The Future of Capital Punishment in New York State

Testimony of Robert Perry, Legislative Director of the New York Civil Liberties Union, before The New York State Assembly Committees on Codes, Judiciary, and Corrections, regarding The Future of Capital Punishment in New York State

My name is Robert Perry. I am the Legislative Director of the New York Civil Liberties Union (NYCLU). The NYCLU is the New York State affiliate of the American Civil Liberties Union and has approximately 35,000 members across the state. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

On behalf of the NYCLU, I thank the Assembly Speaker Sheldon Silver and Assembly Members Joseph Lentol, Helene Weinstein, and Jeffrion Aubry for convening this hearing to re-examine issues of law, public policy and morality related to New York’s death penalty statute.

I preface my remarks today by noting that some have interpreted the results of the recent presidential election to mean that Americans expect the conduct of government to reflect their “moral values.” While it is not entirely clear what this term means, I recommend to you this observation made in 1846 by a Massachusetts legislator: “At every instance in which the law violates the sanctity of human life, that life is held less sacred by the community among whom the outrage is perpetrated.”2

There is now overwhelming evidence that the state, in arrogating to itself the role of executioner, is pursuing death-penalty prosecutions in a manner that compromises fairness and justice – violating both constitutional principles and the sanctity of human life.

The notice for this hearing poses two basic questions: should New York reinstate the death penalty? And if reinstated, how should the law be written? It was apparent in 1995, when New York reinstated the death penalty, that there were insurmountable constitutional problems in fashioning a death penalty statute that meets the minimum legal standards of due process and equal protection. There is today a significant body of empirical evidence that indicates that the death penalty, no matter how it is reduced to statutory language, cannot be saved from its inherent constitutional flaws. New DNA technology has brought to light gross abuses in death penalty prosecutions. It is now well established that state governments have routinely imposed the ultimate sanction unfairly and disproportionately on poor and minority defendants. In the face of this sad and shameful record, even some prominent death penalty advocates have called for a suspension of executions pending a thorough review of the fairness of death-penalty statutes.

Today, twelve states and the District of Columbia have abolished the death penalty. No state other than New York has reinstated the death penalty since 1995. Indeed, the national and international trend has been to restrict the death penalty, impose a moratorium, or repeal it. In 2000, Governor George Ryan of Illinois, a Republican, declared a statewide moratorium on executions after it was established that thirteen people sentenced to death after the state had reenacted its death-penalty statute were, in fact, innocent. A bipartisan commission appointed by Governor Ryan determined that the only way to ensure that an innocent person would not receive a death sentence is to abolish the death penalty.

The NYCLU therefore urges you and your colleagues in the New York State Legislature to give full and careful consideration to the application of the death penalty in light of basic constitutional standards of fairness. It is the position of the NYCLU that if you do so, there is only one conclusion to be reached: the Legislature must repeal the authority of the state to impose punishment by death.

What follows in this testimony is a summary overview of the findings on which the NYCLU bases its recommendation.

The Death Penalty System Is Fraught with Serious Error

Prosecutorial error and abuse

A comprehensive study by a team of Columbia University scholars concluded that America’s death penalty system is “persistently and systematically fraught with error.”

The first part of this study, based on an analysis of 4,578 capital cases prosecuted between 1973 and 1995, includes the following findings:

The overall rate of prejudicial error in the American capital punishment system is 68 percent — in other words, courts have found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences reviewed in this study.
Death-penalty trials produce so many mistakes that it takes three judicial inspections to catch them — leaving grave doubt as to whether the courts are able to catch every serious error. After state courts threw out 47 percent of death sentences due to serous flaws, federal courts found serious error in 40 percent of the remaining cases.
The most common errors prompting a reversal in state court after a death-penalty conviction are (1) incompetent defense lawyers who failed to seek or simply missed important evidence that the defendant was innocent; and (2) police or prosecutors who did discover such evidence of innocence but suppressed it.
Catching error in capital cases takes a long time. Inmates spend, on average, 10.6 years on death row pending the review required to uncover errors and abuses.

Ineffective state law-enforcement systems — those with the worst records of arresting, conviction, and incarcerating serious criminals — are the most likely to conduct seriously flawed investigations, prosecutions and trials of capital defendants.
Lower competence in criminal prosecution is associated with greater pressures to invoke the death penalty in response to the ineffectiveness of law enforcement — that is, the death penalty is sought in weaker cases and with limited prosecutorial competence.
Significantly higher error rates in capital cases occur in those states in which judges are more susceptible to “political discipline” (through direct elections and elections that are more frequent and more partisan) as a consequence of issuing rulings that are inconsistent with popular sentiment.
The greater the proportion of a state’s population that is African-American, the greater the state’s rate of serious error in death-penalty cases. (The same finding applies regarding welfare recipients in federal habeas corpus cases.) How can this be explained? The study concludes that the “racial factor” is a powerful indicator of the pressure exerted upon officials to respond forcefully to crime.

“[T]he real errors eventually exposed by . . . typical DNA exonerations are not the kinds that lawyers and appellate courts are capable of discerning and retrials are designed to cure. If it were not for the sheer accident that a biological sample happened to be available, the miscarriage never would have been discovered . . . Suddenly and starkly, DNA reveals us and our institutions to be what they strive to escape notice for being: inherently but often unknowably — and thus incurably — flawed, unreliable, and untrustworthy.”

The State of Kansas reviewed its death penalty in 2003 and found that capital cases are 70% more expensive than comparable non-capital cases, including incarceration.
A study by Indiana’s Criminal Law Study Commission found that the total costs of the death penalty exceed the complete costs of life without parole sentences by about 38%, assuming that 20% of death sentences are overturned and re-sentenced to life.
The most comprehensive study in the country found that North Carolina spends $2.16 million more to execute a defendant than the state spends to prosecute a non-death penalty murder case that results in a sentence of life imprisonment. The majority of those costs occur at the trial level.
Enforcing the death penalty costs Florida $51 million a year above and beyond what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida has carried out since 1976, that amounts to a cost of $24 million for each execution.
In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest level for 40 years.
The death penalty costs California $90 million annually beyond the ordinary costs of the justice system — $78 million of that total is incurred at the trial level.

“If what were at issue here was the fabrication of toasters . . . or the processing of social security claims, or the pre-takeoff inspection of commercial aircraft — or the conduct of any other private or public-sector activity — neither the consuming and the taxpaying public, nor managers and investors, would for a moment tolerate the error rates and attendant costs that dozens of states and the nation as a whole have tolerated in their capital punishment system for decades. Any system with this much error and expense would be halted immediately, examined, and either reformed or scrapped.”