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Article Excerpt
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.
I. 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.
A. 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)
B. 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)
C. The Jury's Role In New York Capital Trials
The importance of fairness and reliability in New York's capital sentencing scheme is perhaps best seen in the role of the jury. States vary in the degree of responsibility they allocate to the judge and jury in capital cases. (43) New York is among the majority of death penalty states who vest capital sentencing authority in the jury. (44) In fact, in New York capital cases a jury trial is mandatory and the jury makes both the factual (45) and evaluative (46) determinations (47)
Although the U.S. Supreme Court has decided that jury sentencing in a capital case is not constitutionally required, (48) the Court has conceded the "important societal function" of jury verdicts. (49) Namely, the jury verdict provides a "significant and reliable objective index of contemporary values" (50) and reflects the "conscience of the community." (51) The provisions of New York's 1995 statute mandating jury sentencing in capital cases (52) and further conditioning a death sentence on unanimous jury approval (53) underscore the New York capital jury's important role as the ultimate arbiter of death. (54)
D. The Anticipatory Deadlock Provision
To further the goal of reliable jury verdicts in capital cases, the New York statute provides additional due process protections through enhanced sentencing information. New York is one of only eight states (55) to require that before a capital jury begins sentencing deliberations the trial court must instruct the jury on the consequences of deadlock. (56)
According to the Supreme Court, the Eighth Amendment does not require a jury instruction on the consequences of deadlock. (57) The New York Court of Appeals, however, has rejected this federal construction as a matter of state constitutional law, (58) finding it "unfaithful" to the "heightened standard of reliability" required by the due process clause of the New York Constitution. (59) As the Supreme Court has itself observed, the finality of a death sentence renders such punishment "qualitatively different from a sentence of imprisonment, however long." (60) New York's practice of providing capital jurors with all information relevant to the sentencing process (61) is based on the "qualitative difference" of a death sentence and the consequent need for reliable sentencing decisions. (62)
New York's, anticipatory deadlock instruction, (63) however, is unique. (64) New York trial courts must inform capital jurors that if the jury is unable to reach a unanimous sentencing decision, the court will impose a sentence of life imprisonment, with the possibility of parole after the defendant has served a minimum of twenty to twenty-five years. (65) This outcome, where jury deadlock results in a sentence more lenient than either sentence available for jury consideration, does not exist in any other states' anticipatory deadlock scheme. (66) In fact, in 2004 the New York Court of Appeals identified this unique deadlock instruction as a flaw in New York's death penalty statute. (67)
E. New York's Death Penalty Found Unconstitutional
1. People v. LaValle
In 1997, Stephen LaValle raped and stabbed a Suffolk County school teacher to death with a screwdriver. (68) A jury found LaValle guilty of first-degree murder and sentenced him to death. (69) On review, in a four-to-three decision, (70) the New York Court of Appeals upheld LaValle's conviction but vacated his death sentence. (71) The court held that section 400.27(10)'s deadlock instruction violates the New York Constitution's due process clause. (72) By informing jurors that failure to reach unanimous agreement will result in the defendant's release from prison in as little as twenty years, the anticipatory deadlock instruction forces jurors to factor the defendant's future dangerousness into their sentencing decision. (73) Future dangerousness is not a statutory aggravating factor for a capital jury to consider under New York penal law. (74) Section 400.27(10) therefore creates "an unconstitutionally palpable risk" that a member of a potentially-deadlocked jury, who would otherwise vote for life without parole, will vote for death, not because of an individualized determination that the prisoner deserves death, (75) but to prevent the defendant from receiving a parole-eligible deadlock sentence. (76)
The LaValle court declared that in order for New York's capital punishment statute to be functional, the State Legislature must enact amending legislation. (77) Until such amendment, all first-degree murder prosecutions must proceed as non-capital cases. (78) Capital punishment is effectively on hold in New York pending legislative action to amend or repeal the statute.
2. People v. Taylor
Despite the New York Court of Appeals's 2004 decision invalidating New York's death penalty, in 2007, one man, John Taylor, remained on New York's death row. (79) On May 24, 2000, Taylor and accomplice Craig Godineaux robbed a Wendy's restaurant in Queens, New York. (80) They shot five people to death and injured two more. (81) Taylor was held personally responsible for killing two of the victims and liable for the deaths of the three others whom he ordered his accomplice to kill. (82) The jury convicted Taylor of twenty counts of murder, including six counts of first degree murder. (83)
Before jury selection, Taylor moved to strike his death penalty notice, arguing that New York's death penalty statute (84) was unconstitutional because the deadlock instruction deprived him of due process. (85) The trial judge, Steven W. Fisher, denied the motion, citing Taylor's failure to overcome beyond a reasonable doubt the presumptive validity of a legislative statute. (86) Fisher also refused to instruct the jury that upon deadlock he would sentence Taylor to 175 years with no possibility of release from prison. (87) Judge Fisher did, however, modify the deadlock instruction by adding to the jury charge:
[T]he six [counts] of first degree murder, and the two counts of first degree attempted murder on which you have convicted the defendant, are precisely the type of crimes that almost always induce a judge to give the maximum sentence permissible. ... [T]he maximum sentence I could give and would almost certainly impose in this case, would be a sentence of 175 years to life.... (88)
The jury sentenced Taylor to death on three counts of first degree murder and Taylor appealed his conviction and sentence. (89) Taylor was the sixth and final death sentence under the 1995 statute heard by the Court of Appeals. (90)
Taylor submitted his appeal on the premise that any death sentence based on the statute found unconstitutional in LaValle was similarly defective. (91) Prosecutors from the Queens County District Attorney's Office responded that the Court of Appeals could distinguish Taylor from LaValle because Judge Fisher's jury charge had cured the anticipatory deadlock instruction defect identified in LaValle. (92) Upholding Taylor's death sentence, prosecutors argued, would not overrule LaValle but rather "clarify" that the death penalty statute is not unconstitutional as applied in all cases. (93) The prosecution asked the Court to admit that it had gone "too far" in finding the statute's deadlock provision unconstitutional and inseverable from the rest of the statute. (94)
On review, the Court of Appeals refused to "condone a trial court's remaking of an unconstitutional statute." (95) Although Taylor's death sentence pre-dated the LaValle decision, the statute under which Taylor was sentenced had been determined facially unconstitutional and non-severable. Thus, the deadlock provision was immune to judicial reformulation. (96) The Court further observed that the deadlock instruction given in Taylor created its own problems of "non-neutrality" because the trial court injected its opinion as to the weight of the mitigating circumstances into the sentencing instruction. (97) Judge Fisher's instruction that the crimes committed by Taylor were "precisely the type ... [that] induce a judge to give the maximum sentence permissible" signaled to the jury that, in the judge's personal opinion, the defendant merited no leniency. (98) By telling the jury that upon deadlock, he would probably impose a sentence of more than 175 years, Judge Fisher could be interpreted as telling the jury "they too should give the maximum sentence permissible--death." (99) Members of a capital jury who likely have never served on a trial, let alone a capital case, and tend to lack legal training, will naturally be influenced by and defer to what they perceive to be the judge's expertise. The Court of Appeals noted that Judge Fisher's instruction failed to present the jury with the balanced and neutral sentencing information that is particularly necessary when a defendant's life is at stake. (100)
For these reasons, on October 23, 2007, the Court of Appeals upheld People v. LaValle, (101) reiterating LaValle's central holding: the current anticipatory deadlock provision of CPL section 400.27(10) is invalid under the New York State Constitution's Due Process Clause, (102) and this unconstitutional provision cannot be severed from the statute. (103) The Court vacated Taylor's death sentence and remanded the case to the trial court for resentencing. Taylor has been resentenced to life imprisonment without parole. (104)
F. Legislative Action Post-LaValle
Critics of the LaValle and Taylor decisions characterized the Court of Appeals as intruding into the legislative realm of policymaking. (105) Specifically, they accused the Court of using these cases to "advance a liberal agenda" (106) and injecting into its decisions "personal anti-death penalty ideologies." (107) Others said the Court had properly confined itself to the task of legal interpretation, leaving law-making to the legislature. (108) In Taylor, the Court reiterated LaValle's message: the legislature can resurrect the death penalty in New York through statutory amendment. (109) Despite "reservations" as to the Court's willingness to approve any amended version of the death penalty, (110) the senate resolved to "take corrective action" in hopes of restoring the death penalty in New York. (111)
Accordingly, in 2004 (112) and again in 2005, (113) the State Senate, conceding the defeat of the death penalty statute in its current form, (114) introduced legislation to amend the statute's sentencing provisions. Although various amendments to section 400.27(10) have passed in the Senate, none have gained approval in the Assembly. (115) This failure to reinstate the death penalty indicates a change in political support among New Yorkers since 1995. (116) The judicially-imposed moratorium on capital punishment in New York allowed the state legislature and general populace to consider whether capital punishment remains a viable and desirable punishment. (117) Recent developments suggest that the majority of New Yorkers are loath to reinstate capital punishment.
From December 15, 2004 to February 11, 2005, the New York Assembly Standing Committees on Codes, Judiciary and Correction held five public hearings in New York City and Albany. (118) The hearings discussed whether the state legislature should amend the death penalty statute to restore capital punishment in New York. (119) Eighty-seven percent of the witnesses who testified at the hearings opposed restoring the death penalty in New York, some favoring outright abolition. (120) Accordingly, following the hearings, the assembly rejected senate-sponsored legislation (121) to amend CPL section 400.27. (122) Nothing has changed in New York in the past few years to indicate that the legislature is any more likely now to reinstate the death penalty than it was in 2004. (123)
II. OPTIONS FOR THE NEW YORK STATE LEGISLATURE
The Taylor decision means that the state of affairs established by the LaValle ruling continues in New York: because a deadlock instruction is statutorily mandated (124) and the current deadlock instruction is constitutionally prohibited, (125) capital punishment may not be implemented in its current form. (126) Rather than allow a statute to remain on the books,...
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