SUBJECT:

PURPOSE:

New York's most recent death penalty statute was enacted by the Legislature on March 7th, 1995 and became effective on September 1st of that year. The statute, as amended, provided for the imposition of the death penalty, life imprisonment without parole or life imprisonment with the possibility of parole for thirteen specific categories of intentional murder, created judicial procedures for imposing and reviewing death sentences, established a system of public defense for indigent death penalty defendants and implemented correctional system procedures for housing death row inmates and imposing death sentences.

On June 24th, 2004, the New York Court of Appeals in People v. LaValle invalidated the "deadlock instruction" provision of New York's death penalty law, holding that the instruction created a "substantial risk of coercing jurors into sentencing a defendant to death" in violation of the Due Process clause of the New York State Constitution. The Court also held that the absence of any deadlock instruction would be constitutionally impermissible and that the Court was not judicially empowered to create a new deadlock instruction. The Court thus found that "under the present statute, the death penalty may not be imposed" under New York law, but that first degree murder prosecutions could continue to go forward as non-capital cases under the current statute. As noted above, New York's current first degree murder law authorizes a sentence of life imprisonment without parole to be imposed in any case.

The jury deadlock instruction was first proposed by Governor Pataki in program legislation which was passed by the Senate prior to the final legislative agreement on the death penalty. (See S-2649 of 1995). The Governor's deadlock instruction proposal was later included in the final death penalty law enacted by the Legislature on March 7th, 1995.

New York's death penalty law was in effect for slightly less than nine years before it was struck down this past June. In that time, it is estimated that the state and local governments have spent approximately $170 million administering the statute. Not a single person has been executed in New York since the law's enactment. Seven persons have been sentenced to death. Of these:

• the first four sentences to reach the Court of Appeals were struck down on various grounds;
• an additional sentence was converted to a sentence of life imprisonment without parole after the LaValle decision; and
• two death sentences are awaiting review.

New York's death penalty statute has remained highly controversial since its enactment and continues to be roundly criticized. The question of whether the statute should now be revived and, if so, in what form, has also been the subject of intense interest and debate since the Court of Appeals decision in LaValle.

These hearings are intended to provide a public forum to review what New York's experience with the death penalty over the past nine years has been and what that experience has taught us. It is intended to solicit views on how the experience of other states, the federal government and other nations can help inform New York's actions on this issue. Finally, the hearings are intended to foster a public dialogue on the ultimate question of whether New York's death penalty law should be reinstated and, if so, what form any new law should take.

November 22, 2004

Joseph R. Lentol Member of Assembly Chair Committee on Codes

Helene E. Weinstein Member of Assembly Chair Committee on the Judiciary

Jeffrion L. Aubry Member of Assembly Chair Committee on Correction

Note:

Persons wishing to present pertinent testimony to the Committees at the joint public hearings should complete and return the enclosed reply form as soon as possible. It is important that the reply form be fully completed and returned so that persons may be notified in the event of emergency postponement or cancellation. Oral testimony will be limited to ten (10) minutes' duration and will be by invitation only. In preparing the order of witnesses, the Committees will attempt to accommodate individual requests to speak at particular times in view of special circumstances. These requests should be made on the attached reply form or communicated to the Committees' staff as early as possible. Thirty (30) copies of any prepared testimony should be submitted at the hearing registration desk.

The Committees would appreciate advance receipt of prepared statements. In order to further publicize these hearings, please inform interested parties and organizations of the Committees' interest in receiving testimony from all sources. In order to meet the needs of those who may have a disability, the Assembly, in accordance with its policy of non-discrimination on the basis of disability, as well as the 1990 Americans with Disabilities Act (ADA), has made its facilities and services available to all individuals with disabilities. For individuals with disabilities, accommodations will be provided, upon reasonable request, to afford such individuals access and admission to Assembly facilities and activities.

SELECT QUESTIONS TO WHICH WITNESSES MAY DIRECT THEIR TESTIMONY:

1. Should the Death Penalty be Reinstated in New York?

1. Is it possible to design a death penalty law which is fairly administered and consistently applied, free from impermissible racial, ethnic or geographic bias and prevents the conviction of the innocent?
2. Is the death penalty an appropriate societal exercise of retribution against persons who commit intentional murder?
3. What evidence is there that New York's death penalty or the death penalty in general deters intentional murder more effectively than other sentencing options?
4. Are the results which New York has achieved over the past nine years in administering the death penalty worth the significant public resources which have been expended? Could those resources have been used more effectively for other crime control or public purposes?
5. Is the currently available sentence of life imprisonment without the possibility of parole an effective alternative to the death penalty in New York? Or is it imperative that this current sentencing option be supplemented with the death penalty?
6. What do the trends and experiences of other states and nations which have considered or implemented the death penalty or life imprisonment without parole teach us about whether capital punishment should be reinstated in New York?

2. If the Death Penalty in New York Were Reinstated, What Should it Provide for?
1. Did the 1995 statute provide appropriate safeguards to ensure that innocent persons would not be convicted and subject to the death penalty in New York? If not, what additional safeguards would be needed to meet that goal?
2. Have the close family members and loved ones of deceased murder victims been given appropriate input and involvement in decisions about seeking the death penalty and in the death penalty process under the 1995 law? How could the role of these family members and loved ones be improved?
3. Did the 1995 statute provide appropriate protections against convictions and the imposition of the death penalty by virtue of bias applicable to the race or ethnicity of death penalty defendants or murder victims? If not, what additional steps would be necessary to achieve that goal?
4. As noted above, New York's death penalty law, as amended, provided a death penalty option for thirteen kinds of intentional murder. Should those categories be expanded, contracted or otherwise modified if the death penalty is reinstated?
5. New York's law provided a system of capital defense through a Capital Defender Office and contracts with other institutional defenders and private attorneys. Has this system worked effectively? How might it be improved?
6. Under New York's death penalty law, prosecutors were given unfettered discretion to seek or not seek the death penalty in any first degree murder case. Is such unlimited discretion appropriate? Did this system of prosecutorial discretion work effectively and fairly?
7. Three death sentences imposed under the 1995 law came from Suffolk County with one each coming from Kings, Queens, Onondaga and Monroe counties. The chances that a defendant would be subject to a death penalty prosecution in New York over the past nine years varied widely, depending upon the county in which a defendant's crime occurred. Is this a permissible result in a death penalty system? Should the imposition of the death penalty vary, depending upon the county in which a defendant is prosecuted?
8. Has the state provided sufficient financial resources to law enforcement, victims' services, defense providers and the judicial system to administer the death penalty over the past nine years? What changes in state funding for administering the death penalty could be considered?
9. What do the experiences of other states with death penalty laws and the federal government teach us about how any death penalty statute should be structured in this state?
10. What changes in evidentiary rules or the appellate process might be considered if the 1995 law were reinstated?
11. On August 11th of this year, the Senate passed Governor's program legislation which seeks to remedy the unconstitutional jury deadlock instruction identified by the Court of Appeals in the LaValle decision (S-7720). The bill would seek not only to reinstate the death penalty for future cases, but would also purport to retroactively apply the new statute, both to crimes which occurred prior to the LaValle decision and crimes which occurred subsequent to LaValle but prior to the law's enactment, during a time period when no valid death penalty law was in effect in New York. The bill's retroactive provisions have been criticized as being violative of the Ex Post Facto clause of the United States Constitution and therefore invalid, particularly with respect to cases occurring subsequent to LaValle.

1. Should the prospective provisions of S-7720, which seek to reinstate the death penalty be adopted without any further modifications to the statute?
2. Are the retroactive provisions of S-7720 which seek to reinstate the death penalty with respect to prior crimes constitutionally valid? Should these provisions be adopted?

12. The 1995 statute generally barred the execution of mentally retarded persons but contained an exception for the first degree murder of a corrections officer committed by a prison or jail inmate. The United States Supreme Court, in its 2002 decision in Atkins v. Virginia, barred the execution of mentally retarded persons. How does the Atkins holding impact the '95 law's limited provisions authorizing the execution of mentally retarded persons?
13. The 1995 statute contained extensive provisions related to a jury's consideration of a defendant's possible mental impairment when determining whether the death penalty should be imposed. How well did these provisions operate? Would these provisions need to be revised if the death penalty in New York were reinstated?
14. The 1995 law set 18 as the minimum age for the imposition of the death penalty. Should that minimum age be modified if the death penalty is reinstated?
15. The 1995 law contained provisions for disqualifying jurors from death penalty guilt and penalty phase proceedings who harbored opinions for or against the death penalty which would preclude them from rendering an impartial verdict or exercising their discretion to determine an appropriate sentence. Has this provision, as it has been interpreted by New York's courts, been applied fairly and appropriately? Should this provision be modified in the event the death penalty is reinstated?
16. The 1995 statute established procedures for housing death sentenced inmates and carrying out death sentences. The State Department of Correctional Services has also implemented a number of policies in administering the 1995 law. Should any of these laws or policies be changed, in the event the death penalty is reinstated?

PUBLIC HEARING REPLY FORM

Persons wishing to present testimony at the joint public hearing on "The Death Penalty in New York" are requested to complete this reply form as soon as possible and mail, email or fax it to:

Seth H. Agata, Counsel
Assembly Committee on Codes
Room 508 - The Capitol
Albany, New York 12248
Email: agatas@assembly.state.ny.us
Phone: (518) 455-4313
Fax: (518) 455-4682

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