Amicus: People of the State of New York v. Daniel K. Harris

Court Of Appeals State Of New York ------------------------------------------------x PEOPLE of the STATE OF NEW YORK, Respondent, -against- DARREL K. HARRIS, Defendant-Appellant. ------------------------------------------------x Brief Of Amicus Curiae New York Civil Liberties Union Table Of Contents The Court Should Not At This Time Authorize The Execution Of Any Defendant Sentenced To Death Under The State’s New Death-penalty Statute A. This Court Has a Critical Role to Play in the Administration of the Death Penalty in New York B. The Structure of the New York Death-Penalty Statute and Its Operation To Date Disclose the Potential for Such Serious Unfairness in the Operation of the Statute that It Is Imperative that this Court Not Permit Any Executions to Proceed Until It Has Comprehensive Information Necessary to Assess the Fair Operation of the Statute C. Important Recent Developments Raise Troubling Questions About Whether Death-Penalty Statutes Can Be Administered Fairly D. Before Undertaking Its Fairness-Review Obligations Under Section 27, the Court Should Develop Guidelines Governing that Review and Collect Comprehensive Information About Administration of the Statute Conclusion Brief Of Amicus Curiae New York Civil Liberties Union As the fate of Darrel Harris -- the first New Yorker sentenced to die under the State’s recently-enacted death-penalty statute -- comes before the members of this Court, an extraordinary and unprecedented debate is taking place in our society about the death penalty. In addition to the longstanding and profound questions about the humanity of the state intentionally executing persons there is a new and mushrooming controversy about the administration of death-penalty statutes. While death-penalty opponents long have pointed to evidence demonstrating that death-penalty systems unfairly impose the ultimate sanction of execution upon poor and minority defendants, new information has surfaced in recent years that has prompted even some prominent death-penalty advocates to call for a suspension of executions pending a thorough review of the fairness of death-penalty statutes. New York is no exception to these concerns. Indeed, the state has a tragic history of unfair administration of the death penalty -- including the reported execution of more innocent persons than any other state in the country between 1905 and 1974. This history and the contemporary controversy about the death penalty take on unique significance at this time because the New York State Legislature has mandated in the State’s new death-penalty statute that no defendant may be executed until this Court first determines that the statute is operating fairly. In this brief the NYCLU focuses on the Court’s fairness-review obligations under the statute. In addressing this issue the NYCLU is mindful that the Court has directed that neither the parties nor amici are to address the issue "regarding the proportionality or excessiveness of the sentence" in this case until so directed by the Court, see Decision Nov. 23, 1999, and the NYCLU in this brief does not address any of the specifics concerning any aspect of the death sentence imposed upon Mr. Harris. Instead, the NYCLU addresses the issue of the general process the Court should undertake before it can even reach the question of whether any particular sentence complies with the mandates of section 27 of the statute. Specifically, the NYCLU contends that the fairness-review obligations that the Legislature has imposed on the Court through section 27 require the Court to have available for comprehensive analysis far more information about the operation of the statute than is currently available and to develop express standards that will be applied in its review of all death sentences. Until the Court undertakes these steps, the NYCLU believes, the Court should not authorize the execution of any defendant sentenced to death. The NYCLU rests this conclusion on several considerations. First, consistent with the historical role played by this Court in the death-penalty context, the Legislature has assigned the Court a critical role in assuring the fairness of the state’s death-penalty scheme. Second, the structure of the statute and the preliminary data available about its operation to date point unmistakably to potentially serious problems in the fair administration of the statute. Third, the gravity of these potential problems is amplified by the fact that substantial recent information from around the country raises new and troubling questions about the extent to which death-penalty statutes can be administered fairly. Given these concerns and given the relative lack of information now available to the Court, the NYCLU submits that the only prudent course of action at this juncture is to suspend the imposition of any affirmed death sentence until the Court has available to it far more information so that it will be able to conduct the fairness review mandated by the statute. Before turning to these considerations, however, the NYCLU wishes to emphasize two preliminary points. The NYCLU joins the claim advanced by appellant that New York's death penalty violates the prohibition against cruel and unusual punishment set forth under Article I § 5 of the New York State Constitution for the reasons set forth by the appellant as well as for the reasons set forth in the amicus brief submitted by Professor Anthony G. Amsterdam. The NYCLU also agrees with the argument submitted by the Association of the Bar of the City of New York, as amicus curiae, which urges that New York's death penalty statute violates principles of substantive due process as guaranteed by Article I § 6 of the New York Constitution. In the interest of judicial economy the NYCLU adopts, by reference, the arguments ably set forth in each of those briefs. I. The Court Should Not At This Time Authorize The Execution Of Any Defendant Sentenced To Death Under The State’s New Death-penalty Statute. A.This Court Has a Critical Role to Play in the Administration of the Death Penalty in New York. The New York Court of Appeals long has played a pivotal role in assuring the constitutionality and fairness of death-penalty schemes adopted by the New York State Legislature. In 1973, following the seminal decision by the Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), this Court unanimously declared that the state’s then existing death-penalty statute violated the federal prohibition on cruel and unusual punishment because of the discretion the statute conferred on juries and judges to impose death sentences on defendants. See People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d 793 (1973). Four years later, though the Supreme Court had held that some state death-penalty schemes could be constitutional, the Court nonetheless invalidated New York’s successor death-penalty statute on the grounds that it impermissibly mandated the imposition of death on defendants convicted of certain crimes without allowing juries to take into account the individual circumstances of the defendant and the crime. See People v. Davis, 43 N.Y.2d 17, 400 N.Y.S.2d 735 (1977). After that no death penalty existed in New York until September 1, 1995, when the current statute went into effect. The Court’s vigilance has continued. In the very first case presented to it concerning the constitutionality of provisions of the new statute, the Court unanimously invalidated the statute’s plea-bargaining provisions, recognizing that they coerced defendants into pleading guilty and thus violated the right to a jury trial under the Sixth Amendment of the federal Constitution. See Hynes v. Tomei, 92 N.Y.2d 613, 684 N.Y.S.2d 177 (1998), cert. denied, 527 U.S. 1015 (1999). Consistent with the role this Court has played in assuring the fairness of the death penalty in New York over the last thirty years, the Legislature has assigned it a critical function in the assuring the fair and constitutional operation of the newly enacted death-penalty statute through a two-step process. At the outset, the Legislature has mandated that this Court review every death sentence, going so far as to provide by statute that a defendant cannot choose to waive his or her right to such appeal. See 1995 N.Y. Laws, ch. 1, § 27 (codified at N.Y. Crim. Proc. Law § 470.30(2)). Beyond directing that no defendant can be executed unless and until this Court has reviewed the sentence, the Legislature has prescribed a specific form of review by the Court. Specifically, though the Supreme Court of the United States has held that the federal Constitution does not necessarily require that state courts assess the fairness of the imposition of death on a particular defendant, see Pulley v. Harris, 465 U.S. 37, 51-54 (1984) (part IV), the New York State Legislature has imposed such an obligation on this Court. Specifically, the state’s new death-penalty statute provides that in all cases in which a defendant is sentenced to death this Court "shall" determine:

whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. In conducting such review the court, upon the request of the defendant, in addition to any other determination, shall review whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases by virtue of the race of the defendant or a victim of the crime for which the defendant was convicted.

1995 N.Y. Laws, ch. 1, § 27 (codified at N.Y. Crim. Proc. Law § 470.30(3)(b))1. Not only has the Legislature directed that this Court review every sentence to assure compliance with the terms of section 27, but it appears that this directive was based on a concern about a central issue in modern death-penalty jurisprudence: the arbitrary imposition of the death penalty on defendants. According to the Assembly Codes Committee Memorandum, "By requiring such review by the Court in every case where a sentence of death is imposed, the potential for arbitrary and disproportionate application of the death penalty throughout the state will be substantially reduced." Assembly Codes Committee Memorandum, 1995 Legislative Annual at 14. A concern about arbitrary administration of the death-penalty process was the basis for this Court’s 1973 decision in People v. Fitzpatrick. After the United States Supreme Court in Furman declared unconstitutional death-penalty statutes that accorded juries and judges unfettered discretion to impose death sentences on defendants, this Court in Fitzpatrick invalidated the extant New York death-penalty statute on the same grounds. After noting in Fitzpatrick that two members of the Supreme Court in Furman had based their position on the belief that imposition of a death sentence amounted to cruel and unusual punishment in all circumstances, see 32 N.Y.2d at 510; 346 N.Y.S.2d at 800, this Court detailed the arguments of three other Justices who based their decision on the arbitrariness in the death-penalty schemes before them:

Mr. Justice Douglas condemned "a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants * * * should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12" . . . . Mr. Justice Stewart was also of the view that the sentencing practices provided by the statutes in question -- vesting juries or judges with discretion to determine whether the penalty should be death or life imprisonment -- offend against the prohibition of the Eighth Amendment. . . . "I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." And Mr. Justice White -- addressing himself to the question whether capital punishment statutes are unconstitutional when "the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized" -- reached the conclusion that "the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." In short, added Justice White, "past and present legislative judgment with respect to the death penalty loses much of its force when viewed in light of the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime."

32 N.Y.2d at 511-12; 346 N.Y.S.2d at 801-02 (citations omitted). Based on this analysis, this Court then held that the New York statute violated the Eighth Amendment because it "leaves infliction of the death penalty solely to the discretion of the jury." 32 N.Y.2d at 512; 346 N.Y.S.2d at 802. In sum, consistent with this Court’s historical concern about the fair and nonarbitrary operation of death-penalty statutes in New York State, the Legislature has directed that no person can be executed under the new statute without this Court first assessing the fairness of the death sentence and further has directed that that assessment must include, among many other things, a determination that the statute is operating in a critically important fashion, namely in a manner that is not arbitrary. In the discharge of these obligations, this Court should engage in a deliberate and fully-informed decisionmaking process appropriate to the gravity of the issues under consideration. B. The Structure of New York’s Death-Penalty Statute and Its Operation To Date Disclose the Potential for Such Serious Unfairness in the Operation of the Statute that It Is Imperative that this Court Not Permit Any Executions to Proceed Until It Has Comprehensive Information Necessary to Assess the Fair Operation of the Statute. The particulars of this Court’s obligations under section 27 of the death-penalty statute remain to be determined2. Nevertheless, the structure of the statute itself and preliminary information about its actual operation provoke deep concern that, whatever particular standards might emerge under section 27, the statute is not being administered in a fair manner free from arbitrariness. Starting with the statute, its most prominent feature relating to fairness considerations is the complete and unfettered discretion it affords prosecutors to seek the death penalty in a particular case. The only provisions in the statute governing this process are contained in section 13 of the statute, which simply provides in relevant part,

In any prosecution in which the people seek the sentence of death, the people shall within one hundred and twenty days of the defendant’s arraignment upon an indictment charging the defendant with murder in the first degree, serve upon the defendant and file with the court in which the indictment is pending a written notice of intention to seek the death penalty.

1995 N.Y. Laws, ch. 1, § 13 (codified at N.Y. Crim. Proc. Law § 250.40(2)). Importantly, the Assembly sponsor of the bill specifically linked the Court’s fairness-review obligations under section 27 to the issue of prosecutorial discretion:

We were concerned about the type of review in the Court of Appeals. The Court of Appeals has broad interests of justice review. It has jurisdiction to deal with proportionality and racial justice, a way of looking at prosecutorial discretion to decide whether or not it was appropriate to bring an action or not bring an action based on what prosecutors do -- decisions from which guidelines will be developed.

Statement by Rep. Vitaliano, NYS Assembly Debate at 530 (Mar. 6, 1995). Conspicuously absent from section 13 (and the statute in its entirety), however, are any criteria that prosecutors, once a defendant has been charged with first degree murder, are to employ in deciding whether to seek the death penalty in the case. And amicus curiae finds nothing in the statute’s legislative history that discloses any such criteria; indeed, several legislators commented on the absence of any such criteria3. Consistent with the statute’s silence on the issue of criteria governing prosecutorial decisions to seek the death penalty, this Court has not mandated any such criteria, even though that issue was prominently presented in Johnson v. Pataki, the case involving the dispute between Governor Pataki and Bronx District Attorney arising out of the Governor’s superseder of Mr. Johnson in an early death-penalty case. See 91 N.Y.2d 214, 226-28, 668 N.Y.S.2d 978, 983-84 (1997) (discussing discretion statute created in decision to seek death without identifying any statutory or other criteria that controlled such decisionmaking); see also 91 N.Y.2d at 230, 668 N.Y.S.2d at 985 (Titone, J. dissenting) (discussing absence of criteria governing decision to seek death); 91 N.Y.2d at 240, 668 N.Y.S.2d at 991 (Smith & Ciparick, J.J., dissenting) ("In crafting the new death penalty statute provisions, the Legislature chose to bestow upon each one of the 62 District Attorneys of this State absolute discretion to seek either the penalty of death against a defendant accused of committing first-degree murder or life imprisonment without parole."). Not only are there no statutory or judicial criteria governing prosecutorial decisions to seek the death penalty in New York, but District Attorneys reportedly have refused to disclose publicly the criteria they are using in fact in making these decisions. Finder, "Upstate Prosecutors Often Turn to Death Penalty," N.Y. Times, Jan. 21, 1999, at A1, col. 1 (in lengthy story about implementation of the new statute, reporting that "District Attorneys declined repeatedly to discuss how they had decided [to seek or not seek death in] individual cases"). Further complicating this situation is the fact that this Court ruled in Johnson that the Governor can supersede a District Attorney in an individual death-eligible case for the purpose of making the decision whether to pursue a capital prosecution. 91 N.Y.2d at 223-26, 668 N.Y.S.2d at 980-83. Finally, the statute, again without any criteria, provides that "[a] notice of intent to seek the death penalty may be withdrawn at any time by a written notice of withdrawal filed with the court and served upon the defendant." 1995 N.Y. Laws, ch. 1, § 13 (codified at N.Y. Crim. Proc. Law § 250.40(4)). Thus, the formal structure in place under the new statute is one in which sixty-two different District Attorneys are making decisions about seeking the death penalty without any specified or known criteria or standards and in which the Governor, again free from any such criteria, can interject himself into any given case for the purpose of taking control of the decision about whether to seek the death penalty. On top of this, the statute adds the option of withdrawing a death notice in any individual case, again without any criteria or standards. As Mr. Harris argues in his brief, the discretion the statute affords to District Attorneys to make death-penalty decisions violates the cruel and unusual punishment and due process clauses of the federal Constitution and their counterparts in the New York State Constitution. See Brief for Defendant-Appellant at 94-108. Independent of these considerations, however, this scheme provokes immediate concerns about how fairly the statute can be administered. By the statute’s very terms any given defendant’s fate turns on the individual, unknown, and ungoverned predilections of a local District Attorney. And even if these predilections are entirely legitimate -- and there is ample reason to believe, given the history of capital punishment in this country and the significant political component of capital prosecutions, that many will not be legitimate -- it seems inevitable that this decentralized and standardless scheme will produce death-notice decisionmaking that will vary arbitrarily from county to county and even within the same county from District Attorney to succeeding District Attorney. This concern about the likely operation of the statute given its formal structure is heightened by the preliminary information currently available about the actual administration of the new statute. As an initial matter, 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 in 14% (one in seven) of the cases of those defendants indicted of first-degree murder between September 1, 1995 and August 31, 2000. See Defendant-Appellant’s Brief at 95 n.74. And when one considers the larger universe of defendants who prosecutors indicated at arraignment were being considered for capital prosecutions, the figure drops to 7.8% -- one in fourteen such defendants. See Wise, "Four Years of Death Penalty Law," N.Y. Law Journal, Sept. 13, 1999, at 1, col. 5. These figures establish the threshold point that, as one would expect given the statutory scheme, considerable discretion in fact is being employed in the selection of those defendants for capital prosecutions. That considerable vagaries exist in the substantial discretion being exercised is apparent when one examines the operation of the statute at the county level, which is the level at which it operates. Most dramatically, published statistics reveal stark disparities in the death-notice decisionmaking process from one county to the next. For instance, as of September 1999 (the most recent data available to the NYCLU), 8.6% of capital-eligible defendants in the counties comprising New York City had had death notices filed against them but 30.7% of such defendants in upstate counties had received such notices. Wise, "Four Years of Death Penalty Law," N.Y. Law Journal, Sept. 13, 1999, at A1, col. 5. In other words, a defendant in an upstate county was nearly three times more likely than one in a downstate one to face a capital prosecution. Consistent with these statistics, not a single defendant in heavily populated New York County, Bronx County, Westchester County, or Nassau County had faced a capital prosecution initiated by a District Attorney, while more than one defendant in four relatively small upstate counties (Schoharie. Rensselaer, Sullivan, and Albany) had faced a death notice. See id. Indeed, the Governor has taken the position, which this Court appears to have endorsed, that the District Attorney of one of the most populous counties in the state (Bronx District Attorney Robert Johnson) actually has adopted a policy of never seeking the death penalty. See Johnson v. Pataki, 91 N.Y.2d at 221, 226-27, 668 N.Y.S.2d at 979, 983 (discussing DA Johnson’s alleged "blanket policy" against seeking the death penalty). And these geographic disparities and the small number of defendants facing capital prosecutions prompted then Attorney General Dennis Vacco in 1997 to make comments about the statute that were reported as follows:

"I do believe that there will come a point in time in the future -- and probably the not-too-distant future -- where the public will begin to say, ‘Hey, wait a minute. Why should we have a law on the books if nobody is going to enforce it, or if its enforced in such rare instances that it almost makes no difference at all,’" Vacco said. "We haven’t arrived there yet, but perhaps we will reach a point where we need to take a look at the law itself," Vacco said, adding he wanted to choose his words carefully because he would have to defend the constitutionality of the statute. "My dilemma is how to change to the law without affecting the cases in play," he said. "Probably, it will take a test case to resolve the issue, and I hope we don’t see the statute struck down on those grounds. "Any fix would probably have to come after a Court of Appeals ruling on [geographic] proportionality," he said.

Murphy, "1 State, 2 Penalties," N.Y Newsday, Dec. 14, 1997 at A5 (brackets in original). All of this raises deeply troubling questions about the fair operation of the New York death-penalty statute. Should more complete information reveal, for instance, that the mere fact of the geographic location of a crime means that large numbers of defendants indicted on first-degree murder charges in New York State are completely immune from possible capital prosecutions while others are facing death, that would raise obvious questions about whether the imposition of the death sentence in any given case was arbitrary so as to violate section 27 of the statute. C. Important Recent Developments Raise Troubling Questions About Whether Death-Penalty Statutes Can Be Administered Fairly. The structure of New York’s new death-penalty statute and preliminary data about its operation alone raise such serious questions about the fair administration of the statute that this Court should be extremely cautious in approaching its obligations under section 27. This sense of caution is further deepened by new information that is becoming available about the operation of death-penalty statutes across the country. Recently disclosed information about problems permeating the fair administration of death-penalty statutes is fueling an unprecedented debate about the death penalty and has led many -- including some prominent death-penalty proponents -- to call for a suspension of executions until states have rectified deficiencies in their death-penalty statutes. As The New York Times reported on October, 31, 2000, in a lengthy story about consideration of death-penalty moratoriums around the country, "Though questions about the death penalty previously focused on the morality of state-sanctioned killing, more attention is now being paid to the ability of government to administer the system fairly -- without racial, geographic or socioeconomic inequities -- and in a way that minimizes the risk of executing anyone innocent." Rimer, "Support for Moratorium in Executions Gets Stronger," N.Y. Timess, Oct. 31, 2000, at A18, col. 1. Starting just with the narrow issue of geographic disparities in capital prosecutions, The New York Times, in a January 1999 story raising questions about the fair administration of the New York statute, reported that "[g]eographic distinctions have cropped up in many of the 37 other states with the death penalty." Finder, "Upstate Prosecutors Often Turn to Death Penalty," N.Y. Times, Jan. 21, 1999, at A1, col. 1. 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 in Florida. See id. Beyond the issue of geographic disparities, however, are global concerns about the fairness 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 and disclosed 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. See J. Liebman, S. Rifkind, J. Fagan & V. West, "A Broken System: Error Rates in Capital Cases, 1973-1995, at pp. 5-6; see also Butterworth, "Death Sentences Being Overturned in 2 of 3 Appeals," N.Y. Times, June 12, 2000, at A1, col. 6. 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. See "A Broken System," at 77 (table 10). More remarkable than these figures is what the study revealed 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 a post-conviction appeal, 82% of defendants were not resentenced to death, with 75% of them receiving a lesser sentence and 7% actually being acquitted. "A Broken System" at 8, Appendix C. To the extent this 82% figure reflects the outcome of all proceedings that follow the overturning of death sentences, that would mean that in over half of the cases of defendants sentenced to death in this country since 1973, the death sentence was lifted following review. The study’s data about ultimate capital defendant acquittals points to the most profound mistake that takes place in capital cases: the sentencing to death of innocent persons. A 1987 study published in the Stanford Law Review reported that between 1905 and 1974 New York had executed more innocent people than any other state in the country. See H. Bedau & M. Radelet, "21 Miscarriages of Justice in Potentially Capital Cases," 40 Stan. L. Rev. 21, 72-73 (1987). And concerns about the execution of innocent persons around the country have become much more pronounced in recent years with the advent of DNA techniques that have been employed to establish the innocence of many persons charged with serious crimes. The increasing concerns about the fair administration of death-penalty statutes have culminated in unprecedented calls for death-penalty moratoriums around the country. In January of this 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. Johnson, "Illinois, Citing Faulty Verdicts, Bars Executions," N.Y. Times, Jan. 31, 2000, at A1, col. 1. In May 1999 the conservative Nebraska legislature passed a bill adopting a two-year moratorium on executions out of a concern that the death penalty was being applied unfairly and a bill directing that a study be undertaken of the operation of the statute. See Johnson, "Legislature of Nebraska Votes Pause in Executions," N.Y. Times, May 21, 1999, at A14, col. 611. And two months after Governor Ryan instituted the moratorium in Illinois, the New Hampshire Legislature passed a bill -- which the Governor subsequently vetoed -- banning capital punishment entirely. See Kifner, "A State Votes to End Its Death Penalty," N.Y. Times, May 19, 2000, at A16, col. 1. Remarkably, though two-thirds of Americans reportedly still favor the death penalty, a nationwide poll conducted jointly by Republican and Democratic organizations revealed that 68% of Americans, when reminded of the recent exonerations of death-row defendants, favor a moratorium on executions while steps are taken to ensure that death-penalty systems operate fairly. See Rimer, "Support for Moratorium in Executions Gets Stronger," N.Y. Times, Oct. 31, 2000, at A18, col. 1. None of this establishes that the New York death-penalty statue is or will be operating unfairly or arbitrarily in violation of section 27 of the statute. But the fact that so many death penalty-schemes may be operating unfairly requires one to acknowledge that there is a substantial likelihood that any individual scheme -- including the New York statute -- may be operating unfairly. D. Before Undertaking Its Fairness-Review Obligations Under Section 27, the Court Should Develop Guidelines Governing that Review and Collect Comprehensive Information About Administration of the Statute. The NYCLU respectfully submits that the legislatively-mandated role accorded this Court in assuring the fair and constitutional administration of the state’s new death-penalty statute, particularly when viewed in light of the structure and preliminary operation of the statute and the fairness problems revealed in death-penalty statutes across the country, compels the conclusion that the members of this Court must undertake exhaustive and scrupulous efforts to ensure the fair administration of the New York State before any person is executed pursuant to it. Such efforts, the NYCLU believes, should include at least the following:

Develop guidelines governing the fairness review process -- At this point the specific content of the fairness review mandated by section 27 is unknown. In principal part the statute directs a determination of "whether the sentence is excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant" but provides no further guidance. For instance, the statute says nothing about the relevant degree of excessiveness or disproportionality, nothing about which cases qualify as "similar cases," nothing about the relevant characteristics of "the crime," and nothing about the relevant characteristics of "the defendant." Given the Legislature’s silence on this critical point, this Court should undertake the process that government bodies routinely undertake when assigned broad responsibilities to implement undefined statutory mandates. Just as this Court has developed specific rules governing its procedural handling of capital cases, see Court of Appeals Rules §§ 510.1 to 510.18, it should develop specific guidelines by which it will discharge its responsibilities under section 27. Given the widespread ramifications of such guidelines, it should issue them in draft form, accept public comment on the proposed rules, and then issue final rules after having considered those public comments. Determine What Standards, if any, District Attorneys Are Using to Select Cases for Capital Prosecutions -- Once it has devised a set of rules concerning the fairness review it will conduct under section 27, this Court should ascertain what standards, if any, are being employed as a matter of fact by prosecutors in selecting defendants for capital prosecutions. At this point, no such standards are known -- at least publicly -- which makes it impossible to assess whether death sentences are being imposed in an arbitrary manner. Collect Comprehensive Data About the Administration of the Death Penalty -- Finally, and most important perhaps, the Court should engage in comprehensive efforts to collect and analyze data about how the new death-penalty statute actually is being implemented, as that implementation relates both to guidelines the Court develops governing its section 27 review and to the standards that District Attorney are employing in selecting defendants for capital prosecutions. At present, the data available to the court -- at least to the knowledge of the NYCLU -- is extremely limited. Thus, even though the statute now has been in effect for slightly over five years, only six defendants have been sentenced to death and only forty-one defendants statewide had been selected for capital prosecutions through August 31, 2000. Given the large number of first-degree murder indictments across the state and the fact the statute is operating in sixty-two counties, these figures are far too small to allow the court to draw any meaningful conclusions about the operation of the statute, much less whether any particular death sentence can be deemed to be fair and not arbitrary.

Conclusion The New York State Legislature has assigned to the members of this Court the extraordinary responsibility of assuring that no New Yorker is executed before the Court determines that the statute is operating in a fair and nonarbitrary manner. Under any circumstances, such an obligation would require the Court to undertake a rigorous and comprehensive analysis of the operation of the statute. That requirement takes on an even greater significance at this point in time because both the structure of the statute -- with the discretion it provides in the decision to pursue a capital prosecution -- and data about the preliminary operation of the statute point unmistakably to the possibility of arbitrariness in the selection of any particular defendant for a capital prosecution. Consequently, amicus curiae New York Civil Liberties Union calls upon the Court not to approve the imposition of any death sentence under the statute until it has had a far fuller opportunity to assess the fair operation of the statute. Respectfully submitted, NEW YORK CIVIL LIBERTIES UNION FOUNDATION, by ______________________________ CHRISTOPHER DUNN NORMAN SIEGEL ARTHUR N. EISENBERG DONNA LIEBERMAN MARINA SHERIFF BETH HAROULES New York Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, N.Y. 10004 (212) 344-3005 (212) 344-3329 (FAX) Dated: New York, New York November 21, 2000 TO:Stuart M. Cohen Clerk State of New York Court of Appeals 20 Eagle Street Albany, N.Y. 12207 Kevin Doyle Susan Salomon Capital Defender Office 915 Broadway, 7th Floor New York, N.Y. 10010 Charles J. Hynes District Attorney Kings County 350 Jay Street at Renaissance Plaza Appeals Bureau, 20th Floor Brooklyn, N.Y. 11201 Attn: Keith Dolan Preeta Bansal Solicitor General of the State of New York Department of Law 120 Broadway, 25th Floor New York, N.Y. 10271