Regular Session - March 8, 1994
902
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3 ALBANY, NEW YORK
4 March 8, 1994
5 3:25 p.m.
6
7
8 REGULAR SESSION
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12 SENATOR HUGH T. FARLEY, Acting President
13 STEPHEN F. SLOAN, Secretary
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903
1 P R O C E E D I N G S
2 ACTING PRESIDENT FARLEY: Senate
3 will come to order. Senators please find their
4 places.
5 Please rise with me for the
6 Pledge of Allegiance to the flag.
7 (Whereupon, the Senate joined in
8 the Pledge of Allegiance to the Flag.)
9 Today, we're please to have with
10 us The Reverend Peter G. Young, Pastor of the
11 Blessed Sacrament Church of Bolton Landing, New
12 York.
13 Father Young.
14 THE REVEREND PETER G. YOUNG: Let
15 us pray.
16 Almighty and eternal God, may
17 Your grace enkindle in all of us a love for the
18 many unfortunate people whom poverty and misery
19 reduced to a condition of life unworthy of human
20 beings; arouse in the hearts of those who call
21 You Father a hunger and a thirst for social
22 justice, for fraternal charity in deeds and in
23 truth.
904
1 Grant, O Lord, peace in our days,
2 peace to all in this great State of New York and
3 peace among nations.
4 Amen.
5 ACTING PRESIDENT FARLEY:
6 Secretary will begin by reading the Journal.
7 THE SECRETARY: In Senate,
8 Monday, March 7. The Senate met pursuant to
9 adjournment. Senator Farley in the chair upon
10 designation of the Temporary President. Prayer
11 by the Reverend Finley Schaef of Brooklyn, New
12 York. The Journal of Friday, March 4, was read
13 and approved. On motion, the Senate adjourned.
14 ACTING PRESIDENT FARLEY: Hearing
15 no objection, the Journal will stand approved as
16 read.
17 The order of business:
18 Presentation of petitions.
19 Messages from the Assembly.
20 Messages from the Governor.
21 Reports of standing committees.
22 Reports of select committees.
23 Communications and reports from
905
1 state officers.
2 Motions and resolutions.
3 Senator Kuhl.
4 SENATOR KUHL: Yes, Mr.
5 President. On behalf of Senator Spano, I move
6 that the following bills be discharged from
7 their respective committees and be recommitted
8 with instructions to strike the enacting
9 clause. Those Senate Print Numbers are: 1005B,
10 1006, 1007, 1009, 1411, 1415, 3013A, 3381, 3382,
11 3922, 4466, 5512A and 5809.
12 ACTING PRESIDENT FARLEY: Without
13 objection.
14 SENATOR KUHL: Thank you.
15 ACTING PRESIDENT FARLEY: Senator
16 Mendez.
17 SENATOR MENDEZ: Mr. President.
18 A group of my constituents who are blind, have
19 formed a union of Spanish speaking blind
20 association, were adopted by the Lions Club of
21 Washington Heights, are here visiting us. I
22 would appreciate very much you welcoming them.
23 ACTING PRESIDENT FARLEY: On
906
1 behalf of the Senate, welcome to the Senate
2 chamber and come back and visit us again.
3 We have a substitution.
4 THE SECRETARY: On page 8 of
5 today's calendar, Senator Stafford moves to
6 discharge the Committee on Finance from Assembly
7 Bill Number 8651 and substitute it for the
8 identical Calendar Number 222.
9 ACTING PRESIDENT FARLEY:
10 Substitution is ordered.
11 THE SECRETARY: Also on page 8,
12 Senator Goodman moves to discharge the Committee
13 on Investigations, Taxation and Government
14 Operations from Assembly Bill Number 7736 and
15 substitute it for the identical Third Reading
16 241.
17 ACTING PRESIDENT FARLEY:
18 Substitution is ordered.
19 No more motions on the floor.
20 Senator Present.
21 SENATOR PRESENT: Mr. President.
22 I move that we adopt the Resolution Calendar
23 with the exception of Resolution 2813.
907
1 ACTING PRESIDENT FARLEY: All in
2 favor of adopting the Resolution Calendar,
3 please say aye.
4 (Response of "Aye.")
5 Those opposed, nay.
6 (There was no response.)
7 The Resolution Calendar is
8 adopted with exceptions.
9 Senator Present.
10 SENATOR PRESENT: Mr. President.
11 Would you recognize Senator DiCarlo.
12 ACTING PRESIDENT FARLEY: Senator
13 DiCarlo.
14 SENATOR DiCARLO: Mr. President.
15 At this time, I would like to request the
16 reading of Senate Resolution 2813.
17 ACTING PRESIDENT FARLEY:
18 Secretary will read it.
19 THE SECRETARY: By Senator
20 DiCarlo and others, Legislative Resolution
21 Number 2813, commending Dr. Vernon E. Lattin,
22 President of Brooklyn College.
23 Whereas, it is the sense of this
908
1 legislative body that those who give positive
2 definition to the profile and disposition of the
3 communities of the State of New York do so
4 profoundly strengthen our shared commitment to
5 the exercise of freedom.
6 Attendant to such concern and
7 fully in accord with its longstanding
8 traditions, it is the intent of this Legislative
9 Body to convey its compliments and felicitations
10 to Dr. Vernon E. Lattin, President of Brooklyn
11 College for his exceptional contributions to the
12 pursuit of higher learning.
13 Dr. Lattin has demonstrated his
14 commitment to public higher education and he
15 leads a fine institution of higher learning that
16 provides a model of ethnic and cultural
17 diversity for all to emulate.
18 Dr. Lattin has inaugurated at
19 Brooklyn College a planning process that would
20 meet the challenges and opportunities of the
21 21st century.
22 That process begun by Dr. Lattin
23 has culminated in an ambitious blueprint for the
909
1 future of Brooklyn College and it will make it a
2 model for urban higher education.
3 Under his guidance, the Brooklyn
4 College community is developing new strategies
5 for learning and research, emphasizing critical
6 thinking skills for students, and creating new
7 models for responding to the intellectual,
8 ethnic, gender, and generational diversity of
9 the cultures that make up our city and the
10 world.
11 The "Brooklyn College 2000" plan
12 will make the college a more active participant
13 in the neighborhoods of Flatbush and Midwood,
14 the Borough of Brooklyn, the City of New York,
15 and the State of New York.
16 Now, therefore, be it resolved,
17 that this Legislative Body pause in its
18 deliberations and most joyously commend Dr.
19 Vernon E. Lattin for his dedication to higher
20 learning and for his farsighted commitment to
21 the integration of Brooklyn College and its
22 surrounding communities; and be it further.
23 Resolved, that a copy of this
910
1 resolution, suitably engrossed, be transmitted
2 to Dr. Vernon E. Lattin, President of Brooklyn
3 College.
4 ACTING PRESIDENT FARLEY: On the
5 resolution.
6 Senator DiCarlo.
7 SENATOR DiCARLO: Yes. Thank
8 you, Mr. President. I would just like to
9 personally congratulate Dr. Lattin and Brooklyn
10 College for the great work that they do there,
11 and we commend them as a Senate.
12 I would also like to add, for my
13 Republican colleagues, for those who don't know,
14 to show you how great a school Brooklyn College
15 is, it was attended by a young military officer
16 who came back from World War II and who was
17 wounded overseas, and he went on to great
18 things, and that is our Republican Minority
19 Leader of the United States Senate, Bob Dole.
20 So congratulations.
21 ACTING PRESIDENT FARLEY: Senator
22 Markowitz.
23 SENATOR MARKOWITZ: Thank you
911
1 very much. I want to thank Brooklyn's newest
2 colleague, just about, Senator DiCarlo for
3 introducing this commendable resolution.
4 You know, Dr. Lattin, our beloved
5 President of Brooklyn College, represents the
6 best -- really the best in the country. Here's
7 a man of proud -- proud of his Mexican-American
8 heritage, who has that rich Mexican culture, and
9 then moves to Phoenix, Arizona, and does
10 something that we don't hear too often about.
11 We hear about people,
12 unfortunately, leaving New York as snowbirds
13 down in Florida or bicoastal out in California
14 or Phoenix. But we've got somebody that came
15 from Phoenix to the garden spot of New York
16 State -- Brooklyn, New York.
17 And so to Dr. Lattin, who is
18 leading Brooklyn College in a superb way -- and,
19 by the way, he joins us in the Senate chamber
20 today.
21 We are fortunate, because not
22 only has Brooklyn College made its mark for so
23 many years in every field of higher education
912
1 and professional standing but actually the
2 College has contributed throughout the country
3 in graduating the top scholars, top business
4 leaders. In every field, Brooklyn College has
5 been the incubator, the creator, and very often
6 the deliverer of some of the finest minds in
7 America today. Dr. Lattin continues that fine
8 tradition of educational excellence.
9 To you and your colleagues, I am
10 fortunate to say that I'm a graduate of Brooklyn
11 College and proud of it. Thank you for being
12 here with us today.
13 ACTING PRESIDENT FARLEY: Senator
14 Montgomery.
15 SENATOR MONTGOMERY: Thank you,
16 Mr. President. I would like to rise as a
17 Brooklyn representative to also commend Dr.
18 Lattin for his leadership at Brooklyn, Brooklyn
19 College. That is a school that has, under his
20 leadership, continued to plan and work toward a
21 school that is all-inclusive of all cultures and
22 that reaches out to people who are not
23 traditional students but who are very much
913
1 nontraditional students, and who -- that school
2 has embraced, in fact, the needs of women as
3 students, minority people as students.
4 It really represents what the
5 best institutions are in the State of New York;
6 and that is, it's an institution that seeks to
7 bring us as a people into the next century with
8 the knowledge and understanding that we are
9 right here and right now international in every
10 respect, and the school is responding
11 accordingly.
12 So I am very pleased to rise and
13 join my colleagues, Senator DiCarlo and Senator
14 Markowitz, in complimenting and commending and
15 celebrating this wonderful educational leader;
16 because if we're ever going to solve the
17 problems of elementary schools and junior high
18 schools and high schools, we're going to have to
19 look to people like Dr. Lattin, who will be
20 working to produce leaders at every single level
21 so that we can improve our educational system
22 from top to bottom.
23 So, Dr. Lattin, my compliments to
914
1 you. I appreciate the work that you are doing.
2 And though we may not be present with you on
3 many occasions, even when you invite us, you
4 should know that we fight for Brooklyn College.
5 We know how important it is, and we want to have
6 you assume that we are partners with you as you
7 seek to realize your vision of the blueprint of
8 the future.
9 Thank you, Mr. President.
10 ACTING PRESIDENT FARLEY: Senator
11 DiCarlo.
12 SENATOR DiCARLO: Mr. President, I
13 would like to make a motion to open up the
14 resolution for co-sponsorship.
15 ACTING PRESIDENT FARLEY:
16 Everyone will be on it. If you wish to be an
17 exception, please notify the desk; but,
18 otherwise, every Senator will be on the
19 resolution.
20 On the resolution. All in favor,
21 say aye.
22 (Response of "Aye.")
23 Those opposed, nay.
915
1 (There was no response.)
2 The resolution is adopted.
3 Dr. Lattin, we're pleased to have
4 you with us today. Welcome and
5 congratulations. We're very proud of you and
6 Brooklyn College.
7 (Applause.)
8 Senator Present, I think.
9 SENATOR PRESENT: I think Senator
10 Daly would like to be recognized.
11 ACTING PRESIDENT FARLEY: Senator
12 Daly.
13 SENATOR DALY: Mr. President. I
14 want to star Calendar Number 289, please.
15 ACTING PRESIDENT FARLEY: 289 is
16 starred at the request of the sponsor.
17 Senator Padavan.
18 SENATOR PADAVAN: Lay aside
19 Calendar Number 263 for the day subject to an
20 amendment.
21 ACTING PRESIDENT FARLEY: 263 is
22 laid aside for today subject to an amendment.
23 SENATOR VOLKER: Mr. President.
916
1 ACTING PRESIDENT FARLEY: Senator
2 Volker.
3 SENATOR VOLKER: Mr. President.
4 On page 9, Calendar Number 258, I want to lay
5 that aside also subject to -- for an amendment.
6 ACTING PRESIDENT FARLEY: 258?
7 SENATOR VOLKER: Yes.
8 ACTING PRESIDENT FARLEY: 258 on
9 page 9 will also be laid aside for the whole day
10 subject to an amendment.
11 Are there any other motions or
12 housekeeping on the floor?
13 (There was no response.)
14 Senator Present.
15 SENATOR PRESENT: Will you
16 recognize Senator Goodman.
17 ACTING PRESIDENT FARLEY: Senator
18 Goodman.
19 SENATOR GOODMAN: Mr. President.
20 A moment ago, while I was out of the chamber,
21 the Senate passed unanimously a resolution
22 honoring a very familiar and much beloved figure
23 in New York City and its region, Mr. Jim Jensen,
917
1 who is the anchorman of the CBS six o'clock
2 news.
3 This resolution recognizes the
4 fact that he has just celebrated a major
5 anniversary. He has been in this news business
6 probably longer than any other operating
7 anchorman in our area and has fulfilled his
8 responsibilities for honest and objective
9 reporting to the public in an exemplary manner.
10 Indeed, at various moments in hot
11 spots around the earth when lesser figures, less
12 courageous figures, would be willing to go for
13 on-the-spot reporting, whether it's an outbreak
14 of hostilities in the Middle East or various
15 other areas where we are all too familiar with
16 the tragic happenings and bombings and the like,
17 Jim Jensen has always been on the spot to give
18 us an eye witness account of what has occurred,
19 and he has done it with great fidelity to the
20 highest principles of journalism.
21 It's for that reason, Mr.
22 President, that its been my pleasure to sponsor
23 that resolution in this house and to share in
918
1 the warm salute both we and the Assembly have
2 paid to this unique asset for the City and the
3 State of New York.
4 ACTING PRESIDENT FARLEY: Thank
5 you, Senator Goodman.
6 Any other housekeeping motions?
7 Senator Present.
8 SENATOR PRESENT: Mr. President.
9 Can we take up the noncontroversial calendar,
10 please.
11 ACTING PRESIDENT FARLEY: The
12 Secretary will read the noncontroversial
13 calendar, starts on page 5.
14 THE SECRETARY: On page 5,
15 Calendar Number 48, by Senator Johnson.
16 SENATOR CONNOR: Lay it aside.
17 ACTING PRESIDENT FARLEY: Lay it
18 aside.
19 THE SECRETARY: Calendar Number
20 58, by Senator Velella, Senate Bill Number
21 2232B, an act to amend the Insurance Law.
22 ACTING PRESIDENT FARLEY: Read
23 the last section.
919
1 THE SECRETARY: Section 2. This
2 act shall take effect immediately.
3 ACTING PRESIDENT FARLEY: Call
4 the roll.
5 (The Secretary called the roll.)
6 THE SECRETARY: Ayes 59.
7 ACTING PRESIDENT FARLEY: That
8 bill is passed.
9 THE SECRETARY: Calendar Number
10 59, by Member of the Assembly Grannis, Assembly
11 Bill Number 6289B, an act to amend the Insurance
12 Law.
13 SENATOR CONNOR: Lay it aside.
14 ACTING PRESIDENT FARLEY: Lay
15 that bill aside.
16 THE SECRETARY: Calendar Number
17 82, by Senator Kuhl, Senate Bill Number 6215C,
18 Education Law, in relation to school building
19 aid for refunding bond issues.
20 ACTING PRESIDENT FARLEY: There
21 is a local fiscal impact note here at the desk.
22 Read the last section.
23 THE SECRETARY: Section 2. This
920
1 act shall take effect immediately.
2 ACTING PRESIDENT FARLEY: Call
3 the roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes 59.
6 ACTING PRESIDENT FARLEY: The
7 bill is passed.
8 THE SECRETARY: Calendar Number
9 141, by Senator Stafford.
10 SENATOR CONNOR: Lay it aside.
11 ACTING PRESIDENT FARLEY: Lay
12 that bill aside.
13 THE SECRETARY: Calendar Number
14 157, by Senator Padavan.
15 SENATOR CONNOR: Lay it aside.
16 ACTING PRESIDENT FARLEY: Lay it
17 aside.
18 THE SECRETARY: Calendar Number
19 181, by Senator Volker.
20 SENATOR CONNOR: Lay it aside.
21 ACTING PRESIDENT FARLEY: Lay it
22 aside.
23 THE SECRETARY: Calendar Number
921
1 191, by Senator Volker.
2 SENATOR CONNOR: Lay it aside.
3 ACTING PRESIDENT FARLEY: Lay
4 itaside.
5 THE SECRETARY: Calendar Number
6 242, by Senator Larkin.
7 SENATOR CONNOR: Lay it aside.
8 ACTING PRESIDENT FARLEY: Lay it
9 aside.
10 THE SECRETARY: Calendar Number
11 247, by Senator Tully, Senate Bill Number 961A,
12 An act to amend the Public Health Law, in
13 relation to the establishment of a special care
14 program.
15 ACTING PRESIDENT FARLEY: Read the
16 last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT FARLEY: Call
20 the roll.
21 (The Secretary called the roll.)
22 THE SECRETARY: Ayes 59.
23 ACTING PRESIDENT FARLEY: The
922
1 bill is passed.
2 THE SECRETARY: Calendar Number
3 250, by Senator Tully, Senate Bill Number 6771,
4 an act to amend the Public Health Law.
5 ACTING PRESIDENT FARLEY: Read
6 the last section.
7 THE SECRETARY: Section 2. This
8 act shall take effect immediately.
9 ACTING PRESIDENT FARLEY: Call
10 the roll.
11 (The Secretary called the roll.)
12 THE SECRETARY: Ayes 59.
13 ACTING PRESIDENT FARLEY: The
14 bill is passed.
15 THE SECRETARY: Calendar Number
16 251, by Senator Farley, Senate Bill Number 997,
17 Executive Law, in relation to designation of
18 August 7 as Family Day.
19 ACTING PRESIDENT FARLEY: Read
20 the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect immediately.
23 ACTING PRESIDENT FARLEY: Call
923
1 the roll.
2 (The Secretary called the roll.)
3 THE SECRETARY: Ayes 59.
4 ACTING PRESIDENT FARLEY: The
5 bill is passed.
6 THE SECRETARY: Calendar Number
7 252, by Senator Hannon, Senate Bill Number
8 4907A, an act to amend the Public Officers Law.
9 ACTING PRESIDENT FARLEY: Read
10 the last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT FARLEY: Call
14 the roll.
15 (The Secretary called the roll.)
16 THE SECRETARY: Ayes 59.
17 ACTING PRESIDENT FARLEY: The
18 bill is passed.
19 THE SECRETARY: Calendar Number
20 253, by Senator DeFrancisco, Senate Bill Number
21 6578, Executive Law, in relation to the
22 designation of certain days.
23 ACTING PRESIDENT FARLEY: Read
924
1 the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT FARLEY: Call
5 the roll.
6 (The Secretary called the roll.)
7 THE SECRETARY: Ayes 59.
8 ACTING PRESIDENT FARLEY: The
9 bill is passed.
10 THE SECRETARY: Calendar Number
11 254, by the Assembly Committee on Rules,
12 Assembly Bill Number 9565, making an
13 appropriation to pay Sylvia Weprin, widow of the
14 late Saul Weprin.
15 ACTING PRESIDENT FARLEY: Read
16 the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT FARLEY: Call
20 the roll.
21 (The Secretary called the roll.)
22 THE SECRETARY: Ayes 59.
23 ACTING PRESIDENT FARLEY: The
925
1 bill is passed.
2 THE SECRETARY: Calendar Number
3 255, by Senator Bruno, Senate Bill Number 240,
4 General Obligations Law, in relation to
5 additional liability of a drawer of a dishonored
6 check.
7 ACTING PRESIDENT FARLEY: Read
8 the last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT FARLEY: Call
12 the roll.
13 (The Secretary called the roll.)
14 THE SECRETARY: Ayes 59.
15 ACTING PRESIDENT FARLEY: The
16 bill is passed.
17 THE SECRETARY: Calendar Number
18 256, by Senator LaValle, Senate Bill Number 600,
19 Domestic Relations Law.
20 ACTING PRESIDENT FARLEY: Read
21 the last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
926
1 ACTING PRESIDENT FARLEY: Call
2 the roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes 59.
5 ACTING PRESIDENT FARLEY: The
6 bill is passed.
7 THE SECRETARY: Calendar Number
8 257, by Senator Levy, Senate Bill Number 999A,
9 General Obligations Law.
10 ACTING PRESIDENT FARLEY: Read
11 the last section.
12 THE SECRETARY: Section 2. This
13 act shall take effect immediately.
14 ACTING PRESIDENT FARLEY: Call
15 the roll.
16 (The Secretary called the roll.)
17 THE SECRETARY: Ayes 59.
18 ACTING PRESIDENT FARLEY: The
19 bill is passed.
20 THE SECRETARY: Calendar Number
21 259, by Senator Saland.
22 SENATOR CONNOR: Lay it aside.
23 ACTING PRESIDENT FARLEY: Lay it
927
1 aside.
2 THE SECRETARY: Calendar Number
3 260, by Senator Farley, Senate Bill Number 1664,
4 Judiciary Law.
5 SENATOR CONNOR: Lay it aside.
6 ACTING PRESIDENT FARLEY: Lay
7 that bill aside.
8 THE SECRETARY: Calendar Number
9 261, by Senator Daly, Senate Bill Number 4583B.
10 SENATOR CONNOR: Lay it aside.
11 ACTING PRESIDENT FARLEY: Lay
12 that bill aside.
13 THE SECRETARY: Calendar Number
14 262, by Senator Farley, Senate Bill Number 4673,
15 an act to amend the Domestic Relations Law.
16 ACTING PRESIDENT FARLEY: Read
17 the last section.
18 THE SECRETARY: Section 2. This
19 act shall take effect immediately.
20 ACTING PRESIDENT FARLEY: Call
21 the roll.
22 (The Secretary called the roll.)
23 THE SECRETARY: Ayes 56. Ayes
928
1 55. Nays 4. Senators Jones, Libous, Pataki and
2 Rath recorded in the negative.
3 ACTING PRESIDENT FARLEY: The
4 bill is passed.
5 THE SECRETARY: Calendar Number 2
6 -- also recorded in the negative on Calendar
7 Number 262 are Senators Larkin and Saland.
8 ACTING PRESIDENT FARLEY: The
9 bill is still passed.
10 SENATOR HOLLAND: Mr. President.
11 ACTING PRESIDENT FARLEY: Senator
12 Holland.
13 SENATOR HOLLAND: With unanimous
14 consent, I would like to be recorded in the
15 negative on Calendar 257.
16 ACTING PRESIDENT FARLEY: 257,
17 Senator Holland will be in the negative.
18 SENATOR SALAND: Mr. President.
19 I too would request unanimous consent to be
20 recorded in the negative on Calendar 257.
21 ACTING PRESIDENT FARLEY: Without
22 objection, 257.
23 THE SECRETARY: Calendar Number
929
1 265, by Senator Levy, Senate Bill Number 1707,
2 an act in relation to requiring the Department
3 of Motor Vehicles to compile information.
4 SENATOR CONNOR: Lay it aside.
5 ACTING PRESIDENT FARLEY: Lay it
6 aside.
7 THE SECRETARY: Calendar Number
8 266, by Senator Skelos, Senate Bill Number
9 4183A, an act to amend the Public Health Law.
10 ACTING PRESIDENT FARLEY: Read the
11 last section.
12 THE SECRETARY: Section 2. This
13 act shall take effect immediately.
14 ACTING PRESIDENT FARLEY: Call
15 the roll.
16 (The Secretary called the roll. )
17 THE SECRETARY: Ayes 59.
18 ACTING PRESIDENT FARLEY: The
19 bill is passed.
20 THE SECRETARY: 271, by Senator
21 Sears, Senate Bill Number 1911, an act to amend
22 the Vehicle and Traffic Law.
23 ACTING PRESIDENT FARLEY: Read
930
1 the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT FARLEY: Call
5 the roll.
6 (The Secretary called the roll.)
7 THE SECRETARY: Ayes 57. Nays
8 2. Senators DeFrancisco and Johnson recorded in
9 the negative.
10 ACTING PRESIDENT FARLEY: The
11 bill is passed.
12 THE SECRETARY: Calendar Number
13 272, by Senator Levy, Senate Bill Number 6603,
14 an act to amend the Vehicle and Traffic Law.
15 ACTING PRESIDENT FARLEY: Read
16 the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT FARLEY: Call
20 the roll.
21 (The Secretary called the roll.)
22 THE SECRETARY: Ayes 60.
23 ACTING PRESIDENT FARLEY: The
931
1 bill is passed.
2 THE SECRETARY: Calendar Number
3 273, by Senator Pataki, Senate Bill Number
4 1983A, an act to amend the Education Law and the
5 Transportation Law.
6 ACTING PRESIDENT FARLEY: Read
7 the last section.
8 THE SECRETARY: Section 2. This
9 act shall take effect immediately.
10 ACTING PRESIDENT FARLEY: Call
11 the roll.
12 (The Secretary called the roll.)
13 THE SECRETARY: Ayes 60.
14 ACTING PRESIDENT FARLEY: The
15 bill is passed.
16 THE SECRETARY: Calendar Number
17 278, by Senator Saland, Senate Bill Number 2138,
18 an act to amend the Real Property Tax Law, in
19 relation to authorizing counties, cities and
20 towns and villages in certain school districts.
21 ACTING PRESIDENT FARLEY: Read
22 the last section.
23 THE SECRETARY: Section 2. This
932
1 act shall take effect immediately.
2 ACTING PRESIDENT FARLEY: Call
3 the roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes 60.
6 ACTING PRESIDENT FARLEY: The
7 bill is passed.
8 THE SECRETARY: Calendar Number
9 279, by Senator Wright.
10 SENATOR CONNOR: Lay it aside.
11 ACTING PRESIDENT FARLEY: Lay it
12 aside.
13 SENATOR PRESENT: Lay that one
14 aside for the day.
15 ACTING PRESIDENT FARLEY: 279 for
16 the day.
17 THE SECRETARY: Calendar Number
18 280, by Senator Marino.
19 SENATOR CONNOR: Lay it aside.
20 ACTING PRESIDENT FARLEY: Lay it
21 aside.
22 THE SECRETARY: Calendar Number
23 281, by Senator Larkin.
933
1 SENATOR CONNOR: Lay it aside.
2 ACTING PRESIDENT FARLEY: Lay it
3 aside.
4 THE SECRETARY: Calendar Number
5 283, by Senator Kuhl, Senate Bill Number 1190,
6 Environmental Conservation Law.
7 ACTING PRESIDENT FARLEY: Read
8 the last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT FARLEY: Call
12 the roll.
13 (The Secretary called the roll.)
14 THE SECRETARY: Ayes 58. Nays
15 2. Senators Leichter and Pataki recorded in the
16 negative.
17 ACTING PRESIDENT FARLEY: The
18 bill is passed.
19 THE SECRETARY: Calendar Number
20 284, by Senator Johnson, Senate Bill Number
21 1844, an act to amend the Environmental
22 Conservation Law.
23 ACTING PRESIDENT FARLEY: Read
934
1 the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT FARLEY: Call
5 the roll.
6 (The Secretary called the roll.)
7 THE SECRETARY: Ayes 60.
8 ACTING PRESIDENT FARLEY: The
9 bill is passed.
10 THE SECRETARY: Calendar Number
11 287, by Senator Stafford, Senate Bill Number
12 4853, Environmental Conservation Law.
13 SENATOR CONNOR: Lay it aside.
14 ACTING PRESIDENT FARLEY: Lay it
15 aside.
16 THE SECRETARY: Calendar Number
17 288, by Senator Saland, Senate Bill Number 5093,
18 Environmental Conservation Law.
19 ACTING PRESIDENT FARLEY: Read
20 the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect immediately.
23 ACTING PRESIDENT FARLEY: Call
935
1 the roll.
2 (The Secretary called the roll.)
3 THE SECRETARY: Ayes 60.
4 ACTING PRESIDENT FARLEY: The
5 bill is passed.
6 THE SECRETARY: Calendar Number
7 291, by Senator Skelos, Senate Bill Number 29B,
8 an act to amend the Penal Law, in relation to
9 carjacking.
10 ACTING PRESIDENT FARLEY: Read
11 the last section.
12 THE SECRETARY: Section 2. This
13 act shall take effect immediately.
14 ACTING PRESIDENT FARLEY: Call
15 the roll.
16 (The Secretary called the roll.)
17 THE SECRETARY: Ayes 60.
18 ACTING PRESIDENT FARLEY: The
19 bill is passed.
20 THE SECRETARY: Calendar Number
21 293, by Senator Levy.
22 SENATOR CONNOR: Lay it aside.
23 ACTING PRESIDENT FARLEY: Lay it
936
1 aside.
2 THE SECRETARY: Calendar Number
3 294, by Senator Levy, Senate Bill Number 648, an
4 act to amend the Penal Law.
5 ACTING PRESIDENT FARLEY: Read
6 the last section.
7 THE SECRETARY: Section 2. This
8 act shall take effect immediately.
9 ACTING PRESIDENT FARLEY: Senator
10 DeFrancisco to explain his vote?
11 SENATOR DeFRANCISCO: This is
12 294; correct?
13 ACTING PRESIDENT FARLEY: Yes, it
14 is.
15 SENATOR DeFRANCISCO: I'm going
16 to vote in the negative. And before the
17 teachers of the State of New York mount a
18 campaign against this vote, I want to explain
19 exactly what my position is. Presently, the
20 assault provisions in the State of New York
21 provide special protection for police officers;
22 in that, a normal assault upon anyone other than
23 on a police officer -- there may be one other
937
1 exception -- is generally a misdemeanor unless
2 there is physical injury. If it's a police
3 officer it's elevated to a felony.
4 Now this bill chooses to create
5 that same situation in the event that the victim
6 happens to be a teacher. And I believe, on
7 Calendar 300, we'll be dealing sometime with
8 another bill raising the punishment from a
9 misdemeanor to a felony to transit workers.
10 And I guess the point I'm trying
11 to make is victims are victims, and I can see
12 the special protection for a police officer who
13 is the last line of defense in many cases to the
14 common citizen for criminal activity on the
15 street; and when he is affecting an arrest or
16 she's affecting an arrest, special protection
17 might be needed to cause someone not to assault
18 a police officer; but when we are creating law
19 after law that provides special protection for
20 individuals depending upon what their occupation
21 may be, I think maybe the general rule is being
22 eaten up by all of the exceptions.
23 If it's important to raise an
938
1 assault third to an assault second, it should be
2 across the board and not pick away at various
3 categories in various occupations.
4 So as far as this bill is
5 concerned, I'm voting in the negative for those
6 reasons and hope to be consistent on other bills
7 that create special protections for individuals
8 based upon what their occupation may be.
9 ACTING PRESIDENT FARLEY: Read
10 the last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT FARLEY: Call
14 the roll.
15 (The Secretary called the roll.)
16 THE SECRETARY: Those recorded in
17 the negative on Calendar Number 294 are Senators
18 DeFrancisco, DiCarlo, Galiber, Leichter, Mendez
19 and Montgomery. Ayes 54. Nays 6.
20 ACTING PRESIDENT FARLEY: The
21 bill is passed.
22 THE SECRETARY: Calendar Number
23 295, by Senator Tully, Senate Bill Number 776,
939
1 an act to amend the Penal Law.
2 SENATOR CONNOR: Lay it aside.
3 ACTING PRESIDENT FARLEY: Lay it
4 aside.
5 THE SECRETARY: Calendar Number
6 296, by Senator Volker, Senate Bill Number 2173,
7 Penal Law, in relation to consecutive terms of
8 imprisonment.
9 ACTING PRESIDENT FARLEY: Read
10 the last section.
11 SENATOR CONNOR: Lay it aside.
12 ACTING PRESIDENT FARLEY: Lay it
13 aside. Don't read the last section.
14 THE SECRETARY: Calendar Number
15 297, by Senator Volker, Senate Bill Number 3323,
16 an act to amend the Penal Law.
17 ACTING PRESIDENT FARLEY: Read
18 the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect immediately.
21 ACTING PRESIDENT FARLEY: Call
22 the roll.
23 (The Secretary called the roll.)
940
1 THE SECRETARY: Ayes 60.
2 ACTING PRESIDENT FARLEY: The
3 bill is passed.
4 THE SECRETARY: Calendar Number
5 299, by Senator Padavan, Senate Bill Number
6 4166, an act to amend the Penal Law.
7 ACTING PRESIDENT FARLEY: Read
8 the last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT FARLEY: Call
12 the roll.
13 (The Secretary called the roll.)
14 THE SECRETARY: Ayes 60.
15 ACTING PRESIDENT FARLEY: The
16 bill is passed.
17 THE SECRETARY: Excuse me. Ayes
18 59. Nays -- in relation to Calendar Number
19 299: Ayes 58. Nays 2. Senators Galiber and
20 Montgomery recorded in the negative.
21 THE SECRETARY: Calendar Number
22 306, by Senator Saland, Senate Bill Number 2242,
23 Domestic Relations Law and the Surrogate's Court
941
1 Procedure Act.
2 ACTING PRESIDENT FARLEY: Read
3 the last section.
4 THE SECRETARY: Section 2. This
5 act shall take effect immediately.
6 ACTING PRESIDENT FARLEY: Call
7 the roll.
8 (The Secretary called the roll.)
9 THE SECRETARY: Ayes 60.
10 ACTING PRESIDENT FARLEY: The
11 bill is passed.
12 Senator Present.
13 SENATOR PRESENT: Mr. President.
14 I think erroneously Calendar 296 was laid
15 aside. Can we try that one, then go to regular
16 order.
17 ACTING PRESIDENT FARLEY: Call up
18 296.
19 THE SECRETARY: Calendar Number
20 296, by Senator Volker, Senate Bill Number 2173,
21 an act to amend the Penal Law, in relation to
22 consecutive terms of imprisonment.
23 ACTING PRESIDENT FARLEY: Read
942
1 the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT FARLEY: Call
5 the roll.
6 (The Secretary called the roll.)
7 THE SECRETARY: Ayes 59. Nays
8 1. Senator Galiber recorded in the negative.
9 ACTING PRESIDENT FARLEY: The
10 bill is passed.
11 Controversial, Senator Present?
12 SENATOR PRESENT: Controversial
13 calendar, please.
14 ACTING PRESIDENT FARLEY:
15 Controversial calendar, page 5.
16 THE SECRETARY: On page 5,
17 Calendar Number 48, by Senator Johnson, Senate
18 Bill Number 3059, an act to amend the Penal Law,
19 in relation to chemical agents and chemical
20 agent weapons.
21 SENATOR GOLD: Explanation.
22 ACTING PRESIDENT FARLEY:
23 Explanation has been asked for.
943
1 Senator Johnson.
2 SENATOR JOHNSON: Mr. President.
3 This is our Mace bill which has been before this
4 body before and has been adopted overwhelmingly
5 on several instances.
6 I would like to explain this bill
7 by reading a short piece of testimony which was
8 delivered by a young lady in November '91 at a
9 hearing I had in New York City. She said here:
10 "I was recently, in early June,
11 a victim of a crime in which I used Mace in
12 order to save myself. I would like to tell you
13 my story.
14 "I was downtown in a parking
15 lot. I was with a gentleman friend who was
16 there for the sole purpose of walking me to my
17 car for my own safety. While we were talking
18 outside the car, we were approached by two men.
19 I saw them approaching; and as I did, I took my
20 can of Mace out of my purse and held it by my
21 side.
22 "At this point, I was still unsure
23 as to whether the men were going to approach us
944
1 or what their intentions were. The two men did
2 approach me. Within two feet of us, they pulled
3 out a gun. They demanded our money, our purse
4 -- my purse, his wallet. I was, of course,
5 still holding my Mace which they didn't see.
6 "I was turned around, placed
7 against the car, frisk for money and any
8 possible weapons that I might be carrying, I
9 suppose. So was my friend. At this point, the
10 gentlemen decided they would like to take me
11 along with them. They proceeded to make me get
12 down on my hands and knees. They put my
13 gentleman friend in the trunk of the car. This
14 whole time I still had my Mace with me.
15 "They put me inside the car.
16 They decided then that I was going to drive the
17 car. I was put in the driver's seat of the
18 car. Needless to say, they were not being very
19 gentle. They were being very forceful. They
20 were assaulting me. They were using a lot of
21 profanity. They were scaring me. The gentleman
22 sat beside me in the passenger seat."
23 The gentleman, I don't know why
945
1 she calls these people gentlemen she's a very
2 polite girl.
3 "The gentleman with the gun sat
4 behind me holding the gun to my head. At this
5 point in the car, I turned around. I still had
6 the Mace with me. I looked at the man. I
7 wanted to use it. I, of course, was very
8 scared. He was asking me what I wanted, 'Why
9 are you looking at me? Turn around and drive,'
10 in very profane terms.
11 "He told me to shut the door
12 completely. I had the door a little bit ajar.
13 I got my confidence up. Used my Mace, sprayed
14 him, temporarily incapacitated him. He had the
15 gun at his left. He was covering his face. He
16 was swearing at me. I got out of the car and I
17 ran. He pulled the gun. He shot at me. I hid
18 behind a dumpster. He shot at me again. I ran
19 and I got away.
20 "Had I not Maced the man, he
21 most likely would have hit me. I was definitely
22 within range when I heard the first shot. I was
23 no more than maybe ten feet from the car when he
946
1 proceeded to get out and shoot. He was shooting
2 blindly. Obviously, I'm not sure whether the
3 second shot came from him or the second man.
4 "I ended up escaping. The men
5 ended up leaving, and my friend was later taken
6 safely out of the trunk."
7 And she says, "I have come to
8 tell you my story in order that it might
9 persuade those that are not as of now in support
10 of this bill." She's talking about my bill.
11 "I believe that because of the
12 nonlethal nature of this device, it gives
13 citizens like myself who would be very hesitant
14 to be carrying a lethal weapon, a gun, a knife,
15 et cetera, it gives you a comfortable means of
16 defense. I think that the ramifications of this
17 type of defense mechanism are far less than that
18 of any other type of defense mechanism."
19 This young lady was from Ohio,
20 and she came to tell the story. Now, in this
21 state, that young lady would not have that
22 ability because of our laws. She would not be
23 permitted to possess Mace to defend herself.
947
1 Though in this state, a postman
2 can carry a can of pepper spray, which is
3 equivalent, to defend himself against a dog
4 bite. But a young lady in New York State can
5 not protect herself with a can of Mace.
6 If that's not a travesty, if
7 that's not an aberation of the law that cries
8 out for correction, I don't know what is.
9 And, you know, when I first
10 introduced this bill, there were three states in
11 the union which did not permit this ownership of
12 Mace to defend oneself. Now we're the only
13 state. The other states got the message. In
14 every state, you can have this to protect
15 yourself but not in New York State.
16 It's time for a change. That's
17 about all I have to say. This bill should be
18 adopted.
19 ACTING PRESIDENT FARLEY: Senator
20 Dollinger.
21 SENATOR DOLLINGER: Mr.
22 President. I believe there is an amendment at
23 the desk.
948
1 ACTING PRESIDENT FARLEY: Yes,
2 there is.
3 SENATOR DOLLINGER: I waive the
4 reading of the amendment and ask that it be
5 considered by the house.
6 ACTING PRESIDENT FARLEY: Senator
7 Present.
8 SENATOR PRESENT: Mr. President.
9 I would like a point of order. Senator
10 Dollinger's amendment, after review, his
11 amendment to Senator Johnson's bill is out of
12 order since it violates Rule 6, Section 4(b), in
13 that it is not germane to the original object or
14 purpose of Senator Johnson's bill.
15 Senator Johnson's bill is
16 concerned with the possession of Mace. Senator
17 Dollinger's amendment offers nothing on that
18 subject; however, it seeks to amend completely
19 different sections of the law than that
20 addressed by Senator Johnson's bill; therefore,
21 I ask that you rule Senator Dollinger's
22 amendment out of order.
23 ACTING PRESIDENT FARLEY: Senator
949
1 Dollinger.
2 SENATOR DOLLINGER: How do you so
3 rule, Mr. President?
4 ACTING PRESIDENT FARLEY: Senator
5 Dollinger, unfortunately for you, I rule that it
6 is out of order.
7 SENATOR DOLLINGER: Okay. I'd
8 like to appeal the order of chair, Mr.
9 President, and be heard on the issue.
10 ACTING PRESIDENT FARLEY: Senator
11 Dollinger moves to overrule the chair and to be
12 heard on the issue.
13 You can be heard. Go ahead.
14 SENATOR DOLLINGER: Mr.
15 President. I'll try again. I tried with
16 germaneness a couple of times, and I seem to be
17 failing.
18 Mr. President. I stand in
19 support of Senator Johnson's bill, which will
20 take a category of weapon which is currently
21 illegal in this state and make it legal. I
22 understand the underlying issues that Senator
23 Johnson talked about in his letter and the
950
1 importance of making this small weapon available
2 as a deterrent for those who feel that they need
3 Mace as a way of thwarting off attackers.
4 What I seek to do, however, Mr.
5 President, is to deal with another issue that
6 involves weapon, and those are weapons that are
7 generally known under the category as assault
8 weapons, and it seems to me that since we're
9 dealing with weapons -- what we're doing is
10 allowing a new weapon to become more available
11 -- we should also take one off the shelf, one
12 that is currently available, that currently can
13 be purchased without a permit, without any
14 authority whatsoever. Certainly if you've got
15 the money, you can do it.
16 If you got the money now in this
17 state, if Senator Johnson's bill is passed, you
18 can buy Mace to protect yourself. I'm simply
19 suggesting that we amended other portions of the
20 Penal Law to take one weapon which is currently
21 available and restrict access to it so that only
22 pistol permit holders can have it.
23 That's the Assault Weapon Bill
951
1 that passed the Assembly. That's what the
2 amendment seeks to do. It does deal with
3 weapons. It deals with access to weapons. It
4 deals with the public safety, the same germane
5 issues that are involved in the proposal from
6 Senator Johnson.
7 And it seems to me while the
8 message that comes out of today is that it's
9 okay for you to have Mace, but it's also okay
10 for you to continue to have the kinds of weapons
11 that have been used on the bus in New York City
12 -- on the van in New York City. If the Court
13 -- or if the President will recall, a review of
14 the weapons that were available in the cashe of
15 the assailant or the alleged assailant were all
16 kinds of assault weapons.
17 We should get those weapons off
18 the shelf. We should restrict access to those
19 weapons, while we're making another form of
20 weapon, the Mace, available to our constituents.
21 So this deals with public
22 safety. It's certainly germane to the issue of
23 public safety, and we ought to take this step,
952
1 amend the bill. Consider the bill in its
2 totality and deal with the problem of weapons in
3 this state in a rational way.
4 SENATOR GOLD: Mr. President.
5 ACTING PRESIDENT FARLEY: Senator
6 Gold.
7 SENATOR GOLD: Thank you very
8 much.
9 Mr. President. It is not new to
10 this chamber that Senator Dollinger has been
11 attempting, very, very diligently to bring
12 certain issues to the floor. And while I
13 understand the obligation of the chair to rule
14 in a manner that supports our rules, and I
15 appreciate the difficult job Senator Present has
16 in upholding the rules, I do sometimes get
17 perplexed.
18 There isn't an individual in this
19 chamber who didn't cringe a little bit when I
20 announced last week that two Lubavitcher youths
21 were in critical condition -- at this point, as
22 you know, one of them passed away -- and that
23 someone in a car sprayed bullets at a van
953
1 containing innocent students.
2 There is a story in today's Daily
3 News by Michael Daley, which traces the actual
4 weapon used in that particular crime, and I
5 commend the story to you. We talk about so many
6 things in the abstract that I think it's
7 important that sometimes we get away from the
8 abstract and we talk about something that has
9 touched our lives and that we know about in
10 recent days.
11 That particular gun had paperwork
12 filed at Glock, which as you know is a
13 manufacturer, in Georgia. It then was imported
14 by Glock from Austria and shipped to a dealer in
15 Jefferson, Indiana. That was October 8th of
16 '91. A week later it was sold to a gun shop in
17 Ohio. Ten days later, it was bought by a
18 firearms dealer in Florida. This is all in
19 October of '91. Then it turns up in New York
20 City on the streets of New York City on March 2
21 of 1994 and kills people.
22 I am one of the first to concede
23 that there is an obligation on the part of our
954
1 federal government. I'm one of the first to
2 concede that the Brady law meant nothing in New
3 York State. You can't get a handgun in New York
4 State in five days. It's an irrelevant law for
5 us.
6 But on the other hand, on the
7 other hand, the whole nature of violence has
8 really changed. There were those of us who made
9 speeches years ago about how murder was a
10 friendly crime. People killed their lovers,
11 their spouses. They killed their bosses. They
12 killed people whom they knew, and that was the
13 major part of murder. That is not the case any
14 more.
15 Now we have such random violence
16 that it is even worse from the point of view of
17 the mentality of the average citizen as it was
18 years ago, and we have to do something. Now,
19 this is not an anti-hunters speech. It is not
20 an anti-sportsmen speech. It is not an
21 anti-recreational shooters speech. It is, I
22 hope, a realistic statement of what we have to
23 do.
955
1 I know the politics of the NRA
2 and I respect the NRA, and I respect its
3 constituency, but they are wrong on this issue.
4 They are just wrong on this issue. It doesn't
5 make them bad. It doesn't make them evil.
6 SENATOR VELELLA: Mr. President.
7 Point of order.
8 ACTING PRESIDENT FARLEY: What's
9 your point of order, Senator?
10 SENATOR VELELLA: It is my
11 understanding that we are supposed to be
12 debating whether or not Senator Dollinger's
13 amendment was relevant to the proposed bill by
14 Senator Johnson. Now we have gotten into a
15 discussion on the NRA, the Brady bill, federal
16 legislation. I think the Senator is out of
17 order. The issue that we're supposed to be
18 discussing is whether or not Senator Dollinger's
19 amendment is relevant.
20 ACTING PRESIDENT FARLEY: Senator
21 Gold, the chair has been very patient, and I
22 think you realize that. We are on a motion to
23 overrule the chair as to whether Senator
956
1 Dollinger's amendment is germane to Senator
2 Johnson's Mace bill.
3 SENATOR GOLD: Yes.
4 ACTING PRESIDENT FARLEY: And I
5 would ask and -
6 SENATOR GOLD: I was getting to
7 the logical connection just at the point when
8 Senator Velella interrupted.
9 SENATOR VELELLA: I withdraw my
10 objection and wait for the logical connection.
11 SENATOR GOLD: Your timing was
12 extraordinary.
13 ACTING PRESIDENT FARLEY: We wait
14 with baited breath for the logical point. Go
15 ahead.
16 SENATOR GOLD: Good. Don't hold
17 your breath too long.
18 Mr. President. The point I'm
19 making is really a very, very, very simple
20 point; and that is, that I believe that we have
21 an obligation -- and I think Senator Dollinger
22 has been outstanding in bringing this out -- we
23 have an obligation. And the rules of our house
957
1 which are meant to conduct business in an
2 orderly way should not be a weapon to suppress
3 free and open debate on necessary and important
4 issues, and this issue is necessary and
5 important.
6 If, in fact, the anti-assault ban
7 lobby is right, or some of you think it is that
8 correct, then that's the way you will vote, and
9 I'm sure that the constituency which you reflect
10 will reward you properly, but it's a debate that
11 ought to take place.
12 And I suggest to you, Mr.
13 President, that under our rules that you could
14 very well have ruled that Senator Dollinger's
15 amendment is germane. We could have had a free
16 and open debate, and I would urge that people
17 vote against the ruling of the chair.
18 ACTING PRESIDENT FARLEY: Senator
19 Dollinger.
20 SENATOR DOLLINGER: Mr.
21 President. I have nothing to add to Senator
22 Gold's eloquent substance. I'm just interested
23 in some day knowing what germane means so that I
958
1 can inform my grandchildren.
2 I guess at some point I'd love to
3 see an amendment attached to a bill that is
4 considered germane, and then I will have some
5 guidance as to what it means.
6 I know what it doesn't mean, or
7 I'm learning what it doesn't mean, but I'd like
8 to know some day what it does mean.
9 ACTING PRESIDENT FARLEY: I'm
10 confident that Senator Present will discuss that
11 with you.
12 There is a motion on the floor to
13 overrule the chair. Those that are in favor of
14 overruling the chair, say aye.
15 (Response of "Aye.")
16 Those that are in favor of
17 sustaining the chair, say nay.
18 (Response of "Nay.")
19 I believe the nays have it.
20 Read the last section of Senator
21 Johnson's bill.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
959
1 SENATOR GOLD: Mr. President.
2 ACTING PRESIDENT FARLEY: Senator
3 Gold to explain his vote.
4 SENATOR GOLD: Yes, thank you. I
5 just wanted to point out that there were some
6 Senators who had opposition to this in the past
7 including Senator Connor and Montgomery and
8 Paterson, Smith, and Waldon.
9 I vote in the affirmative.
10 ACTING PRESIDENT FARLEY: Call
11 the roll.
12 (The Secretary called the roll.)
13 SENATOR GOLD: Sorry. I'm in the
14 negative.
15 SENATOR HOFFMANN: Mr. President.
16 ACTING PRESIDENT FARLEY: Senator
17 Hoffmann.
18 SENATOR HOFFMANN: Could I ask
19 the sponsor a question before you announce a
20 vote on this?
21 ACTING PRESIDENT FARLEY: Without
22 objection. Senator Johnson, Senator Hoffmann
23 has question for you as we're on the roll call.
960
1 SENATOR HOFFMANN: Perhaps you
2 can refresh my memory, Senator Johnson. As a
3 supporter of this bill for a number of years, I
4 believe that in the past it had been offered for
5 co-sponsorship to some members on this side of
6 the aisle. I thought that I had been a
7 co-sponsor at least once in previous years. I
8 remember speaking on it several times. And I'm
9 curious to see the list of sponsors today
10 includes only Republican members of the Senate.
11 I wonder if you would be so kind
12 as to add my name to that list, as well. I
13 would like to be a co-sponsor on the Mace bill.
14 SENATOR JOHNSON: Fine, Senator.
15 ACTING PRESIDENT FARLEY:
16 Results.
17 THE SECRETARY: Those recorded in
18 the negative on Calendar Number 48 are Senators
19 Connor, Espada, Galiber, Gold, Montgomery,
20 Ohrenstein, Smith and Waldon. Ayes 42. Nays 8.
21 (Whereupon, Senator Libous was in
22 the chair.)
23 ACTING PRESIDENT LIBOUS: Bill is
961
1 passed.
2 Senator Present.
3 SENATOR PRESENT: Mr. President.
4 Would you call up Calendar 191, have the last
5 section read, so Senator Solomon could cast his
6 vote, and then put it back on the calendar where
7 it is.
8 ACTING PRESIDENT LIBOUS:
9 Secretary will read Calendar 191.
10 THE SECRETARY: Calendar Number
11 191, by Senator Volker, Senate Bill Number 6350,
12 an act to amend the Penal Law, the Criminal
13 Procedure Law, and the Judiciary Law, in
14 relation to the imposition of the death penalty.
15 ACTING PRESIDENT LIBOUS: Read
16 the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT LIBOUS: Senator
20 Solomon, how to you vote?
21 SENATOR SOLOMON: Yes.
22 ACTING PRESIDENT LIBOUS: Lay the
23 bill aside.
962
1 SENATOR PRESENT: Regular order.
2 ACTING PRESIDENT LIBOUS:
3 Secretary will read.
4 THE SECRETARY: Calendar Number
5 59, by Member of the Assembly Grannis, Assembly
6 Bill Number 6289B, an act to amend the Insurance
7 Law.
8 ACTING PRESIDENT LIBOUS: Read
9 the last section.
10 THE SECRETARY: Section 2. This
11 act shall take effect immediately.
12 ACTING PRESIDENT LIBOUS: Call
13 the roll.
14 (The Secretary called the roll.)
15 THE SECRETARY: Ayes 60.
16 ACTING PRESIDENT LIBOUS: The
17 bill is passed.
18 THE SECRETARY: Calendar Number
19 141, by Senator Stafford.
20 SENATOR GOLD: Lay it aside.
21 ACTING PRESIDENT LIBOUS: Lay
22 that bill aside.
23 SENATOR PRESENT: Temporarily.
963
1 ACTING PRESIDENT LIBOUS:
2 Temporarily.
3 THE SECRETARY: Calendar Number
4 157, by Senator Padavan, Senate Bill Number
5 3248, Education Law.
6 ACTING PRESIDENT LIBOUS: Read
7 the last section.
8 THE SECRETARY: Section 2. This
9 act shall take effect immediately.
10 ACTING PRESIDENT LIBOUS: Call
11 the roll.
12 (The Secretary called the roll.)
13 SENATOR GOLD: Hold on one
14 second, please.
15 Mr. President.
16 ACTING PRESIDENT LIBOUS: Senator
17 Gold.
18 SENATOR GOLD: Just to explain my
19 vote.
20 ACTING PRESIDENT LIBOUS: Senator
21 Gold to explain his vote.
22 SENATOR GOLD: I would like to
23 refresh the recollection of Senator DeFrancisco,
964
1 who joined with Senator Smith and Paterson,
2 Connor, Galiber, Leichter, Montgomery, in the
3 negative last year.
4 I'm in the affirmative.
5 ACTING PRESIDENT LIBOUS:
6 Results.
7 Senator Stachowski. Senator
8 Stachowski to explain his vote.
9 SENATOR STACHOWSKI: Mr.
10 President. I just wanted to thank Senator
11 Padavan for laying this aside for one day for
12 me, and that I spoke to my Mayor, and he gave me
13 no indication that his position has changed. So
14 since I voted "No" two years ago and then he
15 convinced me when he was the candidate for Mayor
16 to vote for this, and since he gave me no reason
17 to vote against it yet, I'm going to support my
18 Mayor and vote yes again, and I hope he is
19 happy.
20 ACTING PRESIDENT LIBOUS: Excuse
21 me, Senator Gold. Senator Gold, did you say you
22 were in the affirmative?
23 SENATOR GOLD: Yes. I'm with the
965
1 distinguished gentleman from Buffalo.
2 THE SECRETARY: Those recorded in
3 the negative on Calendar Number 157 are Senators
4 DeFrancisco, Galiber, Leichter, Montgomery,
5 Smith and Waldon.
6 SENATOR GALIBER: How was I
7 recorded on this vote.
8 THE SECRETARY: "No."
9 SENATOR GALIBER: Yes.
10 ACTING PRESIDENT LIBOUS: Senator
11 Montgomery is in the negative. Senator
12 Montgomery, how do you wish to be recorded?
13 SENATOR MONTGOMERY: I'm in the
14 affirmative.
15 ACTING PRESIDENT LIBOUS: Senator
16 Montgomery in the affirmative.
17 Senator Present.
18 SENATOR PRESENT: Mr. President.
19 Will you recognize Senator Saland, please.
20 ACTING PRESIDENT LIBOUS: Senator
21 Saland.
22 SENATOR SALAND: Thank you, Mr.
23 President. Unfortunately, when the session
966
1 began, I was detained, unable to be here on the
2 floor a bit earlier. What I would like to do is
3 very briefly interrupt the proceedings.
4 ACTING PRESIDENT LIBOUS: Senator
5 Saland, can we just finish the results on this
6 bill? Please.
7 SENATOR SALAND: Certainly, Mr.
8 President.
9 THE SECRETARY: Calendar Number
10 157, those recorded in the negative are Senators
11 DeFrancisco, Leichter, Smith and Waldon. Ayes
12 56. Nays 4.
13 ACTING PRESIDENT LIBOUS: The
14 bill is passed.
15 Senator Saland.
16 SENATOR SALAND: Thank you again,
17 Mr. President. As I had started to say, I
18 wasn't on the floor at the moment the session
19 began a bit earlier, and what I would have done
20 at that point, I would like to have the
21 opportunity to do now, which is recognize a
22 young woman who is "Miss Teen New York" who
23 resides in my Senate district.
967
1 She is here with her mother. The
2 young lady's name is Heather Mahar. Her mother
3 is Jan Mahar, who just happens to be the
4 president of my school district, Spakenkill
5 School District, and they are seated in the
6 chamber here to my rear.
7 I appreciate your recognizing
8 them.
9 ACTING PRESIDENT LIBOUS: Heather
10 and Jan, on behalf of my colleagues here,
11 members of the Senate, we certainly welcome you
12 to the chamber this afternoon. We hope you and
13 your mother have a very enjoyable visit, and we
14 congratulate you on being "Miss Teen New York,"
15 and welcome to the chamber.
16 (Applause.)
17 THE SECRETARY: Calendar Number
18 181, by Senator Volker.
19 SENATOR PRESENT: Lay it aside
20 temporarily.
21 ACTING PRESIDENT LIBOUS: Lay 181
22 aside temporarily.
23 THE SECRETARY: Calendar 191, by
968
1 Senator Volker, Senate Bill Number 6350, an act
2 to amend the Penal Law, the Criminal Procedure
3 Law, the Judiciary Law, and the County Law, in
4 relation to the imposition of the death penalty.
5 ACTING PRESIDENT LIBOUS: Senator
6 Volker, explanation please.
7 SENATOR VOLKER: Mr. President.
8 Let me just start out by saying that this is the
9 -- unfortunately, the eighteenth time that I
10 have attempted this process since 1977. As I
11 said on many occasions, I would always hope that
12 this would be the end of this process, which I
13 am convinced, unfortunately, the lack of a death
14 penalty in this state has unquestionably created
15 part of the climate that we find ourselves faced
16 with.
17 For those of you that are new or
18 -- several people here, of course, are very
19 new. This process has gone on for a number of
20 years. The bill that we have here is basically
21 the same bill that we have had for a number of
22 years. There were some changes made in various
23 sections here several years ago, but it is
969
1 basically the same bill that was drafted a
2 number of years ago in response to a federal
3 court decision and state court decisions on the
4 issue of the death penalty.
5 It is a bifurcated jury system
6 bill which complies with the Supreme Court
7 restrictions. By that I mean the way the
8 process works is that first the person who is
9 involved would be convicted of -- convicted of
10 the crime -- in other words, murder -- and then,
11 assuming that there was one of the so-called
12 aggravating circumstances that are included in
13 this bill, then a second trial would commence on
14 the issue of the death penalty or a life term.
15 There are a number of protections
16 in this bill. At times, I think, that
17 unfortunately over the years because this debate
18 has gone on so long, there are not a lot of
19 people outside this chamber that ever read this
20 bill. In fact, I'm constantly questioned as to
21 the fact that I should add something in the bill
22 that would protect defendants.
23 For instance, we should do
970
1 something about counsel fees. That's in the
2 bill. This bill waives all restrictions on
3 counsel fees, enables a judge in a capital case
4 to award fees to not only the counsel but also
5 to investigators and so forth way over and above
6 anything that is in normal cases, and the reason
7 is obvious, because of the type of case.
8 It also says that people who
9 represent individuals in these capital cases
10 must have at least five years -- one of the
11 attorneys must have at least five years
12 experience in the trial of felony cases and five
13 years experience, if there should be appeals, on
14 the appeals side.
15 There is a provision in here for
16 a direct appeal to the Court of Appeals, and the
17 reason for that is -- and that's on the issue of
18 -- the various issues that are
19 characteristically the most controversial, such
20 as proportionality. That means whether the
21 sentence is proportionate to the crime and
22 whether other crimes are sentenced in the same
23 way, the issue of race, and emotional kinds of
971
1 issues of those kinds.
2 The reason for that is, is to
3 give that defendant a quick and immediate option
4 to reach the Court of Appeals and make decisions
5 should it turn out that there is something in
6 that trial that stands out as improper or
7 unnatural as far as the case is concerned. It
8 does not restrict the ability of that defendant,
9 obviously, to make further appeals. But many
10 people who are practiced in that kind of field
11 say that what that will do is, it will probably
12 will work two ways. One, it will give the
13 defendant an opportunity to make his case even
14 more quickly; but, in a second front, it will
15 also move death penalty cases along much more
16 quickly. And, presumably, should a person be
17 clearly guilty and the trial be done properly
18 and the decision be made, very honestly would
19 presumably allow executions on a much more rapid
20 basis.
21 Now, there has been a lot of talk
22 here. In fact, a lot of the emphasis in this
23 session on crime, unfortunately, has been on
972
1 guns. I say it's unfortunate because it fits
2 right in with what's happened in this country
3 and in the state. Instead of zeroing in on the
4 individuals, we blame everyone else. We blame
5 implements. We blame all sorts of things for
6 crime.
7 If you watch the spectacular
8 trials on television these days -- and by the
9 way, I must be honest with you as somebody, some
10 of you know here, who has had great misgivings
11 over the years on trials on television and the
12 use of television in courtrooms, I'm afraid I've
13 taken an extremely dim view of some of the
14 things that I've seen in some of these trials.
15 No one is going to tell me that
16 the Menendez trial wasn't affected by television
17 -- or a number of these other cases. But the
18 thing I think that was most disconcerting was
19 that the victims were on trial, and most of
20 these victims were dead. The victims were on
21 trial. It was almost as if what was being said
22 was, well, these were not nice people; and,
23 therefore, the people who killed them shouldn't
973
1 be brought to justice, shouldn't be made to pay,
2 because somehow these weren't particularly nice
3 people.
4 And, you know, I thought about
5 that. And, ladies and gentlemen of the Senate,
6 it fits right in, unfortunately, with what's
7 been happening in this country and this state;
8 and, unfortunately, it fits in with the decision
9 that other people made. And there is only one
10 person here in the Senate who was here when the
11 decision was made in 1965 to virtually abolish
12 the death penalty. It fits in with the
13 unfortunate part, and it was never meant to be
14 that way.
15 The abolition of the death
16 penalty was meant to be a decision -- at a time,
17 by the way, when the murder rate was low and
18 violent crime was fairly low. People thought
19 there ought to be another way. There ought to
20 be a better way to do it.
21 It was meant to send a message of
22 peace and of security and to say we really don't
23 want to do that. The state shouldn't do that.
974
1 "Unfortunately," people like my father and
2 other people said, "that's not the message you
3 are going to send." You mark my words. The
4 message you will send is that life is cheaper,
5 that we don't blame people for their actions,
6 that we don't make people accountable.
7 If you look at over the years
8 what's happened -- and that's the problem, by
9 the way, with gun laws. They don't make the
10 people accountable. They try to make the guns
11 accountable. The death penalty says to those
12 who would kill, "Look, if you take a life, you
13 better be prepared to face the strong
14 possibility that you may have to give yours."
15 By the way, people ask me all the
16 time, would the Long Island Rail Road shooting
17 be included under this bill? Absolutely. Would
18 the World Trade Center bombing be included under
19 this bill? And by that I mean would it be
20 subject to it? Naturally, it would be up to the
21 jury. Would the World Trade Center bombing? Of
22 course. Would the shooting on the Brooklyn
23 Bridge of the Hasidic students, would that be?
975
1 Absolutely. The bombing upstate, the bombings
2 of the same -- or family, the killings in that
3 family, would that have been included?
4 Absolutely. They would have all been included.
5 In fact, the interesting thing
6 about the World Trade Center bombing is that
7 those people technically could be tried under
8 either state or federal law, obviously; but, of
9 course, under federal law, they could be subject
10 potentially to the death penalty; but in this
11 state at this point, they could only be subject
12 to life terms.
13 I think that we have to face up
14 to something in our society, something that I
15 think maybe the press is unable to do. The
16 press is unable to face up to the fact that our
17 society has reached a crisis stage of
18 accountability. You can't say it's somebody
19 else's fault. You can't say that that killing
20 was not my fault. It's my parents' fault. It's
21 because I was an abused child. It's because I
22 was this or who I am or what I am.
23 Because what we're beginning to
976
1 realize I think in society is that wherever you
2 are or whoever you are, a strong possibility is
3 that you can be the subject of a violent crime,
4 and the person who commits that crime is not an
5 identifiable race, creed or whatever, because it
6 could be anybody.
7 You know, I listen sometimes to
8 people who want to blame all sorts of different
9 races and sexes and all sorts of things. It's
10 really foolish when you think about it. Because
11 what has happened is our disregard for human
12 life has descended to the point that we now have
13 the situation where universally -- universally,
14 wherever you live in this state -- it is true
15 that there are parts of this state that are more
16 dangerous than others, but the truth is that
17 wherever you live, the possibility is that you
18 could be subjected to a situation where your
19 life could be taken away from you.
20 I was talking to a gentleman here
21 a couple of weeks ago from india, and we were
22 talking about a completely different subject.
23 It was in regard to health care and, suddenly,
977
1 the issue turned to the death penalty. And he
2 said, "I know you people in Albany are not going
3 to do the death penalty because," he said, "you
4 don't have the courage or the understanding."
5 He said, "You still think that
6 somehow you can play around with these kinds of
7 people with this kind of issue." "You have to
8 live in a country like India," he said, "to
9 understand that you can't do that."
10 He made an interesting point.
11 His point was that we really haven't had the
12 courage in this country to deal straight up with
13 this kind of issue.
14 I said to him, you may be right.
15 I will say this. The majority of both houses of
16 the State Legislature, Senate and Assembly, have
17 had the courage. You can certainly argue that
18 maybe the Governor of this state hasn't had the
19 courage; and that, for various reasons, we have
20 not over the years been able to accumulate
21 enough people who have had the courage or just
22 enough people to override and to send that
23 message out to the street because wherever I go
978
1 -- I must tell you a story.
2 A very prominent law enforcement
3 officer -- this is right at the time when all
4 the frenzy was going on over guns -- said to me
5 privately -- he said, "Senator, you know, it
6 would be a shame if the only thing we did this
7 year is some restriction on guns, which you and
8 I know is not going to do much of anything. If
9 you don't do the death penalty or do some sort
10 of huge message out there to the criminal
11 element, it will be a tragedy."
12 Because the public is ready for
13 it. The public wants it. Because while we were
14 up here talking about esoteric criminal issues,
15 the public back there was saying, What's the
16 matter with you people? Why aren't you doing
17 the kinds of things that need to be done,
18 putting people in jail for long periods of
19 time?
20 And they say, "Well, we've heard
21 that this doesn't work."
22 "Well, we think it better work.
23 We think it has to work. Yeah, you can deal
979
1 with the ills of society, but with the issue of
2 killing," people have said to me, "look,
3 Senator" -- it's not even the issue of
4 deterrence, because I still argue -- because I
5 look at the numbers. I still argue on the issue
6 of deterrence.
7 But many people have said to me
8 this is an issue of justice. You are going to
9 tell me that some of these vicious killers
10 should be stored in our prison system, that we
11 should take another prisoner from another state
12 who killed two people, one of whom he choked to
13 death with a Christmas tree, with the wire from
14 a Christmas tree, that that killer should be in
15 our prison system who said he wants to be
16 executed?
17 Seems to me that we had better
18 evaluate our priorities. We try to protect
19 people wherever we can. Certainly there are
20 things we haven't done. But if we are going to
21 protect society -- and I was out there at one
22 time as a law enforcement officer, and I won't
23 get into that, but I will tell you this. I am
980
1 convinced of one thing. This Legislature, this
2 Governor -- and I'm talking about Senate and
3 Assembly and the Governor -- we can pass all the
4 legislation we want this year. And there is a
5 number of things that can be done and probably
6 should be done before this year is out that can
7 help the situation. There is a number of
8 things, and I have listened to people in this
9 chamber who I happen to agree with who say
10 things to me about changing society and families
11 and all that. We spend millions and millions
12 and millions of dollars on education and on
13 social welfare programs. No state in the union
14 spends as much as we do on those kinds of
15 programs.
16 But, ladies and gentlemen of the
17 Senate, there is one action we can take that
18 will send a message to those people out there
19 who would kill, more than any other message we
20 can send, and, in fact, more than that. I
21 happen to believe -- in looking at these
22 numbers, I happen to believe that it's the only
23 way, unfortunately, at this point, that we can
981
1 send a dramatic message to our constituents that
2 we're really ready to do something; and that
3 message is to pass this bill; and when the
4 governor vetoes it, as inevitably he will, to
5 override it.
6 That message will say to our
7 constituents that we are ready and have the
8 courage to stand up and say to those who will
9 kill, whether it's in the World Trade Center or
10 whether it's on the Long Island Rail Road or
11 whether it's at Buffalo and Rochester, wherever
12 it is, we're tired of it. And we're saying to
13 our constituents and, more so, to those people
14 who would kill, you better be ready to give your
15 own life if you take somebody's life.
16 ACTING PRESIDENT LIBOUS: Senator
17 Gold.
18 SENATOR GOLD: Thank you, Mr.
19 President.
20 Mr. President. "Twenty years
21 have passed since the Supreme Court declared
22 that the death penalty must be imposed fairly
23 and with reasonable consistency or not at all.
982
1 And despite the effort of the state -- the
2 states and the courts to devise legal formulas
3 and procedural rules to meet this challenge, the
4 death penalty remains fraught with
5 arbitrariness, caprice and mistake."
6 "Experience has taught us that the
7 constitutional goal of eliminating arbitrariness
8 and discrimination from the administration of
9 death can never be achieved without comprising
10 an equally essential component of fundamental
11 fairness - individualized sentencing."
12 Mr. President. I'm going to read
13 you some other things, but these are not my
14 words. These are the words of Justice Blackmun
15 in a dissenting opinion handed down, shocking
16 many people in this country, and it was handed
17 down on February 22nd of this year in the case
18 of Callins v. Collins.
19 Justice Blackmun had, for years,
20 supported the concept that there could be a
21 death penalty in America if A, B, C, D, et
22 cetera. And here is this distinguished jurist,
23 appointed in 1970, who served 23 years on the
983
1 Supreme Court, having the guts to say what he
2 said in this decision.
3 I say "guts" because there is too
4 much politics in government, as I always say,
5 but many of us feel that if we voted one way
6 once or if we said something once, that is now
7 in stone and everything we do must be somehow be
8 wrapped around that mistake, if it was a mistake
9 that we made, forever.
10 The man is a Supreme Court
11 justice, sworn to uphold the Constitution, and
12 stands up in front of America and says, Twenty
13 years have passed, and what we said and what we
14 thought could be done can't be done.
15 He goes on. The problem is the
16 inevitability of factual, legal, and moral
17 errors gives us a system that we must knowingly
18 kill some defendants wrongfully -- wrongfully
19 kill some, a system that fails to deliver the
20 fair, consistent and reliable sentences of death
21 required by the Constitution.
22 Here is a justice who said you
23 can have in an intellectual vacuum a death
984
1 penalty administered constitutionally, who then
2 says, When you get out of that intellectual
3 vacuum and into our real world, you can't do it.
4 "Although most of the public
5 seems to desire and the Constitution appears to
6 permit the penalty of death, it is surely beyond
7 dispute that if the death penalty cannot be
8 administered consistently and rationally, it may
9 not be administered at all."
10 "Experience has shown that the
11 consistency and rationality promised in Furman
12 are inversely related to the fairness owed the
13 individual when considering a sentence of
14 death. A step towards consistency is a step"
15 against -- "away from fairness."
16 He closed, "My belief that this
17 court would not enforce the death penalty (even
18 if it could) in accordance with the Constitution
19 is buttressed by the Court's 'obvious eagerness
20 to do away with any restrictions on States'
21 powers to execute whomever and however they
22 please.'"
23 This is just overwhelming. There
985
1 isn't a doubt in my mind that the death penalty,
2 as such, is not an issue in the New York State
3 Senate as to whether it will pass, whether or
4 not there are enough votes to override a veto
5 because, unfortunately, we're in an election
6 year. We are very close to a constituency
7 group. We are not United States Supreme Court
8 Justices who are a little bit aloof from that
9 kind of jeopardy that I have just described.
10 But it really is a shame.
11 It's a shame because while I have
12 pointed out to this body that in states such as
13 Florida and Texas, which execute more people
14 than anyone else in America, they have
15 horrifying homicide problems. Texas is a place
16 where I think more police officers get executed
17 than any place else. Florida has been all over
18 the newspapers in the last year. And as a
19 matter of fact, my wife and I went away in
20 December for our 35th wedding anniversary, went
21 to Nassau. It was flooded with tourists from
22 Europe who normally come to America and are
23 afraid to go to Florida now because of what
986
1 happened. Florida has the death penalty.
2 But no matter how much of that we
3 talk about -- there's statistics that say that
4 if you have the death penalty in a state murder
5 goes up in many places -- none of that seems to
6 break down the wall of resistance that people
7 who favor the death penalty have in hanging on
8 to that as the linchpin of their criminal
9 justice package.
10 Maybe -- maybe -- Justice
11 Blackmun can have an effect on some of you.
12 This is an extraordinary statement by a
13 respected judge. I mean can you imagine that?
14 Twenty-three years on the bench, and the judge
15 has the courage and the intestinal fortitude and
16 personal integrity to come out with the decision
17 that he did.
18 I want to make one other point,
19 and then I will sit down. I have expressed at
20 length -- and I won't this time -- on other
21 occasions how I can respect anybody's opinion on
22 this issue but that I resent it when we pointed
23 to the Almighty and blamed God for our votes on
987
1 capital punishment. "An eye for an eye"; "Thou
2 shalt not kill"; they point to everything.
3 In this last week when we had
4 this disgusting, disgusting incident in which
5 Aaron Halberstam lost his life, there was a call
6 from some people in the Jewish community for the
7 death penalty.
8 And while I enjoy reading Jewish
9 literature and Talmud and Torah and the like and
10 Jewish law, I do not pretend to have the
11 scholarship of some of the Hasidic rabbis, but I
12 will tell you it is my belief, my very firm
13 belief, that under Talmudic Jewish law the
14 killer of Aaron Halberstam could not be given a
15 death penalty. Could not be given a death
16 penalty. Because under Jewish law, before you
17 could get the death penalty, there was a whole
18 cadre of conditions. There had to be a certain
19 amount of witnesses. There had to be statements
20 made to the killer. Do you know that if you
21 kill you can get the death penalty? And there
22 was a saying that if a court sent one person to
23 death in 70 years, it was considered a strict -
988
1 a very strict and a very harsh court.
2 Under Jewish law, you could get
3 death penalty theoretically for not being -
4 disrespectful to your parent. I mean there were
5 all kinds of things, and you have to take this
6 into a proper perspective.
7 And I admire greatly the people
8 who spend their lives in the study of Jewish law
9 and in any kind of religious law and in any kind
10 of religious endeavor. But I urge upon you, if
11 you have come to an intellectual conclusion that
12 the death penalty is a deterrent, that the death
13 penalty is this, that, or the other thing, then
14 go with that conclusion.
15 But I urge upon you -- I have
16 seen memos from the Catholic Diocese and others
17 -- if we vote to kill people, we are not doing
18 the Lord's work in my humble opinion. And I -
19 and I -- I think we should just keep those
20 issues straight.
21 I also think I would be remiss,
22 and I'll say this in closing, if I didn't pay
23 some respect to a public official who I think in
989
1 this state has an enormous amount of courage.
2 The argument, the debate, over the death penalty
3 is a legitimate debate, but I will tell you
4 this. We have a governor who I think has
5 extraordinary courage, not because he has a
6 position and sticks with it but because it is
7 this particular issue with this heat and with
8 this political danger. And he says to the
9 people of this state, You elected me to do what
10 I think is right and in the best interests of
11 our population, and I am doing it. And he
12 realizes the political jeopardy, and he is
13 certainly to be respected and honored for that
14 degree of integrity.
15 But I suggest to you that he
16 doesn't leave it at that. And one of the sore
17 spots in the history of this house of the
18 legislature for the last eight, ten years is our
19 failure to pass life without parole; and it is
20 my opinion that it hasn't passed because, by
21 passing it, it would soften the political
22 pressure for the death penalty; and there are
23 people who don't want that softened. And I am
990
1 not in any way casting any dispersions upon my
2 colleague Senator Volker, whom I respect in
3 public and in private and who I know feels very,
4 very sincerely about this issue.
5 But the fact remains, that during
6 the past eight years or so, we did have the
7 capacity to put people away and throw away the
8 key -- throw away the key -- and we did not take
9 that opportunity, and that is a shame because
10 the fact is that this debate could have gone on
11 on capital punishment, and there would have been
12 people sentenced under a much harsher law.
13 So, Mr. President, you can't be
14 good at everything, but I think I'm good at
15 counting, and I know that this is a difficult
16 issue, and that the bill probably will prevail,
17 but I think it's a shame, and I would say to any
18 of my colleagues who are so inclined to change
19 their minds that if someone of the stature of
20 Justice Blackmun can do it in public and stand
21 up for what he believed is right even though it
22 was a change of position, I think certainly we
23 can do that, too.
991
1 ACTING PRESIDENT LIBOUS: Senator
2 Saland.
3 SENATOR SALAND: Thank you, Mr.
4 President.
5 My colleagues. Permit me, if I
6 might, a rhetorical question. This seems to
7 come up time and again in each of these debates,
8 and I've said to those who oppose this debate -
9 who oppose this bill, I certainly respect your
10 opinion. I've never denigrated it. And somehow
11 or other, I'm troubled and continued to be
12 troubled by the fact that those who oppose the
13 death penalty are people who should be honored,
14 people who have integrity and people who have
15 fortitude. I won't take that away from those
16 who -- who oppose the death penalty. But,
17 implicitly, it means that those of us who
18 support the death penalty are somehow or other
19 lesser people; somehow or other, we don't
20 believe as passionately or as fervently, and
21 somehow or other, there are no intellectual
22 bases for the manner by which we arrive at our
23 decision.
992
1 Now, with all due respects to
2 Justice Blackmun, who has presided for some 23
3 years in the United States Supreme Court, I
4 doubt that there's any of us who would agree
5 with each and every decision that he has either
6 written or each and every decision upon which he
7 has ruled, and I really don't view him as being
8 particularly relevant to this debate, other than
9 for purposes of buttressing annecdotally the
10 position of those who oppose.
11 Now, in Senator Gold's remarks,
12 he made reference to the states of Florida and
13 Texas and said, I think, something to the
14 effect, I believe, that they have more police
15 killings there or a disproportionately high rate
16 of police killings. I don't recall the exact
17 same thing. And I don't know if any of us has
18 heard from either the state of Florida or the
19 state of Texas or from any other police
20 organization that they are so concerned that
21 there is a connection between the death penalty
22 and the murder of police that they oppose the
23 death penalty.
993
1 The reality is that there is not
2 a police organization that I'm aware of that
3 doesn't support the death penalty, and they
4 believe that it's a very vital tool for them.
5 Let me start off by saying, if
6 there's anybody in this chamber who believes
7 that somehow or other the death penalty is a
8 panacea for the ills, the criminal ills of our
9 society, you're backing the wrong horse. It is
10 not a panacea for the criminal ills of our
11 society. But, nonetheless, it is an important
12 weapon in the arsenal against crime, because
13 there are some people who by their very conduct
14 do things that are so grossly beyond the pale of
15 anything that we would consider to be acceptable
16 that they, by their acts, have, in effect, taken
17 themselves so far out of the mainstream that by
18 their premedicated acts -- and we are talking
19 premeditation here. This isn't a case where
20 somebody gets drunk and hops up on the curb and
21 kills somebody in a car. This isn't a case
22 where someone comes rushing into a bedroom only
23 to find his lover in the embrace of somebody
994
1 else and, in a moment of blind passion, either
2 strangles that person or shoots that person. We
3 don't have the premedication there.
4 This bill is a carefully crafted
5 bill. I have read the bills of several other
6 states, including the Texas statute, including
7 the Florida statute. I believe I have read the
8 Georgia statute, as well. And if you look to
9 the evolution of what has occurred since the
10 Furman case and the Gregg case, you will see
11 that the Supreme Court, notwithstanding Justice
12 Blackmun's most recent comments, have charted a
13 course; and that course says that if you do
14 certain things, we will view your proposal or
15 your law as being constitutional.
16 Some 37 states have accomplished
17 that. I see no reason why we shouldn't be the
18 378. That's an issue that remains to be seen.
19 And, by the way, speaking of the
20 Governor and speaking of life without parole -
21 a very interesting issue -- the Governor, time
22 and again, talks about life without parole. The
23 Governor says that he offers life without parole
995
1 as an alternative. Always it's an
2 "alternative." "Alternative." "Alternative."
3 "Alternative."
4 Let's not be disingenuous, and
5 let's not play a semantic game. The Governor
6 offers it as a substitute. He doesn't say, I
7 will give you a bill that has life without
8 parole and has the death penalty. He says, Take
9 it or leave it. My substitute, not alternative,
10 is life without parole. So let's cut to the
11 quick on that one and not hide behind it.
12 Now, when you look at this bill,
13 you see a bill that meets every constitutional
14 test. You see a bill that provides for a
15 bifurcated trial. That's what the Supreme Court
16 said. You have 12 jurors who will determine
17 whether there's guilt or innocence.
18 And, by the way, it would pay to
19 read the bill because the bill will tell you a
20 lot.
21 Twelve jurors who determine the
22 question of guilt or innocence. If they are
23 guilty, there's another 12 jurors who will then
996
1 make the decision as to whether or not the death
2 penalty would apply. And if all 24 of those
3 jurors don't agree, there is no death penalty.
4 If on the sentencing part of the
5 equation, eleven of the jurors say yes and one
6 says no, still no death penalty. And unlike all
7 other cases, you can't even be retried. It's
8 just on the sentencing part of the trial. So
9 you don't get a second bite of the apple. No
10 mistrial. That's it. It's over.
11 There is no nation on the face of
12 this Earth that has bent over further to take
13 the right of individuals. Nobody. There's not
14 a society anywhere, even the society from which
15 we supposedly inherited our common law, the
16 English, they don't bend over as far backwards
17 to accommodate the rights of individuals as we
18 do.
19 Now, the Supreme Court in
20 addition to saying got to have a bifurcated
21 trial said you got to look at the mitigating and
22 aggravating circumstances. We do that in this
23 bill. We provide that those circumstances have
997
1 to substantial outweigh -- aggravating has to
2 substantially outweigh mitigating.
3 For those who say that the death
4 penalty is not a deterrent, and Senator Gold in
5 his comments made some reference to -- and let
6 me see if I can find his exact words. He said
7 in some states -- not all necessarily, but in
8 some states that have the death penalty, murder
9 goes up in many places.
10 Now, we can massage the
11 statistics all we want, but let me suggest to
12 you -- and I have here a copy of the January 23,
13 1994 issue of the Albany Times Union referring
14 to FBI statistics, and let me not say that they
15 are conclusive, but let me just read for you in
16 part.
17 "Since 1977, which is when we
18 get into the Gregg case," the year Gary Gilmore
19 was executed in Utah, the data shows New York's
20 rate has the fifth highest increase over a
21 fifteen-year period. The murder rate here in
22 1992 was 23 percent higher than it had been in
23 1977, while the national average was up 6
998
1 percent."
2 And then it goes on to cite, "In
3 those fifteen years, 37 states have enacted new
4 death penalty statutes. Murder rates have gone
5 down in 22 of those states but have risen in
6 another 14, and one state remained the same.
7 Among the 13 states without a death penalty,
8 murder rates have gone up in eight, down in
9 four."
10 And then they list the big
11 winners and the big losers. Murder rate
12 increases: Hawaii up 50 percent; no death
13 penalty. New Hampshire up 50 percent; has a
14 death penalty. Montana up 46 percent; has a
15 death penalty. Kentucky up 43 percent -- I'm
16 sorry.
17 Those are down. I apologize.
18 Hawaii down 50 percent; no death penalty. New
19 Hampshire down 50 percent; death penalty.
20 Montana down 46 percent; has a death penalty.
21 Kentucky down 43 percent; has a death penalty.
22 Idaho down 36 percent; has a death penalty.
23 Biggest murder rate increases:
999
1 North Dakota, no death penalty, up 111 percent.
2 Wisconsin, no death penalty, up 57 percent.
3 Maryland, up 51 percent, has a death penalty.
4 Vermont has a death penalty, up 50 percent. And
5 rated fifth, New York, no death penalty up 23
6 percent.
7 Now, the arguments dealing with
8 deterrents still fail to address the one issue
9 that this issue will never reach, nor will any
10 other issue reach. How do you measure a
11 negative? It's incapable of being measured.
12 How do you know about the
13 individual who premeditated a murder, planned
14 it, who went out and bought the poison, went out
15 and bought the weapon? By whatever instrument
16 he or she chose to kill and then for fear of the
17 death penalty said, "I'm not going to do it.
18 I'm going to pull the plug. I'm going to back
19 off."
20 I hate my partner. He's been
21 stealing me blind.
22 I hate my spouse. They've been
23 cheating on me left and right.
1000
1 But it's just not worth the
2 risk.
3 How do you measure that?
4 Let's assume that person goes to
5 their clergyman and confesses. Clergyman can't
6 tell anybody. And even if they could, it would
7 be inadmissible.
8 How do you measure the negative?
9 No way in the world you can measure a negative.
10 In no statistic anywhere can you determine who
11 backed off a premeditated murder.
12 Now, there are questions
13 involving the possibility of prejudice; that
14 some how or another, this penalty is fraught
15 with prejudice. Remember, we're in New York.
16 We're not in some backwater state.
17 Is there anybody here who
18 believes that our Court of Appeals, particularly
19 in criminal justice issues, certainly by
20 comparison to any other highest tribunal in the
21 49 other states is not if not the most liberal
22 in its interpretation of criminal laws then, if
23 not, it certainly is not surpassed by anybody?
1001
1 You only have to look at some of
2 the case decisions that have us dealing in the
3 criminal world in a fashion that most, if not
4 many, law enforcement officials would prefer
5 dealing in another forum on.
6 But on this issue, let's look at
7 the bill. You've got the right of an immediate
8 appeal. You go to the Court of Appeals; and,
9 guess what, the state foots the bill? You are
10 required to have experienced counsel? Counsel
11 has got to have at least five years of practice
12 experience and three years of trial experience.
13 But on the question of the
14 possibility of prejudice, when the Court of
15 Appeals looks at the bill, in order to determine
16 the validity of the sentence, it has to
17 determine whether it was imposed under the
18 influence of passion, prejudice or any other
19 arbitrary factors. And then it has to determine
20 whether the sentence of death is excessive or
21 disproportionate to the penalty imposed in
22 similar cases, if any.
23 I can tell you with certainty the
1002
1 statutes that I have looked at in the other
2 states contain no similar provision. I'm not
3 aware that their case law provides any similar
4 provision, although I can't tell you I have
5 looked at the case law.
6 What you are talking about,
7 ladies and gentlemen, is a very carefully
8 crafted bill. During the evolution of this bill
9 during the multiple debates we've had on this
10 bill, dealing with the subject of prejudice,
11 dealing with the subject of as some would say
12 the possibility of racism creeping into this,
13 there is a U.S. Supreme Court decision, probably
14 some three, four, five years ago now, the Batson
15 case, Batson against Kentucky.
16 Batson against Kentucky basically
17 set the world of jury selection upside down when
18 the Supreme Court in that case said if you are
19 going to exclude people based on race, the
20 defendant doesn't have to show a pattern; it's
21 enough that they feel you have done it in that
22 case. And if you do it in that case, you run
23 the risk of being bounced out. You run the risk
1003
1 even if your trial is over of effectively being
2 overruled.
3 And believe it or not, that's
4 happened here in New York. In People v. Peart
5 Appellate Division, 2nd Department, where there
6 were two -- according to the account two black
7 members of a jury panel who were denied that
8 panel by preemptory challenges of a district
9 attorney. The district attorney said -- the
10 prosecutor said that one of the two potential
11 black jurors were excluded because he did not
12 appear to be a strong prosecution juror and,
13 instead, was neutral.
14 The Appellate Division basically
15 said we don't buy that. That's not good enough
16 you can't hide behind that. The purpose of the
17 Batson ruling is to eliminate discrimination not
18 to minimize it, and the exclusion of any blacks
19 solely because of their race is constitutionally
20 forbidden. The prosecutor's bare assertion
21 unsupported by any facts was an insufficient
22 explanation.
23 This is New York, folks. There
1004
1 is nobody anywhere who is going to show one case
2 in the evolution of cases since 1977 in which
3 there has been a mistake. Not one single case.
4 That's even been admitted by the Civil Liberties
5 Union. Although I haven't seen their materials
6 in the past several years, they made that
7 admission a few years ago. No mistakes.
8 You can't point to things that
9 have happened under prior law. You can't point
10 to things that happened back in 1977, because
11 these people weren't tried under this statute.
12 They weren't tried in a situation where they had
13 ability to have 24 jurors. They weren't tried
14 in a situation in which the prosecution had to
15 establish beyond a reasonable doubt that the
16 aggravating circumstances outweighed the
17 mitigating circumstances. They weren't tried in
18 that environment.
19 I tend to doubt that there is
20 anybody in this chamber, anybody in this chamber
21 who if they were one of the twelve jurors who
22 had to consider whether Adolf Eichman would be
23 subjected to the death penalty would have hung
1005
1 that jury. I certainly wouldn't have been the
2 one to hold a jury, hang a jury. That man, if
3 you want to call him a man, committed the most
4 barbaric and inconceivable crimes upon
5 humanity. Millions and millions of people were
6 condemned to death by this evil, evil being. No
7 justification whatsoever for sustaining the life
8 of that person.
9 And then, for me, it becomes a
10 relatively easy quantum leap to get to a mass
11 murderer. It's a relatively easy thing for me
12 to say if somebody comes barreling into a house
13 of worship and because they don't like the way
14 you worship, they don't like the color of your
15 skin, they don't like your ethnic origin, they
16 indiscriminately start shooting up the place and
17 kill a number of people. I don't have a problem
18 with that person being subjected to the death
19 penalty.
20 I don't have a problem with the
21 person who breaks into a house, robs, perhaps
22 rapes, then kills the victim because they don't
23 want to leave a witness. I don't have that
1006
1 problem at all.
2 There are some carefully
3 enumerated categories here in which the death
4 penalty could be applied. I don't have a
5 problem with a one of them. A police officer is
6 killed in the line of duty, a police officer is
7 killed -- correction officer killed in the line
8 of duty. I don't have a problem. Or if a lifer
9 serving a life sentence kills, I don't have a
10 problem. And you remember the Lemuel Smith
11 case? That man was a prisoner in Green Haven
12 prison while sentenced there. You know, he
13 killed four people, by the way, not once, not
14 twice, not three, not four times, but we gave
15 him the opportunity to kill a fifth time. He
16 killed a female correction officer, Donna
17 Payant, for those who remember. The guy
18 shouldn't have had the opportunity.
19 We have the instance in which you
20 kill because somebody witnessed a crime, an
21 illegal witness. I don't have a problem. No
22 problem for me to say a contract killer should
23 be put to death upon conviction. No problem
1007
1 with a felony murder. No problem with somebody
2 who might want to torture his victim prior to
3 killing them for a while, with intention to
4 cause intense suffering, find the victim in a
5 parking lot, which is a part of the natural
6 consequences of a crime. Or how about somebody
7 who plants a bomb in a crowded terminal, bus
8 terminal, airport terminal? In the course of
9 the crime, the defendant knowingly or recklessly
10 created a substantial risk of death to many
11 persons. I don't have a problem with that.
12 Ladies and gentlemen, what I have
13 a problem with is somehow or other being told
14 that, because I support the death penalty, my
15 beliefs are less than your beliefs. I'm really
16 troubled by that. I don't want to be subjected
17 to some elitist rhetoric that says you can't
18 believe in the death penalty because it's not
19 the right thing to do.
20 Let me tell you I've lived
21 through an experience and I've long been a
22 proponent of the death penalty, long before I
23 had to endure this experience. Somebody robbed
1008
1 my son, tied him up, stole the things in his
2 room and around the house and then tried to beat
3 him to death so that they wouldn't leave a
4 witness. The man is serving a life sentence.
5 He had done it before. Perhaps I use the term
6 "man" indiscriminately, but perhaps I should
7 use the term "animal" as much as that might
8 offend some people.
9 But let me tell you, I felt then
10 and I feel now, if I could take that man's life
11 I would, and I feel no shame about it. He tried
12 to take away something that was very precious to
13 me and he did it with the vilest of intents,
14 just not to leave a witness.
15 So please let's disagree as we
16 must, but let's not question the motives that
17 get us to where we get, and let's not, simply
18 because you feel it's your right, say that I'm
19 wrong and those of us who support the death
20 penalty are wrong. We will, one day, have a
21 death penalty in New York. It's just a question
22 of time. I would hope that this would be the
23 time. It's the right time. It was the right
1009
1 time last year, it was the right time the year
2 before that. It's been the right time for the
3 past 15 or 16 years, but perhaps this will be
4 the time.
5 Thank you, Mr. President.
6 ACTING PRESIDENT LIBOUS: Senator
7 Marchi.
8 SENATOR MARCHI: Yes, Mr.
9 President.
10 I -- I'm not a newcomer to the
11 position that I will take here this evening. I
12 go back to college days when -- when the debate
13 was very active in our country. There were
14 about six states that did not have the death
15 penalty, and any statistical analysis did not
16 prove or disprove any or sustain any point of
17 view. Indeed, there were confrontations made,
18 for instance, between the state of Michigan and
19 the Canadian -- the other side of the Michigan
20 -- the city of Windsor where they had a death
21 penalty, and they had a higher homicide -- rate
22 of homicide than they did in the state of
23 Michigan, which was also an industrial and
1010
1 similar in every conceivable way in its make-up
2 and social attitudes.
3 It goes back to the days of
4 Thucydides, from Cesare Beccaria, the Italian
5 penologist, who gave it its fresh face, that
6 we're dealing with a problem of humanity.
7 Certainly this is not to depreciate anybody that
8 has -- holds the contrary point of view. We
9 have no right to assume any ascendancy based on
10 a conscientious and objective evaluation of what
11 this means in public policy, and most of all I
12 certainly have to say that there couldn't be a
13 better example of humanity and compassion and
14 good conscience and reason than my colleague,
15 Senator Volker.
16 But we are invited, I believe we
17 should be invited to consider this -- consider
18 our positions, consider what we are doing in
19 terms of public policy, in terms of eliciting
20 the best that may be in our society and then
21 making a determination whether this really
22 squares with the public good.
23 The arguments have been made in
1011
1 the past. Charles Dickens once put the argument
2 of deterrence under a jeweler's eye. He inter
3 viewed 267 people who were executed in London.
4 At that time, it was a public spectacle.
5 Thousands of people would assemble.
6 SENATOR GALIBER: Pardon me.
7 Would you suffer an interruption, Senator? Mr.
8 President, I -- I really can't hear, first of
9 all. It's an important debate. I'd like to
10 have some order.
11 ACTING PRESIDENT DALY: The
12 Senator has a good point. Please, can we have
13 order in the house.
14 Senator Marchi.
15 SENATOR MARCHI: Thank you, Mr.
16 President. Thank you, Senator. This is not a
17 light matter, and it should have our attention,
18 serious attention. He interviewed these 267
19 people who were being executed publicly with
20 thousands attending. 264 of them had witnessed
21 prior executions. What did they find out from
22 those 264 people? Did we bring out the best in
23 them?
1012
1 I submit, Mr. President, that if
2 there is a morbid propensity, you're going to
3 trigger it. You're going to trigger it, and
4 it's going to react and any trappings that
5 society puts on, they can bedeck themselves with
6 maces and wigs, medals, anything you want,
7 you're not impressing anybody. This is law,
8 this is the public speaking, and I'm not
9 speaking to the question of defense in a just
10 war and some of the tangential circumstances
11 that are not involved in this legislation.
12 We're dealing with a very basic
13 subject. Has anyone here ever heard -- you
14 know, we introduce an awful lot of resolutions.
15 Is there any history in this state of a
16 legislative body rewarding or giving a
17 testimonial dinner to an executer? We know it's
18 dirty business. The reason they stopped giving
19 death penalties in this country for a while was
20 very basic. People were not awarding death
21 penalties. In my county, I guess you get 101
22 out of 100 saying we ought to have a death
23 penalty, but the last one that they awarded was
1013
1 in 1921. The same person who might answer a
2 poll or might answer a question, say, yes, of
3 course, but it doesn't -- it doesn't really go
4 to the question whether that person would award
5 the penalty.
6 Our record is squalid compared to
7 the other nations of the world, not in terms of
8 our solicitude, our professed solicitude, but in
9 terms of impact. Life is cheap. Life is cheap
10 and we only make it cheaper when we assign it a
11 lower priority. These are not the better ways.
12 Can we determine this? Can we make a determina
13 tion based on an empirical statistical analysis?
14 I submit no. If State A doubles its homicide
15 rate because this last year they had one with
16 the death penalty, this year they had two with
17 without it, we're dealing with statistics and
18 economics. You can make all those kinds of
19 arguments but unless you put it under statistic
20 al analysis -- and statistical analyses don't
21 serve any useful purpose in this case.
22 We want to bring out the best in
23 people. Why do we have a heightened crime rate
1014
1 and so much disorder? We have drugs; we have so
2 many searing social problems, changing moral
3 attitudes, so things that have developed not
4 because of the absence or presence of a death
5 penalty, but because of mores that are under
6 very severe social stress, and those are the
7 items that we ought to be addressing, not
8 furnishing bad examples, not -- and I'm not
9 saying that this is done intentionally -- but
10 not creating those circumstances that are
11 conducive to a lesser respect for life.
12 Senator Gold mentioned the
13 Talmudic law. It's true, it's almost virtually
14 impossible under the circumstances in the
15 context which would have to be recited and
16 evaluated the way they took place. As a matter
17 of fact, a unanimous verdict wasn't good
18 enough. They said they wanted at least one
19 dissent under the old Talmudic law because that
20 one dissent was further evidence that perhaps
21 everything had been considered. Then, they had
22 other reasons. They had other reasons.
23 I -- I'm not -- I'm not assuming
1015
1 a bully pulpit or anything here. I'm just
2 inviting you -- inviting you to consider these
3 facts, to consider that that squalid ugly mask
4 of death presented by the public is not going to
5 enhance our morality. It's not going to enhance
6 our compassion. It only -- it could only
7 depress it, and those states which have indulged
8 in it very liberally have depressed it. It
9 happens in civil wars; it happens in any
10 circumstances where the taking of life becomes
11 an amoral act almost, and then we're showered
12 with those horrible examples of disrespect and
13 of bestiality towards our neighbor, and that is
14 supposed to move us.
15 We've got to let -- raise the
16 level of our own conscience, of our own
17 sensibility and our own feelings, and it's a
18 slow process. It's not an easy process
19 especially when we're undergoing a period of
20 great, great social turmoil.
21 I would hope that you take it in
22 the spirit in which I extend it to you. I
23 extend it to you on the basis that you're
1016
1 dealing with human beings. We're dealing with
2 human beings, and if we're going to -- if we're
3 going to go forward and display a greater
4 respect for life, we can not do it by presenting
5 a palpable example of really not appreciating
6 the fact of life, lessening that respect that we
7 ought to have for life, no matter how seriously
8 it is challenged, and there are responses -
9 there are responses that are available to a free
10 people. That same England that was going
11 through that great turmoil maybe ends with a
12 hundred -- with a hundred homicides a year.
13 Sights have been lifted.
14 For every -- for every homicide
15 that takes place in this country, you take all
16 of the surrounding countries. Do you know that,
17 for one in those countries that -- where life is
18 shed, we shed 88 in this country? Does that mean
19 we're all bad people? No, we're a young country.
20 Our institutions are developing. Our -- our
21 society is under greater stress in its develop
22 ment, but I would implore you to seriously
23 reflect on any escalation and encouragement
1017
1 which cannot -- it cannot address the basic
2 problem, the basic problem of individuals
3 interacting with other individuals, no matter
4 how fool-proof our laws are.
5 Can you punish? Of course, you
6 can punish. You can restrict, you can do those
7 things that a society has every right to
8 exercise. But I -- if anyone here feels that
9 I'm -- I'm talking that someone's wrong and
10 someone's right, I think we're all sincerely
11 concerned, and I respect the intelligence and
12 the conscience of every single member of this
13 house, and I only ask you, invite you to think
14 about this. Think about it seriously, because
15 it is a serious issue, and I would hope that
16 your determination is one other than taking of
17 life.
18 ACTING PRESIDENT DALY: Thank you
19 very much.
20 Senator Leichter.
21 SENATOR LEICHTER: Mr. President,
22 thank you.
23 My colleague, Senator Gold,
1018
1 certainly set forth in a very clear and rational
2 way many of the reasons why the death penalty
3 does not serve the people of the state of New
4 York. John Marchi expressed really the moral
5 issue involved here and he did it in a way that
6 shows not only the strong moral compass that he
7 has, but he brought to it an intelligence, a
8 passion and a conviction that, frankly, I think
9 anything that is said afterwards, lessens the
10 debate, because he brought it to a level of
11 eloquence that I found really one that one could
12 only admire and could only hold in awe, and in
13 some respects, I wish we could adjourn now and
14 do what John Marchi asked us to do, to think
15 about this issue, not to act instinctively
16 politically. And I appreciate there are people,
17 Senator Saland, who firmly believe in the death
18 penalty, but it does deserve to be considered
19 and thought about and not, Oh, well, I voted for
20 it last year.
21 Justice -- Justice Blackmun came
22 to the consideration of this issue and, after
23 20-some years where he had voted time and time
1019
1 again with the majority of the court, realized
2 that it was wrong.
3 I just, again, want to express my
4 admiration for John Marchi and to say what he
5 does and what he says is real courage. Senator
6 Volker, you talked about courage, and that we
7 wouldn't have the courage to enact a death
8 penalty. I don't know if it's courage to run
9 with the crowd. I think it's courage to come
10 from Staten Island where probably 89 or 94
11 percent of the voters are in favor of the death
12 penalty, and John Marchi says no, it is wrong.
13 You sent me up to Albany to vote my conviction
14 and my conviction is that I will not cheapen
15 life by voting for the death penalty, and people
16 of Staten Island are smart enough to appreciate
17 what a jewel they have in John Marchi.
18 By the way, just talking about
19 the politics of it, of course, we've seen time
20 and time again that, while the public supports
21 the death penalty, no question about it, but
22 that time and time again they don't make that
23 the key factor in deciding whether to vote for
1020
1 and against somebody and, of course, we had this
2 example in Democratic primaries, I believe two
3 years ago, where I think two people who had
4 voted against the death penalty changed their
5 votes or positions in the primary and were
6 defeated. But I don't want to get into the
7 politics of it, although I think it does hang
8 heavily over this bill, but I want to get into
9 some of the other issues that have been raised
10 and to try to see whether we can't understand
11 that our job is to affirm life, to hold up the
12 sanctity of life, and what I've never been able
13 to understand how we uphold that sanctity if we
14 take a life.
15 I think we all deride the old
16 Biblical statement of an eye for an eye and a
17 tooth for a tooth, and we interpret it as
18 meaning that, if you sin against society you
19 will be punished, but we realize that you can
20 not take that admonition literally, and yet
21 that's precisely what we're doing here with this
22 bill and saying, You take a life, it's
23 premeditated, we will take your life; and you've
1021
1 heard the statistics, and so on, about whether
2 or not this is a deterrence or not. In fact, I
3 thought it was interesting that Senator Saland's
4 readings showed very clearly that you could -
5 there was no correlation at all between whether
6 you have the death penalty and what your
7 homicide rate is. In fact, in New York State in
8 the last two years, the homicide rate has gone
9 down. So, so much for that argument.
10 It's clear that the death penalty
11 rests solely on the idea of revenge. It's not a
12 deterrence. It rests solely on revenge.
13 Clearly people who commit homicide must be
14 punished and punished severely. If they commit
15 the sort of homicide which would qualify for the
16 death penalty under the -- under this bill,
17 these are people that must be removed from
18 society, and we believe permanently for the rest
19 of their life. That certainly protects society,
20 and society has a right to be protected.
21 I think the reason that we find
22 this support among the voters, among the
23 citizens, for the death penalty is because they
1022
1 decry the failure on the part of government to
2 deal with violence in our society, and I don't
3 think that the answer that they really want is
4 more violence because that's what the death
5 penalty is, an eye for an eye, a tooth for a
6 tooth, a literal reading of something that we as
7 a civilized society have given up.
8 Yes, punishment, severe
9 punishment; but to impose a death penalty, to
10 impose a penalty which is irreversible and a
11 penalty which says a life can be taken, does not
12 decrease violence, and it does not decrease
13 crime, but it does create severe and serious
14 problems, the first which is inevitable that
15 innocent people will be killed. No matter how
16 careful you are, there are errors. We're
17 human. We're fallible. Juries make mistakes.
18 Judges make mistakes. Even the Court of Appeals
19 makes mistakes.
20 We know that there are 23
21 documented cases of innocent people who have
22 been killed. Eight of these were in New York
23 State. Hardly a month goes by that we don't
1023
1 read about some case, somebody who's languishing
2 in jail sometimes on death row, who was
3 convicted unjustly. Some of you may have seen
4 the movie, "The Thin Blue Line", which was one
5 of those cases. They're bound to happen, and
6 you can't, after you've executed somebody, say,
7 Well, we made a mistake. It's irreversible.
8 The other issue which really must
9 be considered is the inherently discriminatory
10 and, in this country, racial aspect of the way
11 the death penalty is imposed, and it was
12 interesting that Judge Blackmun in his -- in his
13 really very startling dissent, stated -- first,
14 let me just read something that he said about
15 the killing of innocents. This is a person who
16 has participated probably in hundreds of
17 decisions in death penalty cases. He knows what
18 he speaks of, and he says about the execution of
19 innocent:
20 "The problem is the
21 inevitability of factual, legal and moral error
22 gives to the system that we know must wrongly
23 kill some defendants, a system that fails to
1024
1 deliver the fair, consistent and reliable
2 sentences of death required by the
3 Constitution." And, of course, his conclusion
4 is that there is no way that that sentence of
5 death can be applied in a constitutional manner.
6 What he says about -- want to
7 read you the part where he speaks about the
8 racial inequality. Here it is, and I quote
9 again from his opinion: "The arbitrariness
10 inherent in the sentencer's discretion to afford
11 mercy is exacerbated by the problem of race.
12 Even under the most sophisticated death penalty
13 statute, race continues to play a major role in
14 determining who shall live and who shall die.
15 There's no doubt that in every society,
16 unfortunately, also in our society there are
17 those who are considered in some respects less
18 worthy, who tend to become the object of some
19 sort of derision or scorn."
20 And it certainly has been true
21 that blacks, African-Americans, if you will, and
22 Hispanics, have been sent to the death chamber
23 in disproportionate numbers.
1025
1 Senator Saland says, Well, we're
2 not a backwater state. Well, Senator Saland,
3 we're not a backwater state, but we do know that
4 discrimination exists also in this state.
5 Senator Saland says, But we got such a great
6 Court of Appeals. But the death penalty is
7 initially approved by a jury. Court of Appeals
8 deals with legal error. It doesn't deal with
9 the judgments that are made and, in fact, this
10 memorandum in opposition by, I believe the New
11 York State Bar Association, it states, Of the
12 last 19 people executed in New York's electric
13 chair, 14 were African-American, one Hispanic.
14 Continues, data is now undeniable that there is
15 a greater likelihood of being sentenced to death
16 if your victim is white than if your victim is
17 black. The likelihood of a death sentence also
18 increases if the defendant is black. This has
19 been the experience everywhere, including New
20 York State, in the United States where the
21 phenomenon has been reviewed.
22 I think our job is not to be
23 tough on crime, but to be effective. We've
1026
1 tried many approaches and most of them have been
2 to increase penalties, put more people in jail,
3 to pursue the death penalty. And where are we?
4 We have three times as many people in jail as
5 when Senator Volker and I first came to the
6 Legislature. We have a higher crime rate.
7 People feel less secure than they used to be.
8 To come and say, Well, we're going to cure this,
9 we're going to come up with a death penalty and
10 I realize, Senator Saland says, Well, we're not
11 saying it's a panacea, but it will make a
12 statement.
13 It will not make a statement. We
14 know from other states, we know from our own
15 experience, we know from what has happened in
16 the last 20 years that what is required to deal
17 with crime is to deal, yes, tough on criminals
18 but at the same time to deal with those social
19 conditions out of which crime gross, to deal
20 with the moral attitudes in this country and
21 that eventually I think is the most important
22 thing that we can do as law makers, is to lead a
23 moral concern and above all, as I said, to
1027
1 affirm life.
2 The death penalty cheapens life.
3 The death penalty says, life may be taken. The
4 death penalty says government may kill. That's
5 wrong. I just came on a visit to a country
6 where the death penalty was applied to people
7 because they were the wrong religion, because
8 they were Jewish and millions were killed, and I
9 don't want to draw any parallel between death
10 penalty and this darkest of periods in
11 civilization. Obviously not, but the point that
12 we must remember is that once you say that there
13 are some lives that government can take, yes,
14 even lives from people who have committed all
15 the horrible crimes, that it becomes harder and
16 harder to draw a line where government may not
17 kill and the only line that you can draw is to
18 say that government must never kill, that life
19 is too precious, even the life of a -- of a
20 person who has committed a horrible crime, and
21 it is not only his life, but it is the life of
22 all of us who will be -- the life of all of us
23 that will be damaged, that will be cheapened if
1028
1 we take that one life by government saying, we
2 have the right to kill.
3 The death penalty is wrong. It
4 doesn't do what it purports to do, but it will
5 lead to great harm and injury to our society.
6 ACTING PRESIDENT SEWARD: Senator
7 Espada.
8 SENATOR ESPADA: Thank you, Mr.
9 President.
10 Justice Blackmun has been quoted
11 several times here, and I'll indulge in that
12 myself, but just one line really, I think
13 encapsulates it all. He advised or he
14 proclaimed that "from this day forward that I
15 shall no longer tinker with the machine of
16 death." That's a line that has been
17 incorporated today, but unfortunately now that
18 it has we will pay attention.
19 He also has invited us to create
20 something of a public spectacle about this thing
21 that we consider here today the death penalty,
22 kind of get used to it, hold it as a thought,
23 you know. We get visited by children today.
1029
1 They want tuition assistance. They're knocking
2 on our -- on our doors and they were handing us
3 these but the answer, and if we're courageous
4 enough, if we're brave enough to pass this
5 today, why not invite them here and why not kind
6 of participate in that which we're going to
7 sanction in a little bit and pass here, and that
8 is we would all witness someone, as Justice
9 Blackmun so poignantly describes in his dissent,
10 a convicted murderer, intravenous tubes, toxic
11 fluid about to be injected, and we'd all be
12 watching this. We'd have sides. We would
13 choose up sides, who screams and cheers the
14 loudest. Would we be proud of ourselves?
15 I think, if we think of it in
16 that context, we may think a little more like
17 Senator Marchi advises us to do about the
18 sanctity of human life. But Justice Scalia, he
19 would think us soft. He said, you know, the
20 problem with this is that it leads to, he would
21 really prefer to cite different cases, brutal,
22 brutal cases. You watch them on TV; some people
23 personally experience them, and that's really
1030
1 tragic and unfortunate.
2 This guy Scalia says, take the
3 11-year-old girl raped by four men whose under
4 garment was -- she was made to swallow. If, God
5 forbid, that would be someone's daughter or son
6 in this house, we'd all feel like our colleague,
7 want to strike back, want to kill. Such was the
8 case with Kirk Bloodworth. Convicted in 1984 in
9 Maryland of the rape and murder of a young girl,
10 Mr. Bloodworth was sentenced to death. He was
11 granted a new trial and given a life sentence.
12 He was released in 1993, when DNA testing
13 definitely confirmed his innocence.
14 The same was true of Walter
15 McMillan. Mr. McMillan was freed after six
16 years on Alabama's death row when prosecutors
17 conceded that he had been convicted as a result
18 of perjured testimony and withheld evidence.
19 These are real. These are real
20 issues, and my colleague has spoken to that as
21 well. We do make mistakes. Some will say,
22 well, that's just the chance we have to take in
23 order to have a better society; we may have to
1031
1 kill some innocent people in the process. This
2 is not a courageous stance. You know, we talk
3 about the racial issue, and we try to make it
4 part of our history when, in fact, it's present,
5 it's a very part of America; it's unfortunate
6 but true.
7 In 1987, an African-American in
8 the McCloskey versus Kemp case in Georgia and
9 I'll submit to you that this is not just
10 indigenous to Georgia, in the Baltis study which
11 was produced as evidence at this trial, it was
12 demonstrated that blacks who kill whites are
13 sentenced to death at nearly 22 times the rate
14 of blacks who kill blacks and more than 7 times
15 the rate of whites who kill blacks.
16 Race is a factor. Low
17 socio-economic status is a factor. The death
18 penalty is applied in a discriminatory manner.
19 This has been demonstrated. This has been
20 documented, and among western democracies we
21 have the dubious distinction of being the only
22 one that wants to trade in our tradition of
23 fairness and equity to experience more of what I
1032
1 have shared with you.
2 Now, you know, who would we be
3 killing? It's noted some of the shortcomings
4 but from 1986 to 1991 murders committed by
5 teenagers, 14 to 17, grew by 124 percent. Yeah,
6 we'd be killing our children even if they were
7 murderers. You'd be killing our children.
8 That's who we would be killing.
9 Last year, when I first overheard
10 this debate, I had never been a part of a
11 governmental process, an official debate, but
12 something stuck to me and it was the sponsor of
13 this bill and I, too, have experienced his
14 humanity, his compassion in this year and a
15 half, but it was he who said that there are two
16 kind of key votes that we take in this season,
17 this six-month season, the death penalty and the
18 budget, and things have been said about how much
19 we spend.
20 Well, let me just tell you how
21 much you're going to spend if you enact this
22 legislation. You will spend millions and
23 millions to kill people. Put them away without
1033
1 parole, you spend $500,000, destine them to
2 death, and you will spend millions and millions.
3 So it becomes a fiscal issue.
4 Then why not invest in some of the communities,
5 in some of these killing fields that are
6 creating these problems in the first instance?
7 Some will say, well, we're already investing
8 enough without no return. Are we investing
9 enough when we -- when women and children on Aid
10 to Families with Dependent Children don't have
11 enough to pay their rent?
12 We have frozen welfare shelter
13 allowance here. There's talk about it being
14 renewed, but already we're years behind. Deny
15 children and women the down-trodden, shelter,
16 create a violent context in their communities.
17 Allow for the proliferation of guns. Don't
18 listen to Senator Dollinger's signs, day 51, day
19 52, year two, year three and we won't do it and
20 you're going to get more of the same.
21 You're going to get children
22 killing children, blacks killing blacks,
23 Hispanics killing each other, horrific crimes
1034
1 being reported on the news when, in my view, it
2 would be just as simple to do, as our good
3 Supreme Court justice advises us, and not tinker
4 with the death machine. In fact, I think it is
5 so simple to really just take a totally
6 different and radical view of this and go back
7 to the very beginning.
8 Preventive measures, the causal
9 effects that create the kinds of people out
10 there, the kinds of children that would not
11 hesitate to look you or I in the eye and put a
12 bullet through our head. That says a lot about
13 us. When we can just look to not deal with that
14 issue and that problem but only to, as I said
15 earlier, come back into a chamber, watch a 17
16 or 20- or 25-year-old squirm to death, and we
17 would have been a party to that.
18 Mr. President, I can't be a party
19 to that. I think there would be a better way
20 and I hope that we will find that, so that this
21 rhetorical routine of ours, as passionate as it
22 is, as righteous as some people think it is,
23 will end, and we'll start investing in human
1035
1 life instead of death.
2 Thank you so much.
3 ACTING PRESIDENT SEWARD: Senator
4 Dollinger.
5 SENATOR DOLLINGER: Thank you,
6 Mr. President.
7 My colleagues have all addressed
8 a number of these issues with great eloquence,
9 my colleague from the Bronx just a minute ago
10 talking about the death machine, my colleague
11 Senator Marchi presenting, I think, as Senator
12 Leichter described, the moral compass upon which
13 we as a civilization should approach the issues
14 that are broached by this debate.
15 I'd like to just touch on a
16 couple quick little parts of the bill, talk
17 about a couple quick little topics, things that
18 people haven't talked about before and then give
19 you what I think might be an appropriate
20 conclusion.
21 One, I guess I have read the bill
22 as I've been sitting here for the last hour,
23 Senator Volker, and I should add as a footnote,
1036
1 I don't question the motive of anyone who favors
2 the death penalty. Senator Saland's eloquent
3 comments about his motivation, I think, speak
4 for themselves, and I assume speak for others
5 who favor the death penalty with such passion.
6 My concern instead with the death
7 penalty debate is simply a matter of logic and a
8 matter of effectiveness that I think should
9 promote a vote against this bill. But I've read
10 the bill. One of the things that strikes me
11 about the bill is that there's a very quick
12 appeal from the Supreme Court or the superior
13 court to the Court of Appeals.
14 I would suggest that just the
15 opposite is what you need in death penalty
16 cases. What you need is time to transpire. You
17 need an opportunity to let that possibility for
18 perjured testimony to come forward, that
19 possibility for recanted testimony to come
20 forward, that possibility for new evidence to
21 come forward. It's coming forward all the time,
22 all the death penalty cases for which habeas
23 corpus was an appropriate remedy in the federal
1037
1 system. The reason why that happened is because
2 someone in prison three or four or five or six
3 years later, said, "You're right, I told a lie
4 under oath when I said I saw someone shoot
5 someone else. He wasn't there; I made it up
6 because I wanted to get a plea deal from the
7 prosecutor."
8 I submit that by accelerating the
9 rate of appeals from the superior courts to the
10 Court of Appeals, we may create the possibility
11 for a greater perversion of justice than we
12 currently have now if we allow the appeal to
13 work its way through the Appellate Division into
14 the Court of Appeals.
15 I'm also concerned, quite
16 frankly, by the reduction in the habeas corpus
17 procedure at the federal level because the
18 possibility that witnesses will recant later on
19 and come to the fore without the adequate remedy
20 of habeas corpus either through the state system
21 or through the federal system, we're not going
22 to be able to rectify a mistake and so have the
23 greater possibility that someone is innocent
1038
1 will die as a result of this bill.
2 The other issue I raise with
3 respect to this bill is that of cost. I don't
4 notice a cost estimate in the bill. I sort of
5 have leafed through, and I understand that there
6 are procedures in this bill that will allow the
7 courts to waive the fees for lawyers who are
8 going to defend those who are accused of capital
9 offenses and those who could be subjected to the
10 death penalty.
11 I submit that those are going to
12 prove to be extremely expensive cases. The
13 process will be extremely expensive. The
14 representation will be extremely expensive. If
15 there are 2,000 capital offenses, we apply the
16 death penalty to even 2- or 300 of those cases,
17 the effect on the criminal justice system will
18 be an enormous expense.
19 Who is going to pay? My
20 understanding, based on my experience in the
21 County Legislature and, if I'm mistaken, I'll
22 stand corrected, is that the counties pay the
23 cost for indigent fees, that they provide it
1039
1 through property taxes. This becomes another
2 form of mandate when we pass to the counties the
3 responsibility for prosecuting a death penalty
4 that the state imposes on them or gives them the
5 -- the prosecutors, the option to explore. My
6 suggestion is that that total cost is 25- to 50
7 to $100 million that we don't have in our
8 criminal justice system currently and that we're
9 not going to be able to find.
10 A couple other quick
11 observations. My colleague from the Bronx
12 mentioned a man named Walter McMillan. I'll
13 tell you what Walter McMillan's lawyer said when
14 Walter McMillan was freed of six years on death
15 row. His name was Brian Stevenson. He
16 represented him after four appeals to the
17 Alabama Supreme Court had been turned down,
18 after he had been told on four occasions that
19 the Supreme Court would not hear his appeal and
20 would not review the death sentence.
21 Brian Stevenson went to work,
22 found witnesses in the prison system who
23 recanted their testimony until finally on the
1040
1 fifth appeal he was freed, allowed to go free.
2 His lawyer said, "I think every one needs to
3 understand what happened because what happened
4 today could happen tomorrow if we don't learn
5 some important lessons from this. It was too
6 easy for one person to come into court and frame
7 a man for a murder he did not commit. It was
8 too easy for the state to convict him for that
9 crime and then have him sentenced to death and
10 it was too hard in light of the evidence of his
11 innocence to show this court that he should
12 never have been here in the first place."
13 Walter McMillan is not a single
14 example. Senator Leichter, Senator Espada have
15 pointed out that there are seven or eight people
16 who have been found innocent in this state after
17 they were on death row and after they were
18 executed. Who's going to issue the apology to
19 them when they've been convicted, tried,
20 sentenced to death and are killed by the state?
21 Who is going to apologize to their families that
22 they happen to be an innocent victim of our zeal
23 to prosecute and discontinue violent crime?
1041
1 Senator Volker said one or two
2 things that struck me and, again, I believe this
3 is from a man who is passionately convinced that
4 we have to attack our problem of crime. One is
5 he said we need to send a message to our
6 constituents, and I submit, ladies and
7 gentlemen, that that's exactly what we do by
8 passing a death penalty. We will send a message
9 to our constituent that says, You can feel a
10 little bit safer in your home tonight because
11 we, the members of the Legislature, have imposed
12 a draconian penalty on those who would take a
13 life.
14 The problem is, we don't send
15 that same message to those who would be deterred
16 from criminal conduct. The message is not one
17 that we send to the criminal and say, If you
18 take a life, you forfeit your own. That will
19 deter you from your crime. The evidence is
20 replete that it is not a deterrent. The states
21 that have the high death penalty, that have the
22 death penalty have high murder rates.
23 There's evidence that a
1042
1 prosecutor, I believe in the State of Texas,
2 interviewed 240 people on death row, said, Did
3 you know there was a death penalty? If you knew
4 that you would forego your life, would you stop
5 doing what you've been doing? And they said
6 almost unanimously, No, I wasn't aware of that
7 and, if it happened, I don't think it would have
8 deterred me.
9 It doesn't work. It doesn't
10 achieve that goal. The message that we send
11 here is, frankly, the wrong message. Senator
12 Volker and those who support this bill are
13 trying to send a message to those would-be
14 murderers to not do it. Instead, they're
15 sending a message to the people of this state,
16 you may think they're not going to do it. You
17 can go to bed tonight thinking you're a little
18 bit safer in your home, but the truth is that
19 that same thing will not happen. We will make
20 everyone feel a little bit more safe.
21 People will come to me and say,
22 I'm glad we finally got the death penalty. I'll
23 ask them, are you really any safer in your home
1043
1 tonight? I would guess that they would say,
2 "Yes, I feel a little bit safer." I will tell
3 them that the truth is, you are not, because the
4 death penalty doesn't work. It doesn't deter
5 those crimes.
6 Senator Volker also mentioned one
7 other thing when he talked about we need to give
8 a message that we will take your life if you
9 commit a capital offense. We have a way to take
10 their life. We have a way to put them in a
11 position where they will never commit a crime
12 again. It's called life imprisonment without
13 parole. We have a tool. It's been available.
14 It hasn't been debated in this house, but it's a
15 tool. It's readily available. It can be
16 enacted, in my opinion, and signed by the
17 governor of this state and become law and
18 achieve the same goal that Senator Volker wants
19 tomorrow if this body were to change its view
20 that they prefer the death penalty, the
21 draconian measure that's involved in that,
22 rather than opting for life imprisonment without
23 parole.
1044
1 We can achieve the goal you
2 seek. We've got a tool to do it. Why don't we
3 do it.
4 I close with one other comment, a
5 little example from literature that perhaps my
6 colleague, Senator Marchi, will appreciate. It
7 comes from the book THE ONCE AND FUTURE KING by
8 T.H. White, the foundation for the musical
9 CAMELOT.
10 There's a wonderful scene in
11 there where the king talks about the use of
12 might and right, and he debates what might
13 should be used for, might for right, might makes
14 right, right makes might. He concludes that the
15 thing that ought to happen is that might ought
16 to be used for right. He founds a whole
17 organization, builds a round table and it's the
18 mythical story of CAMELOT, convinces everyone
19 that the thing to do is to use the power of
20 might, the power of the state only for
21 righteousness.
22 And what happens? He sees his
23 entire dream go down the drain because of the
1045
1 fact he sees a crime committed for which he
2 cannot impose a penalty, for which he is afraid
3 of imposing a penalty against his own queen and,
4 in fact, the entire kingdom falls apart. The
5 troops go to war, all of his once Knights of the
6 Round Table. All they want to do is go to war
7 and he has a scene at the tail end of that book
8 where he meets with a young boy who comes to him
9 and says, I can't understand what happens and
10 why can't you now go out and preach to the
11 knights that they should fight for right and
12 that we should re-establish righteousness, and
13 he stands up and he says to the little boy, No,
14 no, no. What they want now is revenge, just
15 pure and simple revenge, and he describes it as
16 the most worthless of causes.
17 I submit that this bill is pure
18 and simple revenge. The logic that drives it is
19 flawed. The logic that drives it is overwhelmed
20 by the preponderance, if not evidence beyond a
21 reasonable doubt, that it will not deter crime,
22 it will not make people safer in their houses
23 and, in fact, this bill becomes a placebo to
1046
1 feed to our constituents and not accomplish the
2 goal of providing a safer place.
3 Let's get on with the more
4 diligent business of looking for ways to prevent
5 crime, of looking for ways to help children and
6 families in distress, of providing the stability
7 that people need to make the right choices in
8 life so that they can make their right choices,
9 avoid the dangers to society that are imposed
10 when people are out of control and lose control
11 and commit capital offenses.
12 I submit to you that revenge is
13 the most worthless of causes. We only ennoble
14 it today by passing the death penalty. Please,
15 let's move in the direction of a society that
16 understands these problems, will be effective
17 with its punishment through life imprisonment
18 without parole, will avoid a possibility that we
19 will ever have a Walter McMillan in the state of
20 New York and that no man will be innocently
21 punished for a crime that he did not commit.
22 Mr. President, I urge all my
23 colleagues to vote no.
1047
1 ACTING PRESIDENT DALY: Senator
2 Galiber.
3 SENATOR GALIBER: Yes, thank you,
4 Mr. President.
5 One of the disadvantages, of
6 course, of being on the tail end of this
7 discussion is that most of the pertinent matters
8 have been covered. I would like to just take
9 this opportunity to voice my simple views on
10 this issue. I can recall there was a time when
11 we wouldn't even discuss this matter because
12 folks were kind of set in their ways about how
13 they were going to vote.
14 18 years ago is a long time to
15 carry something. 20 years is even longer for a
16 justice of the Supreme Court who accidentally,
17 one of my colleagues called "irrelevant", and we
18 know that that word is a horrible thing,
19 irrelevant. We'd rather be charged with
20 anything else except irrelevance.
21 I say to my colleagues who bring
22 this bill to us each and every year that it's a
23 time now when we should just let loose, let it
1048
1 go. It no longer has any place in this
2 society. We heard a bit about courage, and I
3 don't have to live in the land of Oz and this is
4 not the land of Oz where I'm looking for a badge
5 of courage or any of my colleagues because they
6 do, in fact, have that courage, but oak leaf
7 clusters in some instances.
8 The mere simple fact is, and
9 Senator Volker knows this perhaps better than
10 all of us or at least equally as we know it, the
11 ends or the end of criminal law is a deterrent
12 factor, and if we do not have that deterrent
13 factor involved, then we should let it go as we
14 should now with this death penalty.
15 There was a study if we -- if you
16 will, some months ago, if we're really to attack
17 what Senator Marchi was mentioning to us, more
18 than just a moral issue, is that this great
19 young country of ours has the capacity to zoom
20 in on problem areas. Young man, old man now,
21 spends some 23, '-4 years incarcerated for a
22 homicide. He has submitted to us a study where
23 in 17 neighborhoods, 7 assembly districts, 75
1049
1 percent of our prison population comes out of
2 that area. Add Buffalo, it's about 80 percent
3 of our prison population.
4 If we are really interested in
5 doing something about the violence that occurs
6 in our neighborhoods and our communities, can't
7 we, will we, certainly we have the ability to
8 zoom in on that particular area.
9 We've heard statistics about
10 whether the death penalty is a deterrent. We've
11 heard some talk about the minorities being
12 punished more in our society. The statistics
13 were -- have been said, mentioned very candidly
14 by some but, when you look at people of color
15 constitute approximately half of the nation's
16 current death row population, white 1,180;
17 African-Americans 946; Hispanics, 156, Native
18 Americans, 42; Asians 15.
19 It's an indication that certainly
20 there is a factor here that racism does play a
21 role, and I've been around so long now that I'm
22 a firm believer that the term "racism" perhaps
23 is thrown around too much, but it does, in fact,
1050
1 exist and, as long as it does, we have a system
2 which is flawed.
3 So I say to my colleagues, those
4 of us who are opposed to it, we certainly
5 respect the Senators and colleagues who have a
6 position, but I have no less courage than
7 those. I feel that it's extremely important to
8 respect, and we do, the other person's opinion
9 about this very serious issue.
10 I used to tell people I had a
11 simple solution. We can solve Senator
12 Dollinger's problem, some problems with violence
13 in my community and yours very simply. Drugs is
14 an important factor in my community and yours.
15 If it isn't spread to yours yet, it's on its
16 way. But imagine if we had the capacity to hit
17 the real issue and that's what this is really
18 all about, outside of the inability to transfer
19 good solid feelings about this particular issue,
20 if we were to take the profit out of drugs for
21 example, if we could waive a magic wand and
22 tomorrow take the profit out, what we would do
23 is really to accomplish two things: One, the
1051
1 assault weapons and all the weapons that are
2 being used today would be off the streets
3 tomorrow, at least half of them would be. All
4 the violence that is -- occurs as a result of
5 this problem that we have would go away, and
6 this debate would certainly be academic,
7 certainly be academic.
8 But, Senator Volker and to
9 Senator Saland, I understand where you are
10 coming from, respect that position, but I happen
11 to be one person that vengence is not in my
12 heart and, if vengence is not there, then I
13 can't comply, I can't go along with or can't
14 believe that this is certainly the answer to
15 solve some of our problems in our society, and
16 that's what this is all about. It certainly is
17 not a deterrent factor, and it's been proved,
18 statistics have been given to you tonight to
19 indicate very -- certain very -- certain
20 jurisdictions within the United States where
21 there is a death penalty that those statistics
22 would indicate that certainly this is not a
23 deterrent as far as the bill is concerned.
1052
1 The safeguards that they have in
2 the piece of legislation are not bad. Just the
3 concept is wrong. I think there's another way
4 to approach this, and it's been mentioned as far
5 as life imprisonment, if you have that vengence
6 in your heart, if you believe so strongly that
7 you want an eye for an eye and a tooth for a
8 tooth, you believe that persons should be
9 punished, and certainly as we go through this
10 debate, we play on the emotions of the time.
11 We pick up a paper and here is
12 someone shooting up in the Long Island Rail Road
13 and I brace myself a bit and grit a little bit
14 and say, momentarily, I'm almost ready to change
15 my position on the death penalty or, if you hear
16 about the World Trade incident or if you hear
17 about the recent Brooklyn Bridge incident,
18 there's a built-in proclivity, a tendency, if
19 you will, to say, let me change my position and
20 if I thought, in fact, that it was a deterrent,
21 I would.
22 But there are people who are
23 changing. Views are changing, people are
1053
1 changing, and I understand when you get locked
2 into something, as Senator Volker is -- great
3 person; I'm not massaging him. He knows how I
4 personally feel about him. I just say that,
5 Senator, there's a time we've got to let it
6 loose. We've got to let it go, and we can't
7 keep over it and over it and over again bring
8 ing this issue to the floor because, singularly,
9 because we want an eye for an eye.
10 I've been here long enough to
11 watch these debates and listen to them very
12 carefully, and we've gone from the Scripture to
13 a racial issue to a number of other matters as
14 causal factors as to why, how we interpret the
15 Bible, where God said or Jesus said, this is the
16 right way to go, and we use the Bible or perhaps
17 misuse the Bible depending on where we are
18 coming from, and that's not correct.
19 Morality, the moral issue that
20 Senator Marchi speaks about is almost, when he
21 finished I looked at the clock and I was hoping
22 that the two hours were up so I could make a
23 motion that let's stop this at this very
1054
1 excellent point in time, because he said it
2 all. But I am -- had to get up, very frankly,
3 to say that, as we've watched this debate from
4 year to year and as it comes up this year, we
5 must recognize that this is not the way to go.
6 This is not a deterrent. We're not going to
7 stop by sending people to the chair.
8 One more example. I have someone
9 who I have been working with now for over 14
10 years charged with a homicide, almost got the
11 death penalty. Spent 23, 24 years in jail. At
12 a particular point in time now where that person
13 is going to be free because they found out that
14 he's not the person.
15 It's the old story. It's not
16 many persons, a handful. In the anxiety one day
17 one of the proponents of the death penalty
18 suggested it was in the debate that if we kill
19 one or two and there was a mistake, so what?
20 And that's how strongly that person felt. Still
21 respect his opinion or viewpoint, but the death
22 penalty, colleagues, is not the answer.
23 If we want to do something about
1055
1 assault weapons and take the badge off Senator
2 Dollinger's lapel, and if we want to do
3 something about the serious violence that's
4 touching all of our hamlets and villages
5 throughout the state of New York, then let's do
6 something about that. Let's do something about
7 that.
8 We know the areas of concern.
9 Let's zoom in on those areas and maybe get to
10 the point where this debate on capital
11 punishment will, by pure statistics, mean
12 absolutely nothing because the violence -- and
13 I'll close on this remark, this observation, Mr.
14 President. The violence that is occurring in
15 our cities, and in our hamlets and our towns,
16 the ride-by killings, the random shootings, is
17 all about narcotics. It's all about drugs.
18 It's all about people renting, if you will,
19 renting corners in my neighborhood on a daily
20 basis to sell drugs.
21 If we solve that problem, then
22 Senator Volker might very well be in a position
23 because that's where the crime -- that's where
1056
1 the deaths are, that's where the statistics are,
2 to be able to suggest, as I've suggested early
3 on, it's time to let this death penalty go.
4 Thank you, Mr. President.
5 ACTING PRESIDENT DALY: Senator
6 Waldon.
7 SENATOR WALDON: Thank you very
8 much, Mr. President.
9 Mr. President, my colleagues, I
10 have listened to the debates on the death
11 penalty both in the Assembly when I served there
12 and here in the Senate. First, let me say -
13 ACTING PRESIDENT DALY: Senator
14 Waldon, will you excuse us just a minute,
15 please. I see the Deputy Majority Leader.
16 SENATOR PRESENT: Mr. President,
17 may I have the last section of this bill called
18 and allow Senator Kuhl to vote?
19 THE SECRETARY: Section 16. This
20 act shall take effect -- take effect on the
21 first day of November next succeeding the date
22 on which it shall have become a law.
23 ACTING PRESIDENT DALY: Call the
1057
1 roll. Senator Kuhl.
2 SENATOR KUHL: I vote aye.
3 ACTING PRESIDENT DALY: Close the
4 roll and go back.
5 SENATOR PRESENT: Thank you,
6 Senator Waldon.
7 ACTING PRESIDENT DALY: The roll
8 is closed. Senator Waldon.
9 SENATOR WALDON: Thank you, Mr.
10 President.
11 As I was saying, I've debated
12 this, listened to the debates both in the
13 Assembly and here in the Senate and, first, let
14 me express my thanks to my colleagues who so
15 passionately have stated their positions in both
16 houses. I don't for a moment think that anyone
17 here is participating in an exercise in futility
18 or being frivolous in terms of what they say and
19 the positions they take.
20 However, this year, I looked
21 forward to this debate with some trepidation
22 because I have heard it all, at least I thought
23 I had, and as I knew the spring would come
1058
1 followed by the summer, I knew this debate would
2 arrive in our house, and I really just wanted to
3 get it over with, to avoid it, because we hear
4 the arguments time and again, but this year I
5 had a thought which I will share with you, and
6 that thought was, what would it take for me to
7 support this legislation?
8 I've never ever in my mind's eye
9 created such a thought before, and I said to
10 myself in response, well, perhaps if this bill
11 were not so inherently barbaric, and what do I
12 mean by barbaric? We no longer flog as a
13 punishment in this state or in this country. We
14 no longer mutilate those who are accused of
15 crimes in this state as punishment for crimes.
16 Yet for the crime of murder, this bill would
17 allow us to take a life.
18 From the year 1900 to 1985, there
19 were 350 cases of innocent persons who were
20 wrongfully convicted of capital crimes. 23 of
21 them, as said earlier, were executed. All
22 western nations have eliminated execution as a
23 form of punishment for capital crimes and, if we
1059
1 were to institute that in this state, we would
2 be similar to Iran and South Africa and,
3 personally, I find that juxtaposition a little
4 bit difficult to accept.
5 Al Waldon could perhaps support
6 this bill if it were truly a deterrent. Most
7 murders occur when people are totally out of
8 control, when all logical thinking has been
9 suspended unless they are a murderer for pay and
10 this calculated person figures that he or she
11 won't be caught and they are doing it for
12 normally significant sums of money, but all
13 other people or most of all of the other people
14 who commit murder do so as a crime of passion.
15 Yet, when we look at states like
16 Florida, where three years after the resumption
17 of the death penalty, the highest murder rate in
18 recent history as experienced by that state
19 occurred. Then I looked at some other
20 information in terms of deterrence. The states
21 of Virginia, Washington and Vermont are non
22 death penalty states, and they are juxtaposed
23 contiguous to the states of West Virginia,
1060
1 Oregon and Maine, which are death penalty states
2 and yet in those death penalty states the murder
3 rates were significantly higher in terms of
4 percentages than the non-death penalty states.
5 But I think when I thought about
6 what would it take for me to change my position
7 on this issue, what I focused on most was, if it
8 were only fair, and could it be fair in America?
9 In the year 1615 at a place that is known as
10 Jamestown, Virginia now, a boat landed with 20
11 indentured blacks upon the boat, and some people
12 characterize America's folly with racism
13 beginning at that time.
14 From that moment on, even in our
15 documents which created this nation, at the
16 moment of their creation and the creation of
17 this nation, people of color were not considered
18 full citizens, and so I wonder, with a history
19 like that, could, in 1994, anything we do
20 regarding the death penalty be fair.
21 When I look at what happened at
22 the time of the Civil War in this nation, when
23 many blacks made it possible as Union soldiers
1061
1 to win the war, though no one really won, but to
2 win the war on paper against the South, the
3 draft riots in New York City saw African
4 American blood run down the gutter like a mighty
5 stream.
6 We go to the first World War
7 where many of our soldiers fought overseas
8 valiantly, and yet lynchings were going on at
9 such a high rate in this country that the
10 Niagara movement was created and the NAACP was
11 founded, and it wasn't just then. In more
12 recent times in the second World War where,
13 again, in a segregated Army, American, African
14 American blacks paid the highest tribute to
15 freedom by giving their lives and fighting
16 valiantly on foreign shores; and yet we couldn't
17 vote.
18 If I had been old enough to be a
19 soldier at that time in many places in this
20 country, I could not have had a drink of water
21 at the same fountain as you. I could not have
22 gone to the bathroom the same as you, could not
23 have ridden on the front of the bus the same as
1062
1 you, could not have had a quality education the
2 same as you. And so I question with all of
3 that, can this bill allow equity even in the
4 terms of those who should be killed for violent
5 capital crimes? And I believe not.
6 I believe that the juries will
7 yet remain somewhat biased, so even the jury may
8 not be able to render a fair verdict because
9 someone comes to the jury setting with bias. It
10 has been proven in various data, and I won't
11 bore you by reading them, that in those cases
12 where blacks have killed whites, the prosecutors
13 asked for the death penalty 70 percent of the
14 time, but when it is reversed and where blacks
15 have been the victims of murders by whites,
16 prosecutors across this nation have asked for
17 the death penalty in about 17 percent of the
18 time.
19 So, for a whole host of reasons,
20 I cannot support this legislation, but primarily
21 because I believe that, in this country at this
22 time under our system, this law would be another
23 example of inherent unfairness towards those who
1063
1 are the down-trodden, who are the poor and who,
2 like me, had ancestors come here on a ship from
3 a place called Africa and paid some heavy dues
4 in this country, and yet are not free.
5 ACTING PRESIDENT DALY: Senator
6 Pataki.
7 SENATOR PATAKI: Thank you, Mr.
8 President.
9 I know the hour is late, the
10 debate has gone on over two hours, but I do feel
11 compelled to just add my comments in support of
12 this legislation.
13 Senator Waldon, I heard your
14 comments, your categorization of this
15 legislation as barbaric at one point earlier in
16 your comments, and let me say I couldn't
17 disagree more.
18 I think what is truly barbaric is
19 what is happening out on the streets in the
20 cities and communities and towns of this state.
21 You know, we do not have a legal death penalty
22 in New York State, but we do have a death
23 penalty. We have a death penalty imposed by a
1064
1 criminal element across this state.
2 It is the shopkeeper in Brooklyn
3 who faces the death penalty every day at the
4 hands of a robber. It is the cop out on the
5 beat trying to control crime and patrol our
6 streets and make us safe that faces the death
7 penalty every day at the hands of a killer. It
8 is the mother taking her kid to school who has
9 to realize that, given the depraved people out
10 on the streets of this state, her child might
11 face an extralegal death penalty every day.
12 There's one group that is immune
13 to that, the group that has been caught and
14 convicted in our criminal justice system of
15 capital crimes. They are immune. They do not
16 face the death penalty, because what I believe
17 is a misguided sense of justice. I'm not one of
18 those who stands here and says, Wouldn't it be
19 wonderful if we had the death penalty as the law
20 of this state? Isn't it tragic that we need the
21 death penalty to protect the honest people of
22 this state? But I truly believe that we do, and
23 I've heard the arguments that, well, it's not a
1065
1 deterrent. I heard the statistics that were
2 just referred to.
3 Well, the statistics show, I
4 believe, that it is a deterrent when you see
5 that the national homicide average went up 6
6 percent, but New York State's went up 23
7 percent. When you see in the states that did
8 not enact the death penalty after the Supreme
9 Court decision, two-thirds of them saw an
10 increase in homicide, but in the states that did
11 60 percent saw a decrease.
12 So I think you can make that
13 argument, but what really gets to me is when I
14 see Senator Dollinger sitting there saying with
15 absolute certainty, with complete conviction,
16 the death penalty is not a deterrent. Well, let
17 me ask you, Senator Dollinger, last year we had
18 48 cabbies, just to take one category, 48
19 cabbies in New York City murdered.
20 Can you tell me in all 48 of
21 those cases, that criminal who was holding a
22 cabby up for money and was in all likelihood not
23 resisting but was killing a witness to a crime,
1066
1 in every one of those cases it never dawned on
2 them that this state does not have the death
3 penalty? And can you tell me, with that
4 certainty, that there aren't cases where that
5 criminal would understand that the consequences
6 of taking a life could be so great that maybe
7 they wouldn't do it?
8 I can't sit here and say
9 absolutely, positively as no one can, that we
10 are going to deter this criminal or that
11 criminal by imposing the death penalty, but I
12 reject categorically the concept that the
13 murderer in this state, as again was said
14 earlier in this debate, is comprised of two
15 different groups; it's the irrational person
16 killing out of an insane impulse or a sense of
17 heat of passion, or it's the contract killer
18 killing because they are a hard-bitten murderer
19 doing it for pay.
20 I have to believe, and I believe
21 the statistics show, and I believe the people of
22 this state understand, that there has been an
23 explosion of the rational murder, the explosion
1067
1 of the criminal who understands that by killing
2 the witness, by killing the officer trying to
3 make arrests that they face less of a risk of
4 getting caught and no more in the way of a
5 criminal penalty than the absence of the death
6 penalty.
7 I believe enactment of the death
8 penalty will save lives; particularly it will
9 save the lives of the poor, the innocent resi
10 dents who can't move away from the high crime
11 areas, and I believe it is necessary for us to
12 have a fair and just system of criminal
13 justice.
14 Senator Gold referred to the
15 tragedy that we all abhor that happened on the
16 bridge in New York City a few days back. The
17 family of Aaron Halverstam has asked and is
18 looking for the prosecutors to find a way to
19 bring that criminal prosecution in the federal
20 court under the anti-terrorism statute because
21 the federal laws have the death penalty. They
22 believe that that -- that their family could
23 only get justice if the case is not brought in
1068
1 the state courts of New York but in the federal
2 court.
3 Isn't it time we had a system of
4 criminal justice where the victims and the
5 families and honest people felt that they could
6 get justice in the criminal justice courts of
7 New York State? I believe it is. I believe
8 passage of this measure is long overdue, and I
9 believe, as Senator Gold said early on, we
10 should all take another look. We should all be
11 willing to change our minds. We should all
12 listen to the argument on both sides, and I
13 think, if you do that, you will cast your vote
14 in favor of what I believe will save lives, in
15 favor of passing and adopting this law.
16 ACTING PRESIDENT DALY: Senator
17 Hoffmann.
18 SENATOR HOFFMANN: Thank you, Mr.
19 President.
20 We've heard a number of people
21 speak about the sanctity of human life and a
22 number of people talk about the -- excuse me,
23 Mr. President.
1069
1 ACTING PRESIDENT DALY: Senator
2 Hoffmann.
3 SENATOR HOFFMANN: We've heard a
4 number of people talk about the sanctity of
5 human life and their desire to spare lives and
6 regard as sacred human life in the issue of the
7 death penalty, but inevitably that sanctity
8 issue deals with the perpetrators of murders
9 whose lives would be spared by the continued
10 prohibition against the death penalty in this
11 state. Almost never do we hear the accounts of
12 the victims whose lives would have been spared
13 had the death penalty been in place in this
14 state.
15 I did a little bit of research
16 today to pull out the record on one of the most
17 heinous cases that has happened in our life
18 time, was referenced earlier by Senator Saland,
19 I believe; I think one or two others may have
20 mentioned it. But I want to take a few minutes
21 today to remind my colleagues because I haven't
22 spoken in about four years on this issue, but
23 it's always very fresh in my mind when we have
1070
1 the death penalty debate, that Donna Payant, a
2 rookie prison guard, was murdered in New York
3 State in 1981 by a man who was serving two life
4 sentences for murder and was indicted but never
5 tried for two additional murders of women in New
6 York State. In addition, he was serving a third
7 sentence for a kidnapping and rape.
8 His MO was particularly hideous.
9 He mutilated his victims by biting and then
10 murdered them. In fact, there was a great deal
11 of drama during the course of his trial because
12 the defense attorney worked very hard to try to
13 prevent the teeth imprint of Mr. Smith's being
14 admitted into evidence. They felt that it would
15 be an unfair invasion of his constitutional
16 freedoms to be subjected to that type of
17 scrutiny.
18 In fact, I read with interest the
19 court records at the time, and back on July 24th
20 of 1981, after the defendant had been arrested
21 for first degree murder, the prosecution moved
22 for an order authorizing the acquisition of
23 photographs and dental impressions of the
1071
1 defendant's lower teeth and bite.
2 The prosecution moved for an
3 order authorizing the acquisitions for the lower
4 teeth and bite, so that a noted forensic expert
5 would be able to analyze them in comparison to
6 some other previous murders in which Smith had
7 been convicted and also to analyze them in
8 relation to the body of Donna Payant which was
9 found mutilated in a landfill outside Green
10 Haven Correctional Facility where at that time
11 Lemuel Smith had been incarcerated.
12 But Mr. Smith resisted the motion
13 through his attorneys, resisted the motion
14 claiming that neither the court nor any other
15 court had legal authority to compel the seizure
16 of his dental records for indictment and that it
17 would be a violation of the defendant's
18 constitutional right to privacy, freedom from
19 self-incrimination, and would involve a seizure
20 without probable cause.
21 But the court -- the court at the
22 time in Dutchess County felt differently and
23 ultimately the records were admitted and, at the
1072
1 hearing -- I'm reading from the court records at
2 the time: At the hearing on June 12th, 1981, the
3 prosecution called New York State Police
4 Investigator Jack Fox, through whom a photo of
5 the body of the deceased, Donna Payant, was
6 introduced. The photograph depicts her as
7 mutilated by apparent bite marks. The proof at
8 the hearing further established that the medical
9 examiner, Dr. Michael Baden, upon observing
10 Donna Payant's body, contacted Dr. Lowell
11 Levine, a leading forensic odontologist, I
12 believe -- I hope I'm correct in the spelling.
13 Dr. Levine then testified that he
14 examined photographs of the deceased for
15 purposes of possible bite mark identification.
16 At the time of the examination, Dr. Levine was
17 acquainted with the defendant's dental
18 characteristics since he had, in September of
19 1977, acquired and examined a cast of the
20 defendant's teeth in an investigation of a
21 Schenectady County homicide and, on the basis of
22 his examination, had concluded that the
23 defendant, Lemuel Smith, had imposed the bite
1073
1 marks found on the victim, Marilee Wilson, in
2 that previous homicide.
3 Dr. Levine, on the basis of these
4 comparisons, concluded to a reasonable
5 scientific certainty that the same person
6 administered the bite marks to both Donna Payant
7 at Green Haven and Marilee Wilson in Schenectady
8 County. Dr. Levine added that he required the
9 cast of defendant's teeth at present to confirm
10 this opinion, whether the defendant's teeth were
11 in the same position now that they were in 1977,
12 and the point was made, Dr. Levine testified,
13 that the process of casting and photographing
14 the defendant's lower teeth is painless and
15 risk- free.
16 It seems the court went to
17 inordinate lengths to make sure that Lemuel
18 Smith's rights were well protected and that he
19 was not subjected to any undue pain. But what
20 Donna Payant went through was something entirely
21 different because Dr. Levine concluded after his
22 examination with the use of all of his
23 instruments, that the body of Donna Payant
1074
1 revealed torn nipples and mutilation of the
2 abdomen.
3 There was one distinctly
4 discernible bite mark which formed the basis of
5 his findings and proved beyond any question of a
6 doubt that Lemuel Smith had murdered Donna
7 Payant, mutilated her body and ultimately
8 allowed it to be disposed of in a landfill
9 outside the prison walls where he served time.
10 Had the death penalty been in
11 place in 1981 in this state, Donna Payant would
12 no doubt be alive today. She was a young woman
13 at the time with three children. They're all
14 now young adults.
15 I think the issue for us to
16 analyze is not whether we are protecting the
17 rights of every defendant. I believe that the
18 courts of this state have progressed dramat
19 ically. Of course, there have been times and
20 there can be clear statistical evidence cited to
21 show that there has been, in fact, unequal
22 justice in some cases.
23 Of course, we know that
1075
1 historically in the United States of America,
2 going back to the times before emancipation,
3 people of African-American and other minority
4 status were not given the same fair trials that
5 white Americans were given. Those are different
6 issues than the issue of justice when there is
7 indisputable evidence of first degree murder of
8 a premeditated nature.
9 Senator Volker has developed,
10 over the years, a narrowly drawn bill which
11 deals exclusively with a category of killers for
12 whom the death penalty is the only appropriate
13 form of justice. But that was not in place then
14 for Lemuel Smith, and no retroactive treatment
15 of the crime today will ever change things.
16 But I thought everybody might
17 like to hear the update on Lemuel Smith that ran
18 most recently in the paper. Back in 1990, two
19 months after prison authorities accused him of
20 possessing a hot joint of marijuana, multiple
21 murderer Lemuel Smith was transferred from Great
22 Meadow Correctional Facility in Washington
23 County to Attica, a move that enraged his
1076
1 fiancee. State Department of Correctional
2 Services spokeswoman characterized Smith's
3 transfer as just routine, saying that it had
4 nothing to do with his "pot" predicament.
5 Smith became notorious, et
6 cetera, but I thought this was kind of inter
7 esting. Smith wrote a letter while at Attica to
8 the Superintendent there, Superintendent Hall,
9 and Smith said in his letter to Hall, that his
10 marriage, quote, would be a stabilizing force
11 for me during my incarceration, though he
12 lamented, We would receive none of the benefits
13 of other married couples because of my Special
14 Housing Unit time.
15 Lemuel Smith also discussed in
16 his letter to the superintendent his artistic
17 pursuits and said that he inquired -- and he
18 inquired as to whether he could work on his ink
19 sketches, and said, "I am trying to get a
20 portfolio together so I can apply to an art
21 school and possibly get a correspondence grant
22 while I am in special housing unit."
23 Life goes on for Mr. Smith at
1077
1 Attica. The taxpayers of this state wonder
2 why. They wonder why there is no justice for
3 the Payant family. They wonder why we seem
4 preoccupied with the rights of the killers and
5 have overlooked the rights of the victims of
6 this state.
7 With adequate safeguards, with
8 the narrowly drawn bill that Senator Volker has,
9 we could prevent the type of killing in the
10 future that Donna Payant experienced.
11 I will vote aye, Mr. President.
12 ACTING PRESIDENT DALY: Senator
13 Connor.
14 SENATOR CONNOR: Thank you, Mr.
15 President.
16 It's many years now that we've
17 had this debate, and I have attempted from time
18 to time to revisit the issue in my own mind at
19 times when we're not debating the bill,
20 particularly at times after I read of some
21 pretty horrible, callous, brutal murders that do
22 occur all too frequently in our state and in our
23 city of New York.
1078
1 I have decided that I no longer
2 will engage in the statistical debate about
3 deterrence or non-deterrence because I think
4 that the statistics can be viewed from different
5 angles, can be manipulated, can be contrasted in
6 such a way to perhaps indicate, as some members
7 here have, that perhaps the death penalty is a
8 deterrent or has been in some states, and by
9 other members to just as fairly depict that the
10 death penalty is not a deterrent.
11 I don't think the stories and the
12 statistics, the story of the deterrence or non
13 deterrence is in what we know about people from
14 common sense and some members have alluded to
15 that. There are really only a few broad
16 categories of murder. There's the impassioned
17 murder, the murder that's the product of
18 emotion, that's the product of spur of the
19 moment passionate feelings, or perhaps the
20 consequence of a drunken fight or whatever.
21 I think we all -- all perhaps
22 recognize that the death penalty is not a
23 deterrent to that kind of murder. I think
1079
1 that's why you don't find that kind of murder
2 covered by the legislation proposed by Senator
3 Volker. We all recognize, whatever the penalty
4 for murder is, people who commit those kind of
5 homicides are not pausing for any due reflection
6 upon the consequences of their act. That may be
7 regrettable, but that's part of the human
8 condition, and it happens and we do recognize,
9 if you will, some sort of lessened moral
10 culpability on the part of those people at least
11 sufficiently so that on the justice side we
12 don't think they merit that and on the
13 deterrence side, I think we recognize that no
14 matter whether the penalty was death or not, it
15 would not deter that conduct.
16 Then you have the broader cate
17 gory of premeditated murder, a large portion of
18 that felony murder, and we have a legal doctrine
19 that says people in the course of a robbery who
20 kill someone are presumed, in effect, to premed
21 itate the possible consequences of their action
22 when they go into that store or whatever with a
23 gun.
1080
1 Yet I think we all recognize that
2 very few perhaps drug-addicted robbers who, hand
3 shaking, with a gun in their hands intended to
4 fire the gun when they walked into the store.
5 Not excusing what they do and it certainly is of
6 little -- their immediate intentions are of
7 little consolation to the victim or the victim's
8 family.
9 But as to deterrence, I don't
10 think the penalty is a deterrent to that conduct
11 unfortunately. As to the contract killer, the
12 cold, calculated, premeditated murderer that
13 Senator Dollinger pointed out, and I think we
14 all know it's true, those kind of depraved
15 people, depraved mentalities, they don't think
16 they're ever going to be caught. They think
17 they've hatched the perfect scheme or, in the
18 case of the professional killer, they think that
19 it's their job; they're so good at it they'll
20 never get caught.
21 Deterrent? No. We all know they
22 won't be deterred, no matter what the penalty
23 is. They don't think they're going to get 25
1081
1 years to life under present law. They don't
2 think they'll get a death penalty if there were
3 a death penalty. They don't think they're going
4 to be caught. So in my reflection upon this
5 issue, I've decided, and I think to some degree,
6 deterrence is not the issue.
7 But we've heard a lot about
8 justice here, and I make an admission to the
9 proponents of the death penalty, in the case of
10 the premeditated murderer, there is an esoteric
11 justice that says they deserve to forfeit their
12 lives by that conduct. I admit that. We have
13 all read of those crimes, and when you look at
14 the crime, you think, gee, the person who did
15 that, if they did that consciously, premeditat
16 edly, doesn't deserve to live. And I accept
17 that. I can accept that concept of justice, but
18 I have to look at what that means.
19 How do we apply this? Where do
20 we go with it? None of us are divine, Mr.
21 President. None of us have that ability to look
22 into the human mind or to look down upon past
23 events and, with a great degree of certainty,
1082
1 know what occurred. We have a system of justice
2 in this country and in this state which
3 certainly strives for perfection. It's probably
4 undoubtedly as good as or better, certainly in
5 the overwhelming majority of instances, than any
6 other justice system that human beings have
7 brought forth.
8 But nonetheless, it's human and
9 anything that's human is fallible, and it's
10 subject to making mistakes. It's subject to
11 convicting the innocent on evidence. I'm not
12 talking about, gee, there was no evidence, but
13 he got convicted, because then it's very easy
14 for Senator Volker or anyone else to say that's
15 why we have a Court of Appeals. Of course,
16 they're not going to let a conviction stand or
17 an execution go forward if there's no evidence.
18 But what is evidence? In our
19 legal system, the best form of evidence is
20 considered eye witness testimony. That's the
21 best form of evidence. It's direct evidence;
22 it's not circumstantial. Yet I have seen
23 repeatedly over and over again, psychological
1083
1 studies and tests run that show -- and do any of
2 you doubt it -- that in a stressful situation,
3 that amount of time, that eye witness identi
4 fication is extremely faulty, that at least as
5 many people I.D. the wrong person as the correct
6 person, and this is when they're being tested in
7 a theatre and they know they're about to be
8 tested, and they know the scene that's going to
9 flash before them in three or four or five
10 seconds is not a real shooting or a real murder
11 and their life is really in danger.
12 Regrettably the real eye witness
13 does feel their life is in danger and they're
14 right. Yet we turn around and in the court sys
15 tem say their identification, their testimony,
16 is the best form of evidence and upon that we
17 will convict.
18 Shall we abandon that rule of
19 law? No. But should we view it as infallible?
20 Should we view it as not subject to error in a
21 large number of instances? That would be
22 foolish.
23 Now, what's the point of this?
1084
1 The point is, therefore, that under the best
2 system of justice with the best safeguards,
3 there remains the distinct possibility that an
4 innocent person can be convicted and executed,
5 and it's happened before. Why? You know, I'm
6 not so worried about the prejudices of our Court
7 of Appeals. Someone said before, Oh, all this
8 stuff, Justice Blackmun's comments, and so on,
9 that indicate that racial prejudice or other
10 prejudices affect the outcome of these cases,
11 result in convictions or perhaps in guilty
12 people going free on occasion. Gee, we have a
13 Court of Appeals. I'm not worried about the
14 Court of Appeals.
15 The fact is we have a system of
16 jurors who are from the public. They bring
17 their everyday impressions. They bring their
18 life experience. They bring their, if not -- if
19 they suffer from no conscious or unconscious
20 racial or ethnic bias, they do bring certainly
21 understandably their own cultural bias, and we
22 now have a state that's increasingly multi
23 cultural. We certainly have that in the City,
1085
1 immigrants from many different cultures.
2 In some cultures, if a defendant
3 stands there or sits on a witness stand and
4 stares at their feet, that is viewed as
5 deceptive. An a juror could say, "He didn't
6 even look me in the eye when he denied he did
7 it. I don't believe him." Other people from
8 other cultures could regard that as extremely
9 respectful behavior as it is in some cultures
10 that it's considered disrespectful and defiant
11 to look jurors or judges straight in the eye.
12 We can't eliminate these cultural
13 biases. We're dimly aware of them. Yet we vest
14 in a jury made up of people from different
15 cultures and from different cultures from each
16 other and different cultures perhaps from
17 defendants or witnesses, we vest in them the
18 determination of things like credibility -- Gee,
19 does the witness seem truthful based on their
20 demeanor. It's for the jury to evaluate
21 demeanor. Obviously, it's inherently faulty
22 because of these different cultural biases.
23 Therefore, the risk that an
1086
1 innocent person could be convicted, perhaps
2 executed, remains. What has our Supreme Court
3 of the United States done about it? Recognizing
4 the public's understandable intolerance and the
5 somehow freakish fact that we were in some
6 states executing people 12 and 14 years after
7 their crime, long after accomplices were out on
8 parole, now, and the wheel man -- the shooter is
9 out on parole, he's out on parole, but the guy
10 who drives the get-away car is being executed 14
11 years later. We've had cases like that.
12 Does the public think that's
13 right? No. The courts don't either. No one
14 thinks that the swiftness of justice is that
15 important. So how has the Supreme Court been
16 dealing with it? Well, gee, we got to speed
17 this up, or, well, gee, if the guy's lawyer
18 didn't file the papers on time, too bad. Kill
19 him! Gee, if the state said you have 30 days to
20 find new evidence, if you don't find it, kill
21 him! So what if you find out a year later he's
22 innocent?
23 We had a case where they said, so
1087
1 the innocence of the person isn't what's
2 important. It's not legally relevant as to the
3 inquiry in the federal courts. How freakish!
4 In trying to address the clear injustice to all
5 concerned, victims, society, as well as the
6 criminal, the convict in a 12-year delay, they
7 tried to speed it up and, in my mind and I think
8 in any fair person's mind, thus increasing the
9 risk that the innocent person could be
10 executed.
11 Is this bleeding heart? No. My
12 premise, if you recall, my colleagues, was,
13 forget about deterrence. Who knows? Logically
14 there's probably not any deterrence. We
15 wouldn't have so many criminals. We wouldn't
16 have so many people doing things they could get
17 20 years for if they thought about the penalty
18 and could be deterred.
19 Justice though. Does the
20 calculated -- calculating murderer who commits a
21 premeditated, cold-blooded murder with no
22 mitigating factors whatsoever deserve to die as
23 a matter of justice? I submit yes, perhaps.
1088
1 I'm willing to accept that, but the risk, the
2 risk of error, the very high risk of the
3 innocent being convicted and executed, which
4 exists, belies that issue of justice. It
5 suggests an even greater injustice, and it
6 undercuts what, in my mind, is the only really
7 true philosophical justification for the death
8 penalty as a matter of justice. Not revenge,
9 justice.
10 Unfortunately, we simply don't
11 have nor perhaps can any humans implement a
12 system of criminal justice that's fool-proof,
13 that's not dependent on prejudices of the
14 players, of biases, conscious or unconscious, of
15 jurors and judges and courts, and of the
16 unreliability of forms of legal evidence.
17 Therefore, it can't stand on that foundation of
18 justice.
19 I can't support a penalty like
20 that. I can't see the rationale for it. It's
21 the ultimate penalty. It's a penalty that
22 cannot be corrected. It's a penalty that really
23 can only be, in pure justice, imposed if those
1089
1 imposing it are of divine origin, and I dare say
2 none of us are.
3 Therefore, Mr. President, I'm
4 still voting no on this bill:
5 ACTING PRESIDENT DALY: Senator
6 Smith.
7 SENATOR SMITH: Thank you, Mr.
8 President.
9 Some six years ago, I stood in
10 this very same position for the first time and
11 called this our annual day of death. It was a
12 day such as this, gloomy and overcast.
13 Mr. President, my position
14 remains the same. I, once again, rise in an
15 attempt to impart the mendacious context of this
16 proposed legislation. As a long-standing
17 advocate for the disabled and mentally retarded,
18 I am greatly concerned that under the provisions
19 of this bill, a jury could find that a defendant
20 is retarded and still impose a sentence.
21 Historically, juries have
22 sentenced the retarded to death. Do any of you
23 really want the retarded deprived of life, even
1090
1 though they themselves cannot quite grasp the
2 realities of their situation? Many of you have
3 heard of Evan Stanley, James Duprey Henry,
4 Morris Mason, James Terry Roach, and Jerome
5 Bowden. But if you haven't, for the record,
6 these are just five men who were mentally
7 retarded, yet executed.
8 Evidence has shown that a
9 substantial number of those sentenced to death
10 have a long history of severe mental illness.
11 Yet, their mental impairment was not detected
12 during their judicial proceedings. According to
13 the New York State Defendants' Association, as
14 of May 1989, there was a total of 8,376 mentally
15 retarded persons convicted under New York
16 State's sentencing statutes.
17 This statistic represents 18
18 percent of the Department of Corrections
19 population and as of March of '89, 58 percent of
20 males and 28 percent of females in the
21 department of youth facilities were classified
22 as developmentally disabled.
23 An 1989 Amnesty International
1091
1 poll which was conducted by a renowned pollster,
2 Patrick Caddell, indicated that 82 percent of
3 New Yorkers overwhelmingly opposed the execution
4 of the mentally retarded.
5 Well, here we are today, and
6 we're still debating a death penalty bill which
7 includes the mentally retarded. As long as
8 those provisions are included in this bill, Mr.
9 President, there is no way that I can possibly
10 vote in the affirmative.
11 ACTING PRESIDENT DALY: Senator
12 Volker to close.
13 SENATOR VOLKER: Mr. President,
14 and I will certainly try to be brief, although I
15 must say that this as usual, well, maybe not as
16 usual in the immediate past years, I think that
17 the length of the debate and the depth of the
18 debate, let me just say, I think indicates
19 something which all of us realize deep inside,
20 that this is not a normal year. The anti-death
21 penalty people realize very, very strongly that
22 the possibility of an override this year is
23 greater than it's been certainly in many, many
1092
1 years. We all sense it. We know it. The
2 public is incensed. The media has tried to turn
3 off on this issue as they so often do, but they
4 can't do it. It can't be done.
5 This is -- this is an issue that
6 I think has come to the fore front. It is a
7 dramatic issue. It is an issue that should be a
8 dramatic issue. Unfortunately, a lot of myth -
9 mythology has developed around it, and I guess
10 it's the nature of our business that mythology
11 develops, the mythology, for instance, in the
12 logic of the retarded, the mentally retarded.
13 Let me tell you why you cannot
14 eliminate the mentally retarded or the mentally
15 ill. Ted Bundy, a mass murderer, one of the
16 issues in one of his trials, and I say one of
17 his trials because he was dragged all over the
18 country and the reason he was dragged all over
19 the country, they were trying to find bodies.
20 They were literally and figuratively trying to
21 find bodies, he killed so many people. They
22 were trying him in different places and then not
23 sentencing him to what he was -- to death or
1093
1 whatever, on the basis of the fact that he would
2 pledge to find some more bodies, and one of the
3 trials they pointed out that he had a quirk,
4 whatever, that would technically classify him as
5 mentally retarded. This guy was brilliant in
6 most things. He was a bright guy. Obviously
7 sick. No one is sure to this day to say how
8 many people he killed. Some people estimate 75,
9 a hundred people. He was suspected in a killing
10 in my own town, of two people, and I won't get
11 into the details. It turned out that his buddy,
12 who was another mass murderer who spent time in
13 jail with him, apparently did the killing. My
14 own law partner, who was the chief of police,
15 investigated that case and found out, the reason
16 he found out that Bundy didn't do it is they
17 found out Bundy was in jail when the two people
18 were killed, and then they finally figured out
19 it was this other guy that did it.
20 I don't really think that anybody
21 would truly recommend that we exclude a whole
22 class of people that might include somebody like
23 Ted Bundy.
1094
1 You know, Senator Marchi, I must
2 say to you that -- and you and I have discussed
3 this ad infinitum because you are, since my -
4 some of the other good friends who were here are
5 gone, and you were a friend of my father's and
6 we've talked about this many times, and I
7 certainly, I appreciate, I want you to know, the
8 reference to the moral fiber of this state, and
9 I have -- and I happen to agree it's an issue.
10 I would point out to you several
11 things when we deal with this issue, however:
12 Number one, and we have looked at
13 this before, and it's something that the anti
14 death penalty people, especially from outside,
15 have told me that they are petrified of New York
16 about, one reason why we get umpteen people
17 here, and in the past we've had literally
18 thousands of people here attacking this state
19 because no state in the Union had a situation of
20 what happened here in New York when the death
21 penalty was abolished. No state in the Union
22 that I know of.
23 In 1965, 837 people were
1095
1 murdered. The next year it only went to 876;
2 the next year 1,009; the next year 1231; the
3 next year 1406; two years later 1832; two years
4 later or one year later, 2,057. The murder rate
5 in this state burgeoned dramatically when the
6 death penalty was abolished, and some people
7 said to me, Well, it was going up before that.
8 Yeah, it would go up like 10 here and maybe 15
9 there. It never, never approached the numbers
10 that occurred in this state when the death
11 penalty was abolished.
12 The average murder rate, the
13 murder rate in 1965 was 4.7 per 100,000. In
14 1992 it was 13.1 per 100,000. 1992, by the way,
15 2382 innocent people -- 2382 innocent people
16 were killed. When somebody said here we might
17 execute innocent people, we do it almost every
18 day in this state.
19 And somebody referred to those
20 two California professors who came in here and
21 did a study which I can only describe as a
22 shallow study that would have got them flunked
23 out of law school had they been tested on it.
1096
1 Their 23 people were researched by the U. S.
2 Justice Department in a Stanford Law article.
3 We did the research here; we gave up after about
4 four or five of them, because it was so
5 outrageous and so ridiculous, because it was
6 clear what they had done. If somebody said they
7 were innocent, they were innocent. Anyway, the
8 Stanford Law article just totally debunked every
9 one of those supposedly 23 innocent people.
10 I'm saying here today, and saying
11 what I said before, those two California law
12 professors came in here and did such a sloppy
13 job of investigating cases, there has never been
14 -- I believe it's something like 614 people
15 were executed in the state. To our knowledge,
16 there has never been even ample and solid proof
17 that anyone who was innocent was ever executed
18 in this state. No one has been able to produce
19 that kind of evidence. It's a fact. Nobody's
20 been able to do it.
21 If you want to look at some of
22 those cases, those eight cases they came up
23 with, two of them were in my home area. The
1097
1 families involved in it were absolutely
2 incensed. In one case they found -- they said
3 this guy is innocent because, as one of his
4 accomplices was being executed, he said, you
5 know, Joe was really -- he didn't really do it,
6 which is one of the tricks that some of these
7 people, by the way, do.
8 The only problem was there were
9 two independent eye witnesses and the other guy
10 who was involved in the killing said, Well, of
11 course, he did it. There was ample evidence,
12 way above that.
13 I only point that out because
14 somebody said that they interviewed some people
15 in prison. Let me give you my story. I was at
16 Attica one day here many years ago. There was a
17 life termer standing next to me, and a reporter
18 came up and the reporter turned to this guy and
19 said, "Joe, what" -- I forget what his name was;
20 I used to know who the guy was, he killed
21 somebody in downstate New York -- anyways, said
22 to him, "Joe, you're in for a life term. Would
23 you -- would you really have been upset if there
1098
1 was a death penalty in the state?" "Nah," he
2 said, "that's baloney," he said, "I really, I'm
3 much more soft now with this life term. I -- I
4 really don't want to stay in prison; I would
5 have been much happier with the death penalty."
6 The guy turned; he walked away.
7 I said to him, Joe... he says,
8 "Was I good; was I impressive?" I said, "Yeah,
9 you were pretty good." He said, "You don't
10 really believe that. I don't want to get
11 killed." He said, "That guy believed it and
12 he'll print it tomorrow probably in the New York
13 Times."
14 Now, I don't know much about the
15 Talmudic law. I don't know anything, in fact,
16 and I can't -- I don't get into that stuff. I
17 do know, however, that in the religions of the
18 world, executions were far more commonplace than
19 people would have us believe, and I don't want
20 to get into that.
21 But I will say another thing
22 about life without parole because, you know,
23 Senator Hoffmann read something about one of her
1099
1 other unfortunately famous killers. Now, let me
2 read you a little bit about another one who is
3 presently serving what amounts to a life term
4 without parole: Willie Bosket, serving an
5 original 25 years to life when he received an
6 additional 25 years to life from Judge Francis
7 Voight for the murder of a correction officer.
8 Voight, in sentencing, commented, "I know you're
9 going to kill somebody, so in sentencing you,
10 I'm sentencing an innocent man to death."
11 Baskin has vowed to flaunt the system and
12 repeatedly threatens to kill a correction
13 officer if the opportunity presents itself. At
14 sentencing, he stated, "I laugh at you, I laugh
15 at this court. I laugh at Mr. Prosecutor, I
16 laugh at this entire system. The sentence the
17 court can impose on me means nothing."
18 The real problem, my fellow
19 Senators, is that sometimes -- and we are all
20 guilty of it -- we all to a certain extent live
21 in our own little worlds and some of us live in
22 obviously different kinds of worlds. At one
23 time I lived in a more violent world. I told a
1100
1 story about the fellow who, well, without
2 telling the whole story, however, I rounded up a
3 fellow who had already killed somebody in Texas,
4 had a warrant for his arrest. I knew he had
5 said already that the next police officer that
6 tried to stop him, he was going to kill him, and
7 we knew he had a gun. To make a long story
8 short I ended up having to arrest him myself
9 and, as he spotted me as I came up to him, he,
10 of course, immediately leaped for what I thought
11 was the gun. It turned out it was the gun, and
12 I stuck my gun in his ear. There's always a
13 little bit of a deterrent to making sure that
14 somebody understands that you're telling them
15 the right thing. Under the seat was a .45, a
16 loaded .45 automatic and he kept saying to me,
17 "Dale, Dale, I wouldn't hurt you; I was going
18 to give you my gun." I said, "Yeah, sure you
19 were," probably bullet by bullet.
20 The rest of the story is, so that
21 you know, we arrested him on the warrant and I
22 charged him with -- oh, I don't remember exactly
23 what I charged him with. He was in for a while
1101
1 and he got bailed. Next thing I knew, about
2 three months later we found two bodies in our
3 own village behind a concrete place, and the
4 story I heard immediately was, he was the one.
5 He now spends 50 years to life in Attica Prison
6 or in the prison system, writes me every once in
7 a while letters asking me about changing the law
8 so he can get good time.
9 The thing I'm pointing out to you
10 is, here is a fellow who nearly killed me,
11 killed, I believe, his girl friend in Texas,
12 killed two people here in New York. He's still
13 alive, he's still writing letters to the
14 Legislature talking to us about good time, and
15 we are saying to ourselves here, Gee, you know,
16 you really shouldn't do anything about the death
17 penalty because maybe, maybe we'll make a
18 mistake.
19 My colleagues, let me just tell
20 you this: We may have an imperfect system here,
21 but there are people who can argue about us that
22 we are imperfect here in our view of humanity
23 and society. If we are truly, truly going to do
1102
1 anything about the crime in our streets and
2 particularly the crime of murder, we must -- we
3 must enact the most drastic of measures. Not
4 something we want to do, it's not; there ought
5 to be a better way. My father said it years
6 ago, all kinds of people have said it. The
7 problem is, nobody's found a better way.
8 So unfortunately, what we have to
9 do tonight and in the future when the Governor
10 vetoes this bill, is to send a message to those
11 that would kill and you could say all you want
12 that it's never going to be a deterrent, but you
13 have heard tonight in this chamber examples of
14 people who had there been a death penalty would
15 not have killed because they never would have
16 gotten the opportunity.
17 ACTING PRESIDENT DALY: Last
18 section.
19 SENATOR GOLD: Slow roll call.
20 ACTING PRESIDENT DALY: Slow roll
21 call.
22 THE SECRETARY: Section 16. This
23 act shall take effect on the first day of
1103
1 November next succeeding date on which it shall
2 have become law.
3 ACTING PRESIDENT DALY: Do we
4 have five Senators standing for a slow roll
5 call? Slow roll call.
6 THE SECRETARY: Senator Babbush.
7 SENATOR BABBUSH: No.
8 THE SECRETARY: Senator Bruno.
9 SENATOR BRUNO: Yes.
10 THE SECRETARY: Senator Connor.
11 SENATOR CONNOR: No.
12 THE SECRETARY: Senator Cook.
13 SENATOR COOK: Yes.
14 THE SECRETARY: Senator Daly.
15 SENATOR DALY: Yes.
16 THE SECRETARY: Senator
17 DeFrancisco.
18 SENATOR DeFRANCISCO: Yes.
19 THE SECRETARY: Senator DiCarlo.
20 SENATOR DiCARLO: Yes.
21 THE SECRETARY: Senator
22 Dollinger.
23 SENATOR DOLLINGER: Mr.
1104
1 President, I rise to explain my vote.
2 ACTING PRESIDENT DALY: Senator
3 Dollinger.
4 SENATOR DOLLINGER: Mr.
5 President, I commend Senator Volker for
6 triggering what I think is the most interesting
7 debate, I think, year after year; this is the
8 most interesting debate we have. I would only
9 encourage my foes from the other side of the
10 aisle, as I know we will lose this vote, but
11 there are a whole bunch of issues we could have
12 fascinating debates about, be they a gay rights
13 bill, bias crime bill, campaign finance reform
14 bill, Election Law reform bills, life
15 imprisonment without parole, assault weapons,
16 mail issues, there are all kinds of fascinating
17 debates we could have.
18 I commend Senator Volker,
19 although I disagree with him, I understand the
20 passion which brings this issue to the table.
21 Wish that the passion from the other side of the
22 aisle would bring those issues to the table as
23 well so we could have the same kind of fruitful
1105
1 intelligent debate about the future of this
2 state. If we did, we would make this Senate the
3 best Senate in this nation, bar none.
4 Mr. President, I vote no.
5 ACTING PRESIDENT DALY: Senator
6 Dollinger votes no.
7 THE SECRETARY: Senator Espada.
8 SENATOR ESPADA: No.
9 THE SECRETARY: Senator Farley.
10 SENATOR FARLEY: Aye.
11 THE SECRETARY: Senator Galiber.
12 SENATOR GALIBER: No.
13 THE SECRETARY: Senator Gold.
14 SENATOR GOLD: Mr. President,
15 I'll try and be brief to explain my vote.
16 ACTING PRESIDENT DALY: Senator
17 Gold.
18 SENATOR GOLD: Senator Volker
19 says that there may be a better way but no one's
20 found it. Senator, that's a credibility issue.
21 You want to believe that life imprisonment
22 without parole puts people away and makes us
23 safe, it is a better way.
1106
1 I've heard reference to the
2 Halverstam family; I've heard many people talk
3 about the fact that we've had a presidential
4 candidate from Massachusetts who lost. Maybe
5 one of the issues was this, because he couldn't
6 answer it correctly.
7 I've heard Senator Hoffmann refer
8 to whether or not you could use teeth prints; I
9 don't oppose that.
10 But the bottom line here is, I
11 want to thank some people for past conduct
12 because you deserve my thanks. Senator Bruno
13 and Cook and Daly and Goodman and Johnson and
14 Lack and Levy and Marchi, Marino, Padavan,
15 Stafford, Trunzo and Volker, together with a
16 number of Democrats, I want to thank you,
17 because in 1981 you voted yes and helped me pass
18 a bill that allowed Isadore Zimmerman to sue the
19 state for his 26 years of wrongful incarceration
20 for a conviction of murder. Thank God he
21 received a clemency the last minute before he
22 went to the chair, and then it was determined
23 that he was innocent, and you gentlemen along
1107
1 with others in this house voted to allow him to
2 sue the state for his damages.
3 I'm sure it distresses you as
4 much as it distresses me that he only lived
5 about six more months and, even though he
6 received some benefit from the state of New York
7 financially, you still took away -- we still
8 took away 26 years of his life improperly and
9 kept him in prison.
10 Ample and solid proof of
11 innocence for those executed you said, Senator
12 Volker. That is subjective. If somebody proves
13 something to you and you don't want to believe
14 it, all you have to say is, "I don't believe
15 it." This happens in religious arguments every
16 day of the week. You argue religion and then
17 finally somebody says, well, I believe it and
18 then that's the end of the argument and, if
19 somebody shows you proof of innocence of someone
20 who is executed and you don't want to believe
21 it, you say, "I don't want to believe it,"
22 that's the end of the argument.
23 And the last thing you said,
1108
1 Senator Volker, is that we should vote for the
2 death penalty because there's someone sentenced
3 to 50 years who writes and asks for changes in
4 the law. Senator, he should write for changes
5 for as many years as he wants. What are we
6 talkin' about? We're not changing that law for
7 a man who was killed and who is in prison for 50
8 years. Who cares?
9 There's a maniac in California
10 who killed an actress and killed other people
11 and he became, as I'm ashamed to say it, even a
12 cult figure to some people, but he's in jail and
13 he comes up for parole, everybody says, "You see
14 that? He's up for parole. If we kill him he
15 wouldn't be up for parole." But he doesn't get
16 parole. It's a strawman argument.
17 The 2300 innocent people, Senator
18 Volker, should be alive. They should not be
19 killed, but whether their killers are executed
20 or put behind bars and never see the light of
21 day, we are still protecting society, except we
22 have proven that we know what humanity is all
23 about, and we know that we are more civilized
1109
1 than the barbarians that have murdered.
2 I vote no.
3 ACTING PRESIDENT DALY: Senator
4 Gold in the negative.
5 THE SECRETARY: Senator
6 Gonzalez.
7 SENATOR GONZALEZ: No.
8 THE SECRETARY: Senator Goodman.
9 SENATOR GOODMAN: Yes.
10 THE SECRETARY: Senator Hannon.
11 SENATOR HANNON: Yes.
12 THE SECRETARY: Senator
13 Hoffmann.
14 SENATOR HOFFMANN: Yes.
15 THE SECRETARY: Senator Holland.
16 SENATOR HOLLAND: Yes.
17 THE SECRETARY: Senator Johnson.
18 SENATOR JOHNSON: Aye.
19 THE SECRETARY: Senator Jones.
20 SENATOR JONES: To explain my
21 vote.
22 ACTING PRESIDENT DALY: Senator
23 Jones to explain her vote.
1110
1 SENATOR JONES: I suspect none of
2 us who came here today really looked forward to
3 this day. I've only had one other year where I
4 was able to participate in this, and I will say
5 the only thing I did look forward to was seeing
6 a magnificent display of courage and probably a
7 passion and caring for society as a whole that I
8 have really had the opportunity to see, and I
9 thank you for that, Senator Marchi.
10 If I were standing here today as
11 a mother of a child who had been killed, I
12 certainly -- there's nothing else that would
13 assuage the grief in my heart except for that
14 person to be killed.
15 If I were standing here today as
16 a wife of a man who had been killed in a store
17 by a robber, I certainly would feel the same
18 way, and I don't blame anyone for feeling that
19 way.
20 I guess if I were even
21 politically a great strategist, I would raise
22 both hands and say "yes" and sit down again.
23 But I'm not any of those things. I see myself
1111
1 as a legislator who has to look at society as a
2 whole and say to myself, What can I do or what
3 is it right for me to do to change the society
4 and make it the way Senator Marchi describes it,
5 or I should say envision it to be? And, for that
6 reason, I have had an opportunity to read and
7 study and analyze all the material and I can
8 assure you I've spent many hours doing that,
9 that has been shared with me on both sides of
10 this issue, and it still says to me my vote is
11 going to represent my best judgment.
12 I was willing last year to let
13 the voters have that provided and I believe that
14 that would happen if it were on the ballot that
15 they also had all this information that is at my
16 hands is make this decision today.
17 I don't want to be a part of a
18 violent society, and I certainly don't want to
19 be part of a society where the government also
20 takes part in the violence. I want to be part
21 of a seat free of that, and I don't think this
22 is the road to get there.
23 I have to vote no.
1112
1 ACTING PRESIDENT DALY: Senator
2 Jones in the negative. Continue the roll.
3 THE SECRETARY: Senator Kruger.
4 SENATOR KRUGER: Yes.
5 THE SECRETARY: Senator Kuhl
6 voting in the affirmative earlier today.
7 Senator Lack.
8 SENATOR LACK: Aye.
9 THE SECRETARY: Senator Larkin.
10 SENATOR LARKIN: Aye.
11 THE SECRETARY: Senator LaValle.
12 SENATOR LAVALLE: Aye.
13 THE SECRETARY: Senator
14 Leichter.
15 SENATOR LEICHTER: No.
16 THE SECRETARY: Senator Levy.
17 SENATOR LEVY: Aye.
18 THE SECRETARY: Senator Libous.
19 SENATOR LIBOUS: Aye.
20 THE SECRETARY: Senator Maltese.
21 SENATOR MALTESE: Aye.
22 THE SECRETARY: Senator Marchi.
23 SENATOR MARCHI: No.
1113
1 THE SECRETARY: Senator Marino,
2 aye.
3 Senator Markowitz.
4 SENATOR MARKOWITZ: Yes.
5 THE SECRETARY: Senator Mendez.
6 SENATOR MENDEZ: No. No.
7 THE SECRETARY: Senator
8 Montgomery.
9 SENATOR MONTGOMERY: No.
10 THE SECRETARY: Senator Nanula.
11 SENATOR NANULA: No.
12 THE SECRETARY: Senator Nolan.
13 (There was no response.)
14 Senator Nozzolio.
15 SENATOR NOZZOLIO: Aye.
16 THE SECRETARY: Senator
17 Ohrenstein.
18 SENATOR OHRENSTEIN: No.
19 THE SECRETARY: Senator Onorato.
20 SENATOR ONORATO: Aye.
21 THE SECRETARY: Senator
22 Oppenheimer.
23 SENATOR OPPENHEIMER: No.
1114
1 THE SECRETARY: Didn't hear you.
2 SENATOR OPPENHEIMER: No.
3 THE SECRETARY: Senator Padavan.
4 SENATOR PADAVAN: Yes.
5 THE SECRETARY: Senator Pataki.
6 SENATOR PATAKI: Yes.
7 THE SECRETARY: Senator
8 Paterson.
9 SENATOR PATERSON: Mr.
10 President.
11 ACTING PRESIDENT DALY: Senator
12 Paterson.
13 SENATOR PATERSON: This is my
14 ninth year of speaking on the death penalty and
15 each year I have argued in opposition to it and
16 yet, when I heard about the massacre on the Long
17 Island Rail Road, my instinctive reaction was
18 that I hope that those individuals who were
19 finally able to accost the individual who was
20 the perpetrator would have killed him.
21 When I heard about the
22 apprehension of the three suspects in the savage
23 attack on the Brooklyn Bridge last week, I
1115
1 really hoped that they would put them under the
2 jail.
3 In spite of my moral opposition
4 to the death penalty, that's how I felt. I
5 don't really know how to reconcile that other
6 than to say that those may have been my personal
7 reactions, but as a legislator, I am sworn and
8 have given an oath to try to make law and to
9 fashion that law which will best adjust to our
10 society; and so, for the reasons I think mostly
11 stated by Senator Espada and Senator Waldon
12 today, I want to vote no on this particular
13 issue.
14 But I do want to add just there
15 one point which is that a Marist poll that was
16 released in the past few days stated that only
17 2.6 percent of the residents of New York State
18 who were queried think that this is the most
19 serious issue, and yet it is the issue that we
20 seem to give the longest debate and it is the
21 issue that we seem to spend a great deal of time
22 and also challenge each other in the media.
23 I don't think that we can come to
1116
1 a decision as to which among us are right and
2 which are wrong. This is an issue of moral
3 conviction where we are bound to respect the
4 opinions and points of view of our debating
5 adversaries, but I would hope that at some point
6 in the rest of this session, we would turn our
7 attention and perhaps wonder what the other 97
8 percent of New York State residents think of the
9 critical issues in this time, particularly
10 related to trying to stop violence in this
11 state.
12 ACTING PRESIDENT DALY: How do
13 you vote, Senator?
14 SENATOR PATERSON: Oh, I said
15 that I was voting no.
16 ACTING PRESIDENT DALY: Senator
17 Paterson voting in the negative.
18 THE SECRETARY: Senator Present.
19 SENATOR PRESENT: Aye.
20 THE SECRETARY: Senator Rath.
21 SENATOR RATH: Aye.
22 THE SECRETARY: Senator Saland.
23 SENATOR SALAND: Aye.
1117
1 THE SECRETARY: Senator
2 Santiago.
3 SENATOR SANTIAGO: No.
4 THE SECRETARY: Senator Sears.
5 SENATOR SEARS: Aye.
6 THE SECRETARY: Senator Seward.
7 SENATOR SEWARD: Aye.
8 THE SECRETARY: Senator Skelos.
9 SENATOR SKELOS: Yes.
10 THE SECRETARY: Senator Smith.
11 SENATOR SMITH: No.
12 THE SECRETARY: Senator Solomon
13 voting in the affirmative earlier today.
14 THE SECRETARY: Senator Spano.
15 SENATOR SPANO: Aye.
16 THE SECRETARY: Senator
17 Stachowski.
18 SENATOR STACHOWSKI: Aye.
19 THE SECRETARY: Senator
20 Stafford.
21 SENATOR STAFFORD: Aye.
22 THE SECRETARY: Senator
23 Stavisky.
1118
1 SENATOR STAVISKY: No.
2 THE SECRETARY: Senator Trunzo.
3 SENATOR TRUNZO: Yes.
4 THE SECRETARY: Senator Tully.
5 SENATOR TULLY: Aye.
6 THE SECRETARY: Senator Velella.
7 SENATOR VELELLA: Yes.
8 THE SECRETARY: Senator Volker.
9 SENATOR VOLKER: Yes.
10 THE SECRETARY: Senator Waldon.
11 SENATOR WALDON: No.
12 THE SECRETARY: No.
13 Senator Wright.
14 SENATOR WRIGHT: Aye.
15 ACTING PRESIDENT DALY:
16 Absentees.
17 THE SECRETARY: Senator Nolan.
18 (There was no response. )
19 ACTING PRESIDENT DALY: Results.
20 Ayes 40 -- the bill is passed.
21 THE SECRETARY: Ayes 40, nays
22 20.
23 ACTING PRESIDENT DALY: The bill
1119
1 is passed.
2 Senator Present.
3 ACTING PRESIDENT DALY: Senator
4 Maltese.
5 SENATOR MALTESE: Mr. President,
6 on Calendar Number 262, I ask unanimous consent
7 that I be recorded in the negative.
8 ACTING PRESIDENT DALY: Senator
9 Sears. Senator Sears.
10 SENATOR SEARS: Mr. President,
11 I'd like to ask unanimous consent to be recorded
12 in the negative on Calendar Number 257.
13 ACTING PRESIDENT DALY: Senator
14 Farley.
15 SENATOR FARLEY: Thank you, Mr.
16 President.
17 ACTING PRESIDENT DALY: Senator
18 Farley.
19 SENATOR FARLEY: Yeah, hold on.
20 I have a motion on behalf of Senator Bruno. He
21 wishes to call up his bill, Senate Print 6300-A,
22 which has been recalled from the Assembly which
23 is now at the desk.
1120
1 ACTING PRESIDENT DALY: Secretary
2 will read.
3 THE SECRETARY: By Senator Bruno,
4 Senate Bill Number 6700-A, an act to amend the
5 Highway Law.
6 SENATOR FARLEY: Mr. President, I
7 now move to reconsider the vote by which this
8 bill passed.
9 ACTING PRESIDENT DALY: Call the
10 roll.
11 (The Secretary called the roll on
12 reconsideration. )
13 THE SECRETARY: Ayes 61.
14 SENATOR FARLEY: I now offer the
15 following amendments.
16 ACTING PRESIDENT DALY:
17 Amendments are received and accepted. Senator
18 Santiago.
19 SENATOR SANTIAGO: Ask unanimous
20 consent to be recorded in the negative on
21 Calendar Number 157.
22 ACTING PRESIDENT DALY: 157.
23 SENATOR SANTIAGO: And 289.
1121
1 ACTING PRESIDENT DALY: Senator
2 DiCarlo.
3 SENATOR DiCARLO: Unanimous
4 consent to be recorded in the negative on
5 Calendar Number 262.
6 ACTING PRESIDENT DALY: Is that
7 Bill Number 262?
8 THE SECRETARY: 262.
9 ACTING PRESIDENT DALY: Senator
10 Present.
11 SENATOR PRESENT: Hold it a
12 minute.
13 ACTING PRESIDENT DALY: Senator
14 Present.
15 SENATOR PRESENT: Mr. President,
16 there being no further business, I move we
17 adjourn until tomorrow at 11 a.m.
18 ACTING PRESIDENT DALY: Senate is
19 adjourned until tomorrow at 11:00 a.m.
20 (Whereupon at 7:27 p.m., the
21 Senate adjourned.)
22
23