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Old 11-18-2004, 08:13 AM
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Default NYTimes Effort to Reinstate Death Penalty Law Is Stalled in Albany

November 18, 2004

Effort to Reinstate Death Penalty Law Is Stalled in Albany

By AL BAKER

ALBANY, Nov. 17 - Five months after New York's highest court struck down the state's death penalty, lawmakers in Albany have little hope this year of fixing flaws in the law to put capital punishment back on the books. In fact, supporters and opponents alike say the delay could stop the law from ultimately being re-enacted.

Lawmakers in the Assembly, led by Democrats, are now deeply divided over the issue, in part because of a changed political and cultural landscape.

While no one has been executed in New York State since 1963, Gov. George E. Pataki, a third-term Republican, signed a law to revive the death penalty on March 7, 1995, fulfilling a campaign promise that helped propel him to victory over Mario M. Cuomo, an ardent opponent of capital punishment. The issue was galvanizing back then, as surging murder rates and high-profile crimes like the mass shootings by Colin Ferguson on a Long Island Rail Road train served as rallying points to restore the death penalty.

But in June, the Court of Appeals struck down the 1995 law, which never led to an execution, finding a central element of the sentencing provisions unconstitutional.

Opponents of the death penalty have seized on the ruling as a chance to do away with it altogether, and legislators in both parties, citing a lack of urgency in the Assembly and the court's ruling, say they have serious doubts that Albany has the political will to restore the death penalty in New York.

One Republican lawmaker, Senator Dale M. Volker, said that when the Court of Appeals struck down the 1995 law, New York heard "the death knell of the death penalty, for the time being."

Sheldon Silver, the Democratic speaker of the Assembly, has said that he supports the death penalty, but he has also said that many people "are willing to accept life without parole, which was not an available remedy before 10 years ago."

He said that the Assembly, many of whose members oppose capital punishment, would hold public hearings on the matter. The hearings, to be held around the state, will continue at least through the end of January, when a newly elected Legislature will have convened. One hearing, on Dec. 15, will be in New York City.

"Many people have questions," the speaker said, adding, "I don't think it is something that should be on a fast track."

Eliot L. Spitzer, the state attorney general, is among the proponents of the death penalty in New York. Mr. Spitzer has consistently expressed support for it and supports it today, Darren Dopp, a spokesman for Mr. Spitzer, said yesterday. "He has articulated that it should be part of the law enforcement arsenal," Mr. Dopp said.

Other states, like New Jersey and Connecticut, have yet to carry out executions since reinstituting the death penalty, although Connecticut is poised to carry out its first execution. Texas is at the opposite end of the spectrum, having executed more than 300 people since 1982, according to the Death Penalty Information Center.

Many Republicans in New York are angry that the Legislature is not moving faster to fix the flaws identified by the Court of Appeals. They have blamed Mr. Silver for slowing things down. Republicans in the Senate even passed a bill in August to fix the provision of the law that the court invalidated. That bill was proposed by Governor Pataki himself.

"We continue to believe it is a strong deterrent, that it is legal and constitutional and that we can address the court's concern," said John E. McArdle, a spokesman for Joseph L. Bruno, the majority leader of the Republican-led Senate. "We spent 20 years trying to get it enacted in this state, and we'll continue to strongly advocate for its enactment going forward."

An aide to the governor has accused the Assembly leadership of obstruction by not moving to pass a death penalty measure, a charge that Mr. Silver's aides dispute. And the Pataki administration plans to keep pushing the matter even if it spills into the next legislative session in January.

"The people of New York have clearly called for justice, for those who commit the most serious crimes, by using capital punishment," said Lynn Rasic, a spokeswoman for the governor. "Speaker Silver claims to favor the death penalty, but he continues to refuse to allow a vote on this important legislation."

The death penalty issue was once one of the most emotionally volatile in New York, but as the crime rate has fallen, it has lost resonance; no one is marching on Albany calling for executions. Furthermore, opinions on capital punishment are shifting, opponents and proponents agree. Some policy makers no longer view the death penalty as a fair punishment for a certain class of murderers, including those who kill police officers, or as an appropriate deterrent to crime.

In recent years, juries and state legislatures have shown a pattern of limiting the use of the death penalty and imposing life in prison without parole instead, said Jonathan Gradess, the executive director of the New York State Defenders Association, a group that provides support for public defense lawyers. He said that since 1973 nearly 120 people have been removed from death rows in states around the country.

More recently a wide-ranging national debate was touched off by George Ryan, then the governor of Illinois, who declared the state's capital punishment system broken and issued a blanket commutation of death sentences, citing a series of close calls in which men on death row were found to be innocent.

Since then, the death penalty has come under attack in other states. Recently, a group of lawyers in California asked for a moratorium on the death penalty there, and the issue is being studied in other states, like Maryland and Nebraska. In New York, a Democratic state senator, Liz Krueger, had called for a moratorium on the death penalty before the Court of Appeals made its ruling.

Assemblyman Keith L. T. Wright, a Democrat from Harlem and an opponent of capital punishment, said: "Just because you have a governor who wants to reinstate the death penalty doesn't mean it's necessarily the will of the people. The world has changed so much since 1995, when we passed it, that it's a new date, a new time. I think we, as legislators, need to hear what everyone has to say."

David Kaczynski, the executive director of New Yorkers Against the Death Penalty and someone who gained attention for turning in his brother as the Unabomber in 1996, is among those planning to speak at the Assembly's hearings. He said the death penalty was unfair and could lead to the execution of innocent people.

He also said that at least $175 million had been spent in New York State on death penalty litigation since 1995, money he said could have been better spent on victims' families or on crime prevention programs. He said the death penalty was not being used uniformly in counties across the state.

"If we've seen anything in New York State over the last nine years, it's that it's not being evenly applied by the district attorneys," Mr. Kaczynski said, citing the fact that three of the seven people sentenced to death in the state came from Suffolk County, a relatively wealthy and crime-free area. "In effect, we have 62 different death penalty laws: there are some who seek it often, there are some who seek it very reluctantly, and there are some who seldom or perhaps never seek it."

Republican supporters of capital punishment, including Senator Volker, said the death penalty saved money in the state because hundreds of defendants plead guilty to lesser offenses and avoid trials and their costs. He said it was still a valid method of deterring crime.

"Every time we pass the death penalty the murders go down, and then after they go down, people say, 'Well, I don't know if we need the death penalty,' and then we get rid of the death penalty and the numbers go up dramatically," said Mr. Volker, who said he would be surprised if the death penalty was not reinstated by the end of the year.

There is no proof that the death penalty is a better deterrent to murder than life in prison, said Richard C. Dieter, the executive director of Death Penalty Information Center, a nonprofit organization that researches the death penalty but takes no position on the issue. "It's hard to prove a negative, but the overwhelming majority of studies over the past 30 years do not find a deterrent effect from the death penalty."

Kevin L. Wright, president of the New York State District Attorneys Association, said he could see how opponents of the death penalty might use the delay to prevent repairing the 1995 law. But he said state leaders should keep a pledge to fix it swiftly. "I think there is legitimate concern that an important statute on the books is in need of legislative repair and hasn't received that attention," he said.

For his part, Mr. Silver has been a longtime supporter of capital punishment. But after the Court of Appeals ruling, a rift developed among Democrats and he paused as members debated whether public sentiment for the death penalty remained strong. In 1995, most Assembly Democrats voted against the death penalty.

Mr. Silver cautioned against fixing the statute so quickly that it could be found flawed by a future Court of Appeals. The court has decided four times to overturn death sentences under the state's 1995 death penalty law. It has never upheld a death sentence under the current statute.

In striking down the death penalty, the court, led by Chief Judge Judith S. Kaye, found a problem with a central provision regarding guidelines for sentencing in cases where a jury could not reach a unanimous decision between life without parole and a death sentence. The court ruled that because a judge had to instruct a jury that a sentence including the possibility of parole after 20 to 25 years would be instituted if they failed to reach a unanimous decision, it might coerce the jury to vote for a death sentence rather than risk a criminal's being set free. And it said only the Legislature could fix the provision.
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