Prosecutorial discretion in charging the death penalty: opening the doors to arbitrary decisionmaking in New York capital cases.

AuthorNeddo, Anthony
PositionState Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication - Case Note

"The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity."(1)


On March 7, 1995, New York Governor George Pataki signed a death penalty bill that was in the making for several years.(2) Thus, on September 1, 1995, New York became the 38th state in the Union with a death penalty statute.(3) That a death penalty now exists in New York is certain; how the courts of that state will treat this statute is less clear.

Thid Comment will not focus on the morality of the death penalty, nor will it add to the growing debate on deterrence or retribution. It will, however, consider one patent issue that arises from the Death Penalty Act -- the constitutionality of the unbridled discretion vested in local prosecutors when determining which cases to prosecute as capital crimes. Under the terms of the death penalty statute, the People, acting through individual juries, may impose the penalty of death only if the prosecutor chooses to charge, and has given prior notice of the intention to pursue such a punishment. Because the statute is silent as to the scope or limits of the prosecutor's discretion in this matter, a prosecutor's decision may be based upon a variety of factors, including personal beliefs or opinions and political considerations, instead of upon objective legal considerations as to whether certain conditions are present which justify implementation of the statute. As some commentators have pointed out, factors irrelevant to objective decisionmaking may dictate the course of action taken by prosecutors.(4)

Consequently, charging the death penalty may depend on arbitrary decisionmaking processes reflective of an individual prosecutor's moral or ideological position on the death penalty, or on his or her notion of justice.(5) The prosecutor's individual perception of a crime may also affect the outcome of this decision. Prosecutors in separate New York counties may decide to charge the death penalty by default due to their lack of familiarity with charging ethics or their inexperience with case-specific charging discretion in capital cases.(6)

Finally, arbitrariness in sentencing may result because of the unbridled discretion placed into the hands of individual prosecutors. The prosecutor in one county may categorically reject the use of capital punishment under any circumstances, while in another county, a prosecutor vested with such discretion could enthusiastically pursue the death penalty whenever possible. Because the prosecutor must, under the terms of the statute, give notice in order to seek the death penalty prior to any factual findings by a jury, an "enthusiastic" prosecutor would obviously be motivated to create the perception that an atrocity had been committed in an effort to justify his or her actions.(7)

The current statute presents two fairly clear problems. The first involves the above-mentioned geographical enforcement discrepancies. Consider two hypothetical defendants, each of whom stands accused of a crime punishable by the death penalty. The only difference between the two is that one stands accused in a county where the prosecutor never seeks the death penalty, while the other is accused within a county served by an "enthusiastic" prosecutor. There is no rational basis for distinguishing the two defendants.(8)

A second difficulty arises from the lack of judicial review of the exercise of the prosecutor's discretion. However, despite the silence of the statute on this issue, other states have found such discretion inherently reviewable.(9) The New York Court of Appeals, the state's highest tribunal, may wish to follow a similar course when presented with this issue.

The primary focus of this Comment, aside from a strict analysis of the statute, centers on necessary limitations on the power of a prosecutor to charge a defendant with capital murder when there is unequal enforcement of the law based on arbitrary distinctions. Specifically, it is the author's thesis that in order for New York's death penalty to attain the necessary level of consistency required under the state constitution so as not to be imposed arbitrarily or capriciously, prosecutorial charging discretion in capital cases must be restrained.

The statute itself should include provisions assuring that the prosecutor's decision to seek the death penalty is based on adequate information and guidance. Absent a process by which such a decision may be challenged, the subsequent proceedings may be irreversibly tainted.

Part I of this Comment examines New York's doctrine of prosecutorial discretion. Part II analyzes the constitutional requirement that death penalty statutes be as non-arbitrary as possible. Part III examines the New Jersey Supreme Court's struggle with the issue of prosecutorial discretion. This discussion provides a case study of the issue as it is treated under independent review of a state constitution.

Prosecutorial discretion should remain unbiased when determining whether to seek the death penalty. Life and death decisions should not, and constitutionally must not, be subject to ideological differences of various local officials. Guidance, consequently, is the key to uniformity and to the prevention of disparate results based merely on geography. Such guidance should entail considerations reflecting sound judgment and bounded emotion.(10)

  1. New York's Tradition With Prosecutorial Discretion

    The New York State Constitution establishes a state government which embodies traditional "separation of power" political thought. Each branch of the state government should be interfered with by the others only rarely, if ever. Thus, executive actions and the exercise of executive discretion enjoy a strong presumption of appropriateness by the courts.

    However, as discussed one hundred years ago by Judge O'Brien in his dissent in People ex rel. Broderick V. Morton,(11) such a presumption should not be absolute. The majority, in Broderick held that when the executive is statutorily vested with discretionary duties and responsibilities, it was not within the court's power or right to interfere with the exercise of such ministerial duties.(12) Judge O'Brien, however, found that the court's precedential history warranted a different conclusion.(13)

    Judge O'Brien wrote that there was a clear distinction arising from precedent when the governor of New York

    accepts a legislative appointment as a member of a board of

    trustees, with duties prescribed by statute, ... he is

    amenable to legal process, at the suit of a private citizen whose

    rights are affected by the action of the board, in the same way

    and to the same extent as any other member of the board.(14)

    Judge O'Brien asserted that the majority's proposition that the courts are powerless to protect a statutorily protected class by mandamus (in the case at bar, New York law prescribed the manner in which veterans were to be treated in their public employment) is

    based upon the notion that there is something about the office

    of governor that places the occupant of the office for the time

    being above and beyond the law, or at least beyond the power

    of the courts to compel him by mandamus to obey the plain

    mandate of the statute in the appointment and removal of

    veteran soldiers.(15)

    The key issue for Judge O'Brien was whether the act or official duty required no discretion in its performance, rendering it ministerial. If a non-discretionary performance is refused, thereby causing personal injury, the courts then have jurisdiction to issue a writ of mandamus so long as the legislative enactment so directs.

    Even though prosecutorial discretion requires, by its very nature, an act of individual judgment, courts in New York should not rely on the doctrine of separation of powers to bar review of any issue raised where the effects of exercising discretion by another branch of government have the unintended consequence of chilling or destroying individual rights.

    District attorneys in New York have historically enjoyed broad discretion in prosecuting the state's penal law.(16) Generally, the prosecutor's discretion will not be interfered with unless the prosecutor is proceeding without, or in excess of, his or her jurisdiction, or if there is a conflict of interest.(17) Also, district attorneys are generally presumed to consciously decide whether to prosecute in a non-arbitrary or indiscriminate manner.(18) While courts have differed on the burden of proof applicable to charges of discriminatory prosecution by governmental prosecutors, the courts have uniformly placed the burden of proof on the party charging such abuse of discretion.(19)

    Public prosecutors occupy a unique niche in state government. It is generally assumed that prosecutors are a part of the executive branch, as Article XIII of the New York State Constitution authorizes the governor to remove any district attorney "who shall fail faithfully to prosecute a person charged with the violation in his county of any provision" of Article XIII that comes to the district attorney's attention.(20)

    District attorneys may also be viewed as officers of the Legislature since their office is provided for by statute and not explicitly addressed by the state constitution.(21) District attorneys are provided for by the County Law, which states: "It shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he [or she] shall have been elected or appointed."(22)

    Furthermore, public prosecutors, as attorneys, must act as officers of the court. As such, they are bound by special responsibilities of professional ethics. New York attorneys and courts are bound by the state's Code of Professional Responsibility (the Code), as enforced under the state's Judiciary Law.(23) Under the Code, prosecutors are charged "not merely to convict," but "to seek justice" as...

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