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The Future of Capital Punishment in New York State

Testimony of Robert Perry, Legislative Director of the New York Civil Liberties Union, before The New York State Assembly Committees on Codes, Judiciary, and Corrections, regarding The Future of Capital Punishment in New York State

My name is Robert Perry. I am the Legislative Director of the New York Civil Liberties Union (NYCLU). The NYCLU is the New York State affiliate of the American Civil Liberties Union and has approximately 35,000 members across the state. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

On behalf of the NYCLU, I thank the Assembly Speaker Sheldon Silver and Assembly Members Joseph Lentol, Helene Weinstein, and Jeffrion Aubry for convening this hearing to re-examine issues of law, public policy and morality related to New York’s death penalty statute.

I preface my remarks today by noting that some have interpreted the results of the recent presidential election to mean that Americans expect the conduct of government to reflect their “moral values.” While it is not entirely clear what this term means, I recommend to you this observation made in 1846 by a Massachusetts legislator: “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.”2

There is now overwhelming evidence that 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 constitutional principles and the sanctity of human life.

The notice for this hearing poses two basic questions: should New York reinstate the death penalty? And if reinstated, how should the law be written? It was apparent in 1995, when New York reinstated the death penalty, that there were insurmountable constitutional problems in fashioning a death penalty statute that meets the minimum legal standards of due process and equal protection. There is today a significant body of empirical evidence that indicates that the death penalty, no matter how it is reduced to statutory language, cannot be saved from its inherent constitutional flaws. New DNA technology has brought to light gross abuses in death penalty prosecutions. It is now well established that state governments have routinely imposed the ultimate sanction unfairly and disproportionately on poor and minority defendants. In the face of this sad and shameful record, even some prominent death penalty advocates have called for a suspension of executions pending a thorough review of the fairness of death-penalty statutes.

Today, twelve states and the District of Columbia have abolished the death penalty. No state other than New York has reinstated the death penalty since 1995. Indeed, the national and international trend has been to restrict the death penalty, impose a moratorium, or repeal it. In 2000, Governor George Ryan of Illinois, a Republican, declared a statewide moratorium on executions after it was established that thirteen people sentenced to death after the state had reenacted its death-penalty statute were, in fact, innocent. A bipartisan commission appointed by Governor Ryan determined that the only way to ensure that an innocent person would not receive a death sentence is to abolish the death penalty.

The NYCLU therefore urges you and your colleagues in the New York State Legislature to give full and careful consideration to the application of the death penalty in light of basic constitutional standards of fairness. It is the position of the NYCLU that if you do so, there is only one conclusion to be reached: the Legislature must repeal the authority of the state to impose punishment by death.

What follows in this testimony is a summary overview of the findings on which the NYCLU bases its recommendation.

The Death Penalty System Is Fraught with Serious Error

Prosecutorial error and abuse

A comprehensive study by a team of Columbia University scholars concluded that America’s death penalty system is “persistently and systematically fraught with error.”

The first part of this study, 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 the courts are able to catch every serious error. 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. These findings 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.
  • Significantly higher error rates in capital cases occur in those states in which judges are more susceptible to “political discipline” (through direct elections and elections that are more frequent and more partisan) as a consequence of issuing rulings that are inconsistent with popular sentiment.
  • 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.

Exonerations based on DNA evidence

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 people. Since 1973, at least 117 people across the country have been released from death row after evidence proved their innocence. The advent of DNA testing, and the exonerations from death row that have followed from this advancement, have established the death penalty system’s inherent flaws. As Columbia Law Professor James Liebman points out:

“[T]he real errors eventually exposed by . . . typical DNA exonerations are not the kinds that lawyers and appellate courts are capable of discerning and retrials are designed to cure. If it were not for the sheer accident that a biological sample happened to be available, the miscarriage never would have been discovered . . . Suddenly and starkly, DNA reveals us and our institutions to be what they strive to escape notice for being: inherently but often unknowably — and thus incurably — flawed, unreliable, and untrustworthy.”

The fact is many capital cases do not involve the kind of physical evidence amenable to DNA testing. The same kind of errors that have arisen in cases in which DNA evidence has eventually proven the innocence of a death row inmate — such as faulty eyewitness testimony, unreliable jailhouse informer testimony, coerced confessions, and withheld evidence — can just as easily arise in cases in which DNA evidence is not available. 11 As a result, there may be more innocent people on death row than even the large catalogue of exonerations and prosecutorial error would suggest.

These findings suggest a question that is implicit in the Legislature’s notice for this testimony: Would 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.

The Application of the Death Penalty is Discriminatory

Racial Bias

Historically, the death penalty has fallen disproportionately on racial minorities. While African Americans comprise 12% of the national population, they account for more than 40% of the country’s death row inmates, and one in three of those executed since 1977.

A recent study of the federal death penalty system demonstrates that minority defendants are grossly over-represented in the charging, sentencing and imposition of the death penalty. The study shows that between 1995 and 2000, 72% of federal capital cases were pursued against minority defendants.

The racial disparity in the application of the death penalty is further illustrated by examining the race of defendants and victims in death eligible cases. An analysis of federal prosecutions between 1998 and 2000 revealed that the death penalty was recommended against a black defendant in cases involving a white victim twice as often as compared with cases involving a black defendant and a black victim. 15Similarly, the U.S. General Accounting Office, at the request of the U.S. Senate, analyzed 28 empirical studies examining race and the death penalty, and concluded that “[the] race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.”

A similar picture emerges from analyses of death penalty cases prosecuted in certain states. For example, a study of the capital sentencing process conducted by the Supreme Court in a 1987 case revealed that in the state of Georgia black defendants convicted of killing white victims had by far the greatest likelihood of receiving the death penalty. The study showed that “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.”

Similarly, a 2002 study in Maryland found that while only 28% of the population was black, 67% of death row inmates were black, while 100% of the victims in the cases were white. A 1998 Philadelphia study found that, even after controlling for key variables in capital cases — severity of the crimes, aggravating circumstances, defendants’ prior criminal records — black defendants faced odds of receiving a death sentence that were 3.9 times higher than other similarly situated defendants. The study also showed that black defendants convicted of killing non-black victims had by far the greatest likelihood of receiving the death penalty.

The Center for Law and Justice, based in Albany, found that in New York State defendants convicted of murdering white victims are more than twice as likely to face the death penalty as those convicted of murdering black victims.

Geographic Bias
There are also patterns of geographic bias in the application of the death penalty. For example, between 1995 and 2003, upstate New York counties reported approximately 20% of all homicides in the state, but these counties accounted for 65% of all capital prosecutions. During that period, 6 of the 62 counties in New York State accounted for 56% of all death penalty cases. Of the defendants sentenced to death in New York State during this period, 43% were from Suffolk County alone. In other words, the decision to seek the death penalty in any particular case in New York turned not on the seriousness of the crime or the culpability of the defendant, but rather on the county in which the crime occurred. Similar troubling geographic disparities are seen across the country and on the federal level.

Geographical and racial disparities in the administration of the death penalty stem, in part, from the broad discretion granted prosecutors in seeking or waiving a death sentence in death-eligible cases. Prior to the invalidation of New York’s death penalty by the Court of Appeals, serious questions were raised about the standards by which capital cases were prosecuted. The state’s sixty-two District Attorneys had wide discretion in determining whether to pursue a capital prosecution in a qualifying case. Not only were there no statutory or judicial criteria governing these prosecutorial decisions, District Attorneys reportedly refused to disclose publicly the criteria they actually use to make these decisions. These racial and geographical disparities in the administration of the death penalty stem, in part, from the broad discretion granted prosecutors in seeking or waiving a death sentence in death-eligible cases.

Socio-economic Bias

Discrimination against the poor in the administration of the death penalty is also well established. What most often determines the imposition of the death sentence are not the facts of the case, but the quality of the legal representation. The overwhelming majority of inmates on death row are indigent; they receive sub-standard legal representation at trial. Justice Ruth Bader Ginsberg has remarked: “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well-represented at trial. People who are well represented at trial do not get the death penalty.”

The Death Penalty Does Not Deter Crime
Social science research indicates that the death penalty does not have an additional deterrent value beyond that of a lengthy prison term. During the last twenty years, homicide rates in states that impose the death penalty have been between 48% and 100% higher than in states that do not have a death penalty statute. A 1995 poll of police chiefs across the country found that the majority of chiefs ranked the death penalty last among effective ways of reducing violent crime, placing it behind curbing drug abuse, strengthening the economy, and gun control, among other measures.

In New York’s Monroe County prosecutors have sought the death penalty six times — the most in any county statewide — and yet the city of Rochester, which is located in Monroe County, has the highest murder rate in the state. By contrast, the Manhattan District Attorney’s Office has never sought the death penalty, and the murder rate in Manhattan has steadily decreased since 1995, when the death penalty was reinstated.

New York law permits the Court to impose a life sentence without parole. The evidence indicates that the prospect of facing the death penalty offers no meaningfully greater measure of deterrence to committing a serious crime than the threat of a mandatory life sentence.

The Death Penalty Is Expensive and Wasteful

Capital punishment cases are long and complex undertakings. After the death penalty was reinstated in New York in 1995, the state spent an estimated $170 million prosecuting a handful of cases.

Every state that has done a cost study of its death penalty system has found it to be more expensive than lengthy prison sentences:

  • The State of Kansas reviewed its death penalty in 2003 and found that capital cases are 70% more expensive than comparable non-capital cases, including incarceration.
  • A study by Indiana’s Criminal Law Study Commission found that the total costs of the death penalty exceed the complete costs of life without parole sentences by about 38%, assuming that 20% of death sentences are overturned and re-sentenced to life.
  • The most comprehensive study in the country found that North Carolina spends $2.16 million more to execute a defendant than the state spends to prosecute a non-death penalty murder case that results in a sentence of life imprisonment. The majority of those costs occur at the trial level.
  • Enforcing the death penalty costs Florida $51 million a year above and beyond what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida has carried out since 1976, that amounts to a cost of $24 million for each execution.
  • In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest level for 40 years.
  • The death penalty costs California $90 million annually beyond the ordinary costs of the justice system — $78 million of that total is incurred at the trial level.

The Death Penalty Is An Affront to Constitutional Principles
The Supreme Court ruled in 1976 that the death penalty does not present a per se violation of the Constitution. However, in light of the massive body of evidence accumulated over the past twenty-nine years pointing to the contrary, it is the NYCLU’s position that this ruling has become a legal anachronism.
Justice Harry Blackman acknowledged as much when he wrote in 1994:

“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor . . . Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulation ever can save the death penalty from its inherent constitutional deficiencies.”

  • Capital punishment is routinely applied in manner that denies due process of law in violation of the Fourteenth Amendment to the U.S. Constitution and Article I § 6 of the New York State Constitution. Its imposition is often arbitrary; it is always irrevocable. There is no degree of due process that is sufficient to correct for the state’s execution of an innocent person. The death penalty forever deprives an individual of the benefits of new evidence that might warrant the reversal of a conviction or the setting aside of a death sentence. Nevertheless, this is a foreseeable and predictable outcome as long as the state imposes capital punishment.
  • The death penalty is cruel and unusual punishment that contravenes Article I § 5 of the New York State Constitution. The death penalty is a relic of the earliest days of penology, when slavery, branding, and other forms of corporal punishment were commonplace. Like those other barbaric practices, executions have no place in our society. The Supreme Court has ruled that the death penalty does not necessarily constitute a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment; and this prohibition appears verbatim in the Article I § 5 of the New York State Constitution. However, nineteen legal scholars have argued in an amicus brief filed with New York’s Court of Appeals in People v. Harris that the state’s 1995 death penalty statute does indeed violate the state constitution’s prohibition against cruel and unusual punishment. This analysis is based upon an interpretation of the unique legislative history of Article I § 5.

    A proposal to bar cruel and unusual punishment under the state constitution was rejected by delegates to the constitutional convention in 1821; but then adopted in 1846. The reversal was due to a number of high-profile cases in the intervening years that demonstrated the death penalty had been applied in a manner that was inconsistent, arbitrary and disproportionate to the offense. What’s more, the delegates saw the creation of the Court of Appeals as an effort to interpret the prohibition against cruel and unusual punishment in light of evolving standards.

    The scholars’ brief in Harris observes that “the 1846 Convention embodies two fundamental values in Article I, § 5: that punishments are to be applied humanely, without needless cruelty; and that punishments are to be applied rationally and evenhandedly, without arbitrary selectivity. Their sum is that a punishment is constitutionally Cruel and Unusual if it is so excessively harsh that it cannot be regularly and evenhandedly imposed consistently with contemporary standards of decency. The Convention left it to [the Court of Appeals] to determine, in the light of experience over time, whether capital punishment (or any other extreme sanction) could be administered within these limitations.” (Emphasis provided.) Evidence and experience shows that the death penalty cannot be so administered.

  • What’s more, the system of capital punishment violates the constitutional guarantee of equal protection of the law under the Fourteenth Amendment of the Federal Constitution and Article I § 11 of the State Constitution. Equal protection requires that the laws treat an individual in the same manner as others in similar conditions and circumstances. However, the findings presented above demonstrate that the death penalty is imposed in a manner that differentiates among defendants based on their race or the race of the victim; the death sentence is disproportionately imposed on minority defendants and in cases where the victim is white.

    The Supreme Court in 1987 rejected a federal equal protection challenge to a death sentence in Georgia, despite statistical evidence showing a statewide pattern of racially disproportionate capital sentencing. Brooklyn Law School Professor Ursula Bentele has argued, however, that New York’s Constitution provides greater protection against discrimination than the federal Constitution, and that the death penalty would fail under state equal protection analysis. The antidiscrimination clause of the New York State Constitution explicitly outlaws discrimination, no matter what the source, on the basis of race, color or religion.

    Professor Bentele points out that this broader safeguard was adopted in response to gross, systemic discrimination targeted at blacks during the Great Depression and to the specter of the Nazi persecution of the Jews. In light of this legislative history, Professor Bentele concludes, the broader scope of equal protection provided under the New York Constitution “could not countenance a pattern of unequal application [of the death penalty] where defendants charged with killing white victims [are] 4.3 times as likely to be sentenced to death as defendants charged with killing blacks, where it [is] more likely than not that the race of the victim would determine whether a defendant received a death sentence, and where cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.

      International Consensus Opposes Capital Punishment
      The United States is the only Western industrialized country that applies the death penalty. More than half the countries in the world have abolished the death penalty in law or in practice. Seventy-nine countries outlaw the death penalty for any crime; fifteen more allow it only for exceptional crimes, such as those committed during wartime. Another 23 countries are “de facto abolitionist”: they have not executed anyone during the past 10 years or more, or they have made a commitment not to carry out executions. In 2003, there were over 1000 executions in 28 countries around the world. China, Iran, Vietnam and the U.S. were responsible for 84 percent of these known executions.

      The international community’s efforts to abolish, or at least limit, capital punishment is reflected in numerous multilateral treaties and protocols, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and it’s Second Optional Protocol. By ignoring international agreements and norms the ability of the U.S. to provide moral leadership, and to influence other countries on human rights issues, is eroding.

      The findings cited in this memorandum provoke an obvious and sobering question: How can we as a society tolerate the state’s taking of life by procedures that are inherently subject to incompetence, prejudice, and corruption? The Columbia University study cited above proposes 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.”

      The NYCLU takes the position that the death penalty must be “scrapped.”
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