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The New York Court of Appeals has addressed capital punishment many times in many contexts. Here are some of the major decisions over the years. � Kemmler v. Durston, 7 NYS 813 (1889). In this case, the Court approved the electric chair as the means of execution, rejecting arguments that its use constituted cruel and unusual punishment. It distinguished electrocution from burning at the stake, disemboweling and breaking at the wheel, which “involve torture and lingering death.” In comparison, the electric chair legislation evinced a “humane and merciful intent” and the scientific evidence removed “every possible doubt that the passage of a current of electricity of a certain well-determined intensity through the vital parts of the human body, under chosen conditions of contact and resistance, must result in instant death,” the Court said. After the initial 17-second jolt Kemmler was still twitching, so electricity was applied for an additional 70 seconds, setting the defendant on fire. � People v. Fitzpatrick, 32 NY2d 499 (1973). The court struck down New York’s capital punishment statute as contrary to the principles set forth by the U.S. Supreme Court in Furman v. Georgia, 408 US 238 (1972). It said that since “the New York statute … leaves infliction of the death penalty solely to the discretion of the jury … we have no alternative but to hold that the penalty constitutes cruel and unusual punishment” under the Eighth Amendment. The following year, the Legislature enacted Penal Law � 60.06, which made the death penalty mandatory for all first-degree murder convictions. No longer was life or death the province of the jury. � People v. Davis, 43 NY2d 17 (1977). The Court gutted the core of the death penalty statute, finding that the mandatory death penalty provision was invalid under the federal Constitution. That left New York without a death penalty for the first time in 200 years. The court threw out those portions of the law dealing with the murder of police officers and prison guards, but left on the books a provision requiring execution of prison inmates who commit a homicide while serving a life term. “Plainly and simply and without verbiage, because the New York statute ‘does not allow consideration of particularized mitigating factors’ for purposes of ‘the capital sentencing decision’ as to ‘the particular offender,’ it is unconstitutional” under the U.S. Constitution, the court said. It declined to reach any state constitutional issue. Chief Judge Charles Breitel dissented in part, arguing that this case was not proven beyond a reasonable doubt. He also found no need for the Court of Appeals to address the constitutional question. In a footnote, Judge Breitel characterized capital punishment as “repulsive, unproven to be an effective deterrent” and “unworthy of a civilized society (except perhaps for deserters in time of war) because of the occasion of mistakes and changes in social values as to what are mitigating circumstances, and the brutalizing of all those who participate directly or indirectly in its infliction.” � People v. Smith, 63 NY2d 41 (1984). Here, the court threw out the last vestige of the death penalty law — a provision mandating capital punishment for a defendant who was already serving a life term when he murdered a corrections officer. The author of the ruling was the court’s junior member — now Chief Judge Judith S. Kaye. “Execution is never an inevitable consequence of a criminal act. In every case, including one where the death sentence is mandatory upon conviction, it is only the specter of execution which can serve as a general deterrent… . A mandatory death statute simply cannot be reconciled with the scrupulous care the legal system demands to insure that the death penalty fits the individual and the crime.” The 4-3 decision was based on the U.S. Constitution, not the state constitution. In dissent, Judge Richard Simons said that the Supreme Court had specifically reserved judgment on “whether the need to deter certain kinds of homicide would justify a mandatory death sentence…” and urged that the court not “strain to read more or less into the court’s language to justify striking down that statute.” “There is a great temptation for judges to tinker with statutes to satisfy their own likes,” Judge Simons wrote. “Many, if given the opportunity to do so, might abolish capital punishment altogether or create a different sentencing procedure. But respect for fundamental rules of separation of powers, our positions as appointed judges and the legislators’ roles as the elected representatives of the people, requires that we accept the legislative will.” � Matter of Hynes v. Tomei, 92 NY2d 613 (1998). This case required the court to examine the plea bargaining provisions of the 1995 death penalty statute in light of United States v. Jackson, 390 US 570 (1968). In Jackson, the U.S. Supreme Court struck down a death-penalty portion of a federal kidnapping statute that provided for capital punishment only after conviction by a jury. That provision, the Supreme Court said, imposed an “impermissible burden” on the rights of defendants seeking a jury trial. As with the stricken federal provision, the New York law limited capital punishment to those defendants who exercised their right to a jury trial, protecting those who pleaded guilty from the possibility of a death sentence. The court’s remedy was to strike the plea provisions from the statute and bar guilty pleas to first-degree murder while a notice of intent to seek the death penalty is pending. Consequently, under Hynes, once a notice of intent is filed, a defendant can plead guilty to first-degree murder only if the prosecutor withdraws the notice and eliminates the possibility of a death sentence. � Francois v. Dolan, 95 NY2d 33 (2000). The morning after the court decided Hynes v. Tomei, a defendant who admitted killing eight prostitutes dashed into court and attempted to plead guilty to the first-degree murder indictment before the district attorney could file a death notice. The judge refused to accept the guilty plea, the 2nd Department declined to grant the defendant’s mandamus petition, and the Court of Appeals affirmed. The court said it would not sanction a “race to the courthouse between defense and prosecution,” and that such a spectacle would undermine one of the objectives of the 120-day notice period: to provide district attorneys adequate time to make a considered decision over whether to seek the death penalty in a particular case. � People v. Edwards, 96 NY2d 445 (2001). Here, the court was called on to determine the validity of a first-degree murder plea entered while a death notice was pending but before Hynes was decided. Reversing the 3rd Department, the court upheld the plea under Brady v. United States, 397 U.S. 742 (1970). Brady presented essentially the same issue as Edwards and involved a defendant who had pleaded guilty under provisions later stricken by the U.S. Supreme Court in Jackson.

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