Running head: THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 1

The Future of Capital Punishment in New York

Senior Project: Public Administration
Francisco Cruzado
Upper Iowa University
February 28, 2017

Rough Draft
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 2

Table of Contents

Section Page
Abstract 3
Problem Statement 4
History 4
Case Study 8
Options to Solve the Problem 13
Recommendations 15
Conclusion 16
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 3

Abstract
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 4

Problem Statement
Back in 1995, when New York had reinstated the death penalty, it became clear that there

were unassailable legal difficulties in designing a death penalty statute which conforms to the

minimum legal criterion of due process and equal protection (Perry, 2007). New York is one of

19 states which does not have the death penalty. In 2007, the New York Court of Appeals

converted John B. Taylors death sentence to life without the possibility of parole, thus emptying

the states death row (States With and Without the Death Penalty | Death Penalty Information

Center, 2016). The problem is whether New York should restore the death penalty? If the

answer is yes, then how the law should be written? This is a problem and over the next several

pages, the problem will be further fleshed out, alternatives offered up to correct this problem, and

a list of recommendations put forth that are intended to fully address the problem.
History

Looking back at history, it is a generally accepted fact that the development against

capital punishment had its beginnings over a hundred years prior in endeavors went for

supplanting the medieval idea of retributive equity with reformative equity. These patterns

prompted the acknowledgment that death penalty denied the blameworthy of an open door for

repentance and reclamation and in this manner did not add to the foundation of equity and

justice.

Thus, in 1863, Venezuela became the first country to abolish the death penalty (Sethuraju,

Sole, & Oliver, 2016). It is also important to note that Amnesty International opposes the death

penalty in all cases and without exception, believing it to be the ultimate cruel, inhumane and

degrading punishment; and a violation of the right to life, as proclaimed in the Universal

Declaration of Human Rights and other international human rights instruments (Radelet & Borg,

2000, p. 44).However, on the other hand, it is a generally understood and an accepted claim that
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 5

the death penalty has a strong dissuasive impact which can prevent approximately up to 18

murders (Bohm, 2011, p. 112). In 1975, Professor Isaac Ehrlich published a scientific article

stating that during the 1950s and 1960s, each execution prevented at least eight murders (Bohm,

2011, p. 157).

Death penalty in New York dates back to the time of the colonial era in

America (Lumer & Tenney, 1995, p. 77). In the course of that time, a number of

crimes had the penalty of death but during the late 18th century and early

19th century, the punishment of death was shortened to the crimes of

homicide, treachery and arson of an inhabited land (Lentol, Weinstein, & Aubry,

2005, p. 12). During the mid of the 19th century, murder was branched into two

levels or degrees and only the guilty of the first-degree murder were to be

punished by death. A reference to the historical perspective of New York

death penalty, the progression and expansion of the capital punishment

statute dates back to 1888, when New York became the first state to

integrate a system of capital punishment, as well as to label the electric

chair as the implementation of the death penalty (Lumer & Tenney, 1995, p. 84).

Accordingly, New York was the first state to thoroughly disregard and

abandon all provincial executions in support of state executions (Lumer &

Tenney, 1995, p. 84). Subsequently, in the following decades, there was an

aggressive and immense use of death penalty in New York, which resulted

from the increasingly expansive legal authority, up to the point when the

decreasing support of public and court led to its dismissal in the 1940s and

1950s, and finally to its abolishment in the 1960s (Lumer & Tenney, 1995, p. 86). It
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 6

is important to note that the 1930s was the busiest decade for New York by

executing more and more prisoners. New York electrocuted round about 135

people during the 1930s, an approximate of 15 people per year (Lumer &

Tenney, 1995, p. 91).

In New York, an amendment during 1937 made capital punishment

compulsory for the first degree killing except if the jury suggests life-

imprisonment then the punishment of death may not be essential (States With

and Without the Death Penalty | Death Penalty Information Center, 2016). While during

1963, the revision of the above law took place which led to the reversal of

this sentencing, under which the first degree murder was punishable by life-

imprisonment except when the jury suggested a death sentence (Radelet &

Borg, 2000). Furthermore, this revision also recommended that if the defendant

was not more than eighteen years old at the time when the crime took place

then it was necessary for the court to dismiss the jury in charge with the trial

of the case and condemn the defendant with a life sentence. Similarly, the

amendment in the law also suggested that if the sentence of death was not

justified under any circumstances then too the court had the compulsion to

terminate the jury and charge the defendant with life imprisonment (Lentol et

al., 2005, p. 12). The modification in the law also made a change to the process

of the hearing too. It separated the fact-finding and sentence hearing phases

and allotted a separate hearing to determine whether the defendant should

be charged with death or with life imprisonment (Lentol et al., 2005, p. 13)
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A law was passed during the year 1965, under which the capital

punishment got limited to some cases that included the first degree murders

with a condition that the victim must be a peace officer doing his or her duty,

when the defendant commits the crime while he is attending a life

imprisonment, when the defendant is serving a sentence of at least fifteen

years to life or if the defendant is in an immediate flight from imprisonment

when the crime is committed (Lumer & Tenney, 1995, p. 85). This law also made

the awarding of capital punishment for the defendants under the age of

eighteen when the crime is committed to be illegal (Lentol et al., 2005, p. 12).

The death penalty law was amended during the year 1967 and it

suggested that the capital punishment would also include purposeful murder,

corrupt indifference to human life and also an offensive murder. It also made

defendants entitled to death penalty for the crimes both if the victim is a

peace officer and is killed while doing his duties or when the defendant

committed the crime while serving in a prison (Lentol et al., 2005, p. 12).

In 1972, the decision of the US Supreme Court regarding the case of

Furman v. Georgia, opened the doors to a new era of capital statute (Lumer &

Tenney, 1995, p. 94). The Court's one-page per curiam point of view, held that

the decree of the death penalty in these cases constituted cruel and unusual

punishment and was against the Constitution (Furman v. Georgia, n.d.). To its

response, several states performed a revision of the statute, in order to

placate the arising constitutional concerns in relation to cruel and unusual

death penalties (Lentol et al., 2005, p. 13). Consequently, some states chose such
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pronouncement plans, which directed discretion of the sentencing body,

whereas others created schemes which eliminated discretion completely.

New Yorks law of 1974 returned to the second category for any deliberate

act of murder of a police official, or a murder committed by an already life

sentence serving prisoner (Lumer & Tenney, 1995, p. 95). Afterwards, in 1995,

Governor Pataki signed a revised and extended penalty law, which

authorized the capital punishment for intentionally committed murder of 13

various categories including rape and robbery (Lentol et al., 2005, p. 14).

However, New Yorks death penalty law was declared unconstitutional on

June 24, 2004 at the People v. LaValle hearings, when the jury was unable to

reach a mutual decision, hence facing deadlock, which is a state of

inaction resulting from opposition or lack of compromise. It is a standstill

resulting from the opposition of two unrelenting forces or factions (Inc,

n.d.).Unable to agree between both the sentencing options of death or LWFP,

the judge sentenced the judge has to condemn the prisoner to a less severe

punishment of life imprisonment with the probability of parole after between

20 to 25 years of custody, with the possible outcome of threatening the

community (Lentol et al., 2005, p. 15) Often, a deadlocked jury will lead to a retrial

of the case. [Koon v. United States, 518 US 81 (1996)]. According to the

courts opinion In vacating the death sentence, we conclude that the jury

deadlock instruction prescribed in CPL 400.27(10) is unconstitutional under

article I, 6 of the State Constitution (J., n.d.).

Case Study
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With reference to a report on five public hearings on the death penalty in New York

conducted by the Assembly standing committees on Codes, Judiciary and Correction, a series of

public hearings on the death penalty were scheduled, from December 15, 2004 through February

11, 2005. The report summarized the testimony presented at those hearings (Lentol et al., 2005,

p. 1). It is important to note that the intended purpose of the report is not to present arguments in

favor or against the death penalty, it is also not a detailed description of the conducted hearings.

More precisely, the intended purpose of the report is to objectively underline and stress the issues

and disagreements that were proposed and suggested and argued at these exceptional public

hearings. For this purpose, the committee had invited interested parties, comprising of 170

hearing witnesses. The committee received verbal testimony from 146 witnesses and written

testimony from 24 witnesses (Lentol et al., 2005, p. 4). Out of all witnesses, 148 expressed their

opinion against the death penalty, whereas nine favored the death penalty, five testified in favor

of the death penalty but demanded specific changes in the law and eight hearing witnesses did

not indicate any clear-cut opinion in favor or against the capital punishment (Lentol et al., 2005,

p. 4).
According to the report, arguments favoring the death penalty generally comprised of three

roughly stated motives and arguments which can be summarized as follows:

The death penalty is a proper societal punishment against those criminals who

intentionally commit murders.

The death penalty prevents people from committing crimes which might lead to capital

punishment.
The death penalty is vital to assure, by elimination that those who commit capital crimes

never do so again.

Among the hearing witnesses, several family members asserted in favor of the death

penalty based on personal vengeance and punishment(Lentol et al., 2005, p. 4). Debra Jaeger,
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whose sister was cruelly beaten to death by her husband in 1998, claimed that the death penalty

is much required as the final penalty to punish such brutal murders(Lentol et al., 2005, p. 5).

Remembering the murder in 2004 of Patrick Rafferty and Robert Parker, two NYPD police

detectives, Jeff Frayler said that, as the removal of capital punishment becomes more of a

reality, (the killers) lethal actions will probably guarantee him permanent lodging, clean

clothing, food and, more importantly, his life (Lentol et al., 2005, p. 5).
Reference to the prevention of crimes, the committee heard opposing opinions about

whether the death penalty is a powerful deterrent against horrific crimes(Lentol et al., 2005, p.

5). By giving references to certain studies, Professor Robert Blecker claimed that the capital

punishment is a more powerful deterrent than life imprisonment without parole, but also

acknowledged the possibility that an innocent person might have been falsely accused and

executed(Lentol et al., 2005, p. 6). On the other hand, Professor John Blume of Cornwell

University, by withholding murder as a complex and multiply-determined process, holds the

view that the overwhelming weight of the scholarly research indicates that the death penalty

does not deter persons from committing murder (Lentol et al., 2005, p. 5). Witnesses also

offered opposing opinions about whether the current sentence of life imprisonment without the

possibility of parole (LWOP) is adequate for the protection and safety of society from murderers

(Lentol et al., 2005, p. 6). Some held the view that LWOP provided sufficient safety and

protection, others argued that since laws could always be changed it did not offer much

protection as death penalty would (Lentol et al., 2005, p. 7).

Arguments also included factors (i.e. cost of the execution process which is much more

expensive than LWOP) (Lentol et al., 2005, p. 27).Several views and arguments given in this

reference included the facts that all procedural phases are longer and more costly, requiring more

experts along with facts (i.e. death row cells are more expensive since greater security was
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 11

required), and that there are generally lengthy and large-scaled post-conviction proceedings in

federal and state courts (Lentol et al., 2005, p. 29).

Another important factor presented in the report is that New Yorks death penalty law

permits prosecutors to pursue the death penalty when one of 12 statutory aggravating factors is

present (Lentol et al., 2005, p. 7). Among the witnesses, some were in favor of expanding the list

whereas others argued for its reduction (Lentol et al., 2005, p. 25). Professor Blecker, the

nationally known expert on the death penalty, pushed lawmakers to broaden and narrow the

categories in some ways (Lentol et al., 2005, p. 37). Among his suggestions are the following:

Redefine and broaden the category of torture killings and precisely defining rape murder

as torture murder certifying the defendant for death.

Add killings of specifically weak and defenseless persons.
Add particularly cruel killings.
Add depraved indifference recklessness as a mental state qualifying a murder defendant

for death (Lentol et al., 2005, p. 32).

According to NYCs Office of Mental Retardation and Developmental Disabilities,

approximately 200,000 people in New York alone are considered to have mental retardation

(Radelet & Borg, 2000). The latest U.S. Supreme Court decision prohibits the execution of

people having mental retardation (Lentol et al., 2005, p. 8). However, in accordance with the

New York death penalty statute, execution of such persons is permitted in few conditions such as

if the defendant is a prison inmate, the victim was an employee of the prison performing his/her

official duties, and the defendant had, or should have had, the knowledge of him/her being an

employee (Lentol et al., 2005, p. 39).

Among the hearing witnesses, several witnesses claimed that there is sign of religious and

racial prejudice in the use of capital punishment(Lentol et al., 2005, p. 10). They asserted that

death sentences are unjustly ordered on black defendants (Lentol et al., 2005, p. 8). Mr. Salaam,

who was convicted along with Karey Wise of being part of a brutal rape and murder of a woman,
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 12

famously known as the Central Park Joggers case, was later on released when DNA evidence

proved that another man was the attacker, stated that he considered the jury was racially and

religiously prejudiced, which added to their invalid judgements (Lentol et al., 2005, p. 26).
Opposing witnesses also claimed that the capital punishment is used unjustly against

people belonging to poor and working class (Lentol et al., 2005, p. 9). Giving their opinions,

these witnesses stated that due to economic disadvantage, such defendants are in no position to

hire and retain qualified law counsel and skilled testimony (Lentol et al., 2005, p. 9).
The report also includes the condition and state of New York States death row, which is

known as UCP which stands for Unit for Condemned Persons(Lentol et al., 2005, p. 53).

According to Professor Michael Mushlin of Pace University Law School, the correctional facility

exhibits unduly harsh and restrictive conditions which would lead to cognitive, emotional and

behavioral deterioration and . . . result in other forms of potentially disabling psychological

harm (Lentol et al., 2005, p. 54). Keeping this in mind, there are practical reasons why the

incapacitation of death row conditions need to be avoided.

The report proposes the following legislative amendments in the death penalty statute:

The capital case penalty phase jurors analyze and consider three options: a death

sentence, life sentence without parole or a life sentence with the consideration of a

parole after between 20 to 25 years of staying imprisoned.

If the jurors do not succeed to reach a solid agreement on one of these options, the judge

would order the litigant to a life sentence without parole (Lentol et al., 2005, p. 11).

To sum up, the report comprises of evidence and testimony about the capital punishment,

including statements given by legal scholars, religious leaders, prosecutors, families of murdered

victims, families of prisoners as well as of law experts (Lentol et al., 2005, p. 2). Juristic

theologians argued whether New Yorks current law of death penalty is in accordance with legal

due process and foundational legitimacy. On the other hand, religious heads debated the morality
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 13

of death penalty. Prosecutors voted both for and against capital punishment, giving their opinions

on its impact of deterrence along with analyzing their efforts and conflicts with the unique

statutory design of New York.

Options to Solve the Problem

Since the capital punishment has been in a controversial state

throughout the American history, it has underwent various changes

in order to eliminate the use of it. The most successful of all those

miscellaneous campaigns have resulted in a ban on death penalty

lasting for 4 years throughout America (Reuters, 2017).

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THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 15

References

Bedau, H. A. (1998). The Death Penalty in America: Current Controversies. New York: Oxford

University Press.

Bohm, R. M. (2011). DeathQuest: An Introduction to the Theory and Practice of Capital

Punishment in the United States (4th ed.). Waltham, MA 02451, USA: Routledge.

Dieter, R. C. (1994, May). The Future of the Death Penalty in the U.S.: A Texas-Sized Crisis |

Death Penalty Information Center. Retrieved February 28, 2017, from

http://www.deathpenaltyinfo.org/the-future-of-the-death-penalty

Fagan, J. (2005, July 14). PUBLIC POLICY CHOICES ON DETERRENCE AND THE

DEATH PENALTY: A CRITICAL REVIEW OF NEW EVIDENCE. Columbia Law

School. Retrieved from

http://www.deathpenaltyinfo.org/files/pdf/MassTestimonyFagan.pdf

Furman v. Georgia. (n.d.). Retrieved March 22, 2017, from

https://www.oyez.org/cases/1971/69-5030

Inc, U. L. (n.d.). Deadlock Law and Legal Definition | USLegal, Inc. Retrieved March 24,

2017, from https://definitions.uslegal.com/d/deadlock/

J., G. B. S. (n.d.). FindLaws Court of Appeals of New York case and opinions. Retrieved

March 23, 2017, from http://caselaw.findlaw.com/ny-court-of-appeals/1230015.html

Lentol, J., Weinstein, H., & Aubry, J. (2005). The Death Penalty In New York (p. 84).

Retrieved from http://nyassembly.gov/comm/Codes/20050403/deathpenalty.pdf

Lumer, M., & Tenney, N. (1995). The Death Penalty in New York: An Historical Perspective,

4(1), 63.
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 16

Perry, R. (2007, March 31). The Future of Capital Punishment in New York State. Retrieved

February 28, 2017, from https://www.nyclu.org/en/publications/future-capital-

punishment-new-york-state

Radelet, M. L., & Borg, M. J. (2000). The Changing Nature of Death Penalty Debates. Annual

Review of Sociology, 26(1), 4361. https://doi.org/10.1146/annurev.soc.26.1.43

Reuters, T. (2017). Temporary Abolition of the Death Penalty. Retrieved April 5, 2017, from

http://criminal.findlaw.com/criminal-procedure/temporary-abolition-of-the-death-

penalty.html

Sethuraju, R., Sole, J., & Oliver, B. E. (2016). Understanding Death Penalty Support and

Opposition Among Criminal Justice and Law Enforcement Students. SAGE Open,

6(1), 2158244015624952. https://doi.org/10.1177/2158244015624952

States With and Without the Death Penalty | Death Penalty Information Center. (2016, November

9). Retrieved March 15, 2017, from http://www.deathpenaltyinfo.org/states-and-without-

death-penalty

Bedau, H. A. (1998). The Death Penalty in America: Current Controversies. New York: Oxford

University Press.

Bohm, R. M. (2011). DeathQuest: An Introduction to the Theory and Practice of Capital

Punishment in the United States (4th Ed.). Waltham, MA 02451, USA: Routledge.

Dieter, R. C. (1994, May). The Future of the Death Penalty in the U.S.: A Texas-Sized Crisis |

Death Penalty Information Center. Retrieved February 28, 2017, from

http://www.deathpenaltyinfo.org/the-future-of-the-death-penalty
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 17

Fagan, J. (2005, July 14). PUBLIC POLICY CHOICES ON DETERRENCE AND THE DEATH

PENALTY: A CRITICAL REVIEW OF NEW EVIDENCE. Columbia Law School.

Retrieved from http://www.deathpenaltyinfo.org/files/pdf/MassTestimonyFagan.pdf

Furman v. Georgia. (n.d.). Retrieved March 22, 2017, from https://www.oyez.org/cases/1971/69-

5030

Inc, U. L. (n.d.). Deadlock Law and Legal Definition | USLegal, Inc. Retrieved March 24, 2017,

from https://definitions.uslegal.com/d/deadlock/

J., G. B. S. (n.d.). FindLaws Court of Appeals of New York case and opinions. Retrieved March

23, 2017, from http://caselaw.findlaw.com/ny-court-of-appeals/1230015.html

Lentol, J., Weinstein, H., & Aubry, J. (2005). The Death Penalty In New York (p. 84). Retrieved

from http://nyassembly.gov/comm/Codes/20050403/deathpenalty.pdf

Lumer, M., & Tenney, N. (1995). The Death Penalty in New York: An Historical Perspective,

4(1), 63.

Perry, R. (2007, March 31). The Future of Capital Punishment in New York State. Retrieved

February 28, 2017, from https://www.nyclu.org/en/publications/future-capital-

punishment-new-york-state

Radelet, M. L., & Borg, M. J. (2000). The Changing Nature of Death Penalty Debates. Annual

Review of Sociology, 26(1), 4361. https://doi.org/10.1146/annurev.soc.26.1.43

Sethuraju, R., Sole, J., & Oliver, B. E. (2016). Understanding Death Penalty Support and

Opposition Among Criminal Justice and Law Enforcement Students. SAGE Open, 6(1),

2158244015624952. https://doi.org/10.1177/2158244015624952
THE FUTURE OF CAPITAL PUNISHMENT IN NEW YORK 18

States With and Without the Death Penalty | Death Penalty Information Center. (2016, November

9). Retrieved March 15, 2017, from http://www.deathpenaltyinfo.org/states-and-without-

death-penalty