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The history of capital punishment in New York state is bloody, divisive, given to the worst of political pandering and the best of high-minded debate — and, under any rational analysis, weird. This is, after all, a state where Jacob Leisler and Jacob Milborne, convicted of treason, were sentenced to be hanged “by the Neck and being Alive their bodys be Cutt downe to the Earth and their Bowells be taken out and they being Alive, burn before their faces; that their heads shall be struck off and their Bodys Cutt in four parts.” That is pretty much what happened to Leisler and Milborne in 1691. It is a state that once strapped a corpse to the electric chair. The condemned man had the fortune, misfortune or audacity to expire prematurely, and the warden was insistent that the court-ordered sentence of electrocution be carried out. So, the deceased was tethered to Old Sparky and zapped. “Gentlemen,” the warden announced after the dead man was shocked, “justice has been done.” And it is the state that, in between the barbaric days of disembowelments and the enlightened days of lethal injection, the argument over the Mosaic lex talionis — an eye for an eye, a tooth for a tooth — is no closer to resolution today than it was 300 years ago. Historically, there were periods when public sentiment was clearly against capital punishment, or at least certain forms of capital punishment. There were times where the citizenry demanded a death penalty, and their political representatives thwarted the public will. And there were periods that closely parallel today, when there is seemingly popular and political support for the death penalty, but where the validity of the law on the books is in question. In sum, New York’s experience with capital punishment, partially because of its age in this nation of states and partially because of its historic prominence, has long been viewed as a national microcosm. As such, death penalty advocates and foes across the country are keenly interested in People v. Harris, the case in which the Court of Appeals will on May 6 scrutinize New York’s latest capital punishment statute. New York joined 37 other states on Sept. 1, 1995, when it entered the modern realm of capital punishment. The new law authorizing death for 12 categories of intentional murder, is only the latest incarnation, and few expect that it will be the last. History suggests that the political debate and litigation over capital punishment will continue until and unless the Court of Appeals finds the death penalty per se unconstitutional — and probably beyond. Only two state high courts, those in Massachusetts and California, have ever found capital punishment absolutely barred under their constitutions. And when they did, the citizenry amended the constitutions. PUBLIC EXECUTIONS The first New York Constitution contained no prohibition against cruel and unusual punishment, and the state’s Dutch and British legacy brought periods of unspeakable cruelty. Burning at the stake, quartering, torturing, drowning and breaking at the wheel were all methods of execution employed at one time or other in New York. For a while, officials experimented with what was called the “upright jerker.” Instead of dropping the condemned at the gallows, the usual and sometimes imperfect method of hanging, weights were connected to a pulley system and the noose. When the weights were dropped, the noose was violently jerked upward with the thrust of several hundred pounds. The idea was to yank the condemned person’s head with enough force to break his or her neck. That it did, but it also tended to yank the convict off his feet, propelling him skyward in a dramatic spectacle. By the 1820s and 1830s, hangings had taken on the atmosphere of a country fair. Executions were carried out in public, and the events became not only popular but profitable. Homeowners and businesses sold tickets for the most desirable viewing spots while vendors peddled refreshments. “There was a great carnival atmosphere associated with many of these episodes,” said Albany, N.Y.-area historian Scott Christianson, author of “Condemned: Inside the Sing Sing Death House,” (New York University Press, 2000). “There were instances in which not only the hanging was gruesome, but there was frivolity and drunkenness. The sheriffs gave out invitations to their friends and it was very much like a party.” Hangings moved inside, away from the public, after 1835. But the state did not take over the process until 1890. Before that, executions were purely in the local province. “It wasn’t until about 1900 that the majority of executions in this country occurred as a result of legal executions rather than lynchings,” Christianson said. “In many instances, people would storm the jail, the sheriff would give them the key and they’d take the guy out and hang him. There was a very strong notion in the public mind that hanging was something rather distasteful, and New York was one of the first states to take over in a centralized way the execution process.” During the latter part of the 19th century, the reform movement gained momentum, but not enough momentum to end capital punishment. Rather, as the leader in science and technology, New York sought to devise an effective and humane method. Gov. David B. Hill appointed a blue-ribbon commission, led by a prominent attorney, Elbridge T. Gerry, who was counsel to the Society for the Prevention of Cruelty to Animals. After much study, the commission decided that electrocution fit the bill. That led to a bizarre dispute between the two titans of the electronic industry, Thomas Edison and George Westinghouse. AC VERSUS DC Edison’s direct-current system was rapidly losing customers to the alternating-current technology advanced by Westinghouse. Eager to demonstrate that AC was so lethal it was a public health hazard, Edison bankrolled the development of an electric chair operated with alternating current. Edison claimed that a zap of AC current would kill a person on the spot, and apparently did his best to link Westinghouse’s system with danger and death. With the backing of Edison, who personally opposed capital punishment, the electric chair became the new instrument of execution in New York state. William Kemmler, an axe murderer from Buffalo, N.Y., was the first person sentenced to die in the electric chair. An appeal supposedly financed secretly by Westinghouse and two of New York’s premier attorneys, W. Bourke Cockran and Roger Sherman, went all the way to the U.S. Supreme Court. They argued that Westinghouse’s alternating current would not produce a death that was either painless or certain, and therefore would cause the accused to suffer so terribly it would be cruel and inhumane. The Supreme Court had dashed Kemmler’s last hope for a reprieve. In In re Kemmler, 136 U.S. 436 (1890), the justices refused to decide whether the electric chair constituted cruel and unusual treatment under the Eighth Amendment. It decided simply that a variety of methods of execution were permissible. Besides, the New York Court of Appeals had already concluded that the scientific evidence eliminated “every possible doubt” that electrocution would “result in instant death.” Unfortunately for Kemmler, the judges in Albany were wrong. On Aug. 8, 1890, Kemmler was brought into the execution chamber, his fate certain. He asked only that his executioners “take your time and do it right.” The electrodes were connected and Kemmler was jolted for 17 seconds. But he was still alive, so the switch was thrown for another 70 seconds. That did the trick. It also set Kemmler’s hair and flesh on fire, repulsing spectators. The New York Times described the event as “a disgrace to civilization,” and the New York World observed that Kemmler had been “slowly roasted to death.” Still, however, supporters of the electric chair were undaunted and convinced it was only a matter of getting the electrodes properly placed and using the right voltage for the appropriate amount of time. But they still had not gotten it quite right when the second convict was condemned to die on Aug. 27, 1893. William G. Taylor was tethered to the chair and awaiting his death when the executioner threw the switch. The chair tipped over and Taylor fell on his face, injured but alive. Officials set the chair, with Taylor sitting on it, upright and tried again. But the generator had burned out. The warden ordered the prisoner unstrapped and attended to. Painkillers were administered while electricians scampered to repair the generator. By the time they succeeded, Taylor was dead. But the order had not been carried out to the satisfaction of the warden, so Taylor’s corpse was plopped in the chair and electrocuted. INFAMOUS DEFENDANTS Over the decades, New York’s electric chair gained an almost mythic quality and was used to execute some of the most infamous defendants in America. Among them, of course, were Julius and Ethel Rosenberg, who were electrocuted for espionage in 1953. Though the Rosenbergs were tried in federal court, the executions took place at Sing Sing because the state was considered more experienced in carrying out electrocution. Before the Rosenbergs, perhaps the most notorious convict to sit in the electric chair was the much-despised Leon Czolgosz, an anarchist who killed President William McKinley in Buffalo in 1901. In a recent article in the Criminal Justice Journal, a periodical published by the New York State Bar Association’s Criminal Justice Section, attorney Vincent E. Doyle III of Buffalo traces the prosecution of Czolgosz. According to Doyle, who was instrumental in convincing the State Bar last year to call for a moratorium on executions, the representation provided Czolgosz was severely lacking. Doyle said in the article that the defendant was so horribly unpopular that no one would defend him. So, Doyle said, the court appointed two retired judges who happened to be out of town. The case was prosecuted by Erie County. N.Y., District Attorney Thomas Penney. At trial, the defense called no witnesses and apparently did nothing more than profusely apologize to the jury for undertaking such an unsavory task. The entire trial, from jury selection to conviction, took less than 8 1/2 hours. Less than two months after the assassination of President McKinley, Czolgosz became the 50th person to die in New York’s electric chair. All told, 695 convicts were electrocuted by New York state, the last being Eddie Lee Mays on April 15, 1963. Mays, convicted of killing a woman during a tavern holdup in Harlem, stated his preference to “fry” rather than languish in prison. He got his wish, and was pronounced dead three minutes after entering the death chamber. But by the time of Mays’ execution, support for capital punishment was on the wane. Every year from 1950 through 1962, bills were introduced in the Legislature to ban the death penalty. None of those bills passed, but they did nurture a significant reform movement led by Sing Sing Warden Lewis E. Lawes, who, despite presiding over dozens of executions, was among the most ardent and respected abolitionists on the issue of his time. “The history of the death penalty in New York is that it was routine and that it was questioned as much by the wardens as the general population,” said Norman L. Greene, a partner at Schoeman, Updike & Kaufman in Manhattan and chairman of the committee on Capital Punishment at the Association of the Bar of the City of New York. “Maybe that is because the wardens were so close to it. It’s kind of like saying that people in the slaughterhouse really understand the killing of animals better than the people who buy meat in the supermarket.” The Temporary Commission on Revision of the Penal Law and Criminal Code, chaired by future Chief Administrative Judge Richard J. Bartlett, concluded that the electric chair “is the ultimate symbol of irrationality, brutal vengeance, senseless discrimination,” and akin to a “cancerous growth which infects the entire body of our penal system … .” It recommended abolishing capital punishment. While the Legislature was unwilling to go that far, it did in 1963 greatly limit capital punishment to cases involving the murder of police officers or where prison guards acting in the line of duty were killed by inmates serving life terms. Whatever remained of New York’s death penalty statute was largely undercut by Furman v. Georgia, 408 U.S. 238. In that 1972 case, the U.S. Supreme Court said that death penalty laws conferring unfettered discretion upon the sentencer inevitably resulted in arbitrary imposition and violated the Eighth and 14th Amendments. The justices said that the death penalty could not be imposed “wantonly” or “freakishly.” A year later, the Court of Appeals struck New York’s death penalty law as contrary to Furman. New York and nine other states attempted to avoid the Furman problem by mandating death for certain offenses. The theory was that with no discretion there could be no claim of arbitrary imposition. But then in 1976 the U.S. Supreme Court in Roberts v. Louisiana, 428 U.S. 325, and Gregg v. Georgia, 428 U.S. 153, shot down mandatory sentencing schemes since they failed to allow for discretion. The Court of Appeals invalidated New York’s statute in People v. Smith, 63 NY2d 41, in 1984. New York had no death penalty in effect between 1977 and 1994. For 18 consecutive years, lawmakers enacted death penalty legislation only to see their efforts fall to the veto pens of Democratic Govs. Hugh L. Carey and Mario M. Cuomo. The death penalty did not return until George E. Pataki, then a state senator, ran against Gov. Cuomo on a pro-capital punishment platform and upset the incumbent. One of Gov. Pataki’s first official acts was to sign, on March 7, 1995, a law reinstating the death penalty. “Cuomo was one of the very few public officials who would take an anti-death penalty position, and I think he paid for it,” said Stuart Banner, visiting professor of law at the University of California, Los Angeles, and author of the recently published “The Death Penalty: An American History,” (Harvard University Press, 2002). Banner said anti- and pro-death penalty sentiment is cyclical. In some eras, deterrence is a main argument for the death penalty. Today, however, when the deterrent effect is questionable, supporters rely on the retribution argument, he said. “In periods where people tend to think of crime as being caused by the free will of the criminal, retribution seems more fair,” Banner said. “In periods where people tend to think of crime being caused by the societal environment or biological influences, there is less acceptance of retribution.” POISON PILLS To this day, there are members of the Legislature who insist that they planted so many poison pills in the death penalty bill that the Court of Appeals will have ample grounds to either invalidate the entire statute in one swoop or, more likely, gradually chip away at one provision after another, year after year. That, however, remains to be seen. “The New York Court of Appeals is a very powerful court,” Greene said. “It could, for example, wipe this out on grounds of geographic disparity. That would send shock waves throughout the country.” Greene, however, views the debate through a historic prism, and suggests that any real movement to end capital punishment in New York will have to come from the right. “It is easier for conservatives to abolish the death penalty because they are bullet-proof on the issue of ‘soft on crime,’” Greene said. “I think we are ripe for change, and it could come from the top. Moral leadership will come from the conservatives, and it will come with power like we haven’t seen before. The liberals are going to get caught looking around asking what happened to their issue.”

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