Court: NY death penalty unconstitutional

Challenge to felon voting ban fails, but fight goes on

Nation celebrates Gay Pride amidst a tense political climate

Court: NY death penalty unconstitutional

By Andrew Smith and Andrew Metz

June 25, Albany, New York— New York State no longer has the death penalty.

Less than nine years after it was reinstated at the urging of Gov. George Pataki, the state Court of Appeals ruled Thursday that the 1995 law violated the state constitution. The 4-3 decision means the four remaining men on death row — three from Suffolk and one from Queens — will be resentenced and that the nine defendants around the state who were facing the death penalty if convicted no longer will.

“The slate is wiped clean,” said Kevin Doyle, chief of the state Capital Defender Office, which represents death penalty defendants.

The decision was written by Judge George Bundy Smith. “We ... conclude that under the present statute, the death penalty may not be imposed,” he wrote.

The court’s ruling came in the case of Stephen LaValle, who was convicted of raping and killing Patchogue-Medford teacher Cynthia Quinn while she jogged in Yaphank one morning in May 1997.

It was the fourth time the court has set aside a death sentence, but the first time it has done so with such sweeping results.

The court focused on the law’s “deadlock instruction.” In a capital case, a jury votes first on whether a defendant is guilty of first-degree murder, and then in a separate proceeding decides between the sentences of death or life without parole. Either choice must be unanimous.

The law requires a judge to tell jurors that if they cannot reach a unanimous decision on the sentence, the judge must impose a sentence that permits parole in 20 to 25 years. The court ruled that this instruction could coerce jurors into voting for a death sentence they didn’t favor, to avoid the possibility of a killer getting parole.

“For jurors who are inclined toward life without parole, the choice is between death and life with parole, a Hobson’s choice in light of the jurors’ likely concerns over defendant’s future dangerousness,” Smith wrote.

Doyle credited Susan Solomon, a lawyer in his office, with being “the masterful and persistent advocate for this claim.”

LaValle and two of the remaining men on death row, Robert Shulman and Nicholson McCoy, were sent there from Suffolk during the administration of former District Attorney James Catterson Jr., who helped draft the law. His successor, Thomas Spota, did not quarrel with the Court of Appeal’s decision.

“I agree this flaw in our statute, as the court found, needs the full attention of the state legislature,” Spota said in a statement. “A jury must be able to deliberate a capital murder case secure in the knowledge that, in the event of a deadlock, the defendant ... would be sentenced to life in prison without parole.”

Death penalty supporters, however, were dismayed by the ruling.

“Well, it’s a disappointing decision,” said Pataki, whose support of the law helped him oust Democrat Mario Cuomo a decade ago. Pataki did not say June 24 how the flaw in the statute would be corrected.

New York Senate Majority Leader Joseph Bruno (R-Brunswick) went further and disputed the court’s conclusions.

“The state’s death penalty is constitutional and the decision against it is irresponsible and could ultimately jeopardize the lives of New Yorkers by placing dangerous, violent criminals back on the street,” he said in a statement. But Bruno said he was willing to work with the governor and Assembly on “corrective legislation.”

Though some politicians have recognized potential problems with the death penalty statute and offered remedies, the issue had yet to rise to the top of Albany’s lengthy list of unfinished business, which includes enacting a new budget — already almost three months overdue — and complying with a court order to improve education funding.

But as sentence after sentence has been vacated, it has become clear in the Capitol that lawmakers must confront the issue head-on.the June 24 ruling will likely speed that reckoning.

Both Pataki and State Sen. Dale Volker (R-DePew), a main proponent and author of the law, had in the past proposed eliminating the requirement to impose parole when juries deadlock in the sentencing phase. The measures, which never advanced in Albany, would have mandated life without parole if jurors are deadlocked.

Still, Volker June 24 called the decision “nit-picking” and said his deadlock proposal was an effort to head off the court’s ongoing attack on the statute.

“They have decided they are not going to do an execution,” Volker said. “It’s another indication that this Court of Appeals does not want to approve a death penalty.”

Perhaps anticipating such criticism, the court’s decision said it could not let a bad law remain in effect.

“While the Legislature may vote to have a death penalty, it cannot create one that offends constitutional rights,” Smith wrote in the decision.

Joseph Lentol (D-Brooklyn), chairman of the Assembly’s Codes committee and a death penalty supporter, June 24expressed a desire to quickly repair the deficiencies.

“This is something we ought to fix,” he said. “If you are going to have a death penalty, it has to be applied fairly and equitably, and we have to fix this...I am in favor of the death penalty, but I definitely want to see it done the right way.”

Sheldon Silver (D-Manhattan) said he expects the Assembly “will take appropriate action to address the issue raised today by the Court” to fix the law.

New York’s experience is not unusual. New Jersey’s highest court, for example, imposed a moratorium on executions in February, saying the state’s rules on lethal injection were “unreasonable.” No one has been executed in that state since the death penalty was reinstated in 1982. There are 13 prisoners on New Jersey’s death row.

Although the court’s ruling does not address the fate of Shulman, McCoy, and John Taylor of Queens, the three men remaining on death row, Acker and others said their death sentences must be overturned on the same grounds when the court hears their appeals.

The court explicitly ruled that the death penalty cannot be imposed in any pending case. Nor can it be imposed in the future unless the deadlock instruction is rewritten.

The next step for LaValle — and eventually for the others on death row — is to be resentenced. LaValle’s trial judge, Acting State Supreme Court Justice Michael Mullen, will sentence LaValle to life in prison without parole, or to a life sentence that will allow him to seek parole in 20 to 25 years.

Challenge to felon voting ban fails, but fight goes on

By Sara Giboney

New York, New York, June 28 (IPS)— A civil rights coalition is considering its options after a federal court dismissed a suit seeking voting rights for thousands of disenfranchised Black and Latino prisoners and parolees.

The case, Hayden vs. Pataki, sought voting rights for incarcerated convicted felons and those on parole. In a decision this month, the US District Court for the Southern District in New York dismissed the claims, asserting that “the constitutionality of disenfranchising convicted felons has been firmly established,” among other reasons.

An appeal is being considered.

“The issue of disenfranchisement has such an impact on the political power of African Americans that we can not ignore the issue,” said Janai Nelson, assistant council for the NAACP Legal Defense Fund, one of the nation’s leading African American advocacy groups. “We have to make a change to the voting practices that are in place now.”

In the United States, 1.4 million African American men cannot vote in elections because of a felony conviction.

The Hayden decision is the second opinion issued by a federal court in New York State this year that cuts short a challenge to New York’s felon disfranchisement statutes. In April, the US Court of Appeals for the Second Circuit denied the Voting Rights Act claims in Muntaqim vs. Coombe, a felon disenfranchisement lawsuit that was appealed after being dismissed by the federal district court.

The latest suit against New York Gov. George Pataki was brought in 2000 by Joseph Hayden, an African-American man. He filed the suit without a lawyer, while he was incarcerated. Hayden sought to restore voting rights for those jailed for a felony and others on parole for such crimes.

Representing Hayden was the New York-based NAACP Legal Defense Fund, Community Service Society of New York (CSS) and the Center for Law and Social Justice at Medgar Evers College.

The coalition argued that New York State’s laws were originally intended to deny full rights to African Americans, and its continued application today disproportionately harmed Black and Latino communities and violated the Constitution, the Voting Rights Act, the Civil Rights Act, and international law.

In New York State and most states in the US, convicted felons lose their voting rights while they are incarcerated or on parole. Maine, Massachusetts, Utah, and Vermont are the only states that allow incarcerated convicted felons to vote.

Hayden said that while in prison he began looking at the relationship between prisoners and the state and realized that everyone deserves to have a voice in public policy.

“We have to restore the right to vote for everyone,” Hayden said. “We have to educate the public on the importance of the issue and galvanize into a force for change.”

African Americans and Latinos collectively make up 87 percent of the population currently denied the right to vote. In New York, Blacks and Latinos are prosecuted, convicted, and sentenced to jail at rates substantially disproportionate to whites.

Blacks comprise 16 percent of the state’s population, but make up over 54 percent of the state’s current prison population, and 50 percent of those on parole. Latinos comprise 15 percent of the state’s population but are 27 percent of the prison population and 32 percent of those on parole.

By contrast, whites comprise 62 percent of the state’s population but only 16 percent of the prison population in the state.

“Everyone deserves the right to have a voice in the political process,” Hayden said. “In Maine, Vermont, Canada, Puerto Rico, South Africa, and Israel convicted felons have voting rights. We need to make changes here.”

The original case was expanded to represent three groups: Blacks and Latinos who are currently incarcerated for a felony conviction, Blacks and Latinos who are currently on parole for a felony conviction, and Black and Latino communities who are denied an equal opportunity in the political process because of the disproportionate disenfranchisement that threatens to reverse many of the achievements of the civil rights movement.

Juan Cartagena, general counsel for CSS, said the dismissal of the case was difficult to accept.

“This issue affects everyone,” Cartagena said. “Even if someone hasn’t been in prison, they have a relative or close friend that has been. This reaches everyone.”

“Many major elections are decided by a very narrow margin,” Cartagena continued. “If most people who are barred from voting because of a felony conviction were allowed to vote, the African-American and Latino communities from which they come could hold the balance of power.”

“This is not over,” said Lenore Neier, director of communications at CSS. “Right now we are analyzing the situation to see how we can go about making changes in the system.”

Cartagena said the legal team will be meeting with their clients to determine the next step in obtaining voting rights.

“Currently, the voting strength of the tens of thousands of African Americans and Latinos who are imprisoned for felonies has been nullified within New York State,” Esmeralda Simmons, director of the Center for Law and Justice, said in a published article. “This has the effect of diluting the voting strength of Latino and African American communities and limiting the ability of the members of those communities to participate in the political process.”

The organizations representing Hayden are part of a coalition of eight national groups called Right to Vote, which is challenging the laws through litigation and developing a communication strategy around the issue.

Demos, a New York-based organization involved in Right to Vote, is working on a campaign called Unlock the Block.

Currently in New York State, voting rights are restored to convicted felons after they complete parole, yet many are unaware of this fact.

“Some 250,000 convicted felons that have completed their time aren’t aware that they can vote,” said Timothy Rusch, communications director for Demos. “Not only is this about getting voting rights for convicted felons, it’s about engaging them in education about voting.”