I. INTRODUCTION

Immediately upon taking office, Governor Pataki proposed restoring the death penalty to New York. After extensive negotiations with a number of groups that expressed concern about the idea, the proposal succeeded, on the basis that it was, in Governor Pataki`s words, “”balanced to safeguard defendants` rights while ensuring our state has a fully credible and enforceable death penalty statute.””1 He also stressed that the bill “”sets forth clear standards to narrow the scope of the death penalty,””2 limiting it to “”the most serious crimes.””3

On May 11, 1999, Governor Pataki proposed a package of amendments to the death penalty statute.4 The package passed the state senate in June 1999 without debate.5 Enactment of these amendments would break the original promise of an effective but fair and limited capital punishment law. By weakening the proportionality review process, expanding the list of death-eligible crimes, and permitting “”victim impact”” and “”community impact”” statements during sentencing in capital trials, the proposals would fundamentally upset the balance that forms the foundation of the current death penalty statute.6

The primary effect of the proposed amendments is to remove crucial protections that presently guard against arbitrarily differential treatment of capital defendants both at trial and on appeal, while at the same time the amendments would expand radically the number of crimes punishable by death. If enacted, the proposals would work injustice, squander money, and increase the likelihood that New York`s entire death penalty system will be held unconstitutional.

II. SPECIFIC DEFECTS IN THE PROPOSED LEGISLATION. A. Weakening Proportionality Review Leaves Injustice Unrectified

Inconsistent treatment of similar cases has long bedeviled the application of the death penalty.7 In 1995, the Legislature, the Governor, and elected officials from both parties worked to address the possibility of arbitrariness, knowing that irrational disparities in the use of the death penalty could poison the entire law.

As a result of these efforts, the 1995 death penalty law requires the Court of Appeals to determine in each case whether the defendant`s death sentence “”is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.””8 The proposed amendment would limit the required review to a determination of whether the sentence of death is disproportionate “”to the penalty imposed in other cases where a sentence of death was imposed”” (emphasis added). Thus, defendants generally would no longer be entitled to have the death sentences in their cases compared to other cases in which persons who committed similar crimes had received lesser sentences.

This proposed revision would eviscerate the required proportionality review by removing from its ambit exactly the situations raising the most disturbing issues. Thus, for example, if Italian-Americans convicted of killing potential witnesses were routinely sentenced to death for that crime while members of other ethnic groups rarely were, the proportionality review required by the Governor`s bill would not reveal the discrepancy. Similarly, the proposed proportionality review will not scrutinize or even reveal whether death sentences are being imposed in a geographically disparate fashion, based on the fortuity of where in the State the crime occurred.

The consequences of adopting the proposed limitations on the required review by the New York Court of Appeals are easily predictable. On an individual basis, arbitrary and indefensible discrepancies in the outcomes of like cases will lead to injustices in specific instances and an erosion of public confidence that fairness is being served. On a system-wide basis, an accumulation of such results would render New York`s death penalty statute vulnerable to a successful challenge under Furman v. Georgia or parallel state doctrines.9

Moreover, other elements of the proposed package of amendments would exacerbate these consequences.

B. Significantly Expanding the Pool of “”Death Eligible”” Crimes Multiplies the Potential for Arbitrariness

In commenting on the present statute just before its enactment, the Association wrote:

[W]e are concerned that the definition of what crimes are capital should be as narrow as possible. The more broadly the bill sweeps (e.g. by covering felony murders), the more likely it is (a) to engender the sort of arbitrariness that the courts have repeatedly condemned (i.e. that crimes and criminals of equal culpability will receive unequal punishment), and (b) to be held unconstitutional.10

By significantly expanding the range of crimes potentially subject to the death penalty, the present proposals implicate just these concerns. The reason is simple: as the pool of “”death-eligible”” defendants increases, it becomes exponentially more difficult for the state (1) to achieve individual justice, and (2) to meet the federal constitutional requirement that it differentiate “”in an objective, evenhanded, and substantively rational way””11 between those defendants who will receive the death penalty and those who will not.12

Moreover, in many areas, including capital sentencing,13 the New York State Constitution has been read to provide greater protection for individual rights than the federal Constitution.14 This consideration compounds the imprudence of enacting the proposed amendments.

1. Accomplices to Felony Murders

Under present New York law, a person may be convicted of murder in the second degree (non-capital), and be sentenced to life in prison, if he is an accomplice to certain felonies, such as robbery or kidnapping, where someone is killed by another participant. However, he may be relieved of liability by showing that he did not commit or solicit the homicidal act, was not armed, and lacked reasonable grounds to believe that any participant was armed or intended to engage in violent conduct.15

A person may be convicted of murder in the first degree, and sentenced to death, if during the commission of certain felonies she kills or commands another to kill.16 The proposed bill eliminates the requirement that to commit capital felony murder the defendant must be the actual killer or command the actual killer.

The resulting capital murder statute would not even have the limitations of the current law governing murder in the second degree. It would allow anyone to be executed who participated, no matter how remotely, in a felony where someone was killed. This would include lookouts, drivers and others who were not even present at the murder. There are at least two reasons not to pass such a statute.

(a) It would increase arbitrariness. Under the revised statutory scheme, many participants in a felony that leads to a killing could be charged, in the prosecutor`s discretion, either with first degree murder under � 125.27(7) or with second degree murder under � 125.25(3). It is not difficult to imagine a situation where the shooter in one felony murder would be charged with second degree murder while an unarmed getaway driver or lookout in another felony murder would charged with first degree capital murder. Such occurrences would seriously undermine the fairness of New York State`s death penalty–particularly if the Court of Appeals` mandatory review were changed in the way already described in Section A, supra, so that any systemic bias in these decisions would go uncorrected. The result would be to increase yet further the chances that New York`s entire death penalty system would be held unconstitutionally arbitrary under the federal or State constitution.

(b) It would be extraordinarily expensive. The change would undoubtedly cause a major increase in the capital caseload, although it would probably have only a negligible impact on the execution rate.

Currently, if five people are involved in a robbery and one of them kills a person in furtherance of the robbery, capital charges can be brought against the shooter and second degree murder charges can be brought against the four other participants, assuming none of those four ordered or commanded the killing. If � 125.27(7) were changed in accordance with the proposed bill, capital charges might be brought against all five participants. 17

But whatever public funds were expended in seeking a death sentence in such a situation would be badly spent. Because of the attenuated culpability of the collateral defendants, juries would be most unlikely to render capital verdicts,18 and, because of the constitutional concerns, the courts would be most unlikely to affirm them. The most salient practical impact would be the diversion of resources from parts of the criminal justice system where they are desperately needed in the public interest.19

2. Vague Additions to Death-Eligible Crimes

The proposed amendments would add a subparagraph (xiv) to Penal Law �125.27(1) so as to permit the imposition of the death penalty if “”the defendant committed the killing for the pleasure of it, to experience the act of killing or to obtain membership or status in a group or organization.””

Consistent with the bedrock constitutional requirement that states which choose to impose capital punishment must do so on the basis of rational and defensible criteria,20 such states “”must define the crimes for which death may be imposed in a way that obviates standardless sentencing discretion.””21

The terms contained in the proposed amendments lack a clear and objective meaning, and thus open the door to arbitrary imposition of the death penalty. Perhaps for this reason, no other state death penalty statute, so far as we are aware, contains similar language.

Under current law, juries must determine such matters as whether the victim was an employee of a corrections department or whether the defendant was serving a life sentence.22 Under the proposal, the crimes for which a person may be sentenced to death have been expanded and will turn on such determinations as whether a killing was “”for the pleasure of it,”” “”to experience the act of killing,”” or “”obtain or maintain membership or status in a group or organization.”” The conclusions that different juries reach as to such vaguely defined and in many cases inherently unknowable questions will necessarily lack consistency.

Indeed, a reasonable juror might believe that every intentional murder is done in part “”to experience the act of killing.”” Rather than channeling the jury`s discretion, the proposed additional provisions would thus untrammel it, leaving jurors free to impose the death penalty in all, or virtually all, cases. It is precisely to obviate the resulting potential arbitrariness that the Supreme Court has specifically held, “”If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.””23 And even an aggravating circumstance that does not fall into this class must nonetheless not be “”too vague to provide any guidance to the sentencer.””24 Thus the terms defining the proposed new class of deatheligible crimes are probably unconstitutional.

But even if they are not, adoption of the proposed amendments would, once more, further a pattern of arbitrary outcomes that would undermine the ability of the New York death penalty system to withstand ultimate constitutional scrutiny.

C. Victim Impact Testimony At Capital Sentencing is Unfair to Victims as Well as to Defendants

The proposal would amend Criminal Procedure Law � 400.27 to allow for the introduction at the sentencing phase of a capital murder trial of testimony concerning “”the impact of the crime on the victim`s family and the community.””

Since the United States Supreme Court`s 1991 decision in Payne v. Tennessee,25 it has not been a violation of the federal constitution for a state to permit the introduction of victim impact testimony in a capital case.26 But New York should adhere to the policy decision that it made in 1995 to exclude such evidence.

Prior to its decision in Payne, the Supreme Court had consistently prohibited the introduction of victim impact statements at the sentencing phase of capital murder trials.27 In Booth v. Maryland, the Supreme Court held that admission of such evidence violates the Eighth Amendment because it makes the sentencing determination turn on inflammatory and emotional testimony unrelated to the guilt of the defendant.28 Grief and anger are normal and understandable emotions for family members of victims;29 however, the Booth Court pointed out that a danger of arbitrary jury verdicts exists in situations where the victim leaves behind no family,30 or the family members are inarticulate or unpersuasive in expressing their loss.31 “”Certainly the degree to which a family is willing and able to express its grief is irrelevant to the decision whether a defendant, who may merit the death penalty, should live or die.””32 The Booth Court held that allowing admission of emotionally charged opinions for the jury to consider “”does not provide a ’principled way to distinguish [cases] in which the death penalty was imposed, from the many cases in which it was not.`””33 In the same vein, in South Carolina v. Gathers, the Supreme Court reiterated that at sentencing in a capital trial, the prosecution should be limited to discussing matters directly related to the events and circumstances of the crime.34

In Payne, the Supreme Court overruled these precedents to the extent of holding that the Eighth Amendment imposes no per se prohibition on the admission of victim impact statements and evidence.35 The Court made it clear, however, that trial courts should proceed with caution where statutes allow such testimony, since extensive presentations of victim impact could render the sentencing process unconstitutional in specific cases.36

Although Payne now allows for the possibility of victim impact testimony at capital sentencing, it would be a grave mistake to permit it in New York. As the Supreme Court noted in Booth, it is quite probable that the impact will be greatly different in each case; this ensures that the outcome of any given criminal case will depend more on the worth the prosecutor assigns to the victim and the impression the victim`s family makes on the jury than on the actions of the defendant. Poor families, immigrants without families in the United States, homeless persons, under- represented ethnic and racial minorities, and groups whose members may lack a network of sympathetic and charismatic survivors may offer less compelling testimony than others. Thus, the severity of the defendant`s sentence may vary depending on the income, education, status, race and social acceptability of the victim or the survivors–an outcome fundamentally at odds with the concept of evenhanded justice.37 In New York, where a heterogeneous population makes these concerns particularly pressing, the situation would be exacerbated by the adoption of the proposed statute`s evisceration of mandatory proportionality review.38

In recognition of the danger to a fair capital sentencing process inherent in admitting victim impact testimony, New York, like several other states,39 decided in 1995, despite Payne, to exclude it. That decision was sound. Admitting such testimony severely distracts the jury from the task at hand, namely deciding whether in view of all the circumstances concerning the defendant, the death penalty is warranted.40

In the eight years since Payne, experience in other states has demonstrated that, once the floodgates have been opened to victim impact testimony, there is little prospect of channeling the flow. Evidence from a limitless range of persons, including co-workers and even emergency rescue workers, has been admitted in the form of poetry, handcrafts, diaries, videotapes, and gruesome postmortem photographs.41 This sort of testimony –if available and offered–ordinarily has an intense emotional impact on juries, and even otherwise stoic judges.42 For that very reason, its presentation is fundamentally at odds with the maintenance of a rational, consistent, and culpability-based system of capital sentencing. The use of victim and community impact statements during the sentencing phase of capital trials tends to transform the proceedings into a trial about the victim`s character rather than the defendant`s deserts.43 That is a transformation, which serves only to reinforce existing social inequalities, to the prejudice of defendants and victims alike.44 For that reason, New York should continue to reject it.

D. Hynes v. Tomei: Solutions in Search of Problems

The death penalty statute enacted in 1995 provided that only a jury could impose a sentence of death.45 Pleas to first-degree murder charges were permissible, but only when the agreed-upon sentence involved some measure of punishment other than death.46 Since the law made no provision for the empanelling of a jury after a plea bargain, only defendants who chose to exercise their Fifth and Sixth Amendment rights to trial were exposed to the death penalty.

In Hynes v. Tomei,47 the Court of Appeals held unconstitutional the portion of the New York death penalty statute that excluded death as a possible sentence for any defendant who chose to plead guilty to a capital offense. The Court explained that “”under the New York statute, only those defendants who exercise the Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial put themselves at risk of death.””48 Thus, the Court found, these rights were unconstitutionally burdened by the statute`s providing for different levels of punishment depending on the manner by which the defendant`s guilt was established– by plea bargain, with no possibility of imposition of the death penalty, or by jury conviction, with death as a possible punishment.49 The Court`s solution was to hold that “”a defendant may not plead guilty to first degree murder while a notice of intent to seek the death penalty is pending.””50

If the effect of Hynes had been to eliminate plea-bargaining in capital cases, then a legislative solution to that situation would be warranted. However, that has not been the effect of the decision, and there is accordingly no pressing need for legislative intervention.

Nonetheless, since part of what the bill proposes in light of Hynes, viz., providing for jury sentencing after guilty pleas, might be reasonable, we might support that concept if offered alone.51 Regrettably, however, the proposed legislation`s sentencing provisions go far beyond responding to Hynes, and make extraneous changes to the statute that would reduce the ability of juries to calibrate the sentence to the crime and the defendant.

1. Hynes Has Not Ended Plea-Bargaining

Experience in the months since the Hynes ruling has demonstrated that plea bargaining under the death penalty statute can take place in a constitutional fashion. Hence, there is no urgent necessity for legislation.

Under Hynes, a defendant can still, by agreement with the district attorney, plead guilty to murder in the first degree prior to a district attorney`s filing of a notice of intent to seek the death penalty. The period for filing the notice of intent is lengthy (120 days after the filing of a first-degree murder indictment) and can be extended by agreement of the parties and with the approval of the trial court.

Moreover, even after the filing of a notice of intent, cases can still be resolved by agreement of the prosecutor and defendant, as evidenced by decisions of the New York state courts subsequent to Hynes. For example, some courts have allowed pleas to first degree murders to take place coincident with a death notice being withdrawn.52 In People v. Smelefsky,53 the court outlined a more formal procedure. First, the defendant proffers the plea and asks the District Attorney to withdraw the notice of intent to seek death; second, the District Attorney expresses a willingness to do so, provided that an agreed-upon sentence is imposed and the defendant gives a full and truthful allocution; third, defendant undergoes the allocution; fourth, the District Attorney consents to the plea, withdraws the notice and joins in defendant`s motion that the plea be accepted; and, fifth, the court grants the motion, accepts the plea, and orders it be entered. 54

Further flexibility results from the fact that Hynes does not affect a capital defendant`s ability to plead guilty to a lesser charge, such as murder in the second degree, at any stage of the proceedings.55 In short, since there is no evidence suggesting that Hynes has ended, or even significantly impaired, plea-bargaining in capital cases, there is correspondingly little urgency about legislating a solution to a largely theoretical issue.

2. The Proposed Legislative Solution is Overbroad

That portion of the proposed legislative package directly addressing Hynes provides a solution that accords with the common practice of other states. Under this part of the proposal, a defendant may plead guilty while a death notice is pending, in which case he will proceed to a sentencing phase before a jury. As indicated, this may be reasonable in isolation.

However, it is unfortunately not being proposed in isolation. Rather, the package also provides that the three existing sentencing options under the capital statute–life with parole, life without parole, and death– be reduced to two, life without parole and death.

In our view, allowing the jury to chose among three options is the preferable course, and should be retained. First, it provides for a greater level of sentencing flexibility. Second, a significant body of research demonstrates that jurors who are told that the defendant will be sentenced to “”life”” remain erroneously convinced that he will be out on the street on parole in ten years or less.56 By giving the jury all three options, it will understand clearly that a sentence of “”life without parole”” rather than “”life with parole”” really means what it says.

Accordingly, we believe that retaining the status quo is preferable to the enactment of the proposed amendments.

However, when appropriately narrow Hynes legislation is eventually introduced, it should correct another potential constitutional flaw in the statute. Under current law, if a sentencing jury cannot agree, it must be instructed that, if the deadlock persists, the judge will impose a sentence of life with parole. See N.Y.C.P.L. �400.27(10). At least one trial judge, believing that the purpose and effect of this provision is to coerce deadlocked juries into voting for death, has refused to give the instruction. See People v. Harris, 177 Misc.2d 160 (Kings Co. 1998). The appropriate legislative solution would be to inform the jury that (a) it has the option of imposing life with parole, (rather than, as now, having that outcome result automatically from a failure to agree), and (b) if it is unable to agree, the Court will impose a sentence of life without parole.

E. The Amendments Would Entail High Monetary Costs and Impose a Heavy Burden on the Judiciary

The proposed amendments would greatly increase the number of defendants who are eligible for the death penalty, and undoubtedly increase the number of death sentences that are sought and imposed,57 at least at the trial level.58 This would impose large additional costs on New York State, both in monetary terms and in judicial resources. Given the finite nature of the New York State budget, each dollar spent on capital punishment is a dollar that will be taken from another government program, including government programs with a demonstrably greater impact on the crime rate.59 The proposed amendments should be evaluated in this context.

1. Monetary Costs To New York Taxpayers

The costs to New York State of broadening the death penalty statute would be high: each additional death penalty sought brings with it significant additional expenses, even when–as is usually the case–no execution results.60

The monetary costs associated with each additional capital prosecution stem from three basic categories of costs: pre-trial, trial, and appellate/ post-conviction (the least expensive).

Pre-trial costs in death penalty cases, primarily those associated with investigation and motion practice, are significantly greater than in noncapital cases.61 The estimated number of pretrial motions filed in a capital case is between two and four times the number filed in non-capital cases.62 In addition to increasing the number of cases in which these pre-trial expenses must be borne, the proposed changes would tend to increase the cost of motion practice in each capital case because the changes would raise additional novel legal issues.63

Trial costs can usually be completely avoided in non-capital cases, because the vast majority of non-capital cases are resolved by guilty pleas and there is no trial. In a capital case in which the parties do not reach an agreement on a non-death disposition, there is virtually always both a guilt/innocence trial and a capital sentencing proceeding. Capital trials are much longer, and therefore far more expensive, than non-capital murder trials. In North Carolina, for example, the average length of a non-capi- tal murder trial is 3.8 days, while the average length of a capital trial is 14.6 days.64 A study in New York in 1982 estimated that a death penalty trial would cost approximately $1.3 million.65

If a trial does result in a death sentence, the case will nearly always proceed through direct and collateral appeals. In fact, in New York, each case is constitutionally required to proceed to the New York State Court of Appeals.66 This right is not waivable.67 Although the appellate phase is the least expensive portion of the capital process, a report from the New York Public Defense Backup Center to the New York State Finance Committee, the Assembly Ways and Means Committee, and the Division of Budget nonetheless estimated that direct appeals to the New York State Court of Appeals would cost an average of $245,720 in attorney`s fees alone.68 On the other side, New York estimates the cost of defending direct appeals to be $330,000 per case, without considering the extensive available collateral remedies.69

2. Additional Burdens Placed On the Judiciary

In addition to the specifically monetary costs, every increase in the volume of capital litigation entails a disproportionate increase in the amount of judicial attention required, thereby decreasing the resources available for other cases of social importance.

Judges who have experienced the demands of presiding over death penalty cases have publicly decried the enormous strain that widespread imposition of the death penalty places on the judiciary. For example, in Florida, which ranks third behind Texas and Virginia in the number of executions, Chief Justice Kogan, having spent 12 years on the Supreme Court addressing capital punishment cases, last year expressed his alarm that although death penalty cases made up only three percent of the court`s cases, they consumed twenty-five to fifty percent of the Justices` time.70 “”As a matter of proportion,”” he asked, “”are we going to spend all of our time on the minute portion of cases that in the long run do not impact a great number of people?””71 Likewise, Chief Justice Dixon of the Louisiana Supreme Court lamented in 1989 that “”[c]apital punishment is destroying the system.””72

The lesson that Judge Alex Kozinski of the Ninth Circuit has drawn from these experiences is that, to be effective, the death penalty must be narrowly imposed. Although a vocal supporter of capital punishment, Judge Kozinski has urged that “”[i]nstead of adopting a very expansive list of crimes for which the death penalty is an option, state legislatures should draft narrow statutes that reserve the death penalty for only the most heinous criminals.””73

In 1995, the New York Legislature sought to follow this advice of restraint. The proposed amendments of 1999 would do precisely the opposite. By greatly expanding the number of crimes eligible for the death penalty and including changes in the law that are, at the very least, of questionable constitutionality, the amendments would impose on the state and its localities enormous costs in monetary and judicial resources.

Given the multitude of problems raised by the substance of the proposals, as described elsewhere in this report, these costs are not worth paying.

III. CONCLUSION

The New York death penalty statute of 1995 balanced two fundamental principles: that death is sometimes an appropriate penalty for the most heinous crimes, and that any system for its infliction must be built around safeguards of fairness commensurate with the gravity of the penalty. The one-sided statutory amendments now proposed are inconsistent with both principles. Under the proposals, death would be an available penalty for crimes that are far from heinous, while existing protections for fairness–both on the individual and system wide level–would be deliberately dismantled. The state would thus wind up spending significantly more money to achieve significantly less justice.

The same principles that underlie the current statute counsel rejection of the proposed amendments.

December 1999

The Committee on
Capital Punishment
Norman L. Greene, Chair
Julia Tarver,**Secretary

*Chair of the Subcommittee that prepared this Report
**Member of the Subcommittee that prepared this Report
***Did not participate in the preparation of this Report

1. Governor Pataki Signs Death Penalty into Law, http://www.state.ny.us/governor/press/ deathpn.htm (March 7, 1995). Leading legislative supporters of the bill also emphasized that its provisions had been carefully crafted to create a bill as fair as any in the country. See, e.g., New York State Senate Debate on S. 2850 (1995) [hereinafter Senate Debates], at 1851 (Sen. Volker), 1877 (Sen. Saland), 2850 (Sen. Hoffman).
2. Id. at 2.
3. Administration Memorandum filed with Senate Bill Number 2850, at 5 (March 7, 1995).
4. See S.5987 (June 16, 1999).
5. See The State of New York Bill Drafting Commission, Legislative Retrieval Service.
6. Our detailed discussion in this report focuses on the provisions of the proposed amendments that work the most fundamental alterations in the statutory scheme. But the proposal contains many less dramatic elements as well, and the effect of each of them is to broaden the reach of the death penalty. For example, under Penal Law �125.27(1)(a)(xi) it is currently an aggravating circumstance that “”the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twentyfour months when committed in a similar fashion or pursuant to a common scheme or plan.”” The proposal would extend the period to forty-eight months, while eliminating the requirements that the prior killings have been within the state and “”committed in a similar fashion or pursuant to a common scheme or plan.”” Similarly, the bill proposes to alter current law so that the prosecution rather than the defense will enjoy the advantage of delivering the final summation at the penalty phase.
7. See, e.g., Legislative Modification of Habeas Corpus in Capital Cases, 44 The Record 848, 852 (1989). Thus, for example, Charlie Brooks and Woody Lourdes were prosecuted in Texas for a crime in which they entered a room and one of them–no one to this day knows which– killed the victim with a single shot. Lourdes ultimately received a 40-year sentence (with parole eligibility in six years), while Brooks became the first person in America to be executed by lethal injection. See Robert Reinhold, Groups Race to Prevent Texas Execution, N.Y. Times, Dec. 6, 1982, at A16 (reporting that the district attorney who prosecuted both cases argued to the Texas pardon board that it should intervene to prevent this outcome).
8. N.Y. C.P.L. �470.30(3)(b).
9. If, taken overall, a state`s death penalty system fails to provide meaningful mechanisms for assuring that the discrimination between those who are to die and those who are to live is made on a justifiable basis, the system violates the Eighth Amendment. See Furman v. Georgia, 408 U.S. 238 (1972).
10. Letter from Barbara Paul Robinson [President, Association of the Bar of the City of New York] to Governor George E. Pataki, at 1 (March 3, 1995).
11. Zant v. Stephens, 462 U.S. 862, 879 (1983).
12. This principle, which has been repeatedly reaffirmed by the United States Supreme Court, is the touchstone of its constitutional review of death penalty systems. See Loving v. United States, 517 U.S. 748, 755 (1996); Lowenfield v. Phelps, 484 U.S. 231, 244 (1988).
13. See Stewart F. Hancock, Jr., et al., Race, Unbridled Discretion, and the State Constitutional Validity of New York`s Death Penalty Statute– Two Questions, 59 Alb. L. Rev. 1545, 1554 (1996) (citing People v. Smith, 63 N.Y.2d 41, 72-75 (1984)).
14. See, e.g., People v. Van Pelt, 556 N.Y.S.2d 984 (1990) (discussing state due process protection); People v. Davis, 554 N.Y.S.2d 460 (1990) (right to counsel); People v. Kern, 555 N.Y.S.2d 647 (1990) (holding that state`s equal protection clause extends beyond federal one). See also John M. Shields, Constitutional Challenges to New York State`s Death Penalty Statute, 25 Fordham Urb. L.J. 255, 259 (1998).
15. See Penal Law � 125.25(3).
16. See Penal Law � 125.27 (a) (vii). It is unclear whether even this provision is narrowly tailored enough to support imposition of the death penalty, cf. People v. Couser, 695 N.Y.S.2d 781, 784, 285 A.D.2d 74 (4th Dep`t 1999) (defining “”commands”” prong of accessorial liability in non-capital murder case, while distinguishing heightened Eighth Amendment analysis required in capital cases), leave to appeal granted, 93 N.Y.2d 1043 (1999), but in any event the proposed amendments would make the situation significantly worse.
17. A significant effect of the proposed amendments is to greatly increase prosecutorial leverage, particularly over people with incidental roles in the crime. For example, it is not difficult to imagine a scenario where prosecutors will be able to obtain cooperation from the driver of the getaway car by threatening the defendant with death, unless the defendant cooperates.
18. See Edmund v. Florida, 458 U.S. 782, 794-96 (1982) (reviewing empirical data and concluding that the “”evidence is overwhelming that American juries have repudiated imposition of the death penalty”” for “”accomplice liability in felony murders.””).
19. In commenting on the 1995 legislation, we, like the Criminal Justice Section of the New York State Bar Association, called attention to its effect in placing an “”enormous drain on already overstressed resources.”” Committee on Civil Rights, The Association of the Bar of the City of New York, Report on Legislation S. 6350, A. 9028, at 6. The proposed amendments would make this situation worse, at a moment when, for example, the state has already cut back on the fees paid to capital defense lawyers, notwithstanding the unanimous recognition by authorities across the political spectrum–including the sponsors of the 1995 statute, see, e.g., 1995 Committee Bill Memorandum, Bill Jacket, 1995 Ch. 1, at 36–that the provision of competent defense counsel is critical to the effort to ensure fairness. See Michael A. Cooper, Counsel Fees in Capital Cases: A Rush to Execution, New York L. J., Oct. 14, 1998, at 2; see also Section II.E.1, infra.
20. See supra notes 13-14 and accompanying text.
21. Godfrey v. Georgia, 446 U.S. 420, 421 (1980).
22. See Penal Law ��125.27 (1)(a) (iii), (iv).
23. Arave v. Creech, 507 U.S. 463, 471-74 (1993).
24. Walton v. Arizona, 497 U.S. 639, 654 (1990). See Tuilaepa v. California, 512 U.S. 967, 972 (1994) (explicating these two requirements).
25. 501 U.S. 808 (1991).
26. The New York Court of Appeals has not yet ruled on the issue under the state constitution.
27. See Booth v. Maryland, 482 U.S. 496 (1987); see also South Carolina v. Gathers, 490 U.S. 805 (1989).
28. See Booth, 482 U.S. at 508.
29. It is precisely for this reason, and in the interests of uniform and impartial justice across cases, that Western societies some centuries ago transferred the function of prosecuting murders from the aggrieved family to the state. Thus, the memorandum in support of the proposals proceeds from an erroneous premise in claiming that there is an “”imbalance”” in current law because it precludes victim impact testimony while “”enabling a convicted killer to present a wide range of evidence in mitigation of the crime.”” The comparison is flawed because the parties to the proceeding are the state and the defendant, not the victim`s survivors and the defendant.
30. In capital cases, the direct victim of the crime is necessarily dead. Hence, the “”victims”” of a capital murder for these purposes consist of whatever indirect victims, that is, members of the defendant`s family or community, there may happen to be.
31. Booth, 482 U.S. at 505.
32. Id.
33. Id. at 506, quoting Godfrey v. Georgia, 446 U.S. 420, 433 (1980).
34. South Carolina v. Gathers, 490 U.S. 805, 811 (1989).
35. Payne v. Tennessee, 501 U.S. 808 (1991).
36. Id. at 831.
37. See Booth v. Maryland, 482 U.S. at 506-7. Furthermore, the accumulation over time of such arbitrary outcomes will also increase the likelihood that the New York statute will ultimately be invalidated under Furman v. Georgia, supra note 11 or related state constitutional principles.
38. See supra Section II.A.
39. See, e.g., Sermons v. State, 417 S.E.2d 144 (Ga. 1992); State v. Bivens, 803 P.2d 1025 (Id. Ct. App. 1991); N.H. Rev. Stat. Ann. 651:4-a (Supp. 1993); Pa. Stat. Ann. Tit. 71, P.S. � 180- 9.3 (Supp. 1994); State v. Hill, 799 P.2d 997, 999 (Kan. 1990). The memorandum supporting the proposed amendments is thus incorrect in stating, “”New York is the only state with a death penalty statute that prevents a victim`s family from presenting evidence of the loss suffered by a defendant`s criminal acts.””
40. Indeed, the heart of the problem with victim impact testimony is that it leads to sentencing decisions on bases other than the defendant`s moral culpability. Someone who stabs an unknown person sleeping on a park bench in order to steal her money has committed an act that is equally wrongful whether the victim turns out to be a prostitute or the president of the local chamber of commerce. If, on the other hand, the defendant knew of the identity of the victim (as, for example, in Payne itself, where the defendant stabbed the mother knowing that her young child was present), then the impact on the victim (the child in that case) may indeed have a rational relationship to culpability. But no change in existing New York law is necessary for the jury to become aware of circumstances of that kind, since they will invariably be presented as part of the prosecution`s case at the guilt phase.
41. Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Ariz. L. Rev. 143 at *4 ,5 (1999).
42. Logan, supra note 43, at *7.
43. Suppose for example, two identical cases, in one of which the survivor was legally married to the victim, and in the other of which the survivor was the victim`s gay life partner. It simply makes no sense for the defendant`s fate to turn upon the fortuity of whether the jury has more sympathy for the one category of survivor than the other.
44. Indeed, the two are inseparably interconnected. As an overwhelming empirical record shows, members of racial minority groups suffer discrimination in the capital punishment system both as defendants and as victims. When they are defendants, they are more likely to be prosecuted and sentenced capitally than identically-situated whites, but when they are victims, their killers are much less likely to be prosecuted capitally. See David C. Baldus & George Woodworth, Race Discrimination and the Death Penalty, in James R. Acker et al., eds., AMERICA`S EXPERIMENT WITH CAPITAL PUNISHMENT 385 (1998).
45. See CPL � 400.27.
46. See CPL 220.10(5)(e).
47. 92 N.Y.2d 613, 684 N.Y.S.2d 177 (1998), cert. denied, 119 S. Ct. 2359 (1999). 48. Hynes, 92 N.Y.2d at 623.
49. See Hynes, 92 N.Y.2d at 624-27 (discussing federal cases).
50. Id., at 629.
51. Any such proposal would require close analysis in light of New York State Constitution, Article 1, Section 2.
52. See, e.g., People v. Arroyo, 691 N.Y.S.2d 734 (N.Y. Co. 1999); People v. Edwards, 690 N.Y.S.2d 404 (N.Y. Co. 1999); People v. Van Dyne, 685 N.Y.S.2d 591 (N.Y. Co. 1999). See also New York State Constitutional Decisions: 1998 Compilation, 15 Touro L. Rev. 1324, 1334 (1999) (“”In practical terms, the capital sentence scheme remains largely unchanged [after Hynes]. A defendant may enter a guilty plea if the prosecutor agrees to withdraw his death notice, so negotiated plea agreements may still occur.””).
53. 695 N.Y.S.2d 689 (Queens Co. 1999).
54. A third manner of accepting pleas post-Hynes has been discussed in a recent New York Law Journal article. According to the author, in People v. Irwin, the court required the defendant to make a sworn statement on the record admitting the crime. Thereafter the prosecutor withdrew the notice of intent to seek the death penalty. The defendant then repeated the prior statement a second time, whereupon the court accepted the plea. See Daniel Wise, Pleas Accepted In Death Cases After “”Hynes””, New York L. J., Sept. 14, 1999, at 1,7.
55. See Hynes, 92 N.Y. at 629.
56. See, e.g., Simmons v. South Carolina, 512 U.S. 154 (1994); Brown v. Texas, 118 S. Ct. 355 (1997); William J. Bowers & Benjamin D. Steiner, Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing, 77 Tex. L. Rev. 605, 635 (1999).
57. As previously indicated, supra note 6, the package contains many other elements, not specifically discussed in this report, designed to have this effect, e.g., a broadening of the range of prior convictions that the prosecution may introduce in sentencing.
58. In light of the constitutional concerns we have identified, and the experiences elsewhere, we believe it likely that a significant proportion of convictions would be reversed during the appellate process.
59. See Eric M. Freedman, The Case Against the Death Penalty, U.S.A. Today Magazine, March 1997, at 48, 49-50.
60. As a result of this phenomenon, the excess costs in the relatively few cases in which executions actually take place run into the millions of dollars. For example, each execution in Florida costs the state approximately three million dollars in incremental costs, see D. Von Drehle, Bottom Line: Life in Prison One-sixth as Expensive, M IAMI HERALD, July 10, 1998, at 12A, and the same estimate has been made for New York, see Jim Dwyer, Death Penalty Doesn`t Add Up, D AILY NEWS (New York), July 28, 1998, at 8.
61. See Robert M. Bohm, The Economic Costs of Capital Punishment: Past, Present, and Future, in Acker, supra note 46, at 437.
62. See Justin Brooks and Jeanne Huey Erickson, The Dire Wolf Collects His Due While the Boys Sit By the Fire: Why Michigan Cannot Afford to Buy Into the Death Penalty, 13 T.M. COOLEY L. REV. 877, 889 (1996) (citing New York State Defender`s Ass`n Inc., Capital Losses: The Price of the Death Penalty for New York State, 12 (1982)).
63. Cf. Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation, prepared by the Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, 6 (1998) (describing the complexity and cost of motion practice in capital litigation and explaining that part of that expense results from the many novel legal issues concerning the constitutionality and interpretation of the new federal death penalty laws).
64. See Brooks and Erickson, supra note 64, at 891 (citing Phillip J. Cook & Donna B. Slawson, The Cost of Processing Murder Cases in North Carolina, 61 (1993)).
65. See New York State Defender`s Ass`n Inc., Capital Losses, supra note 64, at 18; see generally Brooks and Erickson, supra note 64, at 889 The Dire Wolf Collects His (citing The Report of the Governor`s Commission on the Death Penalty, An Analysis of Capital Punishment in Maryland: 1978 to 1993, 148 (1993)). 66. See N.Y. Crim. Proc. Law � 470.30(2) (McKinney 1995).
67. Id.
68. See Martin Kasten, An Economic Analysis of the Death Penalty, U. AVENUE UNDERGRADUATE J. OF EC O N. (1996) (citing Jonathan E. Gradess “”Memorandum to Joseph Jaffe, Chairman, New York State Bar Association Criminal Justice Section,”” March 3, 1989).
69. Prosecution costs in death penalty cases are often much higher than defense costs. For example, the average total cost of prosecuting a federal death penalty case, not including nonattorney investigative costs or the costs of expert and other assistance provided by law enforcement agencies is $365,000 and the average cost of payments to private retained experts is $20,269 per prosecution, while the average cost of defending a federal capital case is $218,112. See Federal Death Penalty Cases, supra note 65, at 7.
70. See Jenny Staletovich, Justice Raising Voice to Bury Death Penalty, PALM BEACH POST, Jan. 19, 1998 at 1A; Peter Wallsten, Death Penalty Pragmatism, ST. PETERSBURG TIMES, Feb. 22, 1998, at 1D.
71. Peter Wallsten, Justice Criticizes Death Penalty, ST. PETERSBURG TIMES, Jan. 1, 1998, at 1A.
72. David Kaplan, Death Mill USA, N AT`L L.J., May 8, 1989, at 38.
73. Alex Kozinski, For an Honest Death Penalty, NEW YORK TIMES, March 8, 1995, at A21.

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• Author(s):
  Capital Punishment Committee

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• Subject Area(s):
  Sentencing