Death Penalty Be Not Proud, Courts Reckon

By vacating the death sentence of New York’s last death row inmate, the Court of Appeals yesterday sent Albany a clear message: The resurrection of capital punishment in this state won’t be achieved by judicial intervention but only by the will of the Legislature.In a 4–3 ruling, the state’s highest court yesterday reaffirmed a 2004 landmark ruling that declared the sentencing statute of the state death penalty to be unconstitutionally biased against defendants.In doing so, they not only tossed out the death sentence of John Taylor, one of two men who carried out the execution-style slayings of five employees at a Wendy’s in Queens in 2000, but dashed any hope among Senate Republicans that the death penalty could be restored short of an improbable vote by lawmakers to alter the law.Prosecutors staked their case on a reworded jury instruction issued by a lower court that they argued avoided the constitutional problems cited by the Court of Appeals three years ago.In a concurring opinion, Judge Robert Smith argued that it wasn’t up to the court to save capital punishment, calling the lower court’s tinkering with the sentencing charge “a rescue operation” that resembled a “misshapen fragment of the original” law.“The Legislature can, if it has the will, repair the death penalty statute or repeal it,” Judge Smith, who opposed the 2004 opinion, wrote.It was a message that Republicans in Albany did not want to hear, prompting one, Senator Dale Volker of Erie County, to call the ruling the “last nail in the coffin” for New York’s death penalty.With the fate of capital punishment left in the hands of lawmakers, advocates have good reason for frustration.Governor Spitzer, a Democrat who early in his political career distinguished himself from many in his party by declaring himself a supporter of capital punishment, now favors only a limited use of the penalty and has hardly raised it as an issue since taking office.Lawmakers interviewed said the Democrat-led Assembly has gradually shifted against the death penalty, following the trend of statewide public opinion.A year ago, a New York Times/CBS statewide poll asked New Yorkers what the penalty should be for people convicted of murder: the death penalty, life with no parole, or a long sentence with the possibility of parole. Half of the respondents chose life with no parole, while only 29% selected capital punishment, a drop of 19% percentage points from 12 years earlier.Earlier this year, Republicans sought to revive the issue in the wake of a series of fatal shootings of state police officers. While the Senate in the spring passed one-house legislation restoring the death penalty for convicted terrorists and murderers of police officers, they never achieved the political momentum to pressure the Assembly to follow suit.Since then, Republican outrage over Mr. Spitzer’s decision to grant driver’s licenses to illegal immigrants has overtaken the death penalty as the Senate’s most passionate cause.“I think the issue has lost momentum,” a Democratic assemblyman of Brooklyn, Joseph Lentol, said. Mr. Lentol, who has served as the chairman of the Assembly’s codes committee since 1992, said the long-term decline in crime and murder rates, coupled with the institution of the option of life-without-parole sentencing in capital cases in 1995, has eroded public interest in reinstating the death penalty.“There is emerging consensus around this state that life without parole is the way to go,” the executive director of New Yorkers Against the Death Penalty, David Kaczynski, the brother of the Unabomber, Theodore Kaczynski, said.Republicans interviewed said the court’s ruling gives them less incentive to push ahead by reinforcing their skepticism about the judiciary’s willingness to deem any rewriting of the law as constitutional.They pointed to Judge Susan Read’s remark in her dissenting opinion suggesting that her colleagues would never permit the return of the death penalty.“Fair-minded citizens might well be forgiven for wondering whether the Court of Appeals is simply unwilling ever to uphold a death sentence, no matter how the law is written (or may be rewritten), no matter how carefully the trial judge and the jury carry out their responsibilities,” she wrote.“A sitting legislator sees that statement and says why bother,” a Republican legislative aide said. “It’s disheartening to hear that from a sitting justice. People are just exhausted. They are saying this is never going to happen so why should we support it.”Mr. Spitzer did not release any public statement responding to yesterday’s court ruling. A spokeswoman for the governor, Christine Anderson, said the governor has been “tremendously clear” about his position and priorities.“The governor has long believed that in a limited number of cases — such as terrorist acts, the murder of police officers and other particularly egregious acts of premeditated murder — the death penalty should be an option for a judge or jury to consider,” she said via e-mail.Ms. Anderson added that the governor would support the death penalty only if there were “sufficient procedural protections” to ensure that the sentence is imposed in “those cases where the guilt of the defendant is clear.”

Death Penalty Be Not Proud, Courts Reckon

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