PUT DEATH PENALTY ON THE SHELF

New York should end its pursuit of capital punishment

Capital punishment was very popular ten years ago. Public opinion polls showed that up to 80% of Americans favored it and believed it to be an effective means of fighting crime. So it wasn't surprising when the state Legislature jumped on the bandwagon to enact a death penalty statute, making New York the last of thirty-eight states to do so.

But we've learned a lot about the death penalty since then.

Thanks to DNA and other evidence, we've learned that since 1973 at least 114 innocent people have been sentenced to death in the United States.

Thanks to numerous studies, we've learned that geographic and racial disparities continue to plague the law's application. Few convicted killers are sentenced to death, yet race and geography play an inordinate role in determining who is selected for the ultimate punishment.

Criminologists have learned that the death penalty doesn't deter crime. As long ago as 1989, the American Society of Criminology passed a resolution calling for repeal of the death penalty, citing among other factors its lack of utility as a deterrent.

In recent years, the homicide rate has risen dramatically in Monroe County in western New York where DA's have sought the death penalty more than in any other county. Meanwhile, it has fallen to a forty-year low in Manhattan, where a death sentence has not been sought since the early 1960's.

We've learned that the death penalty is far more costly than a sentence of life imprisonment without the possibility of parole. In nine years, New York taxpayers have invested at least $170 million in the death penalty, yet the end result has been far from impressive. Four death sentences have been overturned by the state Court of Appeals; three remaining inmates on death row have been declared ineligible for execution; and no executions have been scheduled or carried out.

Now the slate has been wiped clean. Thanks to a June 24 ruling by the Court of Appeals, we now know that New York's death penalty law is unconstitutional. The Court objected to the so-called "deadlock" provision, under which a jury was informed that if it did not agree unanimously on either of two sentencing options - the death penalty or life imprisonment without parole - then the judge would impose a third, more lenient sentence: life with the possibility of parole. The Court ruled that this instruction could coerce jurors into voting for a death sentence to avoid the possibility of a killer getting paroled.

New York's experiment with capital punishment has been a failure by anyone's measure. However, we're hardly alone among states experiencing problems with the death penalty. In several, study commissions have been appointed to investigate why capital punishment doesn't work, why innocent people are sentenced to death, why the death penalty is haunted by error, bias and inconsistency, why mentally ill or retarded defendants are so likely to face execution, why it costs so much, and so on.

After thirteen people on Illinois' death row were found to be innocent, Gov. George Ryan set up a non-partisan commission to study the state's death penalty law and recommend needed reforms. Recently, Massachusetts Gov. Mitt Romney introduced a bill in his state designed to minimize the possibility of an innocent person being put to death. But New York's defunct death penalty law falls well short of the reforms and safeguards recommended by the commissions in Illinois and Massachusetts. We've learned a lot since 1995 about how the death penalty can go wrong.

What should be done? The state Legislature will be tempted to perform a quick fix of the death penalty statute when it reconvenes later this month. While this might be the politically expedient course, it would also be an irresponsible one.

Merely putting a bandage on a bad law would only postpone the day of reckoning for a number of other problems. In its current form, the law cannot be applied evenly because of the unlimited discretion it grants to district attorneys in deciding if and when to seek a death sentence.

The American Bar Association has identified loopholes in New York's law that could result in the execution of an innocent person. In earlier hearings, judges on the Court of Appeals expressed concern that the so-called "felony aggravator" provision in New York's law, as well as the possible withholding from juries of mitigating evidence by mentally disturbed defendants, could result in death sentences being handed out arbitrarily and inappropriately.

These and other issues would need to be addressed by the courts eventually, at much greater cost to the taxpayers. We could wait another nine years, waste another $170 million, and tie up the legal system in more knots only to see the law struck down again. In the mean time, we'd subject more murder victims' family members to the agony and uncertainty of a capital prosecution while knowing that the law is unworkable and flawed. That would be "cruel and unusual" punishment for victims.

The striking of New York's death penalty law by the Court of Appeals offers a rare opportunity to stop and re-evaluate where we stand with capital punishment. Even the sense of political urgency that put the law on the books in 1995 is no longer there. A 2003 public opinion poll by Quinnipiac University found that New Yorkers now favor a sentence of life imprisonment without possibility of parole over the death penalty for first-degree murder by a wide margin - 53% to 38%.

Surely it's time to recognize that capital punishment is incompatible with New York's values and legal traditions. A sentence of life in prison without the possibility of parole for the most serious offenses would keep us just as safe. It would also afford a measure of protection and hope to innocent people who might be wrongly convicted.

We would save about $20 million a year by not having a death penalty. We could invest that sum in programs designed to help New York citizens instead of in a program that may (or may not) eventually kill one. We could offer more help and guidance to troubled kids before they turn to drugs and crime. We could dedicate much more funding to crime victims' assistance programs, which are woefully inadequate in this state. These are programs that actually work and make meaningful contributions to the public good.

Instead of investing foolishly in vengeance, we ought to be investing wisely in humanity.