Atkins, where the Court overruled a decision issued just thirteen years earlier in which it had upheld the execution of the mentally retarded. As the Court explained, “Much has changed since then.” Specifically, in the intervening years sixteen states had joined the two states that at the time of the earlier decision had banned execution of the mentally retarded.

Perhaps recognizing, however, that this still left execution of the retarded intact in a majority of the thirty-eight death-penalty states, the Court added, “It is not so much the number of these States that is significant, but the consistency of the direction of the change.” In addition the Court, in a footnote, pointed to “a much broader social and professional consensus” condemning execution of the mentally retarded, citing professional organizations and noting that “within the world community the imposition of the death penalty for crimes by mentally retarded offenders is overwhelmingly disapproved.”

Not surprisingly, in an era in which public support for the death penalty is eroding, the notion that “consistency” in a “direction of change” and views of professional organizations and of the “world community” might be grounds for upending entire categories of death penalties is a potent one for capital-punishment opponents. And the Court now has before it a case that seeks to capitalize on that approach.

Argued on October 13, Roper v. Simmons presents a frontal challenge to executions of defendants younger than 18. Having held one year earlier that the execution of defendants younger than 16 was unconstitutional, the Supreme Court in 1989 ruled that execution of 16- and 17-year-olds was permissible in Stanford v. Kentucky. As the Court did in Atkins, the defendant in Roper is invoking the notion of an emerging consensus to justify overruling Stanford.

Roper is on appeal from the Supreme Court of Missouri, which used all the tools provided by Atkins — and then some — to hold that executions of the mentally retarded “are prohibited by the Eighth and Fourteenth Amendments.” The first remarkable aspect of this decision is that the Missouri court felt free to disregard a Supreme Court decision — Stanford -– that had decided the very issue before the state court. However, as the Supreme Court of Missouri explained, Atkins‘ aggressive use of the “evolving standards of decency” concept made this possible: “Atkins recently affirmed that decisions as to standards of decency are to be decided by current standards, not ones of years ago.” In other words, lower courts are now free to ignore Supreme Court decisions about the death penalty (at least so long as they are from “years ago”).

The court then catalogued recent legislative enactments, reviewed juvenile-execution practices, and undertook “an independent analysis” of the merits of the juvenile death-penalty – tracking the general approach in Atkins. Most notably, perhaps, the Missouri court elevated the Atkins footnote treatment of the views of professional organizations and the world community to a central part of the reasoning for invalidating the juvenile death penalty.

That in turn has led to a situation that may force the Supreme Court to deal seriously with the relevance of international practices and law in constitutional death-penalty controversies. Through amicus curiae briefs filed in the Roper case, dozens of countries have urged the Court to ban juvenile executions, with Somalia reportedly being the only other country to authorize such executions.

Should the Supreme Court strike down juvenile executions, that would mark an important step towards curbing the death penalty in the United States. Beyond that, the approach adopted by the Court in Atkins and amplified by the Supreme Court of Missouri offers many new possibilities for challenges to death-penalty regimes should it be endorsed when the Supreme Court decides Roper.