DISTRICT ATTORNEY - NEW YORK COUNTY

News Release
December 15, 2004

Contact: Barbara Thompson
212.335.9400

Manhattan District Attorney Robert M. Morgenthau gave the following testimony today at a public hearing before the New York State Assembly Standing Committees on Codes, Judiciary and Correction on the death penalty in New York at the Association of the Bar of the City of New York:

"The decision by the New York Court of Appeals, in People v. LaValle, holding the current statutory sentencing scheme in capital cases unconstitutional, should have come as no great surprise to anyone familiar with death penalty litigation. Courts tend to be especially scrupulous when it comes to protecting the right to due process where the defendant's life is at stake. A comprehensive study at Columbia University, published in 2000, showed that from 1973, when the United States Supreme Court reinstated the death penalty, to 1995, appellate courts across the nation invalidated death sentences in over two-thirds of the capital cases that came before them. The special concern that courts exhibit in these cases is not, as some would have it, a distortion of our justice system. It is, as Justice Thurgood Marshall said in a 1986 case, "a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different."

It has long been recognized that death is indeed different. More than 150 years ago, in 1846, Robert Rantoul, Jr., a member of the Massachusetts legislature conducted an unusually sophisticated study of the death penalty in Europe. In a series of papers to the governor and the legislature, he called for the abolition of capital punishment. Rantoul, who also served as United States Attorney in Massachusetts and as a U.S. Senator and Representative in Congress, said, "after every instance in which the law violates the sanctity of human life that life is held less than sacred by the community among whom the outrage is perpetrated." Rantoul also found in his research that nations with a low proportion of executions to convictions had declining homicide rates, and that periods with unusually high numbers of executions were followed by increased incidents of homicide, the opposite of what deterrence theory would predict.

The case against the death penalty has also been made over the years in New York. In 1841, a report of the New York State Assembly recommended abolition of "punishment of death by law." Among other things, the report said that "the uncertainty of conviction by juries for capital offenses has grown almost into a proverb . . . in the clearest case it is constantly seen that they will not convict." And more than a century later, in 1965, the Temporary Commission on the Revision of the Penal Law and the Criminal Code, chaired by Assemblyman Richard J. Bartlett, Republican of Glens Falls, concluded that the death penalty was a "barbarism," which had a "seriously baneful effect on the administration of criminal justice." The commission observed that erroneous convictions and executions were inevitable and would "destroy the moral force of the entire penal law," that the death penalty could not be administered in the United States "with even rough equality," and that the number of cruel and repulsive murders "never will be greatly influenced by abolition [of the death penalty]."

Numerous studies since the Bartlett Commission have reached similar results. These studies and our centuries of experience with the death penalty lead inexorably to one conclusion: the death penalty serves no useful purpose and has no place in a sensible and civilized justice system. Instead of trying to amend the existing statute to meet the concerns expressed by the court in LaValle, the legislature should take this opportunity to reconsider its 1995 decision and do away with the death penalty in New York once and for all.

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In 1972 the Supreme Court of the United States, in Furman v. Georgia found unconstitutional the Georgia death penalty statute and, by extension, death penalty statutes in 38 other jurisdictions, on the ground, among others, that it did not provide a jury with sufficient guidelines for determining whether the death penalty should be imposed. Each of the nine Justices wrote separate opinions totaling 50,000 words. This was the longest Supreme Court decision in history, and it did not provide any clear guidelines as to how the death penalty statutes could be made to conform to constitutional standards. Chief Justice Burger and Justices Rehnquist, Blackmun and Powell voted to uphold the constitutionality of the statute. Justice Brennan, Marshall, Douglas, Stewart and White found the Georgia statute unconstitutional. Powell said in his dissent:

Mr. Justice Douglas concludes that capital punishment is incompatible with notions of "equal protection" that he finds "implicit"' in the Eighth Amendment…Mr. Justice Brennan bases his judgment primarily on the thesis that the penalty "does not comport with human dignity"…Mr. Justice Stewart concludes that the penalty is applied in a "wanton" and "freakish" manner…For Mr. Justice White it is the "infrequency" with which the penalty is imposed that renders its use unconstitutional…Mr. Justice Marshall finds that capital punishment is an impermissible form of punishment because it is "morally unacceptable" and "excessive"…capital statutes, if any may avoid condemnation in the future under the variety of views expressed by the collective majority today.

Thus it was predictable that Furman would lead to more litigation and that in Justice Brennan's words the death penalty would be as random as a "lottery" and in Justice Stewart's words being sentenced to death is like being "struck by lightning". To add to the confusion as to the constitutionality of death penalty statutes, in Woodson v. North Carolina, decided in 1976, the Supreme Court ruled that a North Carolina death penalty statute was unconstitutional because it did not give the jury any discretion, i.e., it made the death penalty mandatory for certain crimes. The Court also ruled, in similar fashion, on the Louisiana death penalty statute. So you have Furman, holding that the Georgia death penalty statute was unconstitutional because it did not provide the jury with sufficient guidelines and Woodson, holding that the North Carolina statute was unconstitutional because it did not give the jury any discretion.

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The case of Raleigh Porter, who was sent to death row in Florida in 1978, gives good insight into the wildly arbitrary and random nature of decisions made in death penalty cases. In 1978, Raleigh Porter, age 22, was convicted of murdering an elderly couple in Florida, a crime to which he subsequently confessed. The trial lasted only three days. It took the jury only 17 minutes to decide unanimously to reject the death penalty and to decide that Porter should be sentenced to life in prison. The judge in the case, Richard M. Stanley, a former paratrooper, took the bench wearing brass knuckles and put a pistol on the bench next to him. Judge Stanley overruled the jury and held that the defendant should be electrocuted. In his appeal to the Florida Supreme Court, Porter raised the question of Judge Stanley wearing brass knuckles and having a gun at the sentencing hearing. The Court accepted that State's statement that the brass knuckles and the gun were there as a result of security precautions. In addition, the Judge's sentencing order calling for the death penalty was dated November 30, 1978 notwithstanding that the jury's sentencing recommendation was not returned until December 1, 1978. The November 30th date was explained by the State as a clerical error. The court held that the defendant had failed to show bias.

The day before Porter was scheduled to be executed, his lawyer received a telephone call from Jerry Beck, the Clerk of the Glades County Circuit Court in which Porter was tried and sentenced. According to the clerk's affidavit, he had a conversation with Judge Stanley in the clerk's office either before or during Porter's trial. In that conversation, Judge Stanley said that he had changed the venue in the Porter trial from Charlotte County to Glades County because there had been a lot of publicity and Glades County "had good, fair minded people here who would listen and consider the evidence and then convict the son-of-a-bitch. Then, Judge Stanley said he would send Porter to the chair." This evidence of predisposition to impose the death penalty finds some corroboration in a proffered statement by Judge Stanley to newspaper reporters from the Miami Herald. According to court papers, Judge Stanley told the reporters "that about the time of the Porter case, he was speaking at a public forum advocating the death penalty. During this public appearance, Judge Stanley expressed his view that he would be delighted to be able to personally carry out executions if he could pull his gun out of his boot and shoot the death-sentenced individual between the eyes."

The years of post-trial litigation in the Porter case, in both federal and state courts, is too extensive to detail here. But in February 1997, another Florida judge, after conducting an evidentiary hearing, discounted the testimony of the court clerk and found that Judge Stanley, who had long since retired, had been "impartial;" this decision left the death sentence standing. However, the Florida Supreme Court reversed that decision, noting that Stanley had testified in a deposition, "I'll just lay this out for you. I believe that if the same thing had happened, that I would have killed Mr. Porter. Mr. Porter wouldn't have had to be put to death. But if he had done that to my family I'd a killed him [sic]." The Florida Supreme Court sent the case back for re-sentencing to the trial court, where it was decided that the jury's recommendation should not have been overruled in the first place. Porter was sentenced to two consecutive life sentences in December 1999 - 21 years after he was tried and convicted.

I dwell on this Florida case at some length because it is emblematic of the kind of distortions that can occur in our judicial system in death penalty cases. Early last year, after an extensive study of capital cases by a state commission, the Governor of the State of Illinois commuted the sentences of all 156 inmates who were on death row, stating that "the demon of error" had made the state's death penalty process immoral. As I noted earlier, a recent Columbia University study found that over two-thirds of death penalty sentences are overturned on appeal. The study also found that 76% of the reversals were based, not on technicalities, but on serious errors and deficiencies in the process: egregious incompetence of counsel, prosecutorial misconduct or faulty instructions to the jury. And only last week, the New York Times reported that the U.S. Supreme Court has admonished both the U.S. Court of Appeals for the Fifth Circuit and the Texas Court of Criminal

Appeals for failing repeatedly to adhere to the high court's decisional law in death penalty cases.

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If you have the death penalty, you will execute innocent people. No one disagrees that such horrors occur - the only argument concerns how often. Our jury system is the best in the world, but, as the current Broadway production of "Twelve Angry Men" reminds us, juries are made up of fallible human beings who are capable of mistakes and misjudgments. A 1985 study published in the Stanford Law Review in 1987 identified 350 cases in this century in which innocent people were wrongly convicted of crimes for which they could have received the death penalty; of that number, as many as 23 were executed.

I know from personal experience that the wrong person can be convicted of serious crimes. In one Manhattan case, a police officer was murdered by a drug gang member, and the wrong man was arrested after identification by both a police officer and an independent civilian witness. There was a great public outcry against the shooter in this case, and it would have been easy to declare victory and proceed with the prosecution. However, after careful and painstaking investigation by the District Attorney's Office, we were convinced that we did not have the shooter, and we released the man who had been arrested. We subsequently found the right man.

Just last year, we asked the court to vacate the conviction of a man convicted in 1992 of rape, sodomy and robbery, who was in the 11th year of a 20 ½ to 40 year sentence. The defendant had been positively identified by his 17 year old victim, and circumstantial evidence, including his admission that he had frequented the building where the crime occurred, connected him to the crime. The initial laboratory tests were all negative for material that could be tested for DNA. But new tests, including DNA comparisons, were conducted in 2003 as part of a "backlog" project to test all sexual assault evidence kits in storage. The new tests showed that another inmate, serving long sentences for armed robberies in Manhattan and the Bronx, had actually committed the crime. My office moved quickly to have the defendant released from prison and his conviction set aside. Regrettably, this exoneration came after the defendant had already served a substantial portion of his sentence - but if this had been a capital case, it may well have come too late to do the defendant any good at all.

Shortly after I was elected District Attorney, I was fortunate to have a meeting with Chief Justice Earl Warren. He told me that as a young man he attended the victory celebration of the newly elected District Attorney of his County. In his victory speech he said that the District Attorney-elect pledged that he would convict all of the guilty and as few of the innocent as was humanly possible. Convicting an innocent man is the ethical prosecutor's worst nightmare and that, of course, is compounded when the punishment is death. Chief Justice Warren was an Assistant District Attorney and then District Attorney of Alameda County California as well as Attorney General of the State. I am sure that his experiences in those positions influenced his views as Chief Justice of the United States.

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The public and their elected officials have short memories, and capital punishment has always had its supporters, who see it as a response to fears of rise in violent crime. In 1994 Congress enacted a new Violent Crime Control and Law Enforcement Act which increased the number from 2 to 60 federal offenses for which someone may be sentenced to death and created more than 60 new federal crimes for conduct already harshly punished under state law. Legislators who think these measures will reduce violent crimes fool themselves and the public. Such provisions may be good politics, but they are not good law enforcement. They divert our attention from present needs. I know of no law enforcement professional who believes that the death penalty provisions and all the new crimes covered by the act have affected public safety in the slightest. The criminal laws we needed were already on the books. What was missing was the commitment to enforce them.

Even proponents have been forced to concede that 150 years of experience since the Rantoul report has not produced credible evidence that executions deter crime. There is no correlation between executions and low homicide rates. For example, Texas, which has the highest number of executions in the nation, with 336 executions since 1976, also has one of the highest murder rates. In fact, FBI statistics show that the homicide rate in states that have the death penalty are 44% higher than in non-death penalty states. Here in the Northeast, in nearby Philadelphia, the District Attorney has been an avid proponent of the death penalty; there are 124 inmates on death row in Philadelphia County, the third highest total for any county in the nation. Nonetheless, in 2003, Philadelphia, which has population roughly equal to Manhattan's, had nearly four times as many murders as we did -- 348 versus 93.

To serve as an effective deterrent, punishment must be prompt and certain. The death penalty is neither. According to the Columbia University study, the review process in capital cases takes an average of nine years to complete - and, as the Florida case shows, the process can take a great deal longer. As a result of the seemingly endless litigation in these cases, there are now 3490 inmates awaiting execution in the United States. In addition, the imposition of the death penalty varies so greatly depending on geography, race, gender and other factors that receiving it is somewhat akin to being struck by lightning. The arbitrary manner in which the death penalty is applied, can only deepen cynicism and disrespect for the law among those who are disposed to commit violent criminal acts.

Some crimes are so depraved that execution might seem a just penalty. But even in the virtually impossible event that a statute could be crafted and applied so wisely that it would reach only those cases, the price would be too high. When the state kills, it sends the wrong message. The death penalty is an endorsement for violent solutions, and violence begets violence. In the words of George Bernard Shaw "it is the deed that teaches, not the name we give it".

Executions waste scarce law enforcement, financial and personnel resources. Cost estimates vary from state to state, but all are high. A 2003 study by the State of Kansas found that the median cost of a capital case in that state, since the death penalty was reinstated in 1994, was $1.26 million, but the study included no cases in which a defendant had actually been executed. A study authorized by Duke University in 1993 found that for each person executed in North Carolina the State paid over $2 million more than it would have cost to imprison him for life, in part because of court proceedings. The costs per case in New York are no doubt much higher than in these other states, even though no case has yet resulted in an execution. The New York Law Journal reported in April 2002 that, since the death penalty was restored in 1995, the state had paid $68.4 million to defense lawyers representing defendants charged with crimes that might warrant the death penalty; in one case, in which the defendant was sentenced to death but not executed, defense costs alone totaled $1.7 million. Defense cost are, of course, only one component of the total costs involved in a capital cases, which require extraordinary expenditures on the part of the police, the prosecution, the courts and corrections. A 1989 study by the Department of Correctional Services estimated that the death penalty would cost the state $118 million a year.

There are far better methods of reducing murders and other violent crimes than imposition of the death penalty. When I first took office, in 1975, Manhattan led the city with 648 murders, 39 percent of the total citywide. In 2003, by contrast, there were 93 murders in Manhattan, the lowest number in any of the four major boroughs and only 16% of the city total. That is an 86% reduction in the number of murders; today, only Staten Island has fewer murders than Manhattan. Thus far in 2004, the number of murders in Manhattan is 88. If this trend continues through the end of the year, Manhattan will have had, in each of the last three years, fewer murders than in any year since 1937, the first year for which we have reliable statistics, In fact, we have now less than half as many murders in Manhattan as in 1937, when, incidentally, the death penalty was in regular use.

This was accomplished, in large part, by rigorously enforcing the law, assigning experienced and well-trained prosecutors to homicides and other serious cases early on in the process and concentrating resources on drug gangs and violent recidivists. From 1975 to 2003, 115,00 defendants were sentenced to state prison from New York County and nearly three times that number were sentenced to terms of one years or less in city jails. Of course, there are many other aspects to crime reduction, including specialized bureaus for sex crimes, domestic violence and other areas that require particular expertise, drug treatment programs as an alternative to incarceration and close working relations between prosecutors, the police and the community. But those are topics that go beyond the scope of this hearing.

I have pointed out that the death penalty does not deter crime, that it is far more expensive than life imprisonment, that the wrong person can be executed, and that in its application, it most closely resembles a lottery where the winners are losers. The only honest justification for the death penalty is vengeance. But the Lord saith "vengeance is mine". It is wrong for secular governments to usurp that role.

Capital punishment is merely allows proponents to convince themselves that they have done something to fight crime. It is a mirage that distracts society from more fruitful, less facile answers. The death penalty exacts a terrible price in dollars, lives and human decency. Rather than tamping down the flames of violence, it fuels them while draining millions of dollars from more promising efforts to restore safety to our lives. For all these reasons, I urge all of our lawmakers, in the strongest terms, not to reinstate the death penalty in New York."

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