Pace Law Review Volume 17 Issue 1 Fall/Winter 1996 Article 3 September 1996 When the Cheering Stopped: An Overview and Analysis of New York's Death Penalty Legislation James R. Acker Follow this and additional works at: https://digitalcommons.pace.edu/plr Recommended Citation James R. Acker, When the Cheering Stopped: An Overview and Analysis of New York's Death Penalty Legislation, 17 Pace L. Rev. 41 (1996) Available at: https://digitalcommons.pace.edu/plr/vol17/iss1/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. When the Cheering Stopped: An Overview and Analysis of New York's Death Penalty Legislation James R. Acker* I. Introduction ....................................... 42 II. New York's Death Penalty Legislation ............ 46 A. First-Degree Murder ........................... 48 1. The Mens Rea Requirement ............... 48 2. The Minimum Age for Death-Penalty Eligibility .................................. 50 3. Twelve Forms of First-Degree Murder ..... 54 B. The Sentencing Provisions ..................... 86 1. Notice of Intent to Seek the Death Penalty .................................... 86 2. Guilty pleas ................................ 92 3. The Aggravating Factors ................... 99 4. The Mitigating Factors .................... 112 5. The Sentencing Option and the Sentencing D ecision ................................... 127 6. The (Partial) Exclusion of Mentally Retarded Offenders ........................ 141. C. The Capital Jury .............................. 150 D. Defense Counsel, the Prosecution, and Their Resources ...................................... 160 1. Defense Counsel and Assistance for the D efense .................................... 160 2. Assistance for Capital Prosecutions ........ 175 E. Appeals and State Post-Conviction Motions .... 181 * Associate Professor, School of Criminal Justice, The University at Albany, State University of New York. B.A. Indiana University, 1972; J.D. Duke Univer- sity, 1976; Ph.D., University at Albany, 1987. I am indebted to many, too numerous to name, for helping to sharpen my thoughts as I considered this article. I especially benefited from a series of discus- sions with Jonathan Gradess, George Kendall, and Al O'Connor. I alone am re- sponsible for errors and oversights. 1 PACE LAW REVIEW [Vol. 17:41 1. The Appeal of Cases Resulting in a Sentence of Death ......................... 181 2. Post-Conviction Motions ................... 199 F. The Final Stages .............................. 205 1. Death Warrants and Stays of Execution... 205 2. Determining Incompetency for Execution .. 207 3. Executive Clemency ....................... 215 4. Execution .................................. 218 III. Conclusion ......................................... 223 I. Introduction "I was taught from a little girl that you have to be careful what you ask for. .. " -Assemblywoman Gloria Davis' After defeating incumbent Mario Cuomo and assuming of- fice in 1995, George E. Pataki became New York's first Republi- can governor since 1974.2 Throughout his election campaign, Pataki promised to restore capital punishment to a state which last conducted an execution in 1963, 3 and which had on its books a constitutionally deficient death penalty statute. The New York Court of Appeals had invalidated New York's very restrictive death penalty statute in 1973, 4 and subsequently 1. Record of Proceedings, New York State Assembly, Bill No. 4843, 474 (Mar. 6, 1995) [hereinafter Assembly Debate]. 2. The last Republican governor was Malcolm Wilson, who served the remain- der of Nelson Rockefeller's unexpired term after Rockefeller resigned as New York's governor in 1973 to become Vice President of the United States under Presi- dent Gerald Ford. THE NEW YoRK REDBOOK, 1993-1994 31 (George A. Mitchell ed., New York Legal Publishing Corp. 92d ed. 1993). Governor Wilson signed death penalty legislation in 1974. Act of May 17, 1974, ch. 367, sec. 2, § 60.06, 1974 N.Y. Laws 1209; id., sec. 5, § 125.27. Over two decades later, Wilson and several other prominent New Yorkers endorsed a statement of "Fairness Principles" regarding the drafting of the 1995 death penalty statute. NEW YORKERS FOR FAIRNESS IN CAPITAL PUNISHMENT, STATEMENT OF PRINCIPLES (undated) (on file with PACE LAW REVIEW). 3. Eddie Lee Mays was executed for murder on August 15, 1963. WILLIAM J. BOWERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN AMERICA 1864-1982 471 (1984). See also, The Last Electrocution, N.Y. TIMES, Mar. 7, 1995, at B5 (describ- ing Mays' crime and his execution). 4. The Temporary Commission on Revision of the Penal Law and Criminal Code had recommended abolition of the death penalty in New York in 1965. In- stead of abolishing capital punishment, the State Legislature restricted it signifi- cantly that same year to apply only to the murder of a peace officer or to murder committed by a life term prisoner. Act of June 1, 1965, ch. 321, sec. 1, § 1045, 1965 https://digitalcommons.pace.edu/plr/vol17/iss1/3 2 1996] WHEN THE CHEERING STOPPED 43 ruled that replacement legislation enacted in 1974 also was un- constitutional. 5 Then, for eighteen consecutive years, the State Legislature approved capital punishment bills, only to have Governors Carey (from 1977 through 1982) and Cuomo (from 1983 through 1994) veto the bills.6 A new chapter began in New York's extensive history with the death penalty when Governor N.Y. Laws 1021-22. A 1971 amendment added the killing of an employee of a jail or correctional institution as a form of capital murder. Act of July 6, 1971, ch. 1205, sec. 1, § 125.30(1)(a)(ii), 1971 N.Y. Laws 3122-23. At this time, juries had unregulated discretion to sentence a convicted murderer to death or to life impris- onment. In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court ruled that sentences of death imposed at the unfettered discretion of sentencing authorities amounted to cruel and unusual punishment under the Eighth and Fourteenth Amendments. Applying Furman, the New York Court of Appeals ruled in 1973 that the state's death penalty procedures were unconstitutional. People v. Fitzpat- rick, 32 N.Y.2d 499, 512, 300 N.E.2d 139, 145, 346 N.Y.S.2d 793, 802, cert. denied, 414 U.S. 1033 (1973). See generally James R. Acker, New York's Proposed Death Penalty Legislation: Constitutional and Policy Perspectives, 54 ALB. L. REV. 515, 524-29 (1990)[hereinafter Policy Perspectives]. 5. New York, like several other states in the confusing aftermath of Furman v. Georgia, 408 U.S. 238 (1972), enacted mandatory death penalty legislation in 1974. The statute required that a sentence of death be imposed upon offenders convicted of murdering a police officer or the employee of a jail or correctional insti- tution, and upon life term prisoners convicted of murder. Act of May 17, 1974, ch. 367, sec. 2, § 60.06, 1974 N.Y. Laws 1209; id., ch. 367, sec. 5, § 125.27(1)(a), 1974 N.Y. Laws 1209-10. The Supreme Court subsequently ruled that mandatory capi- tal punishment for murder is unconstitutional. Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976). Even nar- rowly defined crimes, such as the murder of a police officer, could not automatically be punished by death with no consideration given to individual offense and of- fender circumstances. Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977) (per curiam). Relying on these decisions, the New York Court of Appeals ruled that mandatory capital punishment for the murder of a corrections employee, as pro- vided under the new death penalty law, was unconstitutional. People v. Davis, 43 N.Y.2d 17, 371 N.E.2d 456, 400 N.Y.S.2d 735 (1977), cert. denied, 435 U.S. 998 (1978), and cert. denied sub nom., People v. James, 438 U.S. 914 (1978). A few years later, the state court invalidated the portion of the statute mandating capital punishment for murder committed by a life term prisoner. People v. Smith, 63 N.Y.2d 41, 468 N.E.2d 879, 479 N.Y.S.2d 706 (1984), cert. denied, 469 U.S. 1227 (1985). The United States Supreme Court later ruled that mandatory capital pun- ishment for life-term prisoners convicted of murder is unconstitutional. Sumner v. Shuman, 483 U.S. 66 (1987). See generally Policy Perspectives, supra note 4, at 529-33. 6. See Sponsor's Memorandum in Support of N.Y.S. 6350, N.Y.A. 9028, 217th Sess. (1994) (providing legislative history of capital punishment bills that passed the State Senate and Assembly, gubernatorial, vetoes, and failed override at- tempts). See also Policy Perspectives, supra note 4, at 535-36. 3 PACE LAW REVIEW [Vol. 17:41 Pataki signed legislation returning capital punishment to the 7 State of New York, effective September 1, 1995. The enactment of this law fulfilled Governor Pataki's cam- paign promise, and a commitment which the new governor reit- erated during his inaugural address to the people of New York: Our founders believed that one area where government should be strong and effective was maintaining public order and public safety. They understood society's first obligation is to those citizens who obey the law and respect the rights of others, and they expect government to protect them from those who do not. Let me also note that when a society does not express its own horror at the crime of murder by enforcing the ultimate sanction against it, innocent lives are put at risk. Not out of a sense of vindictiveness, then, but a sense of jus- tice-indeed, a sense of compassion for those who otherwise might become victims of murder-I will ask the Legislature to pass and I will sign and enforce the death penalty. And let me say-and let me say: if one police officer's life is saved, if one less child is caught in a crossfire, if one fewer cabdriver or shopkeeper is killed in a robbery, then the death penalty will have proven itself worthwhile.8 On hearing these remarks, Pataki's audience erupted for what was by far the most prolonged and enthusiastic ovation of his address.9 Not all in attendance were so taken by these 7.