Testimony Of Donna Lieberman, Executive Director Of The New York Civil Liberties Union Before The New York City Council Committee On Fire And Criminal Justice Services, Regarding The Imposition Of A Moratorium On Capital Punishment (City Council Resolution No. 12-a) My name is Donna Lieberman. I am the Executive Director of the New York Civil Liberties Union (NYCLU). On behalf of the NYCLU, I thank city Council Member Yvette Clark, Chair of the Committee on fire and Criminal Justice Services, for conducting this hearing. The NYCLU commends Council Member William Perkins for introducing Resolution 12-A, calling for a moratorium on capital punishment; and we commend those Council Members who have signed their names to this resolution as co-sponsors. I open my remarks by citing the words of a Massachusetts legislator who wrote the following in 1846: “At every instance in which the law violates the sanctity of human life, that life is held less sacred by the community among whom the outrage is perpetrated.” There is now a considerable body of evidence that shows the state in arrogating to itself the role of executioner is pursuing death-penalty prosecutions in a manner that compromises fairness and justice – violating both legal principle and the sanctity of human life. I would like to state for the record being made here today a brief summary of certain findings that may assist policy makers when contemplating these issues of fairness and justice as related to the death penalty. A recently completed study prepared by a team of scholars, and published by Columbia University, concludes that America’s death penalty system is “persistently and systematically fraught with error.” The first part of this report, based on an analysis of 4,578 capital cases prosecuted between 1973 and 1995, includes the following findings:
  • The overall rate of prejudicial error in the American capital punishment system is 68 percent – in other words, courts have found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences reviewed in this study.
  • Death-penalty trials produce so many mistakes that it takes three judicial inspections to catch them – leaving grave doubt as to whether we do catch them all. After state courts threw out 47 percent of death sentences due to serous flaws, federal courts found serious error in 40 percent of the remaining cases.
  • The most common errors prompting a reversal in state court after a death-penalty conviction are (1) incompetent defense lawyers who failed to seek or simply missed important evidence that the defendant was innocent; and (2) police or prosecutors who did discover such evidence of innocence but suppressed it.
  • Catching error in capital cases takes a long time. Inmates spend, on average, 10.6 years on death row pending the review required to uncover errors and abuses. The second part of the study includes a number of findings that demonstrate death-penalty prosecutions are highly politicized undertakings, and it is this dynamic that makes such prosecutions routinely susceptible to bias, prejudice, misjudgment and outright error. The findings in this second part of the study include the following:
    • Ineffective state law-enforcement systems – those with the worst records of arresting, conviction, and incarcerating serious criminals – are the most likely to conduct seriously flawed investigations, prosecutions and trials of capital defendants.
    • Lower competence in criminal prosecution is associated with greater pressures to invoke the death penalty in response to the ineffectiveness of law enforcement– that is, the death penalty is sought in weaker cases and with limited prosecutorial competence.
    • Judges who are more vulnerable to adverse political consequences if their rulings are not consistent with popular sentiment have higher capital-error rates.
    • The greater the proportion of a state’s population that is African-American, the greater the state’s rate of serious error in death-penalty cases. (The same finding applies regarding welfare recipients in federal habeas corpus cases.) How can this be explained? The study concludes that the “racial factor” is a powerful indicator of the pressure exerted upon officials to respond forcefully to crime. This pressure and the ensuing “forceful response” strongly predicts the indiscriminate use of the death penalty and high error-rates in capital prosecutions.
    These findings provoke the obvious and sobering question: How can we as a society tolerate the state’s routine taking of life by means that are demonstrably subject to incompetence, prejudice, and corruption? The report itself provides an answer to this question.
    “If what were at issue here was the fabrication of toasters . . . or the processing of social security claims, or the pre-takeoff inspection of commercial aircraft -- or the conduct of any other private- or public-sector activity -- neither the consuming and the taxpaying public, nor managers and investors, would for a moment tolerate the error rates and attendant costs that dozens of states and the nation as a whole have tolerated in their capital punishment system for decades. Any system with this much error and expense would be halted immediately, examined, and either reformed or scrapped.” (Emphasis in original.)
    The findings I have cited bring us to a question that is implicit in the City Council’s resolution to impose a moratorium on the death penalty: will New York be more fair or just in its prosecution of capital offenses? The historical record suggests not. Between 1905 and 1974, New York executed more innocent people than any other state in the country. What’s more, New York’s capital punishment law, reinstated in 1995, raises serious questions about the standards by which the death penalty will be prosecuted. New York has sixty-two District Attorneys across the state, each of whom has the authority to determine when a prosecution warrants 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. Further complicating the situation is the ruling by New York’s Court of Appeals that the Governor can supersede a District Attorney in an individual death-eligible case for the purpose of making the decision as to whether to pursue a capital prosecution. To add one more element of ambiguity, the death-penalty 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.” In light of the known errors and abuses in the application of the death penalty, the City Council is acting prudently in anticipating those same abuses will be repeated in New York State. The City Council’s moratorium should be adopted promptly; similar state legislation should follow. The NYCLU also recommends that both New York City and state legislators take guidance from the governors of Illinois and Maryland, who, in response to growing evidence of serious, reversible error in death penalty prosecutions, established bipartisan commissions to review those prosecutions. Governor Pataki, with the support of the state legislature and elected officials statewide, should create a commission and charge its members with three principal objectives:
    1. recommend guidelines governing the fairness-review procedures provided for in the statute;
    2. determine what standards, if any, District Attorneys are using to select cases for capital prosecutions; and
    3. collect comprehensive data about the administration of the death penalty.
    Notice will be taken of the City Council’s vote on Resolution No. 12-A beyond New York City. Governor Pataki will take notice. Policy makers and voters in cities throughout the country will take note of this vote. The NYCLU calls upon each City Council member to demonstrate by his or her vote that there is a strong, clear consensus that it is time to impose a moratorium on the death penalty.
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