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The New York death penalty statute should be stricken under Art. 1, �� 5 and 11 of the New York Constitution because it fosters arbitrary sentencing and imposes unequal risks of execution on defendants for reasons having to do with the location of the crime and the race of the victim and/or the defendant. Under the New York statute, capital murder defendants are exposed to a substantial risk of arbitrariness in death sentencing decisions at all stages of the process. The risk is particularly high, however, at the point where three critical decisions are made: (1) whether to charge first- or second-degree murder; (2) whether to seek the death penalty once the choice is made that a case should be charged as first-degree murder; and (3) whether to accept a plea or reject it and continue to pursue a death sentence. These decisions are made by the prosecutor alone — without guidance, review or oversight. This unchecked prosecutorial discretion results in an increased risk of inequality and arbitrariness in the sentencing system based on constitutionally impermissible factors, including particularly geography and race. Prosecutors vary widely in their attitudes toward and experiences with criminal justice, and in their moral, philosophical and religious views concerning the death penalty. Some will not seek the death penalty at all. Others will seek it frequently. There are marked differences in the cultures, in the political, philosophical and moral views, and in the ethnic mixes of the populations around the state. Because district attorneys are elected county officials, the political realities of having to run for elective office lead to situations where prosecutors file a death notice not because of the severity or nature of the crime, but because of a perceived public clamor for retribution or “justice.” In Wyoming County, a small rural county in western New York, for example, the district attorney — in a remarkably candid explanation of his decision to seek the death penalty as being consistent with his view of Wyoming County’s community standards — stated, “I think those standards are deep rooted, conservative, family standards and this is one thing that weighed heavily in my decision.” [FOOTNOTE 1] Further, the enormous cost of death penalty prosecutions is a consideration that works against statewide uniformity, since its significance varies with the size and financial resources of the county. In Wyoming County, which raises approximately $7 million per year in taxes, the $2 million projected cost of the district attorney’s decision to seek the death penalty was a major concern to the elected officials and the taxpayers. [FOOTNOTE 2] This would not be the case in Manhattan. Another factor that can lead to arbitrariness is that under New York law, district attorneys, although elected by the voters of their respective counties, are nevertheless statewide officials subject to removal or temporary supersession by the Governor. [FOOTNOTE 3] In one highly publicized case, Gov. Pataki replaced Bronx County District Attorney Robert T. Johnson because of his discretionary decision not to file a death penalty notice. [FOOTNOTE 4] The Governor’s action was ultimately sustained by the Court of Appeals [FOOTNOTE 5] in a decision which makes the Governor’s power of removal, for all practical purposes, unlimited. The effect of the threat of replacement or removal on a prosecutor’s decisions will depend on the identities and proclivities of the persons who at the time fill the positions of district attorney and governor. It is the unpredictability of this effect, which creates the potential for arbitrariness. Records through Dec. 31, 2001, kept by the Capital Defender Office present a jumble of haphazard variations in the frequency of capital prosecutions in New York’s 62 counties. The records establish that upstate prosecutors are more likely to seek the death penalty than their downstate counterparts. But the remarkable differences occur within the groups of upstate and downstate prosecutors. In Monroe County, for example, death notices were filed in five of 12 first-degree murder indictments. In Erie, although there were 174 murder prosecutions and 12 first-degree murder indictments, the district attorney sought the death sentence only once. In Broome, Orange and Schenectady Counties, which together had 18 first-degree murder indictments, no death notices were filed. In Sullivan County, on the other hand, the district attorney filed death notices in three of the five first-degree murder indictments returned. Some of the more striking contrasts are among prosecutors in the New York City metropolitan area. The Manhattan District Attorney, in 701 murder prosecutions, has not filed a death notice. In the Bronx, the prosecution filed only one in 879 murder prosecutions — the one filed after District Attorney Johnson was removed by the Governor. In Kings County, however, the district attorney filed seven death notices, the highest number in the state, and in Queens in 28 first-degree murder indictments the prosecution sought the death penalty five times. For a defendant charged with murder on Long Island, the question of whether the crime was committed in Suffolk or Nassau County can be a matter of life or death. In Nassau, in 15 first-degree murder indictments, no death notices were filed, while Suffolk County, with three actual death sentences, accounts for half the population on death row. It is doubtful that any informed American citizen would deny the regrettable truth that racial prejudice exists today throughout the United States. The Supreme Judicial Court of Massachusetts took notice of this fact in holding the Massachusetts death penalty law unconstitutional under the Massachusetts State Constitution. [FOOTNOTE 6] Relying on evidence of disparity in capital sentencing in several scholarly empirical studies of the death penalty as applied in Florida. Texas, Georgia and Ohio, the court concluded that it is “inevitable that the death penalty will be applied arbitrarily,” and that “experience has shown that the death penalty will fall discriminatorily upon minorities, particularly blacks.” [FOOTNOTE 7] Because to date there have been only six actual death sentence verdicts in New York, there is insufficient experience under the present statute on which to base a conclusion as to the effect of race on sentencing. Nevertheless, there are studies establishing that racial bias is endemic in the New York criminal justice system. [FOOTNOTE 8] And historical studies of 695 actual executions from 1890 to1972 reveal unmistakable evidence of a pronounced bias based on race or ethnic status under New York’s earlier statute. [FOOTNOTE 9] As a matter of common sense, one would have to conclude, as the court in Massachusetts did, that since racial prejudice affects the death sentencing systems throughout the United States and since it has affected death sentencing under the previous statute, it will affect death sentences under the present statute as well. To strike the New York statute under the New York Constitution would require the Court of Appeals to reject the reasoning of the U.S. Supreme Court in applying the federal Constitution in the 1987 case McCleskey v. Kemp, one of the Supreme Court’s most heavily criticized death penalty decisions. [FOOTNOTE 10] In McCleskey, which has been dubbed the Dred Scott of death penalty jurisprudence, [FOOTNOTE 11] the Supreme Court affirmed the death sentence of the defendant, a black man, and sustained the validity of the Georgia death penalty scheme under the Eighth and 14th Amendments. It did so despite the showing based on more than 2,000 murder convictions in Georgia that blacks accused of killing white victims were 22 times more likely to be subjected to the death penalty than blacks charged with killing black victims. [FOOTNOTE 12] After McCleskey, a defendant seeking reversal of a death sentence as a result of racial bias faced the impossible burden of establishing actual discrimination in the specific sentence under review. Without “smoking gun” evidence, the death sentence will be affirmed even though the sentencing system — as in McCleskey — is shown to be thoroughly infused with bias. McCleskey’s sudden insistence on proof of actual bias, a question that had previously been considered irrelevant, [FOOTNOTE 13] marked an abrupt change in the Court’s approach. Until 1987, the Supreme Court in death penalty cases had focused on the risk of the imposition of a death sentence and whether that risk created a substantial chance that the punishment would be inflicted in an arbitrary and capricious manner. The McCleskey decision makes a discretionary death sentence scheme invulnerable to a system-based attack under the federal Constitution, no matter how deeply infected with racial or other bias the system may be. Measured by today’s evolving standards of decency, McCleskey appears to be a harsh anachronism. Even Justice Lewis F. Powell, the author of the majority opinion, a 5-4 decision, publicly stated that if he were deciding the case again he would change his vote and join the dissenters, Justices William J. Brennan and Harry A. Blackmun. [FOOTNOTE 14] But McCleskey is still governing federal law. The critical question is whether the Court of Appeals will see fit to exercise its absolute right to reject the McCleskey rule as abhorrent to the deeply imbedded notions of equality and fairness inherent in New York traditions and case law by striking down the statute under the State Constitution. The Court certainly should do so. Indeed, given the plain unfairness of the statute it is hard to imagine that the Court will ever sanction an execution under it. INDIVIDUAL RIGHTS New York has long been an acknowledged leader in protecting individual rights and liberties on state constitutional grounds. Almost 60 years ago, in People v. Barber, [FOOTNOTE 15] the Court of Appeals emphasized that it “is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States.” [FOOTNOTE 16] Even where the words of the U.S. and State Constitutions are identical, as in the protections against search and seizure, New York courts have not hesitated to provide more extensive state guarantees when necessary to accord full protection to individual rights. [FOOTNOTE 17] In deciding whether to grant greater protection, the cardinal concern for the Court of Appeals has always been with the fairness of the proceeding and the proper protection of fundamental rights. [FOOTNOTE 18] The New York decisions in criminal law stand for the elemental proposition “that persons similarly situated should be treated the same and that criminal justice should and must be evenly and equally dispensed.” [FOOTNOTE 19] There can be no area of the law where equality and fairness are more critical than in the administration of capital punishment — a government’s most drastic exercise of authority over an individual. New York should not avoid coming to grips with the serious state constitutional issues concerning its death penalty statute. To do so would be to turn a blind eye on what is widely accepted as a fact: that death sentence statutes of the type employed in Georgia, and now in New York, cannot be applied equally and are inevitably subject to the risk of arbitrariness from impermissible factors including crime location and race. Stewart F. Hancock Jr., a former associate judge of the Court of Appeals is an attorney with Hancock & Estabrook in Syracuse. —— Footnotes: FN1 Beebe & Warner, The Buffalo News, “Death Penalty Will Cost $2 million,” April 9, 1998. FN2 Id. FN3 See, e.g., N.Y. Const., Art. XIII, ��700-701; Public Officers Law � 34; Executive Law �63(2). FN4 See, e.g., Bruce Balestier, “Death Penalty, Judicial Attacks Dominate News,” N.Y.L.J., Jan. 2, 1997, at 1; Daniel Wise, “Appellate Court Hears Challenge to Removal of Bronx Prosecutor,” N.Y.L.J., Dec. 4, 1996, at 1. FN5 Matter of Johnson v. Pataki, 91 NY2d 214 (1997). FN6 District Attorney, Suffolk Co. v. Watson, 411 NE2d 1274 (1980). FN7 Id. at 1283. FN8 See Nelson, Disparities in Processing Felony Arrests in New York State, 1990-1992, New York Division of Criminal Justice Services (1995); New York State Judicial Commission on Minorities Report, Executive Summary, the “Williams Commission,” formed by the Court of Appeals in January 1988. FN9 See Michael Lumer & Nancy Lumer, “The Death Penalty in New York: An Historical Perspective,” 4 J.L. & Pol’y 81 (1995). FN10 481 U. S. 279 (1987). FN11 Hugo Pedau. “Someday McCleskey Will Be Death Penalty’s Dred Scott,” L A Times, May 1, 1987, at M2. FN12 481 U.S. 286-287. FN13 In his McCleskey dissent, Justice Brennan stated: “Since Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed. 2d 346 (1972), the court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one � ” (481 U.S. 322). FN14 See Mark A. Graber, “Judicial Recantation,” 45 Syracuse L. Rev. 807 (1994); John C. Jeffries, Jr., “A Change of Mind That Came Too Late,” N.Y. Times, June 23, 1994, at A23. FN15 289 N.Y. 378 (1943). FN16 Id. at 384. FN17 See, e.g., People v. Bora, 83 NY2d 531 (1994); People v. Scott, 79 N.Y. 2d 474 (1992); People v. Harris, 77 NY2d 434 (1991). FN18 See, e.g., Scott, supra, at 488; People v. Alvarez, 70 NY2d 375, 379 (1987) FN19 People v. Acme Markets, 37 NY2d 326, 330 (1975).

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