(Buffalo Spree  September/October 2000)
 

Can New York Kill?
By Bruce Jackson
 

BAD PLACES
Except for Judas, Brutus and Cassius, who were sentenced to be gnawed forever in one of Lucifer’s three mouths, the worst people Dante could imagine were doomed to eternity stuck in the frozen lake Cocytus, the Ninth Circle of Hell. The fabled fire and brimstone were the province of lesser criminals.

So it is perhaps no fluke that New York’s present death row is at Clinton Correctional Facility in Dannemora, up near the Canadian border, the coldest and most isolated prison in the state. The last time New York executed anybody was at Sing Sing prison in Ossining in 1963. Not long after that, death row and the execution chamber were moved to Greenhaven prison in Duchess county, 90 minutes from midtown Manhattan. Clinton Correctional Facility is 330 miles and six hours north of Manhattan, just about as far as you can get from urban lawyers who might want to talk to you about items of mutual interest.

FURMAN
In 1972, the Supreme Court ruled in Furman v. Georgia that nearly all US capital punishment procedures were unconstitutional. The ruling didn’t ban the death penalty itself (though some of the justices would have preferred that), it only said the process was so capricious hardly any defendants had a fair shot at justice. Furman was a close decision: 5 to 4, with Douglas, Brennan, Stewart, White and Marshall writing separate opinions in support of the judgment; Burger, Blackmun, Powell and Rehnquist writing separate dissents.

Several states immediately set about drafting new death penalty laws that would be in compliance with the conditions set forth in Furman. For years those laws were tested in the courts. Some were again kicked back, whereupon those states tuned their legislation and eventually they wound up with capital punishment laws that seemed in themselves invulnerable. By the mid 1990s, if condemned prisoners were going to appeal, it would either have to be on a creative new reading of the law or, more commonly, on some perversion of justice in the prosecution of their individual cases.

New York legislators regularly passed death penalty bills in those post-Furman years. Some of those legislators fervently believed that capital punishment was useful and just; others were just going along what they thought the polls said the public wanted. Many legislators who voted for the capital punishment bills gave them little thought because they knew that governors Hugh Carey and Mario Cuomo would veto every death penalty bill that made it to their desks. Those legislators could tell their constituents they were tough on crime and nobody got killed.

GOVERNOR DEATH
Things changed when George Pataki ran for governor in 1984. One of his key campaign promises was that he would end that 18-year tradition of death penalty vetoes. If the legislature put a death penalty law on his desk, he said, he would sign it immediately. As soon as Pataki was elected he asked where the death penalty bill was.

The legislature delivered and he signed it into law on March 7, 1995. It was a carefully crafted law. After all those vetoed years, all those years of watching other states learning how to kill, New York’s legislators had a very good idea what pitfalls had to be avoided if New York was going to be able to put any malefactors to death.

New York’s capital punishment law permits a death sentence for murder when there are any of about a dozen other factors present. These include killing a police officer or a probation, parole, court or corrections officer; killing a judge, a witness or a member of a witness’s family; killing while serving a life sentence or while escaping from prison, or while committing other felonies. They include murder for contract, serial murder, torture murders, and murders by someone who has been convicted of murder before. They also include murder in the course of a terrorist act and murders by people with prior serious felonies. There are a lot of roads to New York’s death row.

What distinguishes New York’s death penalty law from all others is the establishment of a Capital Defender Office (CDO) to provide competent legal defense to people charged with capital murder or likely to be charged with it, and the provision of funds to pay private attorneys to take on the cases the CDO doesn’t have time or resources to handle. In states like Texas, only rich defendants stand much of a chance at trial, because there are almost no public funds available for an adequate defense. The people who drafted New York’s capital punishment legislation wanted to be sure their cases weren’t going to be bounced by any appellate judge who knew that Miranda was more than a mantra on a tv cop show. If you’re the defendant in a capital case in New York, you will have a lawyer who won’t sleep during your trial.

The first person sentenced under News York’s 1995 death penalty legislation was Darrel Harris, a decorated former New York City correction officer  convicted of killing three people at a Brooklyn social club. He has since been joined by four other men. All five of them are up there in Dannemora, waiting to learn whether New York will really get to kill anybody, whether it will kill them.

WHAT GOOD DOES THE DEATH PENALTY DO?
So far as I can tell, the only demonstrable benefit of capital punishment in New York is that it keeps a lot of people employed who otherwise might not be employed, or who would be off doing something else. The process of trying to put someone to death legally is enormously expensive and time-consuming. Scores of lawyers work on both sides of the double-trials (one trial decides guilt, another decides the sentence), scores of court clerks and judges handle all those appeals and decisions, and there are scores of support people along the way to get the work done. Death rows are far more labor intensive than any other kind of custody: more guards, more paperwork, more everything. You’ve perhaps heard that it’s far cheaper to keep someone in prison for 50 years than it is to try that same person for capital murder and go through everything that process requires. It’s true. It costs a fortune to kill someone legally.

But hardly anyone talks about money when they talk about the death penalty anyway, especially since these are good times in New York State and the proponents of the death penalty were careful not only to provide money for what might be an adequate defense, but also extra money and legal help for the counties so local prosecutors don’t exhaust their operating budgets pursuing high profile death penalty cases. The 1995 legislation spreads enough money around so local officials can pursue capital cases they might not be willing to pay for if they had to use their own money doing it.

What about deterrence? Doesn’t a good execution now and then scare off other people contemplating heinous acts? At least once a year, and usually far more often than that, Governor Pataki’s press office issues a statement ascribing much of the decline in New York’s crime and murders rate to the reimposition of capital punishment shortly after Pataki’s inauguration. State Senator Dale M. Volker (R-Depew), for decades a strong and frustrated advocate for a New York death penalty and a key drafter of the present legislation, is convinced of the same thing. Few people who know much about the criminal justice system agree with either of them.

There is no demonstrable correlation between murder rates in states that have the death penalty and states that do not, nor is there any correlation between murder rates and states that manage to execute a higher number of its murderers than other states. Over the past 25 years, states with the death penalty had a slightly higher murder rate (9.3) than states without it (9). Might that be because states with more murders were more likely to enact capital punishment statutes than states with few murders? Nope, no correlation there either. The only consistent correlation anyone has ever found between capital punishment and murder rates is that there seems to be an execution halo effect: for a period ranging from a few days to few weeks after a particularly well-publicized execution, kinky murders in that state experience an upward spike, and then they settle down again to their ordinary rate.

There was indeed a huge drop in crime rates across New York state, and in New York City in particular over the past decade. The criminal numbers for New York City are so great that whatever is happening elsewhere in the state, the overall pattern is determined by what’s going on down there. In the five boroughs of New York City, where the death penalty has been sought only once and where the Manhattan D.A. Frank Morgenthau has never sought it at all, credit for the decline in crime rates have been claimed by the former police commissioner and the current mayor, neither of whom has gotten to execute anybody.

Similar drops in crime rates have occurred in cities and states where there have been no changes in police procedure or capital cases in the past decade. Far more important is the decline in the huge bulge of the population most likely to commit violent crime–young men–and the recent great increase in employment.

WHY THE DELAY?
State Senator Volker says he expects the first executions in New York within two years. I think he’s dreaming. Only one of the five men on New York’s death row even has an appellate lawyer, and his first appellate brief is at least a year away. There are major questions that have to be tested with each of those five and each is certain to be reviewed carefully and critically by higher courts. The New York death penalty laws may have been drafted to avoid the pitfalls that have cluttered the process in so many other states, but that doesn’t mean they haven’t wandered into new pitfalls. The courts will have to examine both the legitimacy of the laws themselves and the way they applied in each case. That will take years.

It takes nearly a decade to execute someone, even in states that have had capital punishment statutes on the books since shortly after Furman. That’s because the process is fraught with error and the consequences of killing someone in error are horrible to contemplate, even to people who think it is good for the state to kill people who are already under total restraint. With only a few exceptions, even the most fervid death penalty advocate wants the state to kill the right guy, not just anybody.

Everyone I know in the criminal justice industry—pro- or anti-death penalty–says that the capital punishment system is a mess. The huge backlogs in state and federal appellate courts and the ever-increasing populations of death rows are evidence of that. But no one knew how bad things were until June of this year when a team headed by James S. Liebman, Simon H. Rifkin Professor of Law at Columbia University Law School, released “A Broken System: Error Rates in Capital Cases 1975-1995,” a detailed study of 5760 capital murder cases and 4578 appeals in state and federal courts.

During the 23-year period covered by Liebman’s study there was serious reversible error in 68%–nearly 7 of every 10—capital sentences. State courts reversed 47% of death sentences and then federal courts found reversible error in 40% of the cases that the state courts found faultless. “Capital trials produce so many mistakes that it takes three judicial inspections to catch them,” he wrote, “leaving grave doubt whether we do catch them all”

The primary causes for reversal were incompetent attorneys (37%), some of whom didn’t bother to look for evidence that might have shown their clients weren’t guilty or, if guilty, didn’t deserve the death penalty, and prosecutors and police who hid exculpatory evidence from the defense and the jury (19%). That is to say, 56% of those cases were reversed because the defendants had attorneys who weren’t well enough trained or motivated to provide even a semblance of adequate defense, or because they were up against prosecutors and police so anxious to get a death penalty conviction they were willing to forget about justice. The two conditions were partially a result of the first: police and prosecutors are more likely to blur or even cross the boundaries if they know their opposition is toothless. The other cases were reversed because of coerced confessions, racially distorted jury pools, informers who reported on privileged conversations between defendants and attorneys, and bias and errors by the judges.

Higher courts don’t reverse just because they find error; they reverse only when they believe that the error very well might have altered the outcome of the trial. The 68% reversals are only those cases in which defense attorneys were able to convince the courts that the error or misbehavior rose to a level of contaminating the entire process.

The results of those reversals are equally dismal. When state appellate courts sent capital cases back for retrial because of egregious error in the first trial, 82% of the defendants wound up with sentences less than death and 7% were found not guilty of the crime at all. The whole process from sentence to reversal took, on the average, eight to nine years, which means that most of the people who spend nearly a decade on death row never should have been there for a single day.

Men and women sentenced to death in America have a right to three levels of appeal (direct state appellate, state post conviction and Federal habeas corpus), but resources to permit those appeals are being reduced in many states and at the Federal level. Last year President Clinton signed a law reducing the time condemned prisoners have to seek relief in federal courts and budgets for defender groups that might help condemned prisoners formulate appeals are shrinking everywhere, including New York. But even with that reduction in resources with which to challenge improper convictions, appellate attorneys are getting the same high level of reversals as five and ten years ago. That means that even though the problems with the system have been apparent for some time (you just have to look at why your state’s capital cases get kicked back to know what your state is doing wrong), the errors are still being committed and discovered at approximately the same rate.

Some states had much higher reversal rates than others, but all states with capital sentences had them, and three (Kentucky, Maryland, Tennessee) reached 100%: every capital conviction in those states was reversed. After 13 Illinois death row inmates were found to have been wrongly convicted, and after one man was exonerated by a college journalism class less than two days before he was to be executed, Republican Governor George Ryan of Illinois in January suspended executions. Moratorium movements are developing all over the country. There are bills for a national moratorium in both houses of congress, several cities have voted for them, and last spring Buffalo’s Common Council voted to request one in New York.

It’s important to keep in mind that the moratoriums aren’t about whether or not we should have a death penalty. They’re about whether we should continue trying to kill people in such a sloppy fashion. In what other aspect of public or private life would we tolerate a hugely expensive process that was so badly operated that it had to be done over 68% of the time?

SO WHEN DO WE GET TO EXECUTE SOMEBODY?
None of the New York cases has been tested in the crucible of appellate review. Prosecutors and judges alike are anxious that the first cases that go through be impeccable because they will test the laws. The usual pattern in death penalty appeals is for the early cases to challenge both the trial and the law. After enough of those go through, there isn’t much to test in the law any more and the appeals go to what happened at trial.

I said that the drafters of the New York capital legislation set about avoiding the key pitfall of capital punishment every place else in the United States by insuring that the accused would have adequate trial counsel and the condemned would have adequate appellate counsel. It was a fine idea, but it didn’t last very long in practice. Governor Pataki has forced a reduction in the support money for capital defense attorney's clerks and paralegals.

Neither clerks nor paralegals are lawyers’ luxuries. Capital cases require a huge amount of work, they consume an enormous amount of time. An error by a lawyer before or during the trial might harm the defendant in ways that cannot be repaired later. Because human life is at stake it is critically important that all contingencies be considered, all work be exact.

Pataki successfully pressured the Court of Appeals to cut the lawyers’ support money. Without the support staff they had in the earlier years of the legislation, the defense lawyers had to work far more hours. Work that had previously been done by a $40 per hour paralegal was now being done by a $175 per hour attorney. Then Pataki struck again: he said the lawyers fees were improperly escalating and this time he pressured the Court of Appeals to cut the fees paid to the attorneys. The Court did as he demanded, citing as justification the much lower fees paid to court-appointed lawyers in most other states. They missed or chose to ignore the irony: the lousy jobs done by those lower-paid lawyers in other states were the reason so many capital cases in those states had been reversed on appeal.

Buffalo criminal defense attorney Mark Mahoney sees Pataki’s attack on capital defense as not only harmful to the accused, but also to the state of New York: “If 86% of the cases are being overturned in a combination of state and federal review, they’re wasting millions and millions of dollars on bad cases. The only way to winnow out those cases is by having good defense lawyers who either keep them from being prosecuted to begin with or who do the job necessary to show jurors that it isn’t a death penalty case.”

But what if the various appellate courts decide that the current five cases are free enough of contamination so the five condemned men can be put to death, or what if those cases get tossed and the police and prosecutors tune their procedures enough so the next five or the five after that are cleared for the needle? Will New York do it? Will New York want to do it?

FINAL THOUGHTS ON THE ULTIMATE PENALTY
I told you earlier that Harry Blackmun was one of the four Supreme Court Justices who dissented in Furman v. Georgia. As time went by, Justice Blackmun came to regret that vote, not only because he thought capital punishment was inherently wrong but more because he saw, in the two decades after Furman, no way it could be applied fairly, however careful the legislation empowering it, however sincere the people trying to utilize that legislation. Blackmun expressed that shift in his thinking most eloquently in another dissenting opinion, Callins v. Collins, issued February 22, 1994, only hours before Bruce Edwin Callins was scheduled to be executed by the state of Texas:

From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question–does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.
Public opinion seems to be catching up to Blackmun. A January 2000 ABC News poll found 64% of Americans support the death penalty for murder, but that support dropped to 48% when the option of life without parole was included in the question. That is consistent with a trend in public opinion over the past six years: decline in support for capital punishment itself, and far greater decline when the option of life without parole is included in the survey questions.

Where will New York public opinion be five or six or more years from now when the first round of condemned prisoners is ready for the kill? If this trend against capital punishment continues, will the legislature be willing to let it happen? Will whoever is governor then be willing to it happen? Will you be willing let it happen?
 
 

copyright 2000 Bruce Jackson
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