To act or not to act: will New York's defeated death penalty be resurrected?

• Author: Huffman, Diana N.

Introduction I. The Rise and Fall of New York's Death Penalty Statute A. Supreme Court Jurisprudence on Capital Punishment B. New York's 1995 Statute in Light of Supreme Court Mandates C. The Jury's Role In New York Capital Trials D. The Anticipatory Deadlock Provision E. New York's Death Penalty Found Unconstitutional 1. People v. LaValle 2. People v. Taylor F. Legislative Action Post-LaValle II. Options for the New York State Legislature A. Statutory Amendment 1. Elements of a Valid Jury Deadlock Instruction 2. Four Possible Reformulations of New York's Deadlock Provision a. Option 1 b. Option 2 c. Option 3 d. Option 4 B. Abolishing the Death Penalty in New York 1. National Trends 2. Arguments For and Against Abolishing New York's Death Penalty 3. Does Death Deter? 4. Incapacitation and the Availability of Life Imprisonment Without Parole 5. An Expensive System 6. Disparate Patterns of Prosecution 7. Questions of Innocence 8. Methods of Execution III. Recommendation: Actions Speak Louder Than Words A. Consequences of Inaction B. The Role of the Legislature C. Practical Consequences of Maintaining the Status Quo 1. Overruling LaValle 2. The Role of Consensus in Supreme Court Jurisprudence D. Best Option for Amendment E. Abolition is Preferable to Amendment 1. Life Without Parole 2. The Federal Prosecution Loophole 3. Public Opinion 4. Legislative Will Conclusion INTRODUCTION

Capital punishment has always been a topic of controversy in the United States. The debate about the death penalty, its value as a way to permanently incapacitate society's most dangerous criminals and its effectiveness as a deterrent to violent crime, has increased over the last three years. This phenomenon is particularly visible in New York State where, in 2004, the New York Court of Appeals struck down the State's death penalty statute as invalid under the New York Constitution. (1) Three years later, in People v. Taylor (2) the Court reiterated its prohibition on the use of capital punishment under the current statute and overturned the death sentence of the last man on New York's death row. (3) New York's death row is now empty and the Capital Defender Office, established in 1995 when the death penalty statute was enacted, has closed. (4) The de jure moratorium on state executions initiated by People v. LaValle will continue unless the state legislature amends the death penalty statute to cure the constitutional defects identified by the Court of Appeals.

What is the future of capital punishment in New York? In 2008, the question of whether the New York State Legislature will address the LaValle and Taylor decisions by either amending or repealing the death penalty statute remains unresolved. (5) This Note describes the evolution of New York's 1995 death penalty statute, analyzes the way in which the state legislature could respond to the statute's unconstitutionality, and recommends that the legislature end the current debate over the future of capital punishment in New York by abolishing the death penalty.

Part I describes the evolution of death penalty legislation at the federal level and within New York State. It focuses on the structure of New York's death penalty, examines its statutory provisions, and then explores the Court of Appeals' reasons for declaring the statute unconstitutional. Part I further discusses the legislative reaction to the statute's invalidation and describes the current debate in New York about the continued desirability of capital punishment. Part II presents the legislative alternatives of either amending or abolishing New York's death penalty statute and discusses the arguments for and against each option. Finally, Part III argues that despite the challenges involved in either amending and reinstating the death penalty or abolishing it, the legislature should not allow the statute simply to remain inoperable by default. This Note concludes that given the need for action, the State Legislature should move to abolish the death penalty in New York.

1. THE RISE AND FALL OF NEW YORK'S DEATH PENALTY STATUTE

   This Part examines the history and development of New York's death penalty statute: first, introducing the requirements established by the Supreme Court for a constitutional capital punishment scheme; then, examining the structure of New York's death penalty statute in light of Supreme Court jurisprudence. This Part also reviews the New York Court of Appeals' decision invalidating the statute as violating the state constitution; and finally, describes the legislative reaction to this de jure moratorium on capital punishment in New York.

   1. Supreme Court Jurisprudence on Capital Punishment

      The U.S. Supreme Court's regulation of capital punishment began with the 1972 landmark case, Furman v. Georgia, (6) in which the Court found unfettered capital sentencing discretion unconstitutional. By failing to provide safeguards against arbitrary sentencing decisions, capital punishment statutes like Georgia's violated the Eighth and Fourteenth Amendments. (7) Furman invalidated all death penalty statutes as they existed in the United States in 1972, initiating a nationwide four-year moratorium on capital punishment.

      The moratorium ended in 1976 with Gregg v. Georgia, (8) when the Supreme Court upheld Georgia's newly-enacted capital sentencing scheme. (9) Specifically, the Court found that the Georgia statute satisfied the constitutional mandate identified in Furman: to withstand Eighth Amendment scrutiny, a capital punishment statute must provide "clear and objective" standards for determining death-eligibility. (10)

      Importantly, in Gregg, the Court expressly rejected the rigid categorization of death as cruel and unusual punishment. (11) Prior to Gregg, the Supreme Court had addressed the constitutionality of specific capital punishment regimes and had often "assumed and asserted the constitutionality of capital punishment." (12) Not until Gregg, however, did the Court explicitly state that the death penalty "does not invariably violate the Constitution." (13) This clarification was critical in reviving capital punishment nationwide. In fact, since 1972, thirty-seven states have reinstated the death penalty, (14) crafting capital sentencing statutes to comply with the requirements articulated by the Supreme Court in Furman, Gregg, and their progeny. (15)

      Over the past forty years, the Supreme Court has established clear guidelines for state legislation of a legal and constitutional death penalty regime. In decisions following Furman, the Supreme Court identified two features necessary for a constitutional capital sentencing scheme: first, a method to narrow the class of offenders eligible for the death penalty, (16) and second, an individualized sentencing determination based on consideration of the particular defendant's character, record, and circumstances. (17) Although state death penalty statutes differ on certain points, each uses a two-step process whereby the sentencer makes a factual determination of the defendant's death-eligibility, followed by a discretionary determination of the appropriate punishment. (18)

   2. New York's 1995 Statute in Light of Supreme Court Mandates

      On March 7, 1995, New York State enacted a death penalty statute authorizing capital punishment for thirteen categories of intentional murder. (19) Capital trials in New York are conducted in two stages. (20) First, the jury must decide whether the defendant is guilty of first degree murder. (21) New York's death penalty statute, section 400.27 of the New York Criminal Procedure Law ("CPL"), (22) "narrows" the class of death-eligible defendants by requiring that, in the guilt phase of a capital trial, the jury find at least one statutory aggravating factor established beyond a reasonable doubt. (23) The burden of proof rests with the government and the jury must agree unanimously on each aggravating factor. (24)

      After a defendant is convicted of first degree murder, the trial court conducts a separate sentencing (25) proceeding with the same jury that determined the defendant's guilt. (26) The government may seek a capital sentence only if it has filed timely notice of intent. (27) The government can withdraw this notice at any time. (28) Individualized sentencing is accomplished in New York capital cases through the presentation and consideration of the mitigating circumstances of the crime and the individual character of the defendant. (29) In New York, capital sentencing authority rests with the jury, who must choose to sentence a defendant convicted of first degree murder to either death or life imprisonment without parole. (30) The jury makes this sentencing decision by weighing the aggravating factors established in the trial's guilt phase (31) and the mitigating factors that each juror finds that the defendant (32) proved (33) by a preponderance of the evidence. (34)

      Furthermore, a death sentence may be imposed only if the jury agrees unanimously that: first, the aggravating factors "substantially outweigh" the mitigating factors beyond a reasonable doubt, (35) and second, that death is the appropriate sentence. (36) New York affords a capital defendant additional protection by allowing the jury to elect not to impose the death penalty even if the jury finds that the aggravating factors substantially outweigh the mitigating factors. (37) If the jury's sentencing resolution is unanimous, (38) the court must impose that decision. (39) If the jury is unable to agree on a sentence, however, the judge must impose a statutorily-dictated sentence. (40) All death sentences are subject to mandatory and automatic direct review by the New York Court of Appeals. (41) Any sentence imposed "under the influence of passion, prejudice, or any other arbitrary or legally impermissible factor" will be overturned. (42)

   3. The Jury's Role In New York Capital Trials

      The importance of fairness and reliability in New York's capital sentencing...