Regular Session - February 27, 1995
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8 ALBANY, NEW YORK
9 February 27, 1995
10 3:01 p.m.
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13 REGULAR SESSION
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17 LT. GOVERNOR BETSY McCAUGHEY, President
18 STEPHEN F. SLOAN, Secretary
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1300
1 P R O C E E D I N G S
2 THE PRESIDENT: The Senate will
3 come to order.
4 Will everyone please rise and
5 repeat with me the Pledge of Allegiance.
6 (The assemblage repeated the
7 Pledge of Allegiance to the Flag.)
8 I would ask everyone to bow in a
9 moment of silence.
10 (A moment of silence was
11 observed.)
12 The reading of the Journal,
13 please.
14 THE SECRETARY: In Senate,
15 Sunday, February 26th. The Senate met pursuant
16 to adjournment, Senator Hoblock in the Chair.
17 The Journal of Saturday, February 25th, was read
18 and approved. On motion, Senate adjourned.
19 THE PRESIDENT: Without
20 objection, the Journal stands approved as read.
21 Presentation of petitions.
22 Messages from the Assembly.
23 Messages from the Governor.
1301
1 Reports of standing committees.
2 Reports of select committees.
3 Communications and reports from
4 state officers.
5 Motions and resolutions.
6 Senator Bruno.
7 SENATOR BRUNO: Madam President,
8 at this time, I would like to call for an
9 immediate Rules Committee meeting in Room 332.
10 THE PRESIDENT: There will be an
11 immediate meeting of the Rules Committee in Room
12 332.
13 Senator Bruno, are you ready for
14 the calendar?
15 SENATOR BRUNO: Yes, Madam
16 President, at this time we are ready for the
17 non-controversial calendar.
18 THE PRESIDENT: The Secretary
19 will read.
20 THE SECRETARY: Calendar Number
21 62, by Senator Kuhl, Senate Print 659, an act to
22 amend the Agriculture and Markets Law, in
23 relation to imposing liability for attorneys'
1302
1 fees and costs based on sound agricultural
2 practices.
3 SENATOR PATERSON: Lay it aside.
4 THE PRESIDENT: Lay it aside,
5 please.
6 THE SECRETARY: Calendar Number
7 64, by Senator Kuhl, Senate Print 1385, an act
8 to amend the Agriculture and Markets Law, in
9 relation to exempting working search dogs from
10 licensing fees.
11 THE PRESIDENT: Read the last
12 section.
13 THE SECRETARY: Section 3. This
14 act shall take effect on the 1st day of
15 January.
16 THE PRESIDENT: Results. Call
17 the roll, please.
18 (The Secretary called the roll. )
19 THE SECRETARY: Ayes 33.
20 THE PRESIDENT: The bill is
21 passed.
22 THE SECRETARY: Calendar Number
23 71, by Senator DeFrancisco, Senate Print 769, an
1303
1 act to amend the Public Authorities Law, in
2 relation to the Onondaga County Resource
3 Recovery Agency.
4 THE PRESIDENT: Read the last
5 section, please.
6 THE SECRETARY: Section 2. This
7 act shall take effect immediately.
8 THE PRESIDENT: Call the roll,
9 please.
10 (The Secretary called the roll. )
11 THE PRESIDENT: Results.
12 THE SECRETARY: Ayes 44.
13 THE PRESIDENT: The bill is
14 passed.
15 THE SECRETARY: Calendar Number
16 73, by Senator Maltese, Senate Print 1654, an
17 act to amend the Administrative Code of the city
18 of New York, in relation to criminal possession
19 of a knife, exception of ambulance personnel.
20 THE PRESIDENT: Read the last
21 section, please.
22 THE SECRETARY: Section 2. This
23 act shall take effect on the 1st day of
1304
1 November.
2 THE PRESIDENT: Call the roll,
3 please.
4 (The Secretary called the roll. )
5 THE PRESIDENT: Results.
6 THE SECRETARY: Ayes 44.
7 THE PRESIDENT: The bill is
8 passed.
9 THE SECRETARY: Calendar Number
10 75, by Senator Lack, Senate Print 1294, an act
11 to amend the Estates, Powers and Trusts Law, in
12 relation to the exercise of powers of
13 appointment in further trust.
14 THE PRESIDENT: Read the last
15 section, please.
16 THE SECRETARY: Section 2. This
17 act shall take effect immediately.
18 THE PRESIDENT: Call the roll,
19 please.
20 (The Secretary called the roll. )
21 THE PRESIDENT: Results.
22 THE SECRETARY: Ayes 44.
23 THE PRESIDENT: The bill is
1305
1 passed.
2 THE SECRETARY: Calendar Number
3 76, by Senator Lack, Senate Print 1623.
4 SENATOR PATERSON: Lay aside.
5 THE PRESIDENT: Lay it aside,
6 please.
7 THE SECRETARY: Calendar Number
8 78, by Senator Levy, Senate Print 355, an act in
9 relation to requiring the Department of Motor
10 Vehicles to compile information on driving while
11 under the influence of drugs.
12 THE PRESIDENT: Read the last
13 section, please.
14 THE SECRETARY: Section 3. This
15 act shall take effect on the 90th day.
16 THE PRESIDENT: Call the roll,
17 please.
18 (The Secretary called the roll. )
19 THE SECRETARY: Ayes 45.
20 THE PRESIDENT: Results. The
21 bill is passed.
22 THE SECRETARY: Calendar Number
23 79, by Senator Levy, Senate Print 384, an act to
1306
1 amend the Vehicle and Traffic Law, in relation
2 to requiring school bus drivers involved in
3 personal injury accidents to submit to a
4 chemical test.
5 SENATOR PATERSON: Lay aside,
6 please.
7 THE PRESIDENT: Lay it aside,
8 please.
9 THE SECRETARY: Calendar Number
10 80, by Senator Velella, Senate Print Number
11 1745, an act to amend the Vehicle and Traffic
12 Law, and the Criminal Procedure Law, in relation
13 to authorizing the discovery of blood samples
14 and records relating thereto in certain cases.
15 THE PRESIDENT: Read the last
16 section, please.
17 THE SECRETARY: Section 5. This
18 act shall take effect on the 1st day of
19 November.
20 THE PRESIDENT: Call the roll.
21 (The Secretary called the roll. )
22 THE PRESIDENT: Results.
23 THE SECRETARY: Ayes 45.
1307
1 THE PRESIDENT: The bill is
2 passed.
3 Senator Bruno, that completes the
4 non-controversial reading of the calendar.
5 SENATOR BRUNO: Madam President,
6 could we now take up the controversial reading
7 of the calendar.
8 THE PRESIDENT: The Secretary
9 will read.
10 THE SECRETARY: Calendar Number
11 62, by Senator Kuhl, Senate 659, Agriculture and
12 Markets Law.
13 SENATOR PATERSON: Explanation.
14 THE PRESIDENT: Senator Kuhl.
15 SENATOR KUHL: Thank you, Madam
16 President.
17 This is a bill that essentially
18 would define the liability for costs associated
19 with a court proceeding to the losing party.
20 Two years ago this house adopted
21 a bill called the Family Farm Preservation Act
22 of 1993, and it was hailed as being one of the
23 most responsible pieces of agricultural
1308
1 legislation that was passed in several years.
2 Part of that legislation allows for what is
3 considered to be generally accepted agricultural
4 practices to be determined by the Department of
5 Agriculture and Markets, and what this bill
6 essentially does, it says that, if that opinion
7 of the Department is not accepted and is
8 challenged by somebody in court, in the course
9 of bringing a suit and they lose, that they will
10 be responsible for paying the legal fees
11 associated with that lawsuit.
12 THE PRESIDENT: Senator Paterson.
13 SENATOR PATERSON: Will Senator
14 Kuhl yield?
15 THE PRESIDENT: Senator Kuhl.
16 SENATOR KUHL: Absolutely.
17 SENATOR PATERSON: Thank you,
18 Senator.
19 I would imagine that a number of
20 civil lawsuits may have brought you to this
21 point where this legislation is deemed to be
22 necessary.
23 My question to you is that, in a
1309
1 sense, establishing a rule of law that becomes a
2 penalty would dissuade individuals from bringing
3 lawsuits in those cases where the lawsuit would
4 be appropriate, or at least in the mind of the
5 plaintiff the lawsuit is appropriate. Aren't we
6 really, as the New York Trial Lawyers Associa
7 tion advises us, in a sense intimidating
8 individuals from bringing lawsuits?
9 SENATOR KUHL: Senator, in
10 response to your question, this piece of
11 proposed legislation was not meant to be
12 intimidating in any way, shape or form. As I
13 indicated to you in the explanation, the part of
14 the process that I would anticipate would be the
15 action of the Department of Agriculture and
16 Markets. It's a question as to whether or not a
17 simple practice is generally accepted, a
18 generally accepted practice in the course of
19 carrying on the business of a farmer; so we will
20 have or anybody would have a preliminary
21 opinion. Then, of course, if you wish to
22 challenge that and you have the perception that
23 the Department of Law, with the expertise that
1310
1 they provide, is not sufficient and at least not
2 acceptable to you, then I think you should stand
3 the risk of bearing the cost if, in fact, you're
4 doing this out of your own desire and your own
5 intent.
6 It's -- as I said, it's not meant
7 to be an intimidating law. What it is meant to
8 do essentially is to preclude people from using
9 the courts, in fact to harass the agricultural
10 practices that have been accepted in this state
11 for years.
12 THE PRESIDENT: Senator
13 Paterson.
14 SENATOR PATERSON: Actually, I
15 want to apologize, Senator Kuhl, if I even
16 suggested that the intention of the legislation
17 was to intimidate people. What I was saying was
18 that this would be the result of it. In other
19 words, sometimes our intentions may be quite
20 apt, but what I'm saying is from the point of
21 view of the plaintiff, they go to the Department
22 of Agriculture and Markets. The Commissioner
23 renders an opinion. No one knows how much they
1311
1 can research that. The individual doesn't like
2 the opinion and then likes to sue and what we're
3 saying is, if you don't win, you're going to
4 then have to pay the attorneys' fees because we
5 have had other lawsuits that were frivolous in
6 their nature, and that all may be true, but I'm
7 saying the precious ability of our society to
8 seek legal redress when there is an injury with
9 which we're concerned is what actually bothers
10 me. But I didn't mean to suggest that the
11 intention of the legislation was to intimidate.
12 THE PRESIDENT: Read the last
13 section, please.
14 THE SECRETARY: Section 2. This
15 act shall take effect on the 30th day after it
16 shall have become a law.
17 THE PRESIDENT: Call the roll,
18 please.
19 (The Secretary called the roll. )
20 THE PRESIDENT: Results.
21 THE SECRETARY: Ayes 47, nays 1,
22 Senator Paterson recorded in the negative.
23 THE PRESIDENT: The bill is
1312
1 passed.
2 THE SECRETARY: Calendar Number
3 76, by Senator Lack, Senate 1623, proposing
4 amendment to Section 15 and 16 of Article VI of
5 the Constitution.
6 SENATOR PATERSON: Explanation.
7 THE PRESIDENT: Senator Lack, an
8 explanation, please.
9 SENATOR LACK: Thank you, Madam
10 President.
11 This is second passage of the
12 resolution that passed both houses in 19... 1993
13 which would raise the monetary jurisdiction of
14 the Civil Court of the city of New York and the
15 District Courts to $50,000.
16 THE PRESIDENT: Senator
17 Paterson.
18 SENATOR PATERSON: Would Senator
19 Lack yield for a question?
20 SENATOR LACK: Yes, Senator.
21 Yes, Madam President.
22 SENATOR PATERSON: Thank you.
23 My question, Senator Lack, is
1313
1 simply that at this point raising the -- the
2 monetary value of the jurisdiction is also at
3 some point limiting the jury trials that
4 individuals could seek, and I cite that as an
5 issue that really is at the crux of this
6 legislation. Just wanted to know what your
7 point of view about it was.
8 SENATOR LACK: My point of view,
9 Senator, is that I support that. I supported it
10 in 1993. I would also point out that this is a
11 supported measure by the Office of Court
12 Administration and most specifically by the
13 chief judge of this state, and it is one of her
14 most important measures to pass.
15 THE PRESIDENT: On the
16 resolution, all those in favor say aye.
17 (Response of "Aye.")
18 THE PRESIDENT: Call the roll,
19 please.
20 (The Secretary called the roll. )
21 THE PRESIDENT: Results.
22 THE SECRETARY: Those recorded in
23 the negative on Calendar Number 76, Senator
1314
1 Abate, Connor and Gold.
2 THE PRESIDENT: The resolution is
3 adopted.
4 THE SECRETARY: Ayes 46, nays 3.
5 THE PRESIDENT: The resolution is
6 adopted.
7 THE SECRETARY: Calendar Number
8 79, by Senator Levy, Senate 384, an act to amend
9 the Vehicle and Traffic Law.
10 SENATOR PATERSON: Explanation.
11 SENATOR BRUNO: Madam President,
12 can we lay that bill aside for one day at the
13 request of the sponsor?
14 THE PRESIDENT: The bill is laid
15 aside.
16 Senator Bruno?
17 Senator Kuhl.
18 SENATOR KUHL: Madam President,
19 just a few minutes ago you passed Calendar
20 Number 78, by Senator Levy. I'd like unanimous
21 consent to be able to be recorded in the
22 negative on that bill.
23 THE PRESIDENT: Without
1315
1 objection, Senator Kuhl will be recorded in the
2 negative.
3 SENATOR KUHL: Thank you.
4 THE PRESIDENT: Senator Bruno.
5 SENATOR BRUNO: Yes, Madam
6 President. My understanding is that the Rules
7 Committee has finished its business and a
8 message is on its way into the chamber and when
9 it arrives, I would ask that we go back on the
10 calendar to the reports of standing committees,
11 and the Rules Committee report be read, and
12 Senator Skelos, if you would.
13 SENATOR SKELOS: On its way.
14 SENATOR BRUNO: They're moving
15 very slowly, Madam President, but we'll try and
16 have them move a little quicker in the future.
17 THE PRESIDENT: Senator Bruno, we
18 have the Rules Committee report at the desk.
19 SENATOR BRUNO: Madam President,
20 may it be read at this time?
21 THE PRESIDENT: The Secretary
22 will read.
23 THE SECRETARY: Senator Bruno,
1316
1 from the Committee on Rules, reports the
2 following bill directly to third reading: By
3 Senator Volker, Senate Bill Number 2469, an act
4 to amend the Penal Law, the Criminal Procedure
5 Law, the Judiciary Law, the County Law, the
6 Correction Law and the Executive Law, with
7 relation to the imposition of the death penalty.
8 THE PRESIDENT: Senator Bruno.
9 SENATOR BRUNO: Madam President,
10 I move that we adopt the report of the Rules
11 Committee.
12 SENATOR CONNOR: Madam President.
13 THE PRESIDENT: Senator Connor.
14 SENATOR CONNOR: Yes. I'd like
15 to object to the adoption of the Rules report
16 and explain my reasons.
17 The Senate has a very fine
18 committee structure. In the case of this bill
19 which deals with the death penalty, probably
20 undoubtedly the most significant piece of
21 criminal justice legislation that will be taken
22 up this year, and we find it reported out
23 directly to third reading from the Rules
1317
1 Committee. It's reminiscent -- and I know we'll
2 never see it again -- but it's reminiscent of
3 those days when important legislation came out
4 at 3:15 in the morning directly from the Rules
5 Committee.
6 Now, what we see is the hurry up,
7 lack of respect for the committee process being
8 done in the middle of the day instead of the
9 middle of the night, but the substance is the
10 same, if the -- even if the energy level of the
11 members is quite different at three in the
12 afternoon than three in the morning.
13 This bill, in the dead of night
14 at 10:00 o'clock Friday night, was placed on the
15 members' desks -- no members were here, of
16 course, Madam President, 10:00, 10:30 at night
17 -- so that it would have three days on the
18 members' desks, being Friday, Saturday and
19 Sunday.
20 It's now brought directly to
21 third reading without benefit of stopping by the
22 Codes Committee which is a very fine committee.
23 The members on both sides of the aisle in the
1318
1 Codes Committee, I think, among them are some of
2 the finest legal minds in this state. That's a
3 committee I once served on as one of my
4 colleagues pointed out to me. I guess there are
5 exceptions to that rule, having once served on
6 it, and the -- my recollection of the committee,
7 and I know it's so under its present chair and
8 with its present ranking member and membership,
9 is a committee where great thought is given to
10 bills, bills are analyzed in great detail.
11 Bills are very often improved in
12 that committee by the discussion of the
13 members. The committee holds its meetings in
14 public. The public gets some advance notice of
15 it, and in the ordinary course when it reports a
16 bill, it then comes to the calendar for a couple
17 days until it's taken up.
18 What we're seeing here today is
19 either one of two things: It's an attempt to do
20 serious legislation in the old-fashioned hurry
21 up way, bills on the desk in the middle of the
22 night, members first get to see them on Monday
23 morning perhaps. Rules Committee report is
1319
1 directly to third reading.
2 This bill was not on the
3 calendar. It wasn't on any active list last
4 Friday. It didn't exist until Friday night, so
5 I think there was a new rule about the active
6 list that would be available 24 hours
7 beforehand, and I don't want to say we didn't
8 know it was coming. We certainly did get -- the
9 Majority counsel certainly notified our counsel
10 that they were taking up a death penalty bill on
11 Monday. We just -- it wasn't printed until
12 Friday night.
13 I don't think it's a good way to
14 do business, and I don't really see the reason
15 for doing it this way in February. The Rules
16 Committee is a vehicle when the other committees
17 shut down, that was always used in that rush to
18 do hundreds and hundreds of bills in just a few
19 days when the leadership, the Majority Leader
20 ship realized, My goodness, it's getting awfully
21 hot, 4th of July is either right around the
22 corner or just behind us, and we have to get out
23 of here; and Rules would meet, push these bills
1320
1 right out.
2 There's no need for that in
3 February, Madam President. There's no need for
4 that whatsoever. I object to this procedure. I
5 think we have a fine Codes Committee. I have
6 faith in the Codes Committee, the ability of its
7 members, its chair, its ranking member, to give
8 due consideration to this legislation, and I
9 think the public expects that, whether it's a
10 big important issue like the death penalty where
11 the eyes of the entire state are focused on the
12 Legislature, or any other legislation.
13 We ought to use the committee
14 system. We ought to give due deliberation and,
15 you know, I know we're going to hear, Well,
16 we've been talking about the death penalty for
17 17 years. Yeah, we've been passing a bill for
18 17 years that nobody pretends to think we can
19 actually enact now.
20 This is not the same bill. This
21 is a new bill. It ought to be in print for a
22 much longer time than from a Friday night at
23 10:30 in the evening until a Monday in mid
1321
1 afternoon. That's why, Madam President, I
2 object to the Rules Committee report because I
3 think it's not the way to do business. I think
4 it's a bad way to do business when it's the last
5 week of the session. I think it's certainly a
6 terrible way to do business when we're only in
7 February.
8 SENATOR LEICHTER: Madam -
9 THE PRESIDENT: Senator Bruno.
10 SENATOR BRUNO: Madam President,
11 I appreciate the Minority Leader lecturing us on
12 the procedures that are appropriate in the Rules
13 Committee and in this chamber. Thank you very
14 much, Senator, and while we are having notifica
15 tion and full disclosure, I would have appreci
16 ated knowing from the Minority Leader and his
17 colleagues that they plan on handing up eight
18 amendments that we just found out five minutes
19 ago, and it would have been very nice to have
20 been notified earlier today that you planned
21 this exercise just by way of sharing information
22 with your comrades and your colleagues. I think
23 that's very inappropriate procedure, Madam
1322
1 President. It isn't in the spirit of what we're
2 trying to do here in deliberating and working
3 together, and I would hope the Minority Leader
4 might give us a little more notice. I think
5 that's fair and appropriate and it strikes me,
6 Madam President, that in order to have prepared
7 these amendments, study must have been made of
8 this bill. Plenty of time to study the bill, to
9 review the bill, to know what's in it, so you
10 must have had plenty of time apparently to do
11 that. So, so much for disclosure and
12 procedure.
13 We all understand what's going on
14 in this chamber this afternoon. This house will
15 pass a meaningful, constitutionally correct
16 Governor's program pass penalty bill -- death
17 penalty bill. Death penalty bill. Death knell
18 -- death penalty bill. That's all right; wait
19 until you hear the debate on that. I am giving
20 notice today that that's next.
21 SENATOR CONNOR: Only two things
22 are certain, right?
23 SENATOR BRUNO: And the Minority
1323
1 Leader comments, and I will sit down, that these
2 are the only two things certain in life, death
3 and taxes.
4 THE PRESIDENT: Thank you,
5 Senator Bruno.
6 I'll recognize you in a moment,
7 Senator Leichter.
8 Senator Connor.
9 SENATOR CONNOR: Thank you, Madam
10 President.
11 Just briefly, Madam President.
12 My counsel informs me that we first got to look
13 at this bill at 10:30 this morning and drafted
14 the amendments since then, so I guess if four
15 hours or five hours is a lot of time to study a
16 bill, we have it.
17 Counsel did notify Majority
18 counsel when we came to the floor that we had
19 amendments. I think the amendments are hot off
20 the press, but they're in reaction, and I do
21 want to assure you, Madam President, and assure
22 the public that when the day comes that we are
23 in charge, we will do things differently.
1324
1 THE PRESIDENT: According to Rule
2 VII, section 2, on page 17 of the Rules govern
3 ing this body, a Rules Committee report is
4 always in order and, if the report is adopted,
5 all inconsistent rules of the Senate shall
6 automatically be suspended until the subject of
7 the report has been disposed of, including the
8 final action on it.
9 Senator Leichter.
10 SENATOR LEICHTER: Yes, Madam
11 President.
12 In all my 25 years in the
13 Legislature, this is the worst abuse of the
14 committee system that I've ever seen. There
15 have been other instances when significant bills
16 have failed to go through committee, usually
17 these are budget bills, maybe bills at the end
18 of the session, but never have we had a bill of
19 this significance, death penalty bill, that is
20 being rushed through. It almost seems as if
21 there's a blood lust by those proponents of this
22 legislation that they've got to pass this bill,
23 come what may, and to hell with the legislative
1325
1 procedure.
2 Senator Bruno, I'm really
3 disappointed because you committed yourself to
4 an open process. You committed yourself to a
5 fair process. You committed yourself to a
6 deliberative process, and all of that is being
7 torn up. Those promises are torn up and thrown
8 in the wastebasket and, Senator, let me tell
9 you, you made the best argument that I've heard
10 on this floor yet why we should not proceed this
11 way, and why we should allow this bill or any
12 bill that deals with matters that finally come
13 before this house to go through the regular
14 committee process.
15 You complained about the fact,
16 well, there's amendments here. We didn't have
17 time to consider them, so oh, that's what the
18 committees are for, because those issues are
19 raised in committees and they're discussed in
20 committees, and in the 20 years or so I've been
21 in the Senate and I think we've had a death
22 penalty bill before us in all of those 20 years,
23 they have always gone through the Codes
1326
1 Committee, and it's a very responsible
2 committee. It's a fair committee. We may
3 differ strongly on certain issues. I certainly
4 differ with Senator Volker on the death penalty,
5 but in all those years that bill has always come
6 before the committee. It's been discussed and
7 we've had a deliberative process, and I argue
8 very strongly against the adoption of the Rules
9 Committee report and rushing through a death
10 penalty bill without allowing the members a
11 chance to look at the bill, consider the bill,
12 have it go through the committees and, in this
13 instance, I think it would be appropriate to
14 have public hearings, allow the district
15 attorneys to be heard.
16 What's the rush? What are you
17 hurrying for? What is the need? Is there a
18 constitutional deadline? Does it say death
19 penalty has to be adopted by February 27th,
20 1995?
21 There's no rush. It can be done
22 in a deliberative proper way. Are we in such a
23 speed to put people to death that we're not even
1327
1 going to pay attention to our own rules?
2 Senator Bruno, I really urge you
3 to pay heed to implement the promises you've
4 made and let's have a deliberative body. Let's
5 not disgrace this body by rushing through a
6 death penalty bill without proper
7 consideration.
8 SENATOR VOLKER: Madam President.
9 THE PRESIDENT: Senator Volker,
10 do you wish to be heard on the adoption of the
11 Rules Committee report?
12 SENATOR VOLKER: Yes, Madam
13 President.
14 I just might say very quickly,
15 Senator Leichter, I -- that was an excellent
16 speech. I remember hearing it about 10 years
17 ago when we did three death penalty bills in one
18 year. In fact, I remember we reported one out
19 of Rules; we did one out of the then Codes
20 Committee. In fact, I think we did two out of
21 Rules when we changed the bill, one bill that
22 was on the floor.
23 Let me just point out that one
1328
1 reason why the amendment process was much easier
2 for the Senate Minority is that they had
3 certainly a bill that they could look at because
4 the bill that's on the calendar now, Calendar
5 Number 100, Senate Print 2241, is basically the
6 same bill with the few changes that were made
7 since then after the agreement between the
8 Speaker of the Assembly, the Governor and the
9 Majority Leader on Wednesday when we left almost
10 two weeks ago. At that time, the agreement was
11 that we would do an agreed bill which was agreed
12 in principle.
13 Of course, I would prefer to -
14 to see the process move through my committee,
15 but let me -- let me just tell you the problem,
16 Senator Leichter. It's amazing that we have not
17 heard anything basically from the Assembly until
18 this morning. Well, maybe last night. Soon as
19 we were prepared to move the bill, this bill,
20 which probably represents about 99 and two
21 thirds percent of an agreement -- I won't get
22 into the comparatively minor issue -- that the
23 Assembly just walked completely away from us.
1329
1 Can I finish, Senator?
2 SENATOR LEICHTER: Yes.
3 SENATOR VOLKER: And I don't
4 think it's wise to get into that debate here on
5 the floor. I would only say to you this: Let's
6 not kid ourselves. The issue here is the death
7 penalty. This bill is -- is a magnified version
8 of a bill that has been -- that we have been
9 passing for 18 years actually. We've been
10 trying to restore the death penalty completely
11 since 19 -- basically since I've been here since
12 1973.
13 Admittedly, there are more
14 protections for the defendants, and there are
15 some changes in this bill that relate to
16 constitutional issues. They're issues, by the
17 way, that, as I say, that were in -- most of
18 which were in the bill that was already reported
19 out on the floor of this Senate that's been, in
20 fact, debated in the papers. People have been
21 discussing this all over the place.
22 If there's ever a bill, by the
23 way, Senator, that doesn't need a public
1330
1 hearing, I think this is it. The issue of the
2 death penalty is not an issue of procedure.
3 It's an issue of whether you want to do the
4 death penalty or you don't want to do the death
5 penalty. It really always has been. We want to
6 make sure that there is a bill here that gives
7 protections to the defendant and that properly
8 protects victims and that's, I think, what this
9 bill does.
10 But, Senator, let's not -- let's
11 not talk about that this is the worst abuse of
12 the committee procedure. That's not what the
13 issue is all about. The issue is the death
14 penalty, and the issue is moving this matter
15 along.
16 SENATOR LEICHTER: Madam
17 President. I just wanted to -- would you yield
18 to me? I just want to ask Senator Volker a
19 question.
20 THE PRESIDENT: Senator Volker.
21 SENATOR LEICHTER: Senator, would
22 you yield?
23 Senator, I'm trying to understand
1331
1 your argument, not on the death penalty because
2 you and I have debated that and we know we
3 disagree, and I think we respect each others'
4 positions, but on the issue of what this body
5 ought to take up and in what order and how the
6 process should function, is it your view that if
7 the Majority Leader and the Speaker agree on a
8 bill, that that bill should not go through
9 committee and need not go through committee?
10 SENATOR VOLKER: Senator, I would
11 prefer that the bill go through my committee
12 although I must tell you something, that I can
13 not honestly say to you that if we put this bill
14 through my committee tomorrow that we wouldn't
15 be here next week still going through the same
16 sort of exercise because the way this whole
17 process has gone over the last couple of months,
18 I certainly couldn't guarantee that, and I think
19 if we're going to move this process along, this
20 may be the only way to do it.
21 SENATOR LEICHTER: If Senator
22 Volker would yield.
23 Senator, you really led me to my
1332
1 next question, which is you could hold the
2 hearing; in fact, I think the Codes Committee is
3 having a meeting tomorrow, is that right?
4 SENATOR VOLKER: Right.
5 SENATOR LEICHTER: And you could
6 put this bill on the agenda of the Codes
7 Committee, isn't that right?
8 SENATOR VOLKER: Probably could
9 with unanimous consent.
10 SENATOR LEICHTER: Unanimous
11 consent! Have you ever asked unanimous consent
12 when you put something on the calendar of the
13 committee?
14 SENATOR VOLKER: The bill that
15 was drafted on Friday would have to have
16 unanimous consent to be on the calendar because
17 as of Thursday -- and I must tell you something,
18 I'm very doubtful that the Senate Majority, and
19 I understand why, would ever give unanimous
20 consent on that short a notice. That's why we
21 use the Rules Committee, because I think it's
22 the best procedure to get things moving along.
23 SENATOR LEICHTER: Senator, my -
1333
1 the question I asked, and I'm not sure that the
2 answer is correct. Are you saying that it would
3 require unanimous consent for you to put this
4 bill on the agenda of the -- of the Codes
5 Committee tomorrow?
6 SENATOR VOLKER: Yes, would
7 require it from the Minority.
8 THE PRESIDENT: Senator
9 Leichter.
10 SENATOR LEICHTER: Would Senator
11 Volker continue to yield, please?
12 THE PRESIDENT: Senator Volker?
13 SENATOR VOLKER: Yes.
14 SENATOR LEICHTER: And if that
15 consent were required and if it were given, and
16 I know no reason why it wouldn't be given, and
17 the bill were reported out of committee, could
18 it not be acted on by the Senate on Wednesday?
19 THE PRESIDENT: Senator Volker.
20 SENATOR VOLKER: Again, with
21 unanimous consent, it would have to receive
22 unanimous consent from the Minority. If you
23 remember, when we -- when we report bills, you
1334
1 have to list, as Senator Gold I think will tell
2 you, that you have to get agreement in order to
3 report a bill directly out of committee to the
4 floor for the next day.
5 So that there is no guarantee
6 that that would happen.
7 SENATOR LEICHTER: Senator -
8 THE PRESIDENT: Senator
9 Leichter.
10 SENATOR LEICHTER: Yes, if
11 Senator Volker would yield, please.
12 Senator, isn't it a fact that by
13 the same way that you brought the bill here
14 today without consent of the Minority you could
15 have done that on Wednesday after it went before
16 the Codes Committee? So the fact is that we
17 could have this bill before your committee,
18 discussed in committee, and still be voted on by
19 the Senate this week if you wanted to follow
20 deliberative -- a deliberative process.
21 SENATOR VOLKER: The Rules
22 Committee is the only committee of the Senate
23 that can report directly to the floor without -
1335
1 without consent.
2 SENATOR LEICHTER: Calendar.
3 SENATOR VOLKER: To the calendar,
4 I'm sorry, without consent, to the calendar and,
5 Senator, if you're talking about last Wednesday,
6 we didn't have a bill last Wednesday. We do
7 have a bill right now which is on the calendar
8 which is very similar to this bill which has
9 been on the calendar, as I say, for two weeks
10 now, but that bill is not exactly the bill that
11 we have reported here out of the Rules
12 Committee.
13 SENATOR LEICHTER: Madam
14 President, Senator Volker.
15 THE PRESIDENT: Senator.
16 SENATOR LEICHTER: And the fact
17 is, Senator, that that initial bill of two weeks
18 ago was not considered in committee. We now
19 have a different bill that came out Friday and
20 my question to you is, if you wanted to do it
21 this week, you could still have it go through
22 your committee and there is a procedure to then
23 bring it before the full Senate on Wednesday, or
1336
1 you could wait one week, Senator, and have a
2 deliberative process.
3 Is there any reason or any need,
4 Senator, that that bill has to be passed this
5 week, that you can not wait until next week so
6 that you follow the procedures of the Senate so
7 that you have the deliberation that I think we
8 owe to this important subject?
9 THE PRESIDENT: Senator Volker.
10 SENATOR VOLKER: Madam President,
11 the Majority Leader last -- a week ago
12 Wednesday, when the press conference was held
13 that stated the agreement, the agreement in
14 principle or agreement between the Speaker, the
15 Majority Leader and the Governor, let it be
16 known that whatever occurred that the Senate was
17 going to move this death penalty today, and that
18 it was -- it was his intention to make sure that
19 a death penalty bill was passed today as best he
20 could. That was his commitment, and that's why
21 this bill is here.
22 I think I would prefer just to
23 have the committee process, but I think, under
1337
1 the circumstances, the Majority Leader feels
2 that this is the best way to move this process
3 along.
4 THE PRESIDENT: Senator
5 Dollinger, do you wish to be heard on the
6 adoption of the Rules Committee?
7 SENATOR DOLLINGER: I do, Madam
8 President. I would, however, like to ask
9 Senator Volker if he would yield to a question.
10 THE PRESIDENT: Senator
11 Dollinger, do you wish to be heard on the
12 adoption of the Rules Committee report?
13 SENATOR DOLLINGER: I do, but at
14 this time I'd simply like to ask Senator Volker,
15 does he still have the floor? If so, I'd simply
16 like to address a question.
17 THE PRESIDENT: He does not have
18 the floor. You have the floor.
19 SENATOR DOLLINGER: Well, could I
20 then ask Senator Volker, since I have the floor,
21 if he would yield to a question.
22 THE PRESIDENT: Is it on the
23 adoption of the Rules Committee report?
1338
1 SENATOR DOLLINGER: It is on the
2 Rules Committee.
3 THE PRESIDENT: Senator.
4 SENATOR DOLLINGER: Senator, I'm
5 intrigued because, in your comments a moment
6 ago, you made reference to the bill on the
7 calendar and referred to Bill 2241, is that
8 correct? That is the bill that was in the
9 calendar that was published on Friday, correct?
10 SENATOR VOLKER: 2241, yes.
11 SENATOR DOLLINGER: Right, but
12 that isn't the bill before us today.
13 SENATOR VOLKER: No.
14 SENATOR DOLLINGER: And, in fact,
15 the bill before us today, 2649, is twice as
16 long, twice -- presumably twice as complicated
17 as the bill -
18 SENATOR VOLKER: No, I wouldn't
19 say it's twice as long or twice as complicated.
20 In fact, Senator, although this is the
21 Governor's program bill, it is the Governor's
22 Program Bill Number 1, most of the languaqge in
23 here does not change the process as regards the
1339
1 death penalty. It does add quite a bit of
2 language as regards the process after the -- how
3 the death penalty is carried out, the Correction
4 Law, amendments and things of that nature, but
5 it is mostly detail as far as the Correction Law
6 is concerned.
7 SENATOR DOLLINGER: But is it -
8 THE PRESIDENT: Senator
9 Dollinger.
10 SENATOR DOLLINGER: Again, will
11 Senator Volker yield?
12 But the bill that we have in
13 front of us, 2649, is 29 pages long; the bill
14 that you made reference to that was in the
15 docket on Friday is only 12 pages long.
16 SENATOR VOLKER: H-m-m.
17 SENATOR DOLLINGER: So something
18 happened between the publication of this
19 document on Friday and the preparation of, I
20 assume maybe 5:00 o'clock Friday, or some time
21 in the afternoon on Friday when this was
22 published, and this bill which I think Senator
23 Connor properly pointed out was plunked on my
1340
1 desk to meet the three-day aging period at about
2 10:00 o'clock Friday night.
3 SENATOR VOLKER: M-m h-m-m.
4 THE PRESIDENT: Senator Volker.
5 SENATOR DOLLINGER: Again, Madam
6 President, through you, could you explain to me
7 what that process was, what happened between the
8 publication of the calendar and the publication
9 of the bill?
10 SENATOR VOLKER: Well, obviously
11 what happened was that the Assembly, the
12 Governor and the Senate discussed the -- the
13 legislation and -- and made certain changes in
14 the bill. What I'm tellin' you though, as far
15 as the implementation of the death penalty is
16 concerned, that a lot of it is just expanding on
17 what was already there. That's what I'm telling
18 you, which was in the previous bill. Sure,
19 there was some additional language that was put
20 in this bill, but I'm telling you and that's
21 why, by the way, when you went to amend the
22 bill, you're amending basically the same
23 sections as you amended in a previous bill or
1341
1 would have amended in the previous bill.
2 THE PRESIDENT: Senator.
3 SENATOR DOLLINGER: Again through
4 you, Madam President, one final question. Were
5 you, Senator Volker, a participant in the
6 discussions that occurred presumably after the
7 calendar was published and before the bill was
8 put on our desks, about the contents of this
9 bill? Were you a participant in this?
10 SENATOR VOLKER: I'd hasten to
11 tell you I was, yes.
12 SENATOR DOLLINGER: Do you know
13 anybody else who was?
14 SENATOR VOLKER: There was the
15 Speaker's people, the Majority Leader's people,
16 the Governor's people and myself, and some
17 others also.
18 THE PRESIDENT: Senator Volker.
19 SENATOR DOLLINGER: Could you
20 tell me whether there were any other members of
21 the Senate who participated in those
22 discussions?
23 SENATO VOLKER: Any other members
1342
1 of the Senate who participated? No.
2 SENATOR DOLLINGER: Madam
3 President, on the bill.
4 THE PRESIDENT: No, Senator, I'm
5 going to recognize Senator Waldon now.
6 SENATOR DOLLINGER: No, on the
7 resolution to accept the Rules Report.
8 Madam President, I rise to join
9 the voice of Senator Leichter and Senator
10 Connor. I guess I'm astounded that we're
11 standing here today to change the law, probably
12 the most critical law in the state, to impose
13 the death penalty that hasn't even actually gone
14 through committee, and I'll apologize -- I'll
15 apologize publicly to Senator Volker, because I
16 don't like asking Senator Volker picayune
17 questions about the procedure when what we
18 should be debating is about principles that we
19 hold, perhaps different principles but
20 principles that we hold to be very, very
21 important about the death penalty.
22 It's a shame that I stand up here
23 and talk to you about the little points of
1343
1 procedure because the Senate has decided to bend
2 all of its rules to accommodate what appears to
3 be the political agenda of the Majority Leader,
4 and that's what troubles me most, is that
5 someone promised that the bill would be acted
6 upon today, and when if agreement wasn't
7 reached, all of a sudden the rules of the
8 Senate, the body that I joined two years ago -
9 and one of the first things I did was the last
10 Majority Leader came out in the middle of debate
11 over the bill involving the joint resolution to
12 create -- to appoint a Comptroller, and he came
13 out, Senator Marino came out and he and I had a
14 little tussle on the floor and he lectured me
15 about the importance of the Senate, the value of
16 the institution he'd been in for 28 years and
17 how this was the importance of the Senate and
18 how I should be reminded of that and mindful of
19 that, because we were debating a resolution
20 about exercising the prerogatives of the
21 Senate.
22 Well, here we are bending the
23 rules, manipulating the rules again to
1344
1 accommodate something other than an agenda about
2 passing substantive legislation. We could
3 easily do it, as Senator Leichter points out,
4 through the Codes Committee. Senator Volker has
5 been a leader in that, in the Codes Committee.
6 He's been a leader on this bill, should have
7 gone through the Codes Committee before it came
8 here.
9 In addition, it doesn't appear to
10 me, and I've got lots of questions on the bill
11 which I'll talk about when we come to the bill,
12 but I'll just point out that Senator Leichter's
13 point about a public hearing is well taken, is
14 very well taken. We hold public hearings in
15 this Legislature about minor league baseball
16 development. We've held them about grape price
17 cuts and price supports for the grape industry.
18 We've held public hearings in the last couple
19 years about diapers in the waste stream. We
20 held them about zebra mussels in our water
21 system. We've heard them about tanning salons,
22 and now we're not going to hold a public hearing
23 on the imposition of the death penalty?
1345
1 What's the rush? What's the big
2 rush? Why did we change our rules? It seems to
3 me and maybe cynically, that I have a view of
4 why it's supposed to happen today. Tomorrow the
5 Catholic Conference is coming down. They're
6 coming down in part to lobby members of this
7 chamber against this bill. But they won't get a
8 chance if today this body, through the Rules
9 Committee, receives a report which includes the
10 death penalty and we pass it today.
11 It seems to me that the
12 motivation is clear. It seems to me that it's
13 obvious why this is happening today. I most
14 strenuously object to the receipt of the Rules
15 Committee report.
16 SENATOR BRUNO: Point of order.
17 THE PRESIDENT: Senator Bruno.
18 SENATOR BRUNO: Point of order,
19 Madam President.
20 I believe the rules of the Senate
21 are such that we can only debate for one half
22 hour a report of a standing committee including
23 Rules, and I believe that half hour has just
1346
1 ended, so we thank our colleagues for their
2 remarks.
3 SENATOR CONNOR: Point -
4 THE PRESIDENT: Senator Connor.
5 SENATOR CONNOR: I believe the
6 rule is a half hour on each side.
7 SENATOR BRUNO: Yes.
8 THE PRESIDENT: That's right.
9 SENATOR CONNOR: I don't know if
10 we used all of it.
11 SENATOR BRUNO: Yes, that was
12 your side. We have some time to go.
13 Madam President.
14 THE PRESIDENT: Senator Connor,
15 you have used a half hour.
16 SENATOR BRUNO: Madam President.
17 THE PRESIDENT: Yes.
18 SENATOR BRUNO: I would move the
19 adoption of the Rules report.
20 THE PRESIDENT: Senator Bruno has
21 moved that we adopt the report of the Rules
22 Committee. All those in favor.
23 SENATOR DOLLINGER: A point of
1347
1 order, ma'am.
2 In reaching the conclusion, as I
3 assume this body is, that the half hour has
4 expired, is the Minority being charged with the
5 time that Senator Volker used in discussing the
6 bill?
7 THE PRESIDENT: No, no.
8 SENATOR DOLLINGER: Then there
9 should be additional time because I know he
10 spoke for several minutes.
11 SENATOR BRUNO: On -
12 THE PRESIDENT: But the entire
13 debate, it's been more than half an hour.
14 SENATOR WALDON: Madam President,
15 with all due respect, I wish to make -
16 THE PRESIDENT: Senator Waldon.
17 SENATOR WALDON: I wish to make a
18 reasoned rational decision on this resolution as
19 a result of due deliberation. I did not see you
20 timing a clock in regard to the debate on both
21 sides of the aisle. I have some valid concerns
22 about this resolution.
23 I respectfully ask this body to
1348
1 recognize me to raise my concerns so that my
2 decision will not be in the dark on this
3 resolution.
4 THE PRESIDENT: Senator Waldon,
5 can you do it in just one minute?
6 SENATOR WALDON: I can't
7 guarantee -- I used to be quick enough, Madam
8 President, to do a lot of things in one minute.
9 THE PRESIDENT: Senator, we have
10 already consumed the half hour.
11 SENATOR BRUNO: Madam President,
12 excuse me. I have the floor. We move the
13 adoption of the Rules Committee.
14 THE PRESIDENT: Yes, you're quite
15 right, Senator Bruno.
16 SENATOR BRUNO: And I would
17 appreciate a vote on that.
18 THE PRESIDENT: All those in
19 favor signify -
20 SENATOR ABATE: So -
21 SENATOR CONNOR: We'll have to
22 have a slow roll call so Senator Waldon can
23 explain his vote.
1349
1 THE PRESIDENT: The question is
2 on the adoption of the Rules Committee report.
3 Call the roll, please.
4 THE SECRETARY: Senator Abate.
5 SENATOR ABATE: Against it, no,
6 and I'd like to explain my vote.
7 I'm a new Senator -
8 THE PRESIDENT: Senator Abate
9 will explain her vote.
10 SENATOR ABATE: Yes, if I may be
11 heard. I'm the newest member of this chamber
12 and I'd hate to be hearing years from now that
13 we followed some rules and we talked more about
14 rules than we talked about the substance of
15 these issues.
16 We all have to go home some day
17 and answer the question of our constituents: Did
18 we read the bill? It's not enough to say we're
19 for or against the bill. Do we understand the
20 nuances, the details? We're not being
21 responsible legislators if we cut off debate at
22 30 minutes or we cut off debate at two hours
23 because this is a critical issue.
1350
1 Whether we're for or against the
2 death penalty, we must understand what
3 protection it will provide and what it does not
4 provide. I'm -- I'm ashamed because I know that
5 there are individuals in this room, and I
6 include myself, I received the bill this
7 morning. Did I have adequate time to read it
8 and understand it? I don't think so. I don't
9 think any of us did, and the fact that we've
10 been debating it for many, many years, is not
11 the same thing because legislation changes. One
12 word can change the intent and spirit of a piece
13 of legislation.
14 I ask that all of us, let's be
15 rational. If we pass the death penalty bill at
16 midnight, but it is said about us that we had
17 fair and honest debate, we just do not live by
18 certain rules that did not make sense for such a
19 critical piece of legislation. Let's look to
20 our consciences today.
21 THE PRESIDENT: The question is
22 on the adoption of the Rules Committee report.
23 We'll continue a slow roll call.
1351
1 SENATOR ABATE: I vote no.
2 THE SECRETARY: Senator Babbush.
3 (There was no response. )
4 Senator Bruno.
5 SENATOR BRUNO: Yes.
6 THE SECRETARY: Senator Connor.
7 SENATOR CONNOR: No.
8 THE SECRETARY: Senator Cook.
9 SENATOR COOK: Yes.
10 THE SECRETARY: Senator
11 DeFrancisco.
12 SENATOR DeFRANCISCO: Yes.
13 THE SECRETARY: Senator DiCarlo.
14 SENATOR DiCARLO: Yes.
15 THE SECRETARY: Senator
16 Dollinger.
17 SENATOR DOLLINGER: Explain my
18 vote, Mr. President.
19 THE PRESIDENT: Senator Dollinger
20 to explain his vote.
21 SENATOR DOLLINGER: It seems to
22 me, in the past, when we've done this bill that
23 the Codes Committee has done a good job on the
1352
1 bill. I think now, given the fact that this is
2 a bill that's going to become law, I think the
3 Codes Committee could have done an excellent
4 job.
5 Unfortunately, Senator, the
6 amendments, three of them are mine, I would have
7 loved to have put them before the Codes
8 Committee. Instead, I found out, whether or
9 not -- I had to play sort of hit-or-miss on
10 whether or not they'd be included in 2649.
11 Turns out all three of them are not, even though
12 I tried to get them in the discussion much
13 earlier. That's why the amendments are now
14 being presented. That's why they're being
15 presented at this time.
16 All that could have been
17 avoided. We might have had a discussion. I
18 would have been glad to present you the
19 amendments in the Codes Committee.
20 I'm going to vote no, Madam
21 President. It just seems to me there's no
22 reason to rush this. The people of the state of
23 New York could wait for this body to engage in
1353
1 the kind of deliberation that we're -- we should
2 be well known for.
3 THE PRESIDENT: Senator Dollinger
4 in the negative.
5 Continue, please.
6 THE SECRETARY: Senator Espada.
7 SENATOR ESPADA: To explain my
8 vote.
9 THE PRESIDENT: Senator.
10 SENATOR ESPADA: Just to depart a
11 little bit from my colleagues on this issue, I
12 for one find it altogether fitting that the
13 precursor to a -- a full debate on the death
14 penalty be as arbitrary and capricious as the
15 bill itself, so I think we're living up to form,
16 unfortunately.
17 I vote no on the resolution.
18 THE PRESIDENT: Continue,
19 please.
20 Senator Senator Espada recorded
21 in the negative.
22 THE SECRETARY: Senator Farley.
23 SENATOR FARLEY: Aye.
1354
1 THE SECRETARY: Senator Galiber.
2 SENATOR GALIBER: No.
3 THE SECRETARY: Senator Gold.
4 SENATOR PATERSON: Mr. President,
5 to explain my vote.
6 THE PRESIDENT: Senator Gold to
7 explain his vote.
8 SENATOR PATERSON: And I will be
9 brief. Senator Bruno, I've known you for a day
10 or two, and you and I have had a number of
11 conversations in the back of this chamber while
12 other people happen to have been the leaders,
13 and I remember your comments and your sympathies
14 toward the particular late night sessions and
15 starting on time, and I think that's why, when
16 you took over, you initially announced some
17 reforms that we've been fighting for because
18 we've got to get down to business.
19 I think now you're, however,
20 getting some very bad advice from some people
21 and you're starting to confuse the concept of
22 getting down to business and getting rid of a
23 lot of the nonsense with what I call the
1355
1 bulldozer syndrome.
2 Now, the fact of the matter is,
3 Senator, that we do not vote on concepts. A lot
4 of people wish we did. A lot of people would
5 like to just go to the voters and say, "I'm for
6 capital punishment." "I'm for abortion." "I'm
7 against" or this and that, and not explain to
8 people that bills have words in them and each
9 word is something that affects the lives of
10 people because it's a law.
11 Big mistake. If the Governor is
12 waiting to sign this, that's one thing, but
13 under the circumstances where you know that the
14 Assembly is not going to do it, where it's only
15 posturing, what you do is, unfortunately,
16 tarnish what many of us hoped was a good start,
17 a reformed start.
18 I vote in the negative.
19 THE PRESIDENT: Senator Gold
20 reported in the negative. Continue the roll.
21 THE SECRETARY: Senator
22 Gonzalez.
23 (There was no response. )
1356
1 Senator Goodman.
2 SENATOR GOODMAN: No.
3 THE SECRETARY: Senator Hannon.
4 SENATOR HANNON: Yes.
5 THE SECRETARY: Senator Hoblock.
6 SENATOR HOBLOCK: Yes.
7 THE SECRETARY: Senator
8 Hoffmann.
9 (There was no response. )
10 Senator Holland.
11 SENATOR HOLLAND: Yes.
12 THE SECRETARY: Senator Johnson.
13 SENATOR JOHNSON: Yes.
14 THE SECRETARY: Senator Jones.
15 SENATOR JONES: Explain my vote.
16 THE PRESIDENT: Yes, Senator
17 Jones to explain her vote.
18 SENATOR JONES: I just want to
19 join and echo some of the things I've heard my
20 colleagues say today. Certainly, we all know
21 that none of us sitting here is going to change
22 our vote as far as the substance of the death
23 penalty. We all know it's inevitable, and we
1357
1 all know we will have a death penalty this year
2 whether we're for or against it.
3 So where is our obligation now? I
4 think Senator Abate explained it perfectly. Our
5 obligation now is knowing what is in this piece
6 of legislation. I'm not going to change whether
7 I support or I don't support the death penalty
8 but I do have to go back to my constituents and
9 be able to say, when somebody involved with
10 mental health said to me, Are these people
11 protected under the death penalty; when somebody
12 says to me, Is there going to be adequate
13 defense for those who are going to be charged
14 with murder and perhaps subject to the death
15 penalty; or better yet, my local government who
16 says to me, Am I going to be stiffed with the
17 bill for the defense of these people?
18 I don't know the answer to these
19 questions because Senator Abate is a half a day
20 ahead of me. I got this an hour ago, so I
21 haven't read it, and I certainly cannot support
22 it being voted on today regardless of how I'm
23 going to vote. The procedure is wrong.
1358
1 I vote no.
2 THE SECRETARY: Senator Jones in
3 the negative.
4 Senator Kruger.
5 SENATOR KRUGER: No.
6 THE SECRETARY: Senator Kuhl.
7 SENATOR KUHL: Aye.
8 THE SECRETARY: Senator Lack.
9 SENATOR LACK: Aye.
10 THE SECRETARY: Senator Larkin.
11 (There was no response.)
12 THE SECRETARY: Senator LaValle.
13 SENATOR LAVALLE: Aye.
14 THE SECRETARY: Senator Leibell.
15 SENATOR LEIBELL: Yes.
16 THE SECRETARY: Senator
17 Leichter.
18 SENATOR LEICHTER: Mr. President,
19 to explain my vote.
20 ACTING PRESIDENT KUHL: Senator
21 Leichter to explain his vote.
22 SENATOR LEICHTER: Here we go
23 again acting at the whim and whimsy of the
1359
1 Majority Leader. Rules mean nothing. Proced
2 ures mean nothing. We rush ahead. We really
3 make ourselves look foolish.
4 What is more important than the
5 wording of a bill that deals with how people are
6 going to be put to death, when they're going to
7 be put to death, what their rights are, what the
8 procedure is? To have a bill of that sort be
9 printed over the week end, first seen by the
10 members on Monday, and then rush ahead and not
11 have it go through committee, it's appalling.
12 You know, what so often happens
13 here, we're sort of within the walls, the thick
14 stone walls of this building, and we lose all
15 perspective. Senator Bruno, I think most of the
16 people in this state support the death penalty,
17 but I think that they would agree with me and
18 with others who, say, have a fair, reasoned
19 position. That's why they send us up here, to
20 act in a deliberative, sensible, rational
21 fashion.
22 This is not doing it, and it's
23 going back to those procedures that I know you
1360
1 and members on both sides of the house
2 criticize. It's not necessary. You wanted to
3 pass a death penalty bill this week. You could
4 have done it, and I showed you in the questions
5 to Senator Volker how you could have gone
6 through committee and done it.
7 I would have hoped that you would
8 have also -- I say "you", but that the whole
9 body would agree that hearings would have been
10 proposed, so on, you probably would have passed
11 the bill by the end of March.
12 It's going to pass this year.
13 There's no question about it, but to force this
14 body to vote on a complex, complicated bill
15 dealing with death and not give members an
16 opportunity and a chance to do it in a reasoned
17 manner is totally wrong.
18 I vote in the negative, Mr.
19 President.
20 ACTING PRESIDENT KUHL: Senator
21 Leichter in the negative.
22 Secretary will continue to call
23 the roll.
1361
1 THE SECRETARY: Senator Levy.
2 SENATOR LEVY: Aye.
3 THE SECRETARY: Senator Libous.
4 SENATOR LIBOUS: Yes.
5 THE SECRETARY: Senator Maltese.
6 SENATOR MALTESE: Aye.
7 THE SECRETARY: Senator Marchi.
8 SENATOR MARCHI: Aye.
9 THE SECRETARY: Senator
10 Markowitz.
11 SENATOR MARKOWITZ: No.
12 THE SECRETARY: Senator Mendez.
13 SENATOR MENDEZ: No.
14 THE SECRETARY: Senator
15 Montgomery.
16 SENATOR MONTGOMERY: No.
17 THE SECRETARY: Senator Nanula.
18 (There was no response. )
19 Senator Nozzolio.
20 SENATOR NOZZOLIO: Aye.
21 THE SECRETARY: Senator Onorato.
22 SENATOR ONORATO: No.
23 THE SECRETARY: Senator
1362
1 Oppenheimer.
2 (There was no response. )
3 Senator Padavan.
4 SENATOR PADAVAN: Mr. President,
5 I'd like to explain my vote.
6 ACTING PRESIDENT KUHL: Senator
7 Padavan to explain his vote.
8 SENATOR PADAVAN: I listened very
9 carefully to Senator Dollinger and Senator
10 Leichter. Now, there are a few things that I
11 think you overlooked.
12 Number one, are you aware of the
13 fact that your counsel, your counsel for the
14 Minority, a week end ago, not this past week
15 end, the one prior to that, subsequent to a
16 press conference which everyone could attend and
17 where many questions were asked both by the
18 media and others, were you aware that your
19 counsel attended those negotiations? Apparently
20 not.
21 Now, your counsel was there along
22 with the Senate Majority and the Assembly and
23 the Governor's people to discuss what's in this
1363
1 bill.
2 Secondly, as Senator Volker
3 indicated, the bill that has been on the
4 calendar for a number of weeks, is essentially
5 the bill that will be before us today.
6 Now, even after that, if you
7 don't understand it all, if you still have
8 questions, then we're going to have a two and a
9 half hour debate probably, if not longer, with
10 all due respect to the rules and you can ask
11 them then.
12 The point I'm trying to make is
13 that the Senate Majority has done everything
14 within the last three or four weeks, including
15 allowing your counsel to participate -- I
16 shouldn't use the word "allow". I should use
17 the word properly "permit" your counsel to
18 participate in those negotiations.
19 Now, if you didn't get the
20 information that was presented at that point in
21 time, if it was not shared with you, then I
22 suggest you have an internal problem to take
23 care of, but it's not with the Senate Majority.
1364
1 This bill came out of Rules, where it was also
2 discussed, I might add, by some of the very same
3 people who spoke here a little while ago, and
4 where questions could be asked and answers
5 given.
6 Gentlemen, there's been more -
7 and ladies, there's been more than ample
8 opportunity for everyone to know what's in this
9 bill, and your rhetoric this afternoon really
10 falls rather thin in terms of substance.
11 I vote aye.
12 ACTING PRESIDENT KUHL: Senator
13 Padavan in the affirmative. Secretary will
14 continue to call the roll.
15 THE SECRETARY: Senator Paterson.
16 ACTING PRESIDENT KUHL: Senator
17 Paterson to explain his vote.
18 SENATOR PATERSON: Mr. President,
19 I feel like Lieutenant Columbo. I have the
20 counsel that Senator Padavan is referring to
21 sitting right here. He was part of the
22 negotiations and actually we wanted to
23 congratulate the Majority for really opening up
1365
1 five-way negotiations since they have taken
2 office and that's very good, and our counsel was
3 part of the negotiations until they broke off.
4 We are looking at a substantially
5 different bill than the one that was on the
6 calendar two weeks ago Monday, two weeks ago
7 Tuesday. We are now looking at a completely
8 different bill and negotiations that we were not
9 included in, and so it came as a surprise to us
10 when we heard about the bill today, and this is
11 the reason that we could only offer the
12 amendments at this time. We're not saying we
13 wouldn't have offered amendments to the previous
14 bill, but we had different amendments and we
15 would have made the notification. What we're
16 saying is that we didn't know about the bill
17 until today.
18 Now, in New York City, there's an
19 inscription on the Supreme Court that says -- of
20 New York County, "The True Administration of
21 Justice is the Firmest Pillar of Good Govern
22 ment." "The True Administration of Justice is
23 the Firmest Pillar of Good Government."
1366
1 Good government is not tested in
2 the regular day-to-day procedures. Good
3 government is tested at times like this when
4 very controversial bills are brought to the
5 floor. There had to be a better way. We could
6 go to Manufacturers Hanover, there had to be a
7 better way than to have done this today.
8 There had to be a way that the
9 committee procedure could have even allowed for
10 the discussion even if we then sent the bill to
11 the Rules Committee. That is the only objection
12 that we're making. That is why we have made the
13 objection at this time, because we feel that the
14 citizens of New York demand it.
15 Thank you, Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Paterson, how do you vote?
18 SENATOR PATERSON: I vote no, Mr.
19 President.
20 ACTING PRESIDENT KUHL: Senator
21 Paterson in the negative.
22 Secretary will continue the
23 role.
1367
1 THE SECRETARY: Senator Present.
2 SENATOR PRESENT: Aye.
3 THE SECRETARY: Senator Rath.
4 (There was no response. )
5 Senator Saland.
6 SENATOR SALAND: Aye.
7 THE SECRETARY: Senator
8 Santiago.
9 SENATOR SANTIAGO: No.
10 THE SECRETARY: No.
11 Senator Sears.
12 SENATOR SEARS: Aye.
13 THE SECRETARY: Senator Seward.
14 SENATOR SEWARD: Yes.
15 THE SECRETARY: Senator Skelos.
16 SENATOR SKELOS: Aye.
17 THE SECRETARY: Senator Smith.
18 (There was no response. )
19 Senator Solomon.
20 (There was no response. )
21 Senator Spano.
22 SENATOR SPANO: Aye.
23 THE SECRETARY: Senator
1368
1 Stachowski.
2 SENATOR STACHOWSKI: No.
3 THE SECRETARY: Senator
4 Stafford.
5 (There was no response. )
6 Senator Stavisky excused.
7 Senator Trunzo.
8 SENATOR TRUNZO: Yes.
9 THE SECRETARY: Senator Tully.
10 SENATOR TULLY: Aye.
11 THE SECRETARY: Senator Velella.
12 SENATOR VELELLA: Yes.
13 THE SECRETARY: Senator Volker.
14 SENATOR VOLKER: Yes.
15 THE SECRETARY: Senator Waldon.
16 ACTING PRESIDENT KUHL: Senator
17 Waldon to explain his vote.
18 SENATOR WALDON: Thank you very
19 much, Mr. President.
20 I have great respect for this
21 institution. I have greater respect for life,
22 and what I wanted to do earlier on the
23 resolution was to ask the learned gentleman from
1369
1 Wyoming, Erie and Livingston County, had
2 something happened since we last discussed the
3 bill which compelled the speed with which we
4 were now processing this proposed resolution.
5 For example, had he any new
6 information regarding the per capita murder
7 rate? Had it gone up so dramatically that we
8 had to act now as opposed to waiting? Was there
9 a change in the mathematics of dollars from the
10 last time I had been advised regarding the death
11 penalty that to impose the death penalty on New
12 York State will at the very least triple the
13 cost of trials regarding the death penalty. Had
14 that changed, and should I be edified and made
15 aware of that?
16 Had anything else happened in
17 terms of variables and invariables that would
18 force this body to act now as opposed to waiting
19 and having due deliberation to make the
20 decision?
21 I was not afforded that
22 opportunity, so hypothetically I ask Senator
23 Volker to address those issues when we debate
1370
1 the bill a little later.
2 I would like to know; I think we
3 need to know. What's more important than my
4 need to know though, is the fact that we're
5 talking about the gravest of issues, the taking
6 of life, and we're doing it in a very cavalier
7 fashion.
8 I feel like I've been in a street
9 fight where the bully said, "I'm bigger than
10 you. I'll take your ball. I'll take your
11 glove. I'll take your bat and get off the
12 field." That is exactly how I feel. I feel
13 violated that I did not have an opportunity to
14 properly discuss this issue.
15 We're talking about life and
16 death. We're talking about the undermining
17 financially perhaps of our criminal justice
18 system, and we're doing it in a very cavalier
19 fashion.
20 I have great respect for this
21 institution. I hope everyone here has great
22 respect for this institution, but I can tell you
23 that today I've seen a display which shows me
1371
1 that perhaps others do not respect this body as
2 I do.
3 I rue this day. I vote in the
4 negative on this resolution.
5 ACTING PRESIDENT KUHL: Senator
6 Waldon in the negative.
7 Secretary will continue to call
8 the roll.
9 THE SECRETARY: Senator Wright.
10 (There was no response. )
11 ACTING PRESIDENT KUHL: Secretary
12 will call the absentees.
13 THE SECRETARY: Senator
14 Gonzalez.
15 (There was no response. )
16 Senator Hoffmann.
17 (There was no response. )
18 Senator Larkin.
19 SENATOR LARKIN: Aye.
20 THE SECRETARY: Senator Nanula.
21 (There was no response. )
22 Senator Oppenheimer.
23 (There was no response. )
1372
1 Senator Rath.
2 SENATOR RATH: Aye.
3 THE SECRETARY: Senator Smith.
4 SENATOR SMITH: No.
5 THE SECRETARY: Senator Solomon.
6 SENATOR SOLOMON: No.
7 THE SECRETARY: Senator
8 Stafford.
9 SENATOR STAFFORD: Aye.
10 THE SECRETARY: Senator
11 Gonzalez.
12 SENATOR GONZALEZ: No.
13 THE SECRETARY: Senator Nanula.
14 SENATOR NANULA: No.
15 THE SECRETARY: Senator Wright.
16 (There was no response. )
17 ACTING PRESIDENT KUHL: Announce
18 the results.
19 THE SECRETARY: Ayes 33, nays
20 20.
21 ACTING PRESIDENT KUHL: Motion to
22 accept the Rules report is adopted.
23 The Chair recognizes Senator
1373
1 Bruno.
2 SENATOR BRUNO: Mr. President, we
3 would now like to take up Calendar Number 106.
4 ACTING PRESIDENT KUHL: Secretary
5 will read.
6 THE SECRETARY: Calendar Number
7 106, by Senator Volker, Senate 2649, an act to
8 amend the Penal Law, the Criminal Procedure Law,
9 the Judiciary Law, the County Law, the
10 Correction Law and the Executive Law, in
11 relation to imposition of the death penalty.
12 SENATOR PATERSON: Explanation.
13 ACTING PRESIDENT KUHL: Senator
14 Volker, an explanation has been asked for.
15 SENATOR VOLKER: Mr. President -
16 Mr. President, could we, with the consent of the
17 Minority Leader and Majority Leader, read the
18 last section so that several people who have
19 asked to vote could vote?
20 SENATOR BRUNO: Without
21 objection, Mr. President.
22 ACTING PRESIDENT KUHL: Secretary
23 will read the last section.
1374
1 THE SECRETARY: Section 38. This
2 act shall take effect on the 1st day of
3 September next succeeding the date on which it
4 shall have become a law.
5 ACTING PRESIDENT KUHL: Call the
6 roll.
7 (The Secretary called the roll. )
8 ACTING PRESIDENT KUHL: The chair
9 recognizes Senator Tully. How do you vote?
10 SENATOR TULLY: Aye.
11 ACTING PRESIDENT KUHL: Senator
12 Solomon.
13 SENATOR SOLOMON: Yes.
14 ACTING PRESIDENT KUHL: Senator
15 Stafford.
16 SENATOR STAFFORD: Aye.
17 ACTING PRESIDENT KUHL: Senator
18 Larkin.
19 SENATOR LARKIN: Aye.
20 ACTING PRESIDENT KUHL: Senator
21 Bruno, are there any other Senators you wish
22 called?
23 Senator Oppenheimer.
1375
1 SENATOR OPPENHEIMER: This is
2 concerning the resolution?
3 ACTING PRESIDENT KUHL: Secretary
4 will withdraw the roll call. The chair
5 recognizes Senator Volker.
6 SENATOR VOLKER: Mr. President,
7 this has been a long -- and it's always
8 interesting, I guess, that when you get to an
9 issue such as this and we've debated this issue
10 so many times over the years, that I guess
11 there's bound to be, no matter what happens,
12 some partisan bickering on this issue. It's
13 just in the nature of the business, and then I
14 guess I understand that.
15 One thing I think everyone should
16 understand that this is the beginning of a
17 process that has been going on really not for 18
18 years, but it's really been going on for 23
19 years, because what really happened was that
20 when the People v. Gregg or -- Gregg v. Georgia
21 was passed many years ago after the Furman case,
22 it was really no surprise to some people that we
23 would have to once again deal with the death
1376
1 penalty issue because the Supreme Court had done
2 a flipflop back in the '70s on the issue of the
3 death penalty.
4 One of the things that the
5 anti-death penalty people, many of them, don't
6 understand, people that have gone around this
7 country fighting the death penalty, and have
8 paid little attention to it because they would
9 rather not pay attention to it is the fact that
10 there was a long period of time in this country
11 when there was no death penalty anywhere and at
12 that time primarily as the death penalty
13 declined and there was no death penalty is when
14 the murder rate surged across this country.
15 In talking to some of the younger
16 people who talked to me about the death penalty,
17 they are totally unaware of the fact that New
18 York probably is an example more than any other
19 state in the Union of what happens when you're
20 not careful with the criminal justice system.
21 When we eliminated the death
22 penalty in 1965, we set off not just because of
23 that, but it was the harbinger of a huge change
1377
1 in this state. My father, who was on the
2 Bartlett Commission -- and there's only one
3 member of this chamber now who was around at the
4 time in the Legislature, Senator John Marchi -
5 when the Bartlett Commission recommended the
6 abolition of the death penalty, I've read so
7 many misstatements about what happened.
8 I read in the paper the other day
9 that part of the reason for the death penalty
10 being abolished was because somebody almost got
11 executed, which is all nonsense. The death
12 penalty was abolished in part because the murder
13 rate was low and the violent crime rate was low
14 and people said, We want a more civilized
15 society; we want a society where people can walk
16 the streets, but also because we don't have the
17 kind of terrible criminals that people say we
18 really have, and we really need a more civilized
19 society and, if we abolish the death penalty
20 there won't be any enormous increase in murder
21 as some of the critics have said, and there
22 won't be an enormous increase in violent crime.
23 That's all nonsense; that won't happen.
1378
1 Well, the death penalty was
2 abolished. New York City hit record numbers
3 within a matter of a couple of years. The death
4 -- the murder rate tripled. By 1971, I believe
5 it was, it had doubled rather, and that it
6 tripled in the '70s. Buffalo reached a record
7 in 1971. It had never seen numbers anywhere
8 close to that. What happened is that the murder
9 rate went from around 800 to 2500 within a
10 fairly short period of time, and I remember a
11 quick story, and I realize that very honestly
12 this is not the end of the process, that we'll
13 be back here again dealing with this process.
14 But I must tell you a story that
15 dawned on me the other day. When I was in law
16 school as a police officer at the time and I was
17 also in law school, and my criminal justice
18 professor was Herman Schwartz, who some of you
19 may know, a rather liberal professor who was
20 just on television the other night regards the
21 O.J. Simpson trial. He was my criminal justice
22 professor, and we were discussing at the time -
23 this would be about 1964, I would think, or
1379
1 1965, right about the time the death penalty was
2 abolished, and I remember saying to him, you
3 know what's going to happen is, Herman, if we
4 don't deal with the murder rate as it soars and
5 the crime rate in our streets, what's going to
6 happen is the rise of drugs in our streets is
7 going to become enormous and, worse than that,
8 guns are going to show up all over the streets.
9 This is back in the '60s.
10 The interesting thing is, people
11 are saying, you know, if we could get rid of the
12 guns and drugs, why, the killings would go
13 down. The truth is, the killings came first.
14 The killings came before the guns and drugs.
15 It's a fact. You have got to look at it.
16 If we're going to deal with
17 society, one of the things we have to do, and
18 it's not the be all and end all, nobody ever
19 said that the death penalty was going to solve
20 all of these problems, but the murder rate in
21 this state, if there's anyone that thinks that
22 we have a more civilized society since the death
23 penalty was abolished, I'd like to know who they
1380
1 are.
2 There's no question that it's
3 time that we sent that message that I've been
4 talking about for so many years. If there's
5 ever a time we need a message to the streets in
6 behalf of the people of this state, it's now.
7 You know, there's no -- I talked to a person
8 today, there's really no organized group that
9 supports the death penalty. It's just called
10 "the people". They're not really organized.
11 They vote.
12 My good friend, Mario Cuomo, said
13 over the years, you know, "If people really
14 wanted to get the death penalty, they could vote
15 against me, they could take me out of office,"
16 and they did.
17 I'm not telling you that it was
18 by any means the only issue. It certainly
19 wasn't. There were many other issues, but I
20 will tell you that it was a very potent issue
21 because criminal justice is a potent issue and
22 the death penalty is really in a -- the
23 harbinger of that issue.
1381
1 Keep in mind that the murder rate
2 in this state went from 4.3 per 100,000 to over
3 13 per 100,000, and it's hovered around that 12
4 to 13 per 100,000 for some decade now. It has
5 never reached those proportions anywhere near
6 that before we abolished the death penalty.
7 If there's ever a time to move,
8 it's now. Now, across the country, by the way,
9 people have recognized the importance of New
10 York, and just let me just deal with a couple of
11 issues very quickly. Over the years, we've
12 discussed all sorts of issues on this floor.
13 We've discussed the issue of race. If you look
14 at the cases involving race, the interesting
15 thing about it is, there's no question and I've
16 said it before and I'll say it again, Georgia,
17 South Carolina, Texas, and about three other
18 states where really all the bad race cases were,
19 the Supreme Court had to move. There was no
20 question about it. None of those cases, by the
21 way, occurred in the Northeast, Midwest or even
22 the West. The far west there were a couple.
23 The reason I mention that is that
1382
1 -- and I'm speaking only really for New York.
2 We have had protections in our law for many,
3 many years to deal with the issues that we are
4 dealing with, in fact, in this bill, many of the
5 things that are in this bill very honestly are
6 already dealt with in the law, but there were so
7 many, many people that felt that, since we're
8 doing a death penalty bill, there's a lot of
9 things that we ought to do to make it more
10 clear.
11 One of the things that I always
12 said, and I negotiated a death penalty bill
13 many, many years ago with the Assembly, the bill
14 that we've been passing over the years didn't
15 come whole cloth from me by any means. It came
16 from a negotiation with people, in fact, who
17 were anti-death penalty in the Assembly, the
18 majority of the Assembly at that time, the
19 leader of that house was anti-death penalty at
20 the time. We negotiated a bill we thought was
21 fair, and I still do and, by the way, it's the
22 basis for this bill that we have here, that
23 dealt with the issues of representation, of
1383
1 client -- of defendants. There's no question we
2 have enough proper representation, dealt with
3 the issue of payment. We faced some of the
4 nonsense that has been going on. It's, I think,
5 one of the things that has frustrated me the
6 most is the issue of cost that has been blown
7 completely totally out of proportion.
8 Some people did a study one time
9 on costs, and it's still being quoted. We found
10 out, for instance, that they went to the state
11 of Florida. There was one death penalty case
12 that year and they used the figure of $3.2
13 million. We found out that the entire -- the
14 entire budget for the Attorney General's office
15 was $3.2 million, and that's the number they
16 figured because they figured that's all the
17 Attorney General's office did for that whole
18 year. It was a ridiculous figure and the
19 Attorney General's office, the defense attorneys
20 and everyone out there told us it was ridiculous
21 and we checked a number of other cases.
22 We found one case that was hugely
23 expensive, the Ted Bundy case. The reason the
1384
1 Ted Bundy case was hugely expensive had nothing
2 really to do with the death penalty. It had to
3 do with the fact that Ted Bundy was dragged all
4 over the United States of America looking for
5 bodies. If you remember, he was a serial
6 killer. That case cost millions of dollars
7 because he was held by various states and went
8 from state to state to find bodies until finally
9 they got tired of listening to him and tired of
10 the fact that his information was now very poor
11 and stale and he was executed.
12 There is no question that the
13 first couple of cases will be somewhat
14 expensive. But after that, we have not been
15 able to find any evidence that the cost of such
16 cases will be anywhere near as enormous. That's
17 because, once again, much of the myth around
18 this issue has been blown up.
19 But what we've done to deal with
20 that is to make sure that localities are not
21 saddled with the costs, not only as far as the
22 defense attorneys are concerned but also as far
23 as the district attorneys, by putting provisions
1385
1 in this bill that deals with the costs of expert
2 witnesses and deals with the cost that district
3 attorneys have to face.
4 It's interesting that, when we
5 questioned some people about the costs and tried
6 to really pin down what the costs will be, we
7 never could get enormous numbers from anybody
8 except that there was an assumption somehow that
9 maybe there was some numbers out there.
10 The truth is that saving people's
11 lives is incalculable. As the Governor said,
12 when we deal with this issue, we intend to deal
13 with a situation where we believe very firmly
14 that we will save lives. Keep in mind some
15 thing: We're talking about the taking of
16 innocent lives by killers all over this state.
17 The amazing thing is that there
18 are people involved in the death penalty issue
19 who can only think of one thing, that somehow
20 out there, there might be somebody who is
21 innocent and might be convicted and executed.
22 I've been asked the question, do I believe that
23 if this bill passes, will anybody be executed
1386
1 who is innocent?
2 I have said to them, no one can
3 say that for sure, but I will tell you what I
4 believe: In the history of this state -- and I
5 have looked at the nonsense that was done by
6 those two California professors who have been
7 totally discredited; in fact, there was a Law
8 Review article that totally discredited them -
9 the one killing involving somebody in my -
10 almost in my home town where the -- one of the
11 killers said, "Oh, those other two guys were
12 innocent." The two guys confessed; there were
13 three witnesses, and the whole thing was a farce
14 and it turned out to be a farce, but was it
15 deliberately intended to misrepresent the issue
16 of innocence.
17 What I happen to believe is that
18 this bill has enough protections in it that this
19 bill is set up the way it is that no innocent
20 person will be executed under this bill, and I
21 will say that I am convinced of that. I've had
22 people say to me, Well, how can you say that?
23 Well, I can say it just as much as anybody can
1387
1 say that an innocent person will be executed,
2 and I'm saying to you that because the history
3 of this state shows that, and because the
4 protections that we have put into this bill, I
5 think, make that clear.
6 I think that what we have done
7 here in this bill, and I can say to you and I'm
8 being very honest now, that the differences
9 between the Senate and the Assembly are very
10 small, very small. Some of the things that you
11 may have read in the paper about what's being
12 said are not really issues that were big issues
13 in the negotiations. There's been talk about
14 different things.
15 The truth is, we were down to a
16 couple of minute issues involving the issue of
17 several hearings, and so forth, that are not
18 integral to the death penalty itself, but the
19 Assembly, very honestly, walked away.
20 The reason we're here today is
21 because we are going to move this process and my
22 thought is that the time has come that we must
23 restore the death penalty and now is the time,
1388
1 and you can all criticize the process, and I
2 would prefer a different process myself, but the
3 issue is that we have been trying since December
4 to get this issue all wrapped up, and we have
5 not done it.
6 We have a bill here that
7 represents, I think, a balanced procedure. In
8 fact, some would argue there is material in here
9 that is absolutely not essential to the death
10 penalty process, although what we have done with
11 the Correction Law is to make changes in that
12 that hadn't been made since the 1800s and I
13 could detail that, but I don't want to get into
14 that, that are not essential to the issue of the
15 death penalty, but really more essential to the
16 issue of what happens afterward and that's one
17 of the big reasons why the bill is as expanded
18 as it is.
19 But the final word, I think, is
20 this: That what the Senate Majority is committed
21 to, and what I think the Majority in the
22 Assembly is committed to -- by the majority in
23 the Assembly I mean the majority of people over
1389
1 there in the Assembly -- and the Governor of
2 this state, is a fair and just bill that will
3 protect the citizens of this state, at the same
4 time will protect the defendants who are to be
5 represented by this bill, but will deal with an
6 issue that must be dealt with that we have been
7 so close to dealing with so many times and that
8 is restoring the death penalty so that we can
9 send the kind of message to the street that says
10 that New York is not fooling around any more.
11 We're going to deal with those
12 people who would kill, and we're not going to
13 let people deter us from doing that, no matter
14 how they try.
15 SENATOR SALAND: Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Saland.
18 SENATOR SALAND: Mr. President, I
19 would request that we interrupt the proceedings
20 for the purposes of recognizing Senator
21 Oppenheimer to enable her to cast her vote on
22 this particular bill.
23 ACTING PRESIDENT KUHL: Secretary
1390
1 will read the last section.
2 THE SECRETARY: Section 38. This
3 act shall take effect on the 1st day of
4 September next succeeding the date on which it
5 shall have become a law.
6 ACTING PRESIDENT KUHL: Call the
7 roll.
8 (The Secretary called the roll. )
9 ACTING PRESIDENT KUHL: The Chair
10 recognizes Senator Oppenheimer. How do you
11 vote?
12 SENATOR OPPENHEIMER: I'd like to
13 be recorded in the negative.
14 ACTING PRESIDENT KUHL: Senator
15 Oppenheimer will be recorded in the negative.
16 The roll call is withdrawn. The
17 Chair would note that debate on this issue
18 started at 4:10. There is a list currently in
19 place, starting next with Senator Connor and
20 Senator Saland, Senator Espada, Senator Maltese,
21 Senator Montgomery, Senator Leichter and Senator
22 Marchi.
23 The Chair recognizes Senator
1391
1 Connor.
2 SENATOR CONNOR: Thank you, Mr.
3 President.
4 In the past few years, we've seen
5 some very perfunctory and somewhat abbreviated
6 debates on the death penalty because, frankly,
7 it got boring after 17 years in a row, knowing
8 full well that it wasn't going to become law
9 and, frankly, now the bill before us and the
10 bill under negotiation prove that we were
11 right. That bill is never going to become law.
12 The bill before us is different
13 in some respects, in some respects it's better
14 if you can, being an opponent of the death
15 penalty, put a gradation on such things.
16 My position, frankly, has been
17 unaltered in the time I've been here, and it
18 doesn't relate to what the people say they want
19 now because, in effect, when you're dealing with
20 an issue like the death penalty, the people are
21 venting a very understandable frustration and
22 fear and dissatisfaction with the inadequate way
23 we have secured our streets and allowed our
1392
1 criminal justice system to function.
2 Why is it that the people's views
3 aren't paramount? Well, in some respects they're
4 predicated on a fallacy, the concept of
5 deterrence. I will always concede that there is
6 a certain elemental eye for an eye vengeance/
7 retribution element of justice in the death
8 penalty, but no one has ever demonstrated that
9 it's a deterrent, and I understand Senator
10 Volker and the Governor will say, but if it's
11 saved -- who knows, if it saves one life, it was
12 worth it.
13 Well, I look to the states that
14 have now, some of them Florida, Texas, become
15 nothing but execution assembly lines. Their
16 murder rates haven't gone down. If anything, I
17 know in the case of Florida they've actually
18 increased dramatically since they began
19 executing with great frequency convicted
20 murderers, to say nothing of the fact that in a
21 couple instances both in Florida and in Texas,
22 they executed a couple of people even though
23 they weren't sure they were murderers. Just a
1393
1 few weeks ago we had an instance of that in
2 Texas.
3 The problem with the death
4 penalty is two-fold: Certainly a rationale is
5 justified to say you're saving innocent life.
6 No one's pretending that in most cases the
7 convicted murderer is an innocent life. My
8 problem is with who's perfect -- who's
9 perpetrating the killing? The state is doing it
10 in a calculated way.
11 In the case of most murderers we
12 recognize their culpability. We recognize the
13 evil in their action. The inherent evil in the
14 action of killing, killing is per se evil and
15 the state ought not engage in it.
16 Deterrent? No evidence of that.
17 Possibility of convicting and executing innocent
18 people? It has happened before, it has happened
19 in this state. It has happened everywhere that
20 human beings through the state, the mechanism of
21 the state, presume to play God and exact the
22 ultimate penalty.
23 Now, I'm glad that Senator Volker
1394
1 is confident that no innocent person would ever
2 be subject to the death penalty under this
3 bill. But the fact of the matter is we have -
4 we are a state of laws made by human beings,
5 enforced by human beings, the jurors, the
6 judges, the witnesses, all the actors in this
7 drama of a trial are fallible human beings and
8 no one can ever be certain, all the safeguards
9 in the world, that a mistake won't be made, and
10 we've had enough instances of the mistake being
11 made with respect to other crimes, including
12 convictions for murder when we didn't have a
13 death penalty, only to discover a mere few years
14 later, how the system had broken down or a
15 confluence of coincidences had made someone
16 appear guilty or in one case, in fact, the
17 person was convicted was the victim of -- of his
18 ex-spouse who was given immunity and falsely
19 accused him, and the jury bought it and it was
20 only really through reinvestigation and the
21 happenstance that she 'fessed up that it was
22 learned that he was totally innocent.
23 So it can happen. It can
1395
1 happen. It has happened. The state of New York
2 has paid damages to people wrongly convicted in
3 murder cases and other cases. The fact that the
4 penalty is death absolutely makes it irrevers
5 ible. We ought not play God.
6 The press most recently has been
7 full of first-hand accounts of executions. I
8 read with interest yesterday one account of a
9 member of the Assembly, a new member of the
10 Assembly, who witnessed a couple of executions
11 on the same day in Texas, and in these accounts
12 they talk about the -- the idea of -- of lethal
13 injection somehow sanitizes the act of killing.
14 One of the more macabre aspects,
15 I think, is when the technicians use an alcohol
16 swab to prevent infection before they insert the
17 needle. What's being created there is the myth,
18 the illusion that this is some routine medical
19 action performed by medical technicians when, in
20 fact, it's just as deliberate killing as pulling
21 an electric switch, dropping a trap door or
22 firing a gun in a firing squad. It's the state
23 killing, and that commandment, Thou shalt not
1396
1 kill, is without a codicil. It's an absolute in
2 my mind; it's an absolute direction as to how we
3 ought to conduct ourselves.
4 We don't teach anyone -- we don't
5 deter anyone from killing by doing killing in
6 the name of the state. Inherently, in the death
7 penalty, and the statistics bear it out, other
8 factors come into play. Only a handful are
9 executed of the many thousands of murderers.
10 What distinguishes this handful
11 from all the other murderers who don't get the
12 death penalty? Several things. Some -
13 sometimes the race regrettably, the race of the
14 perpetrator, of the convict. More often the
15 race of the victim is a major factor in
16 selecting those few who will pay the ultimate
17 price from among the many who perhaps, if you
18 applied the letter of the law, would deserve
19 it.
20 Thirdly, economics: The best
21 appointed counsel in the world, the best two
22 appointed counsels in the world will undoubtedly
23 in most cases just not be up to the kind of
1397
1 legal talent a millionaire killer can purchase.
2 The history of the death penalty in this country
3 is replete with examples of very wealthy
4 murderers who escape totally the death penalty
5 because they have legal talents.
6 The famous case of Leopold and
7 Loeb comes to mind. There was a case about 25
8 years ago in Texas where the multi-millionaire
9 was allowed to plead out and finger the hitman
10 he hired who then went to the chair, and the
11 millionaire did 10 or 12 years and was paroled.
12 Economics does play a part. Rich people don't
13 fry. They don't hang, and I dare say they won't
14 be injected lethally by the state.
15 What else distinguishes those few
16 who pay this price from all the others who might
17 be liable to it? Geography. Statistics show in
18 virtually every state it's one or two D.A.s who
19 account for a gravely disproportionate
20 percentage of those who are sentenced to death
21 because ultimately we have a fundamental
22 principle in our jurisprudence, and that is
23 prosecutorial discretion. The prosecutor
1398
1 decides whether or not to seek the death
2 penalty.
3 Perhaps the major distinguishing
4 factor in all cases, the way 90 percent of the
5 killers avoid the death penalty, is that initial
6 decision by a prosecutor not to seek the death
7 penalty, and those who pay the price, those who
8 are executed, probably in 90 percent of the
9 cases, their gravest or the reason why they are
10 singled out is where they committed their crime,
11 in a county with a prosecutor who is either a
12 zealous advocate and adherent to the death
13 penalty, believes in it to an extreme or, heaven
14 forbid, for whatever political reasons in that
15 year or the next year, feels that seeking the
16 death penalty most frequently is a very popular
17 thing to do with the voters.
18 So, for the reasons, why do you
19 go to the chair? Why do you -- why is someone
20 executed? Because they committed a murder?
21 Well, that's not the reason they're executed.
22 Lots of people commit murders, whether or not
23 executed. They're executed because either
1399
1 they're poor, they're from a group that's in
2 grave disfavor because of racial or other
3 reasons. Their victim is from a favored race or
4 class, or they just happen to live or commit
5 their crime in the wrong county, none of it
6 having to do with the quality of the crime, none
7 of it having to do -- and we can put in the law
8 all you want about mitigating or aggravating
9 circumstances. The fact of the matter is the
10 major distinguishing traits are these things
11 that ought not be part of the justice system,
12 that ought not -- that are not equitable, that
13 are not fair. They're not objective and these
14 are some of the reasons why you find even a
15 Supreme Court justice, upon retirement, upon
16 reflection would say, you know, inherently -
17 inherently, after all the experience that I've
18 had with the death penalty, I've just concluded
19 that it's inherently flawed, the irreversibility
20 of the penalty, the flukiness and the fact that
21 only a very, very small percentage of the
22 convicted pay the price.
23 I would add another factor. This
1400
1 Assemblyman who witnessed the Texas executions
2 was quoted as saying he didn't think the person
3 he saw executed deserved to die. Why? It was a
4 different person. It was 18 years after the
5 crime.
6 Because it's the ultimate price,
7 naturally people will fight in courts and in
8 collateral appeals, and so on, to prolong the
9 situation, to try and escape the death penalty.
10 In the end, they end up executing someone who in
11 time, at a time that's so remote from the crime
12 that it's very, very difficult to relate what
13 that person has become after 12 or 15 years in
14 prison, with the kind of person he or she was
15 when the crime was committed, so I think we're
16 dealing with a penalty here that is not worthy
17 of a civilized state. It's one which this very
18 state -- this very Legislature once all but
19 abolished. It's one which some of the members
20 who are still here and many, many more who have
21 left in recent years once opposed and then came
22 to support again.
23 I don't think that relates to
1401
1 crime statistics. I think it relates to the
2 public winds that blew based on people's
3 frustrations and fears. I think there are
4 better way to apply the resources that we might
5 be able to generate for the criminal justice
6 system to fight crime in a way that will protect
7 more and more of our citizens than wasting
8 millions of dollars to execute a very few who
9 perhaps, and certainly we would hope in most
10 cases, are murderers but a very few whose major
11 fault is they're unpopular; they're poor; they
12 just belonged to the wrong group; they were just
13 in the wrong town on the wrong night.
14 We owe it to all of our citizens
15 to use the resources and the law to protect them
16 from -- from the crimes that really affect them
17 and not simply to make an example of a poor,
18 unfortunate few in a way that conveys to our
19 children that somehow or other killing can be
20 sanitized. Killing can be made to seem a
21 positive value when, in fact, killing is
22 killing.
23 (Applause)
1402
1 ACTING PRESIDENT KUHL: There
2 will be order in this chamber. I would remind
3 the people here that we're not conducting any
4 kind of a theatrical event. If you don't
5 restrain yourself and your composure, you will
6 be removed. So please honor the tradition of
7 this chamber and maintain your silence.
8 Senator Saland is next on the
9 list.
10 SENATOR SALAND: Mr. President,
11 could we have just one moment, Mr. President?
12 ACTING PRESIDENT KUHL:
13 Absolutely, Senator.
14 SENATOR SALAND: Mr. President,
15 would you please recognize Senator Galiber for
16 purposes of casting his vote on this measure as
17 well.
18 ACTING PRESIDENT KUHL: Secretary
19 will read the last section.
20 THE SECRETARY: Section 38. This
21 act shall take effect on the 1st day of
22 September next succeeding the date on which it
23 shall have become a law.
1403
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll. )
4 ACTING PRESIDENT KUHL: Chair
5 recognizes Senator Galiber for the purpose of
6 casting his ballot.
7 SENATOR GALIBER: No.
8 ACTING PRESIDENT KUHL: Senator
9 Galiber recorded in the negative.
10 Chair recognizes Senator Gold.
11 SENATOR GOLD: Thank you, Mr.
12 President, and I appreciate the courtesy but, as
13 I indicated I would just like to explain my vote
14 and I will stay within my two minutes.
15 I think, first of all, my leader
16 has said so much very well that it doesn't take
17 too much more and -- but -- and when the real
18 bill comes around, I'll have plenty to say but,
19 number one, in Newsday today, a writer made an
20 interesting comment, and that is that under this
21 bill, it will not be the worst murderers that go
22 to the chair, but the murderers with the worst
23 lawyers. Interesting!
1404
1 Secondly, I heard on the radio
2 only within the last four hours the anniversary
3 of New Jersey's ten years with the death
4 penalty, no one's been executed in New Jersey in
5 ten years.
6 I also would like to point out as
7 to this particular bill that there really are
8 constitutional flaws and, Senator Volker, you
9 ought to take a look at them. This whole
10 business of limiting the jury to two options out
11 of three has to be unconstitutional, and the way
12 that the psychiatrist is handled, forcing a
13 defendant to be interviewed before a trial where
14 that's not even an issue, and giving the
15 prosecutor a crack at the defendant before he's
16 even put in his defense, when you can't even use
17 that testimony until the second phase, has to be
18 a terrible prejudice.
19 But the last thing I want to
20 make, the last point I want to make is that
21 today's bill does nothing on the issue of the
22 death penalty. It does one thing, however. It
23 is the beginning of the vindication of Mario
1405
1 Cuomo on this issue, because this bill before us
2 proves one thing. It proves that George Pataki
3 wouldn't have signed a bill for the last few
4 years. It proves that, when Mario Cuomo vetoed
5 these bills and when Governor Carey vetoed these
6 bills, they knew what they were doing because
7 those bills weren't real. They weren't real.
8 They were political statements, and it's just
9 like today is not real. It's a political
10 statement because this bill will not go to
11 George Pataki to sign.
12 So I'm going to vote no on this,
13 but, Mario, you did good all those years. I
14 vote no.
15 ACTING PRESIDENT KUHL: Senator
16 Gold in the negative.
17 The Secretary will withdraw the
18 roll call.
19 The Chair recognizes Senator
20 Saland on the bill.
21 SENATOR SALAND: Thank you, Mr.
22 President.
23 Mr. President, I note that the
1406
1 bill before us is a Governor's program bill, one
2 which I am sure that the Governor would be most
3 willing and eager to sign, and I view this not
4 as a vindication of former Governor Cuomo, but
5 basically a reaffirmation of the persistence of
6 those who have advocated for so long for the
7 enactment of a death penalty, one which was
8 carefully crafted, one which would certainly
9 bend over backwards to accommodate the rights of
10 defendants, those who would be accused under
11 this particular proposed legislation.
12 Governor Pataki was unequivocal
13 in his support for the death penalty and said he
14 would eagerly await arrival of the death penalty
15 measure for his signature upon becoming
16 governor. He had labored with representatives
17 of both houses, the leadership and their
18 counsel, in endeavoring to craft a bill that can
19 pass readily in both houses.
20 This represents the best effort
21 to date. The Assembly, for whatever reasons,
22 has yet to make their commitment and we intend
23 to continue this battle, and I take an offense
1407
1 at different times during the course of these
2 debates -- and I've debated this bill some 14 or
3 15 times -- at somehow or other being cast as
4 being less than sincere or being motivated by
5 things political in advocating for a death
6 penalty.
7 Nobody has cornered the market on
8 sincerity or integrity on this bill. The people
9 who support this bill, regardless of where they
10 stand politically, what party they may be
11 associated with, I would hope, feel as fervently
12 as they profess to feel, and I would similarly
13 hope that those who oppose feel as fervently as
14 they profess to feel.
15 This is not the kind of issue
16 where one should be posturing, certainly not at
17 a time when what we see is certainly at the very
18 least the precursor of a bill that's going to be
19 signed.
20 Now, what does the bill do? The
21 bill basically goes back to the cases in the
22 '70s that came through the U. S. Supreme Court,
23 the Furman and the Gregg cases, and makes a
1408
1 statement that it's in compliance. It provides
2 for a bifurcated trial. It provides for the
3 weighting of aggravated and mitigating
4 circumstances. It provides for an expedited
5 appeal to the Court of Appeals, the highest
6 court in our state.
7 Now, remember we're talking about
8 a bunch of carefully enumerated crimes. This is
9 not an example of some poor joker winding up in
10 some town where he doesn't belong and having the
11 misfortune or unfortunate circumstances, as the
12 Minority Leader indicated, of being saddled with
13 this onerous, onerous conviction.
14 The fact is, to have been
15 convicted necessitated your committing one of a
16 number of specifically enumerated crimes. These
17 crimes have been determined by the state -
18 we're part of that mechanism -- to be crimes so
19 heinous and so beyond the power of anything that
20 we would accept that the person who commits them
21 by reason of the acts that they commit in a
22 premeditated fashion, have made themselves
23 candidates for the death penalty.
1409
1 We're talking premeditation.
2 We're not talking about somebody who gets
3 liquored up or who's on drugs, drives a car,
4 hops up on a curb and kills somebody. That's
5 not premeditated. There we're talking about
6 something in the nature of manslaughter. We're
7 talking about somebody who, with intent to kill,
8 kills a police officer while that police officer
9 is acting in the course of their duties or who
10 similarly kills a correction officer while that
11 correction officer is acting in the course of
12 their duties, or a peace officer under similar
13 circumstances, or somebody who tortures somebody
14 at great length and then kills them, or somebody
15 who's a contract killer or somebody who -- who
16 knows full well because they premeditated it,
17 plants a bomb, for instance in a crowded airport
18 terminal or a bus terminal, knowing that there
19 will be countless lives at risk, countless
20 people who may well be killed.
21 That, to me, is not some poor
22 unfortunate soul who happens to be in the wrong
23 town, and yes, there may well be differences in
1410
1 geography. And I would only point out to you
2 when we deal with things such as the felony
3 offense law here in New York, what happens to
4 you may well be a function of where you are
5 sentenced, because if you get to major
6 metropolitan areas, and particularly the major
7 metropolitan area in the city of New York, the
8 city of New York, and you get indicted on
9 multiple counts, let's say, for instance, you're
10 indicted for drug possession, which happens to
11 be the lowest type of an indictment when you've
12 broken into a house, committed a burglary and
13 raped somebody. If that happens to you in
14 Plattsburgh, if that happens to you in Potsdam,
15 if that happens to you in Poughkeepsie, I can
16 assure you you're going to get sentenced based
17 upon either the rape or the burglary, not on the
18 possession charge. But if you happen to come
19 out of a situation in a major metropolitan area
20 -- and again I cite the city of New York, where
21 the system is reeling -- they'll take any plea
22 they can get unless it's something that's so
23 heinous that the newspapers have gotten a piece
1411
1 of it, and you can well find yourself pleading
2 out to a possession charge on a drug charge,
3 controlled substance.
4 So yes, geography may well make
5 an impact. Who's to say who's right? I'm not
6 going to tell you that the fact that a
7 prosecutor may not choose to apply the death
8 penalty is not within his or her discretion.
9 This bill provides a 120-day period within which
10 to express your intent to do that.
11 There's talk about whether the
12 death penalty is a deterrent. Now, we're
13 talking here not exactly hard empirical data.
14 We're talking social science at best. There
15 have been reports indicating, based on studies,
16 death penalty is not a deterrent.
17 As recently as January last year,
18 there was a piece, if I remember correctly, it
19 was a front page piece in the Times-Union -- I
20 have a copy of it with me -- which went back and
21 looked at death penalty rates in states with
22 death penalties and without, and why the premise
23 for which it's cited as to the effect that
1412
1 there's nothing -- there's no reliable evidence
2 indicating that the death penalty is a
3 deterrent.
4 What it shows is, for example,
5 among 15 states without a death penalty, murder
6 rates have gone up in eight, down in four, and
7 the same level in one, and the states having the
8 biggest increases in murder rates, three of the
9 five are states that do not have death penalties
10 including the state of New York. Three of the
11 states with the biggest crime, the states with
12 the biggest decreases in death penalties all
13 have a death penalty bill or law on their
14 books.
15 So assuming that we can't make a
16 conclusive argument on the question of
17 deterrence by way of any of that data certainly
18 the converse is not true. I beg to differ;
19 certainly the converse is true. The repeal of
20 the death penalty has not seen any marked
21 reduction in the homicide rate here in the state
22 of New York. If anything, it's gone up by mul
23 tiples. We now have 2300 to 2400 homicides
1413
1 being committed in New York. The number was
2 less than a thousand when the death penalty
3 ceased to be on our books here in the state of
4 New York.
5 And I would ask who among us has
6 the wisdom -- who among us has the ability to
7 determine when somebody has contemplated
8 committing a homicide and then because of the
9 fear of being convicted and sentenced to death,
10 decided not to fulfill that urge, that wish,
11 that premeditation?
12 The person who goes out and buys
13 a gun to kill the partner who cheated him, or
14 poison? The person who goes out and contem
15 plates placing a bomb in the car of someone who
16 he believes is passionately involved with his
17 spouse, and says, Whoa! I've thought about this
18 for weeks. I actually took steps to do it, but
19 I'm not going to do it; I don't want to risk the
20 death penalty, and that person goes and
21 confesses to their clergyman, gets it off their
22 chest, feels a lot better, has this wonderful
23 catharsis. Clergyman can't talk to anybody,
1414
1 barred by confidentiality.
2 So who can identify those people?
3 I did one of them, Lord only knows there's one,
4 there's got to be one, and I'll venture there's
5 more than one, not dozens, hundreds, perhaps
6 even thousands of them who go undetected because
7 nobody can prove a negative, nobody can prove
8 that their fear of having to sacrifice their
9 life by reason of the application of the death
10 penalty didn't deter them from pulling the
11 trigger, dumping the poison or planting the
12 bomb.
13 I had in my county a number of
14 years ago perhaps what was the ultimate. There
15 was an individual who had already killed not
16 once, not twice, not three times but four times,
17 serving time at Green Haven, Dutchess County,
18 maximum security. The fourth time wasn't
19 enough. He killed a fifth time. He killed a
20 female correction officer and, interestingly,
21 that case went to the Court of Appeals because
22 it was the one portion of a section left, the
23 one section that said you could sentence a lifer
1415
1 who kills while sentenced, while serving time,
2 to the death penalty.
3 The Court of Appeals in a
4 four-to-three decision were all agreed that he
5 had committed the crime, but the four-to-three
6 decision said that portion of the state's death
7 penalty that was still on the books was
8 unconstitutional because it didn't provide for
9 aggravating and mitigating circumstances.
10 Lord only knows what those
11 aggravating and mitigating circumstances may
12 have been, but the man is still serving time in
13 our prison system. I would not attempt to tell
14 anybody here because I certainly don't believe
15 that the death penalty is somehow a panacea or
16 an cure-all for all of our criminal justice
17 ills. It is not and, if anybody thinks it is,
18 then they are sadly mistaken.
19 It is, however, and should be a
20 portion, and an effective portion of our
21 criminal justice arsenal. There are those
22 crimes, and I cited some of them earlier, that
23 are just so heinous that the death penalty is
1416
1 warranted.
2 Nobody should take it lightly.
3 Nobody should take joy or rejoice in the fact
4 that we are going to have a death penalty bill
5 enacted, but I would suggest to you that, as you
6 read this bill -- and I have to assume that the
7 vast majority of that which is in this bill will
8 also be in the final bill -- that there are
9 things in here that do require some fine tuning.
10 One of the things that is of
11 concern to me that's in this bill is the
12 provision for the second trial, and whereas
13 Senator Volker's earlier bill basically placed
14 that subject in such terms so as to enable in
15 most cases the reading from "the impaneling of
16 the second jury" the language in this bill
17 clearly states a preference to stay with the
18 first jury, citing extraordinary circumstances
19 and good cause as being the main ingredients to
20 get that second jury impanelled.
21 I must express my concern also
22 about some of the language with respect to
23 mental retardation and incompetence, not because
1417
1 we shouldn't be attempting to address the issue,
2 but the number of trials, the number of
3 hearings, the stays that are involved, I fear,
4 could result in a considerably extended
5 proceeding.
6 Let me touch just on one other
7 point, and that's the subject of race. This
8 bill attempts to provide a mechanism whereby
9 juries and jurors in the course of their being
10 voir dired, would have the ability to be voir
11 dired individually by either the prosecutor or
12 the defense attorney out of the ambit of the
13 remaining members of the jury on questions of
14 racial bias.
15 Now, New York by no stretch of
16 the imagination is some backwater state. This
17 isn't exactly what you'd call the bastion of
18 red-necked justice. I think we have a tradition
19 here, notwithstanding Senator Connor's earlier
20 remarks, of -- we have a tradition of being
21 keenly sensitive to the rights of defendants.
22 We have a Court of Appeals who,
23 by any stretch of the imagination, would be
1418
1 viewed, I'm sure, as if not the most liberal,
2 certainly one of the most liberal in this
3 country. There currently is case law, whether
4 it's the Batson case through the U. S. Supreme
5 Court, or whether as recently as a year and a
6 half ago in our own Appellate Division, People
7 v. Pearl, basically you can't screen or remove
8 jurors based on race. That's the law in New
9 York. It's not something that can be
10 accomplished readily.
11 There's a whole host of
12 mechanisms that have been built into this bill.
13 The reality is that this has been 18 years in
14 the making, perhaps as Senator Volker says some
15 23 years. I believe Senator Volker is entitled
16 to an inordinate amount of credit for his
17 efforts. He has really been a giant in trying
18 to sustain this issue.
19 There are a number of colleagues
20 on the other side of the aisle who certainly
21 have been outspoken and on this side of the
22 aisle in their opposition to the bill. The time
23 is here. The time is now. This, as I said, is
1419
1 the precursor, but what we are debating today is
2 certainly going to be substantially that which
3 we will ultimately pass and sign into law.
4 Governor Pataki is entitled to an
5 inordinate amount of credit. The man has said
6 what he said he would do. He's been a player.
7 This is a Governor's program bill, and he will
8 continue to be a player and there will be a
9 death penalty bill signed into law. It won't be
10 time for rejoicing. It will be time for
11 justice, justice that has long been denied here
12 in the state of New York.
13 Thank you, Mr. President.
14 ACTING PRESIDENT KUHL: The Chair
15 recognizes Senator Espada.
16 SENATOR ESPADA: Thank you, Mr.
17 President.
18 We've heard throughout these
19 protracted negotiations that happened mostly in
20 the media, terms like a fair and just death
21 penalty bill. It is the ultimate oxymoron.
22 There is no such thing as a fair death penalty
23 bill. What death penalty bill? The one before
1420
1 us guarantees that the taint of racism and
2 prejudice against African-Americans, against
3 Puerto Rican and Latinos, against poor people -
4 do I see a bill -- do I read a bill that
5 guarantees that that won't happen? I hear a lot
6 of people who are not eligible to be victims of
7 racism, talking about how we're immune from
8 racism. That's a Southern thing. That doesn't
9 happen up here. That's old and tired, I'll have
10 you know.
11 The death penalty bill is a crude
12 and uncivilized, barbaric, political response,
13 to the unbridled thirst for vengeance and
14 retribution that exists out there in society
15 today. It is the institutionalization of an
16 irrational primal scream with no therapeutic
17 value, my friends.
18 You know -- you want to know why
19 we're really doing this? It has nothing to do
20 with 18 years of this or crime statistics; it
21 has to do with the sweet symphony that comes to
22 the ears of those folks out there that you and I
23 as political people visit. We know how to get
1421
1 votes. We love it when people clap for us, and
2 the easy way to do it is to say that we're for
3 the death penalty. Automatically, the arms
4 start waving, the hands start clapping, feet
5 stomping, and we choose the easy way. We give
6 in to that. It's so few that wouldn't, but most
7 of us do. Most of us will.
8 I want to talk about -- as
9 Senator Connors did, about Assemblyman Phil
10 Boyle, and I mention him by name only because he
11 was in the article in Newsday yesterday. He
12 chose to be a witness to an execution in the
13 murder capital -- state-sponsored murder capital
14 of the United States of America, Texas, and so
15 he traveled over there because he wanted to feel
16 comfortable with himself. He went in a tortured
17 soul and came out a tortured soul, and I want to
18 borrow from that article directly because I
19 don't want to misquote.
20 The columnist here was a Mr.
21 Dwyer from Newsday. He did ask of the
22 Assemblyman, who happens to be a Republican and
23 who happens to be for the death penalty, and he
1422
1 said -- we asked of the young Assemblyman,
2 "Would you push the plunger on the IV?" In
3 other words, could you be executioner? He said,
4 "Never", Assemblyman Boyle, "Never." Dwyer
5 says, "But you would ask someone else to do it,"
6 and Boyle says, "But that's their job," and
7 Dwyer says, "Yes, but it's a job you're doing -
8 that they're doing for you. You have empowered
9 -- you have enabled them to do this job for
10 you."
11 According to the article, Boyle
12 decided and said, "You couldn't pay me enough to
13 do it. You couldn't pay me enough to do it,"
14 and after reading this article, I was reminded
15 of another -- another article that I read about
16 Manhattan D.A. Frank Hogan's policy where, if
17 you are a lawyer/prosecutor in his office,
18 unless you are willing to attend the execution,
19 you would not be allowed to prosecute a death
20 penalty case.
21 And it's with all the respect in
22 the world that I say to you, my colleagues, if
23 you are for this death penalty, you are morally
1423
1 obligated to attend those executions. You are
2 morally obligated to attend and witness. As you
3 do, be aware, that between 1973 and 1994, the
4 courts have reversed or commuted 31 percent of
5 all death penalties. 54 death penalties have
6 been vacated because the defendants were
7 innocent, and these were just the people that
8 were fortunate enough or they were unfortunate
9 enough through the persistence of friends and
10 through plain luck to come out that way.
11 The fallibility of the justice
12 system is -- is backed up by empirical data. We
13 know the facts. Governor Pataki knows the facts
14 firsthand. Nathanial Carter, the Governor's
15 childhood friend, arrested, served two and a
16 half years for a crime he did not commit. Had
17 the death penalty been in effect, Nathanial
18 Carter, the Governor's friend, would have been a
19 candidate. The Governor, upon Mr. Carter's
20 release said how terrible, how horrific it would
21 have been if an innocent person had to remain in
22 jail or die.
23 The Governor and lots of us have
1424
1 been talking about creating jobs. We have a
2 budget that we're having hearings on and we'll
3 have full debate on that and, as I visit my
4 district, I'm sure all of you are doing the same
5 thing; you're visiting the health centers and
6 the hospitals and the senior programs and
7 they're telling us why. Am I going to lose my
8 home attendant, my doctor, my teacher? Why am I
9 going to lose that kind of assistance?
10 We say there's a budget deficit.
11 There's no appropriation in this bill and in the
12 real one that will come, there will be an
13 appropriation. The Assembly will pass it on $11
14 million. Way, way too low. We all know that.
15 Millions, millions for death, but nothing that I
16 can report back to my constituents -- constitu
17 ency about health care to the children out there
18 on improving their education.
19 We're going to skirt the issue
20 and we're going to create some new job
21 descriptions, some new Civil Service titles,
22 executioners. Who is going to do this? Some
23 title, person, called an executioner. How many
1425
1 of those will we need? We're going to have some
2 strap-down specialists, some people that will
3 put the straps once the person is on the
4 gurney. Well, that's a specialty. It's a new
5 found specialty. We'll have to develop some job
6 titles for that.
7 So there's money, there's job
8 creation for this new death industry and nothing
9 to go back to my home district for health care,
10 for education, for real jobs. These jobs are
11 not going to be in my district. You don't even
12 pretend that you're going to be fair even about
13 that.
14 And so my colleagues, as you are
15 a witness to these executions, please dress up
16 for the affair, because there are already rumors
17 that CNN and Geraldo and Oprah and Donahue,
18 they're all going to be bidding for this air
19 time, and I can just see the state participating
20 in negotiations about whether there's a rightful
21 and fair share of that money that comes back to
22 the state treasury. Exaggeration?
23 Already, we are valuating through
1426
1 some auctioneers the value of the two electric
2 chairs that we have, 250,000 apiece, $500,000.
3 It's not beyond our value system to behave that
4 way.
5 We jail in this proud democracy
6 of ours, over one million people, more than any
7 other nation on this earth, this proud democracy
8 does that, and so with enactment now of this
9 bill -- we all know it's a dress rehearsal, but
10 when we do it, and we will -- we will join the
11 ranks of the Ayatollah, Saddam Hussein, North
12 Korea, the perpetrators of the massacre of T'ien
13 An Men Square. That's the kind of company this
14 great democracy is going to be keeping when we
15 finally enact this barbaric law.
16 I am, Mr. President, not naive to
17 the fact that our hopes rest with the courts,
18 that this state's system of jurisprudence will
19 have to come in on this issue. I know when they
20 do, they'll have to take up the fact that
21 they'll have to weigh the necessity for the
22 death penalty away from the political maelstrom
23 that we're involved in here today, and when they
1427
1 do, they'll consider that we have other
2 alternatives -- life imprisonment, no parole.
3 There are other options to this. Anything that
4 goes into the realm of this kind of punishment
5 is cruel and unusual, is uncivilized.
6 And so I dedicate my no vote to
7 that resistance that is out there, that is
8 manifesting itself to the young children. I
9 apologize for the behavior of the adults that
10 are for this bill who send the worst, worst
11 message we can to young people, and to the
12 future generation of political leadership that
13 will one day repeal what we're about to do.
14 Please heed the wisdom of Justice Blackmun who
15 said that he would no longer tinker with the
16 machinery of death. I choose not to do so here
17 and now, and vote no.
18 Thank you.
19 (Applause)
20 ACTING PRESIDENT KUHL: The Chair
21 recognizes Senator Maltese.
22 I'll remind those people in the
23 chamber once again that this is not a theatrical
1428
1 event. If you continue with the disruption, we
2 will remove all of you. We don't want to do
3 that. Please bear with us and obey the rules of
4 the house.
5 Thank you.
6 Senator Maltese.
7 SENATOR MALTESE: Mr. President,
8 I think Senator Volker and Senator Saland have
9 gone into a great deal the details of the bill
10 before us. The issue before -- before us, as
11 all have indicated, is a momentous issue. Those
12 of us who have waited many, many years for the
13 enactment of the death penalty, now take no
14 pleasure in the probable passage and signing of
15 a death penalty bill.
16 The bill before us and the bill
17 that will ultimately be before us is not a
18 perfect bill, but what it seeks to do is prevent
19 further murders in the future, and at the same
20 time enact, if you will, just retribution on
21 those who would commit the most heinous crime,
22 the taking of another human life.
23 If we speak about moral outrage,
1429
1 if we speak about acts that are bestial, the
2 acts we speak of, the moral outrage we speak of
3 must be directed at the murders that have been
4 perpetrated by the ones who face justifiable
5 execution.
6 We see the figures. They're
7 before us. Since 1940, over 65,000 murders have
8 been committed in New York State. We are now at
9 a deplorable stage where some 2500 murders are
10 committed every year, more than the populations
11 of towns, of villages, and in some cases, small
12 cities wiped out in a single year. When
13 references are made to possible racism, we can
14 look at the victims of these murders, the
15 victims that figures indicate are over 51
16 percent black and more Hispanics in the mix.
17 They are the victims.
18 We have before us a bill that is
19 not a perfect bill. I myself take some issue,
20 if you will, with putting judges and prosecutors
21 in a special protected class. Having been a
22 prosecutor myself, I think I can say that there
23 are others that possibly should be in that
1430
1 class, having tried a case against a murderer
2 who murdered a police detective from a D.A.
3 squad. Should we also seek to protect police
4 detectives? Should we protect others who take
5 any part in the law enforcement process? But
6 this we had to do in order to enact a death
7 penalty statute.
8 I don't take any pleasure in the
9 felony murder Corrections made, if you will,
10 that remove what I have always considered a
11 prosecutor's tool, the ability to give a co
12 conspirator or a real man or a co-perpetrator of
13 the person who actually pulled the trigger, the
14 right to be able to negotiate with a district
15 attorney and possibly provide very, very
16 important evidence against the actual puller of
17 the trigger, the perpetrator of the crime, but
18 at the same time, we have before us the best
19 death penalty bill that can be enacted at this
20 time and at this place.
21 Am I happy that the little old
22 lady or the man on Fresh Pond Road in my
23 district or in Howard Beach in my district isn't
1431
1 protected against the deliberate act of murder?
2 No. But this bill will go a long way toward
3 punishing perpetrators of murders.
4 It's enumerated, the witnesses,
5 the contract killings, the multiple killers, the
6 torture killers, the people that argue so
7 vehemently against the death penalty, they talk
8 about the bestiality of the act itself. What
9 about the victims? What about the persons that
10 have been killed?
11 There was reference made to
12 whether we would go out and be able to witness
13 an execution. I can only speak personally.
14 I've been an advocate for years of pro-animal
15 and pro-pets, and what-have-you, and yet, after
16 being three and a half years in the Homicide
17 Bureau in Queens County, in talking to victims
18 -- in talking to victims who expired before my
19 eyes, in talking to the families of victims who
20 are killed in a variety of horrible ways, I
21 could participate in that act, in that
22 justifiable act.
23 We talk about equating the
1432
1 victims with the murderers. We've tried in this
2 bill to put every protection in, to protect the
3 murderers, to protect the perpetrators who we
4 are absolutely positive committed these crimes.
5 We talk about the possibility of an error.
6 Sure, there's a possibility of an error, but
7 we've taken every step -- every possible step to
8 protect against that happening. But what do we
9 do about the 2500 homicides? How do we redress
10 those wrongs? What do we do about the 100,000
11 robberies that have taken place in that same
12 period of time? What do we do about the over
13 5,000 forcible rapes that have taken place in
14 this same period of time?
15 We must take some steps, and
16 among those steps is the enactment of a death
17 penalty. We have an absolute obligation to
18 attempt to pass this bill and enact it into
19 law. This is what our constituents expect of
20 us. Common sense tells us that it's a
21 deterrent. Our constituents across the state
22 and across the nation, the vast majority of
23 which who have expressed an opinion, over 75 to
1433
1 80 percent have come down on the side of the
2 death penalty as justifiable. We must get
3 across the fact that if you take a -- you commit
4 a deliberate act and take a human life, you must
5 pay the ultimate penalty.
6 Unfortunately, in so many cases,
7 it's the same way before a jury. The perpetrat
8 or is there. The victim is not. The victim's
9 family in many cases is not. So what does a
10 jury and what does a legislator and what do many
11 lawmakers see? They see before them a
12 perpetrator, as was mentioned earlier in the
13 debate, who is a different man. He saw the
14 error of his ways and is a different person with
15 the passage of time. I'll even grant that, but
16 then it is not the deterrent effect of the death
17 penalty we're talking about; we're talking about
18 an imperfect system that provides an excessive
19 length of time between the actual commission of
20 the crime and the execution of the perpetrator.
21 It's the system that's at fault, not the
22 enactment of the death penalty.
23 The death penalty now in this
1434
1 statute, we take steps to provide that they
2 shall be not the inexhaustible remedies
3 available to the murderer, remedies that he
4 never made available to his victim.
5 We talk about bestiality; we talk
6 about how horrible these killings would be if
7 perpetrated by the state. The state has an
8 absolute obligation to restore order, to try to
9 take steps to eliminate the killing of 2500
10 innocent people. What about the victims? The
11 famous case of Grasso, how many people spoke
12 about the 87-year-old lady who was strangled
13 with a Christmas cord, her Christmas cord? Who
14 spoke about the fact that he then committed
15 another murder against a senior citizen?
16 Who speaks about other murderers
17 who strangle, rape innocent victims? A murderer
18 in Washington, D.C. who killed and raped a
19 90-year-old lady after nailing her hands to a
20 chair, or in New York, about the rape murders of
21 nine-year-old girls, of -- the rape murders of
22 one-and-a-half-year-old girls that took place in
23 our city? We are trying to do the best we can
1435
1 to stop these murders from taking place. The
2 best we can at this time and place is this death
3 penalty legislation.
4 Mr. President, I urge its
5 enactment into law.
6 ACTING PRESIDENT KUHL: The Chair
7 -- yes, Senator Waldon.
8 SENATOR WALDON: I don't know if
9 I'm in order, but I just wanted to know, has
10 time been kept on the debate, and where are we
11 in the time so that those of us who would like
12 to speak later -- if you could share that
13 information with the chamber, I'm sure it would
14 be deeply grateful.
15 ACTING PRESIDENT KUHL: Senator
16 Waldon, I will be happy to. The debate started
17 at 4:10, so if you're keeping with the two-hour
18 limit, the debate would be over at 6:10.
19 Currently, Senator Montgomery is
20 next to speak and Senator Leichter, Senator
21 Marchi, Senator Paterson wants to move up some
22 amendments, so I'm told, Senator LaValle,
23 Senator Dollinger, Senator Mendez, possibly and
1436
1 Senator Abate. So that's where we are.
2 Senator Montgomery.
3 SENATOR MONTGOMERY: Thank you,
4 Mr. President.
5 I think it is very interesting
6 that we're having this debate at the same time
7 as we are celebrating our annual "Corrections on
8 Canvass" downstairs, and I am reminded each year
9 of the number of prison facilities that we have
10 in our state already, 68 facilities, I believe,
11 and 65,000 people in those facilities.
12 Mr. President, I think we are,
13 again this year in debating this death penalty
14 bill, putting the cart before the horse, if you
15 will, because, although Governor Pataki
16 campaigned on the death penalty, he also
17 campaigned on reducing costs to our state, and
18 within that context, he campaigned that he was
19 going to work with the Legislature to change the
20 Second Felony Offense Law.
21 Now, I don't know if the Governor
22 has backed away from that position, but I have
23 not heard him come forth with a bill -- with a
1437
1 proposal to the Legislature, unless it's going
2 to happen in the way that our death penalty bill
3 happened today. As we all know, the latest
4 figure that I have, we are now spending
5 somewhere around $9 million every 24 hours on
6 our prison system in the state, and my
7 assumption is or was that the Governor intended,
8 by looking to change the Second Felony Offense
9 Law, to reduce the overcrowding and the need for
10 further expansion of the prison system by
11 removing some of those inmates who are now
12 incarcerated for non-violent drug offenses.
13 That was welcomed, but we don't have that.
14 We're not discussing that today,
15 and that's unfortunate, and at the same time,
16 the proposal that the Governor has put forth,
17 along the lines of a budget, is to reduce
18 probation services, to reduce and back away from
19 the expansion of alternatives to incarceration,
20 to reduce spending for youth services, to reduce
21 spending for preventive juvenile services, and
22 so forth, and so on.
23 So we're not talking about
1438
1 prevention. We're not talking about supporting
2 especially young people because I suppose all of
3 us are aware that it's -- a large percentage of
4 the inmates in our facilities are young. They
5 began with having -- having a negative relation
6 ship with the Justice Department, judicial
7 system, at a young age and continued along those
8 lines. Many of them have been through our youth
9 detention facilities and end up in the state
10 facilities. So not to address this critical
11 area, I think, is a crime.
12 And here we are discussing this
13 death penalty which is, in fact, Mr. President,
14 a budget bill, a budget buster, if you will.
15 Now, the Governor has said -- I have heard him
16 refer to his death penalty proposal as saving
17 lives, and I'm not clear where he gets the idea
18 that he is going to save lives, and I understand
19 Senator Maltese talks about the victims, and I
20 too represent a district where there are
21 probably more victims of heinous crime or as
22 many victims as are in any district in the state
23 of New York.
1439
1 So I also am very concerned and
2 sensitive about what victims -- what happens to
3 victims, but I think the people in my district
4 want results, and as we look at, for instance,
5 now the "death belt state" or the number
6 one "death belt" state is Louisiana, the number
7 two "death belt" state is Texas, and they have
8 some of the highest crime rates in the nation.
9 Louisiana has 20.3 per 100,000 inhabitants, so
10 it is not helping the victims of crime in
11 Louisiana, and Texas similarly has almost 12 per
12 100,000. So it doesn't help the victims in
13 Texas either.
14 So I am not sure, and even the
15 Attorney General of the state of Texas has
16 stated that the incidence of using the death
17 penalty is so prevalent, that nobody pays any
18 attention, so it's as if it doesn't even exist.
19 And I know that Senator Volker is
20 going to stand up in his closing remarks and
21 he's going to say, "Senator Montgomery, you're
22 totally wrong," but I have a quote here from
23 Justice Powell. It says, "Capital punishment
1440
1 has not deterred murders." This is -- this is a
2 Supreme Court -- former Supreme Court Justice
3 who was very familiar with capital punishment.
4 And we know that the justice
5 system does not work perfectly. We have debated
6 that point. We have statistics on that point.
7 We have lives to prove, we have cases to prove
8 that point. There is no such thing as an equal
9 justice system. That's very unfortunate, but
10 it's true.
11 We have many, many instances of
12 people who have served time in prison, were in
13 itially convicted only to have their convictions
14 overturned. Many of them have served even on
15 death row. So we do not have a perfect judicial
16 system. We don't have a perfect process. It is
17 not failsafe. So undoubtedly, we are going to
18 make some mistakes or continue to make mistakes.
19 I have in my -- my records here
20 from my staff one, two, three, four, five, six,
21 seven, eight cases where people have been
22 wrongly executed in the state of New York, Mr.
23 President. So we're bound to do that again.
1441
1 I was recently in Louisiana, and
2 it was very, very interesting to me to find that
3 a group of law enforcement people had been very
4 instrumental in coming together to talk about
5 prevention because they feel that the state of
6 Louisiana is going to be bankrupted by the ex
7 panded use of the prison system, including the
8 death penalty, and again, I know that my col
9 league, Senator Volker, is going to say, "That
10 is hogwash; it's nonsense. You can't prove
11 that", but there have been studies. There is
12 information that we have that we can look at in
13 terms of how much it costs to deal in this
14 capital punishment business.
15 North Carolina spent an extra
16 $2.16 million per execution. We have the
17 figures from Texas. In Texas, a death penalty
18 case costs an average of $2.3 million. This is
19 three times the cost of imprisoning someone in a
20 single cell at the highest security level for 40
21 years. That comes from the Dallas Morning News,
22 March 8, 1992, Senator Volker. You can look
23 that up.
1442
1 The death penalty costs
2 California $90 million annually beyond the
3 ordinary cost of the justice system. Florida
4 spent an estimated 57 million on the death
5 penalty from 1973 to 1988 to execute 18 people.
6 That's an average of $3.2 million per
7 execution. That comes from the Miami Herald,
8 July 10, 1988, for Senator Volker's reference.
9 And even closer, our own
10 corrections service -- DOCS, Department of
11 Correctional Services, estimated that the death
12 penalty will cost New York State taxpayers $1
13 million per capital trial.
14 So, Mr. President, in addition to
15 everything else, this is a budget bill, it's a
16 budget buster, and while we're not talking about
17 saving money with this -- with this bill, we're
18 talking about saving money at the expense of the
19 future of young people, because we don't want to
20 support them in terms of their preventive
21 activities -- involving them in preventive
22 activities.
23 I want to leave with you a quote,
1443
1 Mr. President, from the Attorney General of
2 Massachusetts. He said, "Virtually every major
3 program designed to address the underlying
4 causes of violence and to support the poor,
5 vulnerable, powerless victims of crime, is being
6 cut even further to the bone. In this context,
7 the proposition that the death penalty is a
8 needed addition to our arsenal of weapons lacks
9 credibility and is a sheer matter of equity,
10 morally irresponsible. If this is really the
11 best that we can do, then our public value
12 system is bankrupt, and we have truly lost our
13 way."
14 Thank you, Mr. President. That's
15 the end of the quote, and the end of my -- my
16 comments, except to say that this is a very dark
17 moment. As we view the beautiful art from the
18 souls of people who are currently incarcerated
19 for any number of reasons, we are debating a
20 moment in the state's history that, I believe,
21 is going to be viewed in history as a darker,
22 less fortunate one.
23 Thank you, Mr. President.
1444
1 ACTING PRESIDENT KUHL: The Chair
2 recognizes Senator Skelos.
3 SENATOR SKELOS: Yes, Mr.
4 President. I believe several members would -
5 well, two members would like to vote at this
6 time. So with the consent of the Minority, if
7 you could have the last section read.
8 ACTING PRESIDENT KUHL: The
9 Secretary will read the last section.
10 THE SECRETARY: Section 38. This
11 act shall take effect on the 1st day of
12 September next succeeding the date on which it
13 shall have become a law.
14 ACTING PRESIDENT KUHL: Call the
15 roll.
16 (The Secretary called the roll.)
17 ACTING PRESIDENT KUHL: The Chair
18 recognizes Senator Farley. How do you vote,
19 sir?
20 SENATOR FARLEY: I vote aye.
21 ACTING PRESIDENT KUHL: Senator
22 Farley in the affirmative.
23 Senator Mendez, how do you vote?
1445
1 SENATOR MENDEZ: Mr. President, I
2 will vote no, and I want to explain my vote.
3 ACTING PRESIDENT KUHL: Senator
4 Mendez, you have two minutes to explain your
5 vote.
6 SENATOR MENDEZ: Mr. President,
7 this is the 17th year that I say -- serve in
8 this great chamber of ours, and this is going to
9 be my 17th consecutive no to the issue of the
10 death penalty.
11 We are all politicians here and
12 we know that politics is the art of compromis
13 ing, but on this issue, Mr. President, I con
14 sider that it is absolutely impossible to com
15 promise. It has been proven already that -
16 that by polls, by service, that there are about
17 over 70 percent of residents in New York State,
18 and definitely my district as well, of people
19 who want the death penalty.
20 The issue is, why are they
21 clamoring for the death penalty? They're
22 clamoring for the death penalty, Mr. President,
23 not because they really want it out of their
1446
1 frustration of being able to deal with the
2 disastrous criminal justice system that has been
3 operated in New York City.
4 I, for one, Mr. President,
5 personally, I think that no government on earth
6 should have the capacity to take life away from
7 another human being. It is the most dangerous
8 precedent history has shown us that that has
9 been the case. Also, I believe that -- that the
10 -- the courses of crime could be dealt with in
11 a different fashion, and it has been proven that
12 it is not a deterrent.
13 So, therefore, Mr. President, I
14 say to my constituents, and all of them do want
15 -- most of them do want the death penalty -- if
16 the only way that I could remain representing
17 them in a job that I love is by voting for this
18 -- for the death penalty, I say to them, "No,
19 thank you. Get somebody else to represent
20 you." So it's an absolute belief that it will
21 not resolve the issue of crime in New York
22 State. It is an absolute belief that those that
23 will end up in the electric chair will be people
1447
1 who are poor members of minority groups.
2 SENATOR LEICHTER: Mr. President.
3 ACTING PRESIDENT KUHL: Senator
4 Leichter.
5 SENATOR LEICHTER: Mr. President,
6 I believe that we have a procedure where, as a
7 matter of accommodation, we allow people to cast
8 their vote out of order, Mr. President, and I
9 believe that courtesy was granted to Senator
10 Mendez and others, but I don't think it's our
11 practice that people explain their vote or go on
12 for some period of time.
13 ACTING PRESIDENT KUHL: Senator
14 Mendez, how do you vote?
15 SENATOR MENDEZ: Mr. President, I
16 vote in the negative. I do not think that I
17 exceeded the two minutes time. So, definitely,
18 I do not appreciate being interrupted by my dear
19 colleague, Senator Leichter.
20 Thank you. I vote no.
21 ACTING PRESIDENT KUHL: Senator
22 Mendez will be recorded in the negative.
23 The Secretary will withdraw the
1448
1 roll call.
2 Senator Skelos.
3 SENATOR SKELOS: Mr. President, I
4 would just like to point out to the members, and
5 Senator Leichter did raise a good point that, if
6 we're going to accommodate the members where
7 it's necessary for them to leave the chambers,
8 that they should vote and perhaps not explain
9 their vote at that time, and also that debate
10 began at ten after 4:00 and it's the intention
11 of the leader to close debate at ten after 6:00.
12 SENATOR MENDEZ: Mr. President.
13 ACTING PRESIDENT KUHL: The Chair
14 recognizes -- Senator Mendez, why do you rise?
15 SENATOR MENDEZ: I just wanted to
16 mention that prior to -- that I did explain my
17 vote on this issue because prior to my doing so,
18 there was a member of the Senate who, in fact,
19 did explain his vote before he left.
20 Thank you.
21 ACTING PRESIDENT KUHL: Thank
22 you, Senator Mendez.
23 The Chair recognizes Senator
1449
1 Paterson.
2 SENATOR PATERSON: I'm being
3 recognized?
4 ACTING PRESIDENT KUHL: Senator
5 Paterson.
6 SENATOR PATERSON: Mr. President,
7 we have a number of amendments, and I would like
8 to move the first amendment at this time.
9 ACTING PRESIDENT KUHL: Which one
10 of your members, Senator Paterson, is going to
11 offer up the first amendment?
12 SENATOR PATERSON: I will offer
13 up the first amendment, Mr. President. It's at
14 the desk and I'll waive its reading, and I will
15 talk about the amendment at this time.
16 ACTING PRESIDENT KUHL: Senator
17 Paterson on the first amendment.
18 SENATOR PATERSON: The Governor's
19 bill, Mr. President, purports to exempt mentally
20 retarded persons from the death penalty. Since
21 1980...
22 SENATOR MARCHI: Mr. President,
23 out of all respect to Senator Paterson, are we
1450
1 charging this time against the two-hour limit?
2 ACTING PRESIDENT KUHL: Senator
3 Marchi, the -
4 SENATOR MARCHI: I would have to
5 move for a closed call of the house under those
6 circumstances.
7 ACTING PRESIDENT KUHL: Senator
8 Marchi, the rules of the house say that any
9 amendments and the discussion of the bill, prior
10 bill will be -
11 SENATOR MARCHI: The subject -
12 ACTING PRESIDENT KUHL: -- a two
13 hour limit. So, yes, the answer to that
14 question is yes.
15 Senator Paterson.
16 SENATOR PATERSON: Mr. President,
17 what confused me was I thought that Senator
18 Marchi was ahead of me on the list.
19 SENATOR LEICHTER: Mr. President.
20 ACTING PRESIDENT KUHL: Yes,
21 Senator Leichter.
22 SENATOR LEICHTER: You announced
23 an order of speakers, and I believe actually
1451
1 that I was the next speaker; am I correct?
2 ACTING PRESIDENT KUHL: You are
3 correct, Senator Leichter. Senator Paterson and
4 the staff indicated to me that you were under
5 standing of the need to present the amendments
6 that are currently being offered up. Now, if
7 that is incorrect and you wish to maintain your
8 spot and preempt the Acting Minority Leader in
9 offering up those amendments, then I'm happy to
10 entertain you.
11 SENATOR LEICHTER: Mr. President.
12 ACTING PRESIDENT KUHL: That's
13 your choice, Senator Leichter.
14 SENATOR LEICHTER: Mr. President,
15 when you put it in those terms, may I just -
16 excuse me just a moment, Senator Paterson.
17 I would hope very much that a
18 bill of this significance, that there would be
19 understanding, as I believe over the years,
20 members have shown respect for each other, have
21 shown respect for the issue.
22 I think Senator Marchi certainly
23 ought to be heard on this. I know that other
1452
1 members want to be heard. I would certainly
2 like to be heard on it. I don't mind being
3 preempted by as distinguished a person as my
4 good colleague and Minority -- Deputy Minority
5 Leader, Senator Paterson, and if he wishes to
6 move ahead with the amendment, that's fine, but
7 I would hope that members would have a chance to
8 be heard on a bill of this momentous
9 significance.
10 ACTING PRESIDENT KUHL: Thank
11 you, Senator Leichter, who yields the floor to
12 Senator Paterson to offer up the first
13 amendment.
14 Senator Paterson.
15 SENATOR PATERSON: Mr. President,
16 I don't want this to appear to be tennis, but I
17 will yield the floor back to Senator Leichter.
18 He apparently wasn't informed and we would like
19 to hear him on the bill.
20 ACTING PRESIDENT KUHL: Senator
21 Leichter, the floor is yours.
22 SENATOR LEICHTER: I thank my
23 good friend, and I'll say again that I believe
1453
1 some of the most eloquent debate that I have
2 heard over the years has been on this bill,
3 because it is a bill of such significance, and I
4 think members feel very strongly about it, and I
5 would really hope that we would give each other
6 the courtesy of listening to ourselves on a bill
7 of this importance, but I appreciate the time is
8 short. I think a lot of points have been made,
9 and I will try to be brief on this.
10 What really concerns me is that I
11 see on the part of the proponents of this bill,
12 particularly the Majority in this house, such a
13 rush, a drive to get death penalty enacted that
14 it's no longer a means to an end. This has
15 become the end in itself, to pass a death
16 penalty bill irrespective of the procedures and
17 the process of this house, irrespective of the
18 provisions that are in this bill, irrespective
19 that the public hasn't had an opportunity to be
20 heard.
21 This has become political dogma.
22 We will pass a death penalty bill. We will tell
23 the public we will put people to death, and when
1454
1 I listen to Senator Maltese, he's not just
2 talking about horrible crimes, terrible crimes
3 that need to be punished, must be punished. He
4 talked about burglaries.
5 He -- I heard Senator Volker talk
6 about guns, narcotics. This has become like the
7 universal solvent, the universal solution for
8 the Republicans to impose a death penalty and we
9 will go back and have a nice, orderly, peaceful
10 society as it was in the 1950s and 1940s.
11 Wasn't that peaceful then? It was probably more
12 peaceful than it is now, but let me say the
13 reason is not as Senator Volker says, because
14 then we had a death penalty.
15 Senator, there isn't one credible
16 criminologist who will say the reason that
17 murder is greater now in New York State than it
18 was 25, 30 years ago is because we do not have
19 the death penalty. The reason is very simple.
20 It's the demographics. It's the young people.
21 There's also undoubtedly a loosening of moral
22 values. There's greater poverty in some
23 respects, all of which have entered into what is
1455
1 a violent society, and we have an obligation to
2 try to deal with that, but not to come up with
3 simple solutions, not to say, "Put somebody to
4 death and we're going to have a nice, orderly
5 society", because that's not the case. It's not
6 true.
7 The point is that those who argue
8 for the death penalty in the first instance have
9 to establish clearly -- they have to establish
10 by the preponderance of the evidence that the
11 death penalty really deters murder, and that has
12 never been shown. It has never been
13 established.
14 Senator Saland, to his credit,
15 admitted that the proof is mixed on it. I don't
16 think that I could stand up here and say absol
17 utely that the death penalty in each and every
18 instance is -- will not act as a deterrent.
19 There may be some instances where it will, but
20 if you look at the broad scope of crime in this
21 country and in the world, you can point to case
22 after case, country after country, state after
23 state, that has a death penalty and has seen an
1456
1 increase in murders. Take a look at Western
2 Europe. Western Europe does not have a death
3 penalty; has a murder rate that is so far below
4 that of the United States that we can only be
5 envious.
6 Take a look at states that have
7 imposed a death penalty in the last eight or
8 nine years since the Supreme Court validated the
9 imposition of this penalty, and many of them
10 have had increases in the murder rate that
11 exceed that of New York State. In fact, New
12 York State, in the last couple of years, has had
13 a decline in the murder rate, and we're going to
14 have an increase probably in the murder rate and
15 in the crime rate because the demographics show
16 that we're going to have in the next 10, 15
17 years a younger population that is by and large
18 younger people, mostly younger males that commit
19 murder.
20 What we will undoubtedly do by
21 the imposition of the death penalty is we will
22 have the state put to death innocent people.
23 Senator Maltese said, I cannot exclude the
1457
1 possibility of error. Of course, you cannot
2 and, as Senator Montgomery has shown us, there
3 are documented cases. This weekend the New York
4 Times gave us one of these cases, and there was
5 a picture of the person who, when he was
6 sentenced to life imprisonment, the judge said,
7 "I wish I could sentence you to death", and the
8 picture was that person who had -- after years
9 in jail, new evidence came forth, he had been
10 convicted on trumped-up charges, and now he came
11 back to his community and there was a
12 celebration that an innocent man had been freed,
13 and with him at that celebration was his local
14 representative, either Senator or Assemblyman
15 George Pataki at that time and, of course, he
16 celebrated the fact that an innocent person had
17 finally been freed, but if you had the death
18 penalty, that person would never have had the
19 time to be freed. He would have been killed.
20 There's also no question that the
21 death penalty is inherently racist, not that the
22 people who propose this are racist. They are no
23 more racist than I am or Senator Montgomery or
1458
1 anybody else. That's not the point. The point
2 is that society tends to kill those it looks
3 down on and those may be minorities. It may be
4 poor people. Do you think that under any death
5 penalty bill that somebody with the notoriety
6 and the wealth of an O.J. Simpson -- and I'm not
7 commenting on whether he's guilty or not, but we
8 know that somebody like that will never be
9 executed because society does not execute those
10 who either have the wealth to buy a good defense
11 or who have a certain stature in the society.
12 It is those who society, in some way or other,
13 despises and looks down on, and no bill can
14 avoid that sort of bias and that sort of error
15 creeping into a system.
16 Clearly, the proof is there.
17 Senator Volker, you may want to deny it but,
18 frankly, I think you're in a lot of denial on
19 this bill, but the proof is there that the death
20 penalty is greatly expensive, much more so than
21 if you had punishment of life without parole.
22 Clearly, anybody who commits a
23 heinous crime must be punished. We're not for
1459
1 letting murderers go free. We support
2 imprisonment for life without the possibility of
3 parole. Somebody who commits a murder of the
4 sort that's dealt with in this bill, as far as
5 I'm concerned, he is resigned from society; he
6 is out, he or she are put in jail forever.
7 So we are for punishment, but
8 we're for punishment with justice. We are for a
9 form of punishment that does not brutalize
10 society, that recognizes the dignity of life,
11 and how can you establish and uphold the dignity
12 of life which, I think, is what we're all about,
13 and all of us care about that; all of us want to
14 accomplish this, but how can you do it if you
15 have the state engaging in what is the most
16 brutal act, and that is putting somebody to
17 death.
18 We will have a death penalty bill
19 and I'm sure the courts will review it, and
20 hopefully, will declare it unconstituional, but
21 I would hope that our better instincts, our
22 better care, our better -- our better desire for
23 a tranquil, peaceful and just society will lead
1460
1 us to see that the death penalty is never the
2 answer. The answer is to affirm life, and by
3 doing the death penalty, by going down this dark
4 and vicious road, we are really surrendering to
5 the basest and the worst instincts.
6 We as legislators, we as leaders
7 of our society have the obligation, I think, to
8 say that society can be better, and when we have
9 the death penalty, we say that we cannot be
10 better. We say that society has reduced itself
11 to the acts, has reduced itself to the behavior
12 of the worst within that society. I urge you to
13 reject the death penalty. It is not an answer
14 to what we need in this state.
15 ACTING PRESIDENT KUHL: The Chair
16 recognizes Senator Marchi.
17 SENATOR MARCHI: Thank you, Mr.
18 President.
19 My -- my concern with the death
20 penalty goes back many, many years. I remember
21 debating this under intercollegiate auspices in
22 the late '30s. At that time, we had six states,
23 Michigan, Rhode Island, Maine and three others
1461
1 that did not have the death penalty, and the
2 comparative statistics I'm not sure prove
3 everything, but Michigan, surrounded by other
4 states -- and I believe they still don't have a
5 death penalty -- surrounded by other states that
6 had the death penalty, did not -- did not have a
7 -- as low a rate of homicides as the state of
8 Michigan.
9 The twin cities of Detroit and at
10 that time Windsor -- well, it's still -
11 geography hasn't changed. In Windsor, Ontario,
12 both Windsor, the capital of Canadian
13 manufacturing of automobiles and Detroit holding
14 that distinction in the United States, Detroit
15 had a better record, and yet we know that
16 Windsor, Ontario did have the death penalty.
17 I was going to go through some of
18 the historical turns that have taken place,
19 going back to Thucydides back in the year 247
20 B.C., this is almost 200 millenniums ago,
21 raising the very same considerations that have
22 been raised by some of the members here today,
23 and he found that wanting -- he said we kept
1462
1 escalating the punishment, yet we never found
2 the one that worked. How far could you go?
3 I certainly give great credit to
4 Senator Volker. On moral sensitivity, he has
5 elevated everybody's concern about fairness in
6 the administration of the -- of law and law
7 enforcement. He has sensitized us. This is not
8 the best vehicle, in my point of view, but,
9 Senator, I admire you. You are a morally
10 sensitive individual, and you have made a
11 contribution because we are discussing it in
12 much more realistic terms. Hopefully, it will
13 help us also in identifying what I see will
14 inevitably happen in orienting ourselves in
15 better directions, not only in this aspect of
16 illegal and violent behavior but -- but the
17 problem of crimes generally.
18 You know, the whole -- the whole
19 business -- we haven't really gotten into the
20 vitals of what goes into a crime of this
21 dimension. The mens rea -- and I appeal to
22 those who are attorneys -- the guilty state of
23 mind, the premeditation, the intentional
1463
1 infliction of a wrong, even the President of the
2 United States who was then governor and running
3 for president did not stay the hand of the
4 executioner in Arkansas when that individual had
5 the problem of being mentally deficient and he
6 was -- he was executed for a crime. Is it a
7 crime if the person didn't even know perhaps -
8 and I believe Senator Connor mentioned the fact
9 that there are big problems in those borderline
10 cases that make it very difficult to apply that,
11 but I think everyone recognizes that problem.
12 I bring you up a little further
13 into history, Charles Dickens conducted -
14 conducted a -- an interview of 287 people who
15 were to be executed. This was in these vast
16 squares where they had thousands of people, and
17 they could cut your hands off if you were caught
18 pick-pocketing, and it was a field day for pick
19 pockets. 200 and -- all but three, 284 had
20 witnessed prior executions.
21 It's not a question of race or
22 racism. It's a question of triggering the
23 morbid propensity that an individual may have.
1464
1 If you're going to go out and manifest that kind
2 of justice, aren't you going to cheapen the
3 feeling that we have for life itself, and
4 shouldn't the state be the champion of life in
5 that respect, in all respects? This was the
6 experience that Charles Dickens had.
7 I go to the records -- you know,
8 I don't like to prove the record one way or the
9 other, even with Detroit and some of the
10 statistics I cited, because there's a remarkable
11 consistency. If you look back over the last 25
12 years, the homicide rate in this country has
13 oscillated around nine homicides per 100,000
14 population and, as population increases, that
15 has been the norm.
16 So are there better ways? Yes,
17 there are better ways. There are better ways
18 that are rooted in social justice. There are
19 better ways in appreciating what we are doing
20 and presenting a human face and containing the
21 damage, taking that person out of circulation so
22 that they cannot inflict. This is public
23 mores. This is public policy that I'm talking
1465
1 about.
2 We have today -- we have the
3 death penalty; 37 states of the United States
4 have the death penalty. You know what New
5 Jersey, Connecticut, Pennsylvania, Ohio have in
6 common? They all have the death penalty and
7 they have not executed anyone and they've had it
8 for over ten years.
9 We go to California and
10 Illinois. Now we have better than 70 to 80
11 million people to each state. Are they using
12 it? Maybe there's a wiser frame of mind that's
13 taking over, and they don't intend to use it. I
14 don't know whether we'll ever get around to
15 using it. I am not advocating it certainly,
16 because I oppose it, but there are better ways.
17 I would like to call your
18 attention to what I thought was an excellent
19 piece in the New York Times, an Op Ed piece by
20 Robert Morgenthau, the District Attorney of
21 Manhattan County -- of New York County. He
22 said, "Last year --" this was a statement that
23 he issued on February 7th. "Last year 6100
1466
1 criminals were sentenced to state prison in
2 Manhattan, and 9,000 more were sent to city
3 jail."
4 Now, I -- I accept some of the
5 characterizations that were made here about what
6 constitutes a crime in Manhattan and what may -
7 what it may constitute somewhere -- somewhere
8 else in a more remote area. Now, this is the
9 constructive way to be tough on crime.
10 In 1975, when he became district
11 attorney, there were 648 homicides in Manhattan.
12 In 1994, there were 330. That's less than half
13 -- less than half that he found when he went
14 in. Now, I don't think that's -- I think that's
15 some indication that perhaps there are ways that
16 have escaped people within and without those
17 states.
18 Why is it that a nation such as
19 England that had many homicides, the European
20 community, they are only a tiny fraction of what
21 we have? Their population exceeds our
22 population. We have a good people, but if we
23 glorify brutality, if we glorify -- and I'm not
1467
1 talking about -- I'm not casting aspersions on
2 comments that have been made here, but if we
3 glorify violence, we're going to get violence,
4 it's inevitable. The only way that we're going
5 to make progress is to select ways and treat the
6 problem -- treat the entire person holistically,
7 as Morgenthau would like to do, and those
8 circumstances are beyond him for a variety of
9 social problems, but that is the way to approach
10 it.
11 I liked his closing. "The only
12 honest justification for the death penalty is
13 vengeance", but the Lord says "The vengeance is
14 mine." It is wrong for secular governments to
15 try to usurp that role.
16 There are just wars. There are
17 the right of self-defense. There are
18 justifiable homicides, but when we come right
19 down to it, when we treat the problem, a vast
20 social problem, we're not sending messages to
21 anybody. We're not sending a message that's
22 going to be heard. It's not going to move
23 people. We're not going to get better
1468
1 behavior. I hope I'm proven wrong that this
2 will be cited as a classic state -- understate
3 ment of the century. I hope so, but I fear that
4 none of these things are going to happen, but I
5 do believe -- I do believe that the -- raising
6 the sensibility of all of us to the problems
7 that we face, with the death penalty which
8 reflects, to some extent, the unease and the
9 frustration of so many people, that we will move
10 to better ways, but I submit the best thing we
11 can do is to reject this legislation and to move
12 to those higher grounds that we all want to see
13 happen in this chamber at least.
14 ACTING PRESIDENT KUHL: The Chair
15 recognizes the next person on the list, Senator
16 Paterson. My understanding is you wish to
17 waive?
18 SENATOR PATERSON: Yes, Mr.
19 President.
20 ACTING PRESIDENT KUHL: The next
21 person on the list is Senator LaValle. I don't
22 see him in the chamber.
23 Senator Hoffmann.
1469
1 SENATOR HOFFMANN: Thank you, Mr.
2 President.
3 Like Senator Marchi, I had the
4 experience to debate this issue back in school.
5 I debated it in high school. It was in the
6 early '60s, Senator Marchi, and my memory
7 doesn't go back to the year yours did, but my
8 memory may not be as sharp as yours, and I
9 respect your eloquence, and I would not have
10 wanted to be your adversary in those debate
11 sessions, but I remember that there was no more
12 difficult issue to debate, and all of us were
13 required to debate both sides, and to become
14 facile with the arguments pro and con, and like
15 everyone else in this chamber, I would imagine,
16 I have given considerable thought over the
17 years.
18 We have traveled a very long and
19 tortuous road in this state to come to a point
20 where we can now pass a death penalty bill in
21 New York State without expecting a veto. And I
22 do understand and respect the opinions of those
23 who continue to feel bound by their consciences
1470
1 to oppose a death penalty under any circum
2 stances, and I remember even during the years
3 when I debated the bill in a rather esoteric
4 setting that my own mother, who was an avowed
5 pacifist, was angry and disappointed that I was
6 able to muster as much emotion to express the
7 position in favor of a death penalty even back
8 in those days.
9 But I am concerned that over
10 these last few decades in New York State, the
11 rights of the victim have been given less
12 consideration than the rights of those who
13 murder. Civilians as well as law enforcement
14 officers are increasingly at risk in this
15 state. Prison guards every day face the risk of
16 knowing that they are guarding long-term killers
17 who can kill again without any fear of further
18 retribution, and over the years the debate has
19 become clouded with issues other than the matter
20 of appropriate justice for some murderers.
21 I want to make it very clear that
22 I am not voting on the ancillary issues such as
23 deterrence. I am voting on the simple issue of
1471
1 justice.
2 We hear a great deal about the
3 sanctity of human life from those who oppose the
4 death penalty under any circumstances, but when
5 I research this issue, I think inevitability
6 about the sanctity of life of one individual
7 whose life most likely would have been spared
8 had the death penalty been in place in New York
9 State in the 1970s. I'm referring to Donna
10 Payant, a rookie prison guard, who was murdered
11 in New York State in 1981 by a man named Lemuel
12 Smith who was serving two life sentences for
13 murder. He had been indicted, tried, but never
14 tried for two additional murders of women in New
15 York State. He was also serving a third
16 sentence for kidnapping and rape.
17 Lemuel Smith's MO was
18 particularly hideous. He mutilated his victims
19 by biting them and then he murdered them.
20 During the course of his trial, there was a
21 great deal of drama and attention given to his
22 MO because his defense attorneys worked so hard
23 to prevent an imprint of his teeth being
1472
1 admitted into evidence. They felt that there
2 would be an invasion of his constitutional
3 rights should an imprint of his teeth be taken.
4 I read the transcripts of the
5 trial, and I noted with great interest that back
6 on July 24th, 1981, after the defendant, Lemuel
7 Smith, had been arrested for the first degree
8 murder of Donna Payant, the prosecution moved
9 for an order which would authorize the acqui
10 sition of photographs and dental impressions of
11 the defendant's lower teeth and bite. They did
12 it noting that a forensic expert would then be
13 able to analyze them in comparison to some
14 previous murders in which Lemuel Smith's dental
15 impressions had been the instrument that was
16 used to convict him.
17 The court records further
18 indicate in 1981, following Donna Payant's
19 murder, that the attorneys for Mr. Smith
20 resisted the motion to obtain the dental record,
21 claiming that the court had no legal authority
22 to compel the seizure of his dental records and
23 that it would be a violation of the defendant's
1473
1 constitutional right to privacy. The court in
2 Dutchess County, however, felt differently, and
3 ultimately the records were admitted at the
4 hearing.
5 Reading from the court records at
6 the time, June 12th, 1981, the prosecution
7 called New York State Police Investigator Jack
8 Fox, through whom a photo of the body of the
9 deceased, Donna Payant, was introduced. The
10 photograph depicts her as mutilated by apparent
11 bite marks. The proof at that hearing further
12 established that the medical examiner, Dr.
13 Michael Baden, upon observing Donna Payant's
14 body, contacted Dr. Lowell Levine, a leading
15 forensic odontologist. Dr. Levine then
16 testified that he examined the photographs of
17 the deceased, Donna Payant, for possible bite
18 mark identification. At the time of the
19 examination, Dr. Levine was acquainted with the
20 defendant's dental characteristics since he had
21 in December of 1977, acquired and examined a
22 cast of the defendant's teeth in an examination
23 of a Schenectady County homicide. On the basis
1474
1 of that examination, he had concluded that the
2 defendant, Lemuel Smith, had imposed the bite
3 marks on that victim, Marilee Wilson, in that
4 other homicide.
5 On the basis of these compari
6 sons, Dr. Levine concluded to a reasonable
7 scientific certainty that the same person
8 administered the bite marks to both Donna Payant
9 in the Green Haven Correctional Facility and
10 Marilee Wilson in Schenectady County. Dr.
11 Levine added that it required a cast of the
12 defendant's teeth to confirm that opinion, to
13 make sure that they were in the same position
14 they were in 1977, and the point was made in the
15 court records that Dr. Levine testified that the
16 process of casting and photographing Lemuel
17 Smith's lower teeth would be painless and risk
18 free. Remarkably kind and considerate of Lemuel
19 Smith, I would say.
20 The court went to inordinate
21 lengths to make sure that Lemuel Smith's rights
22 were protected and that he was, quote, "not
23 subjected to any undue pain", but what Donna
1475
1 Payant went through was entirely different.
2 After Dr. Levine concluded his
3 examination, the court records state, "The body
4 of Donna Payant revealed torn nipples and
5 mutilation of the abdomen." There was one
6 distinctly discernible bite mark which formed
7 the basis of his findings and proved beyond any
8 question of a doubt that Lemuel Smith had
9 murdered Donna Payant, mutilated her body and
10 ultimately allowed it to be disposed of in a
11 landfill outside of the prison walls where he
12 served time.
13 Had the death penalty been in
14 effect in the 1970s when Lemuel Smith was
15 originally convicted of murder, there would be
16 no doubt that rookie prison guard Donna Payant
17 would be alive today. She was a young woman
18 with three children who are now all young
19 adults, and the question has to be asked about
20 the justice for the Payant family. The question
21 has to be asked by the taxpayers of this state
22 if, in fact, we have been so preoccupied for the
23 rights of the killers that we have overlooked
1476
1 the rights of the victims of this state.
2 Mr. Smith, Lemuel Smith,
3 continues to make appeals for improvements in
4 his housing condition. He now has a fiancee who
5 writes letters to the court protesting that the
6 housing conditions in which he lives deny them
7 an opportunity for conjugal visits. Mr. Smith's
8 rights continue to be a preoccupation of the
9 court system in this state, but the rights of
10 Donna Payant and the justice afforded to Donna
11 Payant and her family were non-existent.
12 Regrettably, Mr. President, I see
13 no other form of justice that would address the
14 situation in which a rookie prison guard
15 guarding an inmate convicted of two previous
16 murders charged with but not tried for two
17 additional murders faces no other form of
18 retribution.
19 In the name of Donna Payant, I
20 will vote aye, Mr. President.
21 THE PRESIDENT: Senator Bruno.
22 SENATOR BRUNO: Madam President,
23 I believe the two hours has expired. Will you
1477
1 call the question?
2 THE PRESIDENT: Yes. The
3 question is on Senator Bruno's motion to close
4 the debate.
5 Senator Paterson.
6 SENATOR PATERSON: Madam
7 President, since under the rules I can't debate
8 this motion -
9 THE PRESIDENT: No.
10 SENATOR PATERSON: -- I would
11 like a slow roll call.
12 THE PRESIDENT: Slow roll call,
13 please. The clerk will call the roll.
14 THE SECRETARY: Senator Abate.
15 SENATOR ABATE: It's with a great
16 deal of regret that this afternoon -
17 THE PRESIDENT: Is Senator Abate
18 explaining her vote?
19 SENATOR ABATE: Yes, I'm
20 explaining my vote.
21 It's with a great deal of regret
22 that I feel, and I think that regret is shared
23 by many of my colleagues, that we did not have
1478
1 extensive debate on the bill, and that the
2 Minority Conference did not have an opportunity
3 to present a number of very credible hostile
4 amendments.
5 If I had had the opportunity to
6 speak, and unfortunately, I only have about,
7 what, a minute and a half, I would have talked
8 about the need for open and full discovery in
9 capital cases. I would have talked about
10 quality representation issues, the funding of
11 defense counsel to ensure that innocent people
12 are not executed. I will not have that
13 opportunity to speak this afternoon on these
14 critical issues and we will not have full
15 debate, and yet still we will pass the death
16 penalty today.
17 I want to be on record opposed to
18 the death penalty. I will not have an
19 opportunity to explain why I vote this way. I
20 will have to talk to my community. I will have
21 to talk to the press because, in this chamber, I
22 was not given the time to debate this issue.
23 THE PRESIDENT: Continue the slow
1479
1 roll call.
2 THE SECRETARY: Senator Babbush
3 excused.
4 Senator Bruno.
5 SENATOR BRUNO: Yes, and I'd like
6 to explain my vote.
7 Madam President, I understand
8 that people are very emotionally involved in
9 this issue and people have a lot to say. I am
10 also concerned in that we seem to get caught up
11 in this house with procedure, and I hear loud
12 and clear from people on that side of the aisle
13 about procedure, and all I'm listening to is
14 procedure.
15 Now, the rules of this house are
16 very clear for everyone to understand, and
17 they're there before the debate, during the
18 debate and after the debate. Now, if we want to
19 change the rules of this house so that when we
20 agree that some issue is major, that we extend
21 the rule to three hours instead of two, eight
22 hours instead of two, I and my colleagues are
23 open to that, but let's do it procedurally and
1480
1 in an open and fair way.
2 And, Madam President, as for the
3 amount of time for study, Minority counsels on
4 both sides of -- both houses, both sides of the
5 aisle have been in all of the debates and all of
6 the negotiations on this issue. Hopefully, they
7 have been keeping people informed. We have been
8 talking about this issue in this state for 18
9 years. It is no mystery to anyone how we got
10 where we are this afternoon, and having said
11 that -- and I think I may be close to my time -
12 I vote yes.
13 THE PRESIDENT: Continue the slow
14 roll call, please.
15 THE SECRETARY: Senator Connor.
16 SENATOR CONNOR: Madam President,
17 to explain my vote.
18 I would point out, Madam
19 President, that the rule of the house is not
20 that no debate can run longer than two hours.
21 The rule of the house is that after two hours,
22 and only after two hours, can a motion to close
23 debate be made, and nowhere in the rules does it
1481
1 say it must be made. Nowhere in the rules does
2 it say that all the members of the Majority
3 party must vote for it if it's made. It simply
4 is a measure to ensure that there is at least
5 two hours of debate on any matter.
6 It has been the long custom of
7 this house, and I have -- this is the 18th year
8 I have debated on the death penalty, both in
9 chief and also many of those years on motions to
10 override, and it has been the custom of this
11 house on issues like this, other issues
12 involving abortion, other matters that are -
13 that we all recognize are not party matters -
14 and this is not a party matter, the death
15 penalty.
16 THE PRESIDENT: Senator Connor,
17 are you explaining your vote or are you debating
18 the motion?
19 SENATOR CONNOR: I'm explaining
20 my vote, Madam President. I'm entitled to do
21 that in any way I choose.
22 And so, while I appreciate
23 Senator Bruno saying that he would welcome a
1482
1 rules change, I suggest that by at least the 18
2 sessions I have been here, by unvarying custom
3 on this bill, we have allowed the debate to
4 often run to three and a half and four hours.
5 The members understand that they wouldn't make
6 that motion because -- and I'm sure there are
7 members who are for the death penalty who would
8 like to be heard today, and I -- this is rather
9 unprecedented.
10 I understand the rules are the
11 rules. I'm opposed to the motion. I intend to
12 vote no on the motion. I suspect that we will
13 debate the death penalty once again in the near
14 future, and I would just urge, as a matter of
15 procedure, that if we can't do it in the old
16 members agreement, quiet, unspoken -- of course,
17 we let these debates go longer when they involve
18 a matter of conscience, then we do it in some
19 written rule, and I'll certainly ask my counsel
20 to talk to Senator Bruno's counsel first thing
21 in the morning about devising this new rule.
22 THE PRESIDENT: Continue the slow
23 roll call, please.
1483
1 THE SECRETARY: Senator Cook.
2 SENATOR COOK: Yes.
3 THE SECRETARY: Senator
4 DeFrancisco.
5 SENATOR DeFRANCISCO: Explain my
6 vote, please.
7 I don't take any great pride in
8 voting for a death penalty in the state of New
9 York. In order for me to be satisfied that this
10 was a good bill to support, I had to be certain
11 that there were certain -- there were sufficient
12 procedures in sentencing in order to bring all
13 factors before the jury to make certain that an
14 individual will be given a capital sentence only
15 when it's deserved, and that there were many
16 options for the jury other than death.
17 In addition, I wanted to make
18 certain that there was an opportunity since I
19 have done defense work, for competent
20 representation, and I believe that the Capital
21 Offense Defenders Unit provides for that
22 eventuality, provides for that protection.
23 The reason I am supporting the
1484
1 death penalty is that right now, without it,
2 there are certain crimes that have no
3 punishment. If you're a corrections guard and
4 someone is serving two life imprisonments, you
5 have absolutely no reason -- or there's no
6 deterrent whatsoever for an individual to commit
7 the crime of murder. In some instances, if it's
8 a police officer who's trying to -- may be the
9 only witness to a crime that may be trying to
10 apprehend that individual or a witness, why not
11 kill the witness since it's -- there's a chance
12 that maybe you will never be convicted? There's
13 no additional punishment, especially in the
14 cases that I have just mentioned. So these
15 aggravating factors present those cases where
16 right now I don't believe there's a punishment
17 and there should be for all crimes, and as a
18 result, I vote yes for this bill.
19 THE PRESIDENT: Continue the slow
20 roll call.
21 THE SECRETARY: Senator DiCarlo.
22 SENATOR DiCARLO: Yes.
23 SENATOR ONORATO: Are we voting
1485
1 on the bill?
2 THE PRESIDENT: No. We are
3 voting on the motion to close the debate,
4 Senator Bruno's motion to close the debate on
5 Calendar Number 106.
6 THE SECRETARY: Senator
7 Dollinger.
8 SENATOR DOLLINGER: I rise to
9 explain my vote, Madam President. I actually
10 had a whole series of questions that I wanted to
11 ask Senator Volker about the bill. I wanted to
12 turn to page 29 and ask him what the standards
13 were for the financial burdens under which local
14 communities could get state assistance for
15 funding death penalty cases?
16 I wanted to ask him some
17 questions about the cost of that. I wanted to
18 ask him questions about the disposal of the
19 body, an interesting issue that crops up in this
20 piece of legislation. I had never seen it
21 before. I wanted to ask him whether a
22 17-year-old could be executed under the statute
23 because we rigorously say "No person under 18
1486
1 years of age shall be permitted to witness one."
2 I want to know why we would
3 invite six citizens to witness an execution. I
4 wanted to know who would determine who would
5 make judgments about death at the time of
6 death? I wanted to ask all of those questions.
7 I wanted to get up and agree with my colleague,
8 Senator Marchi. I brought Charles Dickens with
9 me, a Tale of Two Cities and Barnaby Welch in
10 which the hangman, Ned Dennis, is mocked by
11 Dickens because he believes that hanging people
12 will change their behavior.
13 I'm not going to get a chance to
14 do that. I'm not going to get a chance to get
15 answers to my questions. I'm not going to get a
16 chance to introduce further protections through
17 amendments by doubling the penalty for perjury
18 so if you lie in a capital case, you'll
19 recognize that it's very, very serious. It's
20 now only a D felony. I'm not going to be able
21 to introduce one that talks about a double
22 indictment and gives the power to a grand jury
23 to indict you, not only for murder, but to
1487
1 impose the penalty or at least put the penalty
2 before the jury so we take it out of the hands
3 of those politically motivated district
4 attorneys.
5 And the last thing I won't be
6 able to do is to put a sunset in this bill so
7 that six years from now before we execute
8 anyone, we'll actually have data about the
9 trials. We'll actually have information about
10 the racial implications. We'll actually know
11 whether innocent people have been convicted, and
12 then we'll be able to make an intelligent choice
13 about this penalty. We should have a chance to
14 debate those today.
15 THE PRESIDENT: Continue the slow
16 roll call.
17 THE SECRETARY: Senator Espada.
18 SENATOR ESPADA: I vote yes.
19 THE SECRETARY: Senator Farley.
20 (There was no response.)
21 Senator Galiber.
22 (There was no response.)
23 Senator Gold.
1488
1 (There was no response.)
2 Senator Gonzalez.
3 SENATOR GONZALEZ: No.
4 THE SECRETARY: Senator Goodman.
5 SENATOR GOODMAN: Aye.
6 THE SECRETARY: Senator Hannon.
7 SENATOR HANNON: Yes.
8 THE SECRETARY: Senator Hoblock.
9 SENATOR HOBLOCK: Yes.
10 THE SECRETARY: Senator
11 Hoffmann.
12 SENATOR HOFFMANN: Explain my
13 vote.
14 I feel very uncomfortable about
15 closing debate prematurely on an issue of this
16 substance. For the last decade, when we have
17 debated this bill on many other occasions, I
18 remember us going over the time limit and with
19 all due respect to Senator Bruno, who is running
20 a very tidy house this year and has earned us
21 great kudos across the state with his good
22 housekeeping, I do feel that in this one
23 instance that it would be inappropriate to
1489
1 curtail debate prematurely, and I take some
2 responsibility in having asked my colleague to
3 hold off on amendments in order that some other
4 members might be able to speak, and I apologize
5 to anybody who may have had that opportunity
6 foreclosed because it had not been made clear
7 that the rule would be enforced so narrowly, and
8 I do hope that Senator Bruno might reconsider
9 the possibility of giving everyone an additional
10 two minutes or three minutes to make abbreviated
11 explanation rather than simply closing debate at
12 this point.
13 If we could have a ladies' and
14 gentlemen's agreement to conclude within the
15 next 10 or 15 minutes, I'm sure that everyone
16 would be satisfied under those circumstances. I
17 understand the list only includes approximately,
18 I believe it's only five people, three and two,
19 and if Senator Dollinger would agree not to
20 engage Senator Volker in a whole series of
21 questions, the decision would be so much easier
22 for Senator Bruno to make to allow a very
23 abbreviated form of discussion.
1490
1 SENATOR DOLLINGER: I never got
2 my chance to ask my questions either.
3 THE SECRETARY: Senator Holland.
4 SENATOR HOLLAND: Yes.
5 THE SECRETARY: Senator Johnson.
6 SENATOR JOHNSON: Aye.
7 THE SECRETARY: Senator Jones.
8 SENATOR JONES: No.
9 THE SECRETARY: Senator Kruger.
10 SENATOR KRUGER: No.
11 THE SECRETARY: Senator Kuhl.
12 SENATOR KUHL: Yes.
13 THE SECRETARY: Senator Lack.
14 SENATOR LACK: Yes.
15 THE SECRETARY: Senator Larkin.
16 (There was no response. )
17 Senator LaValle.
18 SENATOR LAVALLE: Yes.
19 THE SECRETARY: Senator Leibell.
20 SENATOR LEIBELL: Yes.
21 THE SECRETARY: Senator
22 Leichter.
23 SENATOR LEICHTER: Mr.
1491
1 President. I'm afraid there's really a
2 diminution in the civility and the courtesy that
3 I think has characterized this house. It really
4 is unheard of on a debate on a bill of this
5 significance to impose a two-hour limitation
6 and, as Senator Connor rightly pointed out,
7 there's nothing in the rules that says you must
8 stop after two hours.
9 I think that there are members
10 who wish to be heard on this bill. They
11 certainly should have had the opportunity but
12 it's part of the rush of the Majority and of the
13 Majority Leader to pass a death penalty bill. I
14 mean it's as if there are drums here beating
15 death, death, death, death, death without regard
16 to the processes of this house, without regard
17 to the committee system, without regard to the
18 practice and the civility that has obtained in
19 this house; and it is just wrong and it demeans
20 this house, and I think it makes us look foolish
21 before the people of the state of New York.
22 Senator Bruno, I think the people
23 of this state, a majority of them, want a death
1492
1 penalty bill, but they don't want us to act in
2 this fashion. Maybe some members say it's 6:30,
3 it's time for me to go out for dinner. I think
4 we have more important business right here to
5 debate this bill.
6 I vote no.
7 THE SECRETARY: Senator Levy.
8 SENATOR LEVY: Aye.
9 THE SECRETARY: Senator Libous.
10 SENATOR LIBOUS: Aye.
11 THE SECRETARY: Senator Maltese.
12 SENATOR MALTESE: Aye.
13 THE SECRETARY: Senator Marchi.
14 SENATOR MARCHI: Yes.
15 THE SECRETARY: Senator
16 Markowitz.
17 SENATOR MARKOWITZ: Briefly to
18 explain.
19 Senator Bruno, on this issue,
20 we've waited 18 years. I support capital
21 punishment. I'm certainly willing to wait
22 another hour, an hour and a half, and I know the
23 restaurants in Albany will welcome us no matter
1493
1 when we come this evening, and provided it's not
2 too late, because they close kind of early,
3 that's true.
4 But I think for my colleagues,
5 many on this side of the aisle that may be
6 contrary on this issue, they certainly deserve,
7 in my opinion, every opportunity. This is one
8 of those issues that really touches us
9 personally, not just professionally, and I think
10 it would be very decent of you, if you would
11 yield on that, allow those people on both sides
12 that wish to have an opportunity for a few
13 minutes longer.
14 Something tells me we're going to
15 be back on this issue in the next few weeks any
16 way, maybe even the next few days, but still
17 because of the importance of the issue, I hope
18 you will allow us to have a few more moments of
19 debate.
20 I vote no on this.
21 THE PRESIDENT: Continue the slow
22 roll call.
23 THE SECRETARY: Senator Mendez.
1494
1 (There was no response. )
2 Senator Montgomery.
3 SENATOR MONTGOMERY: No.
4 THE SECRETARY: Senator Nanula.
5 SENATOR NANULA: Explain my
6 vote.
7 Madam President, I too, at the
8 desk, had a hostile amendment that I am very
9 disappointed that I will not have the
10 opportunity, nor will we as a chamber here be
11 able to debate and discuss.
12 I personally feel that it's a
13 vital aspect of this legislation, one that has
14 not been covered sufficiently, and that is the
15 fiscal aspects of the administration and
16 prosecution of the death penalty.
17 My amendment very simply requests
18 a study by the Division of Criminal Justice
19 Services, in conjunction with the Office of
20 Court Administration, to analyze the fiscal
21 impact of this legislation and, as far as I'm
22 concerned, especially for the people of my
23 district, this is an unfunded mandate, something
1495
1 we're supposed to be getting away from. The
2 local D.A.s, our criminal justice system,
3 aspects that are being cut in this budget, at
4 the same time are not being given a fiscal
5 allocation within this legislation that would
6 provide the resources needed to prosecute this
7 penalty if the bill was passed.
8 I've had other reservations to
9 the bill in the past. This, in my opinion, if
10 we're going to be moving forward with this
11 legislation, especially in difficult fiscal
12 times as we all degree exist today, we should be
13 focusing on the fiscal aspects of this bill.
14 Again, I'm disappointed that we won't be
15 substantively debating that on this floor
16 today.
17 For that reason, I vote no.
18 THE PRESIDENT: Continue the roll
19 call.
20 THE SECRETARY: Senator
21 Nozzolio.
22 SENATOR NOZZOLIO: Aye.
23 THE SECRETARY: Senator Onorato.
1496
1 SENATOR ONORATO: Explain my
2 vote.
3 Mr. President, even though I'm a
4 co-sponsor of the bill, I -- I do feel that
5 there's an injustice being done here today.
6 We've never been limited in prior years to a
7 two-hour debate and, if the Majority Leader does
8 insist in the future on limiting these two-hour
9 debates, then I believe we have to change the
10 rules to give each of the 60 members of this
11 house an equal opportunity of perhaps having
12 four minutes apiece so that we can all have an
13 equal opportunity to speak, whereas some
14 individuals may hog up the entire two hours
15 leaving the rest of us out in the cold.
16 So under those circumstances, I
17 would like the Majority Leader to reconsider his
18 position today and reserve it for future
19 debates.
20 I vote no.
21 THE SECRETARY: Senator
22 Oppenheimer.
23 SENATOR OPPENHEIMER: On the
1497
1 vote, I have already -- I have already cast my
2 vote because of the budget hearing on
3 transportation, but from what I gather now, I
4 would have supported precisely and I was about
5 to say what Senator Onorato said, which is we
6 have to give everybody in this body an opportun
7 ity to be heard. It's sort of outrageous to cut
8 off people who want to speak who are legislators
9 and try to represent their opinion and their
10 districts.
11 The idea of limiting so that each
12 person gets an equal opportunity to speak seems
13 to me the only way to go if you are going to cut
14 this off at the two-hour limit. So I would
15 strongly support what Senator Onorato has just
16 said and would urge that Senator Bruno at this
17 juncture, say, permit the five people to speak
18 each for three, four minutes and it could be
19 accomplished quickly, and nobody would feel any
20 deprivation.
21 So I will vote no on the
22 resolution and hope that the extra few minutes
23 can be granted to the people who wish to speak.
1498
1 THE SECRETARY: Senator Padavan.
2 SENATOR PADAVAN: Yes.
3 THE SECRETARY: Senator
4 Paterson.
5 SENATOR PATERSON: Mr. President,
6 to explain my vote.
7 There were a number of amendments
8 that were offered by some members today -- by
9 Senator Gold, Senator Abate, Senator Waldon,
10 Senator Nanula and Senator Dollinger. I was
11 going to introduce the first amendment and at
12 that point I yielded my time and the time of all
13 those members, who I would like to apologize to,
14 because there were other individuals who wanted
15 to speak on the bill.
16 We yielded our time as a matter
17 of civility that Senator Leichter was talking
18 about because this is an issue that's on
19 people's minds pro and con. The amendments to
20 the bill are supported by people who are for and
21 against the death penalty.
22 This is the most significant
23 issue that we are debating because this is the
1499
1 issue that the Governor said he wanted to enact
2 first, not because I agree with the Governor,
3 but because this issue has risen to a very great
4 point in our society where people feel a need to
5 discuss it and the fact that these measures,
6 such as the one that Senator Dollinger was going
7 to talk about, about having a five-year sunset
8 to take a look at the statistical data, the cost
9 factor that Senator Nanula was going to discuss,
10 the issue that Senator Waldon was going to
11 discuss on racial justice in the death penalty,
12 the issues involving constitutionality that
13 Senator Gold was going to discuss where the jury
14 is only allowed two electives, death or life
15 without parole and only in the case of the
16 deadlock would there be the regular life
17 sentence meaning that a person could be
18 sentenced to something the jury never arrived
19 at, really infiltrating on the precious right
20 that juries have to make a free and open
21 decision; the issue of the constitutionality of
22 the pre-trial examination of the defendant by
23 the prosecutor's psychiatrist because the
1500
1 defendant is mandated under our new law to give
2 it notice of psychiatric mental state as being a
3 mitigating circumstance, and finally, the
4 Governor purports to exempt mental retardation
5 from the bill and yet that exemption only comes
6 after a finding of guilty by the jury meaning
7 that there can be no discussion of the mental
8 retardation of the defendant until after the
9 trial.
10 Eight states and the federal
11 government have gone away from that and don't
12 allow mental retardation as a -- those who are
13 mentally retarded to be executed at this
14 particular point. These are some of the issues
15 we would have discussed.
16 Our desire to let our other
17 colleagues speak is all we're asking of the
18 Majority Leader, to make sure that all the
19 issues are heard. There is no conflict this
20 evening with any other governmental procedure
21 that I know of unless some of the procedures
22 that will go on after this debate are considered
23 to be governmental. And so the debate which
1501
1 started at 4:10 had to be precluded and these
2 issues were never heard.
3 By the way, by my clock it was
4 4:12, and I operate with -- under the U. S.
5 Naval Observatory Master Clock, and so we should
6 have had an extra two minutes that we were
7 denied.
8 THE PRESIDENT: Continue the slow
9 roll call.
10 THE SECRETARY: Senator Present.
11 SENATOR PRESENT: Aye.
12 THE SECRETARY: Senator Rath.
13 SENATOR RATH: Aye.
14 THE SECRETARY: Senator Saland.
15 SENATOR SALAND: Aye.
16 THE SECRETARY: Senator
17 Santiago.
18 SENATOR SANTIAGO: No.
19 THE SECRETARY: Senator Sears.
20 SENATOR SEARS: Yes.
21 THE SECRETARY: Senator Seward.
22 SENATOR SEWARD: Aye.
23 THE SECRETARY: Senator Skelos.
1502
1 SENATOR SKELOS: Yes.
2 THE SECRETARY: Senator Smith.
3 SENATOR SMITH: Madam President.
4 THE PRESIDENT: Yes.
5 SENATOR SMITH: To explain my
6 vote.
7 I'm really dismayed that, after
8 seven years, that for the first time people will
9 not be given the opportunity to be heard. All
10 of a sudden the rules of the chamber are being
11 invoked. However, at the beginning of session,
12 there was someone taking pictures with a flash
13 and I believe that the rules of the chamber
14 state that no one can use a flash in the
15 chambers. However, I was told the permission
16 was granted for that, something of lesser
17 importance that can take precedence over an
18 important issue such as life and death.
19 We've really come to a parting of
20 the ways between what we have to be limited in
21 what we can say about the life of someone. Life
22 is still very precious to many of us and,
23 therefore, I vote no on this amendment.
1503
1 THE PRESIDENT: Continue the roll
2 call, please.
3 THE SECRETARY: Senator Solomon.
4 (There was no response. )
5 Senator Spano.
6 SENATOR SPANO: Aye.
7 THE SECRETARY: Senator
8 Stachowski.
9 SENATOR STACHOWSKI: No.
10 THE SECRETARY: Senator
11 Stafford. Senator Stafford.
12 SENATOR STAFFORD: Yes.
13 THE SECRETARY: Senator Stavisky
14 excused.
15 Senator Trunzo.
16 SENATOR TRUNZO: Aye.
17 THE SECRETARY: Senator Tully.
18 SENATOR TULLY: Aye.
19 THE SECRETARY: Senator Velella.
20 (There was no response. )
21 Senator Volker.
22 SENATOR VOLKER: Yes.
23 THE SECRETARY: Senator Waldon.
1504
1 SENATOR WALDON: To explain my
2 vote.
3 In the year 1619 at a place that
4 is now known as Jamestown, Virginia, a ship
5 docked. There were 20 indentured blacks on that
6 ship and America's folly with racism began and,
7 despite the contributions of people who are -
8 of my people from Africa in the wars, in
9 education, in science and entertainment, we have
10 not been treated equally in this country, and I
11 believe that the place that we have been treated
12 most disparately is in terms of justice, in
13 terms of justice, and this is an example of
14 gravity, so much so that Senator Bruno said
15 earlier when he was explaining his vote, quote,
16 when we agree that an issue is major then we can
17 extend debate to three, four hours, close
18 quote.
19 What issue is more important,
20 more grave, more meaningful to people, than life
21 and death? And yet we cavalierly slough it
22 off. I believe that we've blown a tremendous
23 opportunity, and I'm going to take this to a
1505
1 higher level.
2 I'm a junior Senator in a
3 relative sense. My budget is diminished because
4 I am in the minority. My member items are
5 diminished because I am in the minority, but I
6 always felt that I had the right to speak on
7 this floor. So despite the fact that I have
8 been treated disparately in terms of my ability
9 under the one man-one vote rule to deliver
10 services to my 300,000 constituents because the
11 Majority has guarded all the money and kept it
12 for your own use, today I'm even denied the
13 right to speak -- to speak in a free society on
14 an important issue.
15 Mr. Bruno, I think that you blew
16 it. I think this chamber blew it. I think the
17 people of New York State have blown it, and I
18 will be heard. We will have a press conference
19 following this, outside, if the press wants to
20 hear what I want and have to say, please come,
21 on my hostile amendments and I invite anybody
22 and everybody who wants to speak to join me in
23 that exercise.
1506
1 I vote no.
2 THE PRESIDENT: Continue the slow
3 roll call, please.
4 THE SECRETARY: Senator Wright.
5 SENATOR WRIGHT: Aye.
6 THE PRESIDENT: Absentees.
7 THE SECRETARY: Senator Farley.
8 (There was no response.)
9 Senator Galiber.
10 (There was no response.)
11 Senator Gold.
12 (There was no response. )
13 Senator Larkin.
14 (There was no response. )
15 Senator Mendez.
16 (There was no response. )
17 THE PRESIDENT: The results,
18 please.
19 THE SECRETARY: Ayes 32, nays
20 19.
21 THE PRESIDENT: Senator Bruno's
22 motion to close the debate on Calendar Number
23 106 is agreed to.
1507
1 The clerk will read the last
2 section of the bill, please.
3 SENATOR PATERSON: Slow roll
4 call.
5 THE SECRETARY: Section 38. This
6 act shall take effect on the 1st day of
7 September next succeeding date on which it shall
8 have become a law.
9 THE PRESIDENT: A slow roll call
10 is requested. The clerk will call the roll,
11 please.
12 THE SECRETARY: Senator Abate.
13 SENATOR ABATE: No.
14 THE SECRETARY: Senator Babbush
15 excused.
16 Senator Bruno.
17 SENATOR BRUNO: Yes.
18 THE SECRETARY: Senator Connor.
19 SENATOR CONNOR: No.
20 THE SECRETARY: Senator Cook.
21 SENATOR COOK: Yes.
22 THE SECRETARY: Senator
23 DeFrancisco.
1508
1 SENATOR DeFRANCISCO: No.
2 THE SECRETARY: Senator DiCarlo.
3 SENATOR DiCARLO: Yes.
4 THE SECRETARY: Senator
5 Dollinger.
6 SENATOR DOLLINGER: To explain my
7 vote, Mr. President.
8 The -- I wish I'd had an
9 opportunity to talk during the course of the
10 debate. I was -- that opportunity has been
11 taken away by the Majority, but it's unfortun
12 ate, I guess, when I look at this bill which
13 seems to have so many large defects still a part
14 of it, things that could be improved upon.
15 Since when did we in the state of
16 New York turn our backs on things that could
17 improve a bill? But more importantly, I guess I
18 just have to respond to the one thing that
19 Senator Maltese said. He says we have to do the
20 best thing we can for the people of this state.
21 Well, to the people of this
22 state, I say very simply, it may be one of the
23 cheapest things we can do because we're not
1509
1 spending any money. It has no appropriation
2 attached to it. I agree with my colleague,
3 Senator Nanula, that this is a large unfunded
4 mandate. We'll talk about that outside when I
5 join Senator Waldon in his press conference and
6 it probably is the most punitive thing we could
7 do.
8 Sure, we can take away lives.
9 But is this -- this bill, this hastily put
10 together bill that has all kinds of questions -
11 I went through just the back half of it, those
12 procedural steps that I hadn't had before, I've
13 got question marks all over it -- is this the
14 best we can do for the people of this state?
15 It's the best we can do in two
16 hours with our debate cut off, our opportunity
17 for amendments cut off because the Majority
18 wants to meet its political agenda. But don't
19 anyone kid themselves. This is not the best
20 that the Senate can do for the people of the
21 state of New York.
22 I vote no.
23 THE PRESIDENT: Continue the slow
1510
1 roll call, please.
2 THE SECRETARY: Senator Espada.
3 SENATOR ESPADA: No.
4 THE SECRETARY: Senator Farley
5 voting in the affirmative earlier today.
6 Senator Galiber voting in the
7 negative earlier today.
8 Senator Gold voting in the
9 negative earlier today.
10 Senator Gonzalez.
11 (There was no response. )
12 Senator Goodman.
13 SENATOR GOODMAN: Yes.
14 THE SECRETARY: Senator Hannon.
15 SENATOR HANNON: Yes.
16 THE SECRETARY: Senator Hoblock.
17 SENATOR HOBLOCK: Yes.
18 THE SECRETARY: Senator
19 Hoffmann.
20 SENATOR HOFFMANN: Yes.
21 THE SECRETARY: Senator Holland.
22 SENATOR HOLLAND: Yes.
23 THE SECRETARY: Senator Johnson.
1511
1 SENATOR JOHNSON: Yes.
2 THE SECRETARY: Senator Jones.
3 SENATOR JONES: No.
4 THE SECRETARY: Senator Kruger.
5 SENATOR KRUGER: Yes.
6 THE SECRETARY: Senator Kuhl.
7 SENATOR KUHL: Yes.
8 THE SECRETARY: Senator Lack.
9 SENATOR LACK: Aye.
10 THE SECRETARY: Senator Larkin
11 voting in the affirmative earlier today.
12 Senator LaValle.
13 SENATOR LAVALLE: Yes.
14 THE SECRETARY: Senator Leibell.
15 SENATOR LEIBELL: Yes.
16 THE SECRETARY: Senator
17 Leichter.
18 SENATOR LEICHTER: No.
19 THE SECRETARY: Senator Levy.
20 SENATOR LEVY: Aye.
21 THE SECRETARY: Senator Libous.
22 (There was no response. )
23 Senator Maltese.
1512
1 SENATOR MALTESE: Aye.
2 THE SECRETARY: Senator Marchi.
3 SENATOR MARCHI: No.
4 THE SECRETARY: Senator
5 Markowitz.
6 SENATOR MARKOWITZ: Ever so
7 briefly. I know that we'll debate this issue
8 again in the very, very near future. This issue
9 each year, sometimes twice a year, is like a
10 kidneystone. It's like a gall bladder attack.
11 It's like a root canal that we don't want.
12 In a perfect world, we wouldn't
13 have to face this issue. If Christ, Moses and
14 Mohammed would appear on earth, I pray to the
15 Lord that that would happen and cleanse all of
16 us and save all of us human beings, that would
17 be the best -- the best that can possibly
18 happen.
19 There's no amount of refinement
20 on this bill that can possibly cure for those
21 that are against the death penalty. There is no
22 bill that can be presented, in my opinion, to
23 those of my colleagues, Republicans and
1513
1 Democrats, that are vehemently opposed to the
2 state's right to take a life, and so I respect
3 your desire to make an imperfect bill as perfect
4 as an imperfect bill can be, meaning that none
5 -- none -- no bill can be presented that can
6 dissuade you from your particular opinion.
7 I wish this wasn't an issue, but
8 the fact of the matter is we live in this kind
9 of society in which there are human beings born
10 and raised, not necessarily because of their
11 home life. Maybe it's something in the air, I
12 don't know, that somehow causes someone to begin
13 a life of anti-social behavior that, quite
14 frankly, my colleagues, exhibits a complete
15 disrespect for life.
16 There is such crimes that I
17 believe call out for our society's right to
18 impose the maximum sentence, and I recognize
19 that there are few arguments that I could
20 present that can possibly change the mind of
21 those that are opposed to this death penalty.
22 Suffice it to say this, that I
23 believe and the only reason why I support this,
1514
1 Senator Montgomery, and some other of my
2 colleagues, is that the great majority of crime
3 in our state is caused by people in the
4 minorities on fellow minorities. There's no
5 question that every statistic reluctantly bears
6 that out; and so I look upon the imposition of
7 the death penalty not only to bring justice,
8 justice to African-American families in our
9 society that are -- that the end result is that
10 are receiving the greatest amount of crime on
11 themselves, their families and their
12 communities, not only for that reason but also
13 as I hope in a way to save -- to save the lives
14 of African-Americans, Latinos and others in our
15 society, to save their lives once and for all,
16 to say to that one person that black life is
17 equal to white life. Black life is worth no
18 less than white life. We are equal. The days
19 of slavery are over. The days of discrimination
20 are over.
21 Yes, there is some racism; there
22 is no question there is some racism in our
23 society. I'm not going to deny that. There is
1515
1 also anti-Semitism in our society, anti-Asian
2 feeling in our society. I can go on and on, but
3 I believe that, as a society, we have to make a
4 statement and the statement is to save lives.
5 If the imposition of the death
6 penalty can be implemented in our state, if we
7 can get the message across to young people
8 regardless of their ethnic and racial
9 backgrounds, regardless, to value life, to value
10 life, to know that, if they commit the ultimate
11 sentence, the ultimate crime, that they have to
12 be prepared to give up their own, perhaps then
13 we will slowly begin to see a restoration of
14 respect for life of the value of life.
15 Perhaps I'm wrong, perhaps I'm
16 right. This is an issue. I've read every
17 statistic there is, Senator Leichter, every
18 statistic there is. We can make statistics go
19 this way or that way to prove that it is a
20 deterrent or not a deterrence.
21 I wish this wasn't an issue. I
22 wish we didn't have to vote on it. I wish that
23 violent crime did not happen in our society. I
1516
1 hope and pray that in my lifetime and in yours
2 that this issue will become a non-issue, that in
3 fact there will be elimination of death and a
4 restoration of value of life.
5 I vote yes.
6 THE PRESIDENT: Continue the slow
7 roll call.
8 THE SECRETARY: Senator Mendez
9 voting in the negative earlier today.
10 Senator Montgomery.
11 SENATOR MONTGOMERY: To explain
12 my vote, Mr. President.
13 Just briefly, I certainly can
14 agree with Senator Markowitz that my community
15 is plagued with crime and my constituents are
16 victimized far more than many other communities
17 across this state, but I don't believe for one
18 minute that this death penalty addresses the
19 crime in my district, and I do not believe for
20 one minute that this -- this death penalty is
21 going to stem the tide in the kind of crime that
22 takes place on constituents in my district by
23 other constituents in my district.
1517
1 So, while I certainly agree with
2 Senator Markowitz, I wish that Jesus and
3 Mohammed and Moses would come, but until that
4 happens, I don't believe that we should put
5 ourselves in a position to be judge, and I
6 certainly agree with Senator Marchi about his
7 quote from the Bible that I believe in as well,
8 that God is the judge of all of us.
9 So I vote no, Mr. President.
10 THE PRESIDENT: Continue the slow
11 roll call, please.
12 THE SECRETARY: Senator Nanula.
13 SENATOR NANULA: No.
14 THE SECRETARY: Senator
15 Nozzolio.
16 SENATOR NOZZOLIO: Aye.
17 THE SECRETARY: Senator Onorato.
18 SENATOR ONORATO: Aye.
19 THE SECRETARY: Senator
20 Oppenheimer voting in the negative earlier
21 today.
22 Senator Padavan.
23 SENATOR PADAVAN: Yes.
1518
1 THE SECRETARY: Senator
2 Paterson.
3 SENATOR PATERSON: On January
4 25th of this year, there was an execution that
5 was rather significant. It was an execution of
6 a white American for the murder of a black
7 American, and in the 258 executions that had
8 preceded it since 1963 there had only been one
9 such case, and that involved a contract
10 killing.
11 In the history of the United
12 States, there has never been an execution of a
13 white American for the death of a Latino
14 American.
15 Now, the reason I cite these
16 statistics is because, although African
17 Americans are 40 percent of the deaths in
18 murders in this country, they are only 13
19 percent of the murders where the murderer
20 received an execution. So the price of the life
21 is not only that related to the individual who
22 is executed, some of the racial discrimination
23 involves the price of the life that is lost and
1519
1 the vigorousness with which it is prosecuted.
2 Senator Montgomery said earlier
3 that in North Carolina prosecutors sought the
4 death penalty 78 percent of the time when the
5 victim is white and only 39 percent of the time
6 when the victim is black. As long as we have
7 this kind of polarization in the administration
8 of justice, I feel that the death penalty is not
9 accurate. And I finally would close -- I mean
10 that the death penalty is really not relevant.
11 And I would just close by saying
12 that when Governor Pataki signed the declaration
13 allowing Mr. Grasso to go to Oklahoma, he
14 fulfilled his fantasy because Mr. Grasso wants
15 to die. He considers the life without parole to
16 be a torture.
17 There have been a number of
18 heinous crimes described by advocates for the
19 death penalty today. I'm sure if you talked to
20 the perpetrators, the life without parole would
21 be the torture that we would all admit that they
22 deserve.
23 Thank you, Mr. President.
1520
1 THE PRESIDENT: Continue the roll
2 call, please.
3 THE SECRETARY: Senator Present.
4 SENATOR PRESENT: Aye.
5 THE SECRETARY: Senator Rath.
6 SENATOR RATH: Aye.
7 THE SECRETARY: Senator Saland.
8 SENATOR SALAND: Aye.
9 THE SECRETARY: Senator
10 Santiago.
11 SENATOR SANTIAGO: No.
12 THE SECRETARY: Senator Sears.
13 SENATOR SEARS: Aye.
14 THE SECRETARY: Senator Seward.
15 SENATOR SEWARD: Yes.
16 THE SECRETARY: Senator Skelos.
17 SENATOR SKELOS: Yes.
18 THE SECRETARY: Senator Smith.
19 SENATOR SMITH: Madam president,
20 I'm pleased to join with the New York State
21 Criminal Justice Alliance, the New Yorkers
22 Against the Death Penalty, the New York State
23 Bar Association Criminal Justice Section, the
1521
1 Women's Bar Association of the State of New
2 York, the New York State Catholic Conference,
3 the New York Civil Liberties Union, the
4 Association of the Bar of the City of New York,
5 the Committee on Civil Rights, the New York
6 State Council of churches and the Interfaith
7 Impact in opposing this bill.
8 THE PRESIDENT: Continue the roll
9 call, please.
10 THE SECRETARY: Senator Solomon
11 voting in the affirmative earlier today.
12 Senator Spano.
13 SENATOR SPANO: Aye.
14 THE SECRETARY: Senator
15 Stachowski.
16 SENATOR STACHOWSKI: Yes.
17 THE SECRETARY: Senator Stafford
18 voting in the affirmative earlier today.
19 Senator Stavisky excused.
20 Senator Trunzo.
21 SENATOR TRUNZO: Yes.
22 THE SECRETARY: Senator Tully
23 voting in the affirmative earlier today.
1522
1 Senator Velella.
2 (There was no audible response. )
3 Senator Volker.
4 SENATOR VOLKER: Yes.
5 THE SECRETARY: Senator Waldon.
6 (Negative indication. )
7 THE SECRETARY: Senator Wright.
8 SENATOR WRIGHT: Aye.
9 THE PRESIDENT: Absentees.
10 THE SECRETARY: Senator
11 Gonzalez.
12 SENATOR GONZALEZ: No.
13 THE SECRETARY: Senator Libous.
14 SENATOR LIBOUS: Aye.
15 THE PRESIDENT: The results,
16 please. The results, please.
17 THE SECRETARY: Ayes 39, nays
18 18.
19 THE PRESIDENT: This death
20 penalty bill is passed.
21 SENATOR LEICHTER: Mr.
22 President.
23 THE PRESIDENT: Senator Bruno.
1523
1 SENATOR LEICHTER: Madam
2 President, may I have unanimous consent to be
3 recorded in the negative on Calendar Number 62
4 which passed earlier today.
5 THE PRESIDENT: Without
6 objection.
7 Senator Levy has a motion.
8 SENATOR LEVY: Yes. Madam
9 President, on page 6, I offer the following
10 amendments to Calendar Number 77, Senate Print
11 328, and ask that it retain its place on the
12 Third Reading Calendar.
13 THE PRESIDENT: Amendments
14 received.
15 Senator Bruno.
16 SENATOR BRUNO: Madam President,
17 there being no further business to come before
18 the Senate, I move we stand adjourned until
19 tomorrow at 3:00 p.m. sharp.
20 THE PRESIDENT: Without
21 objection, the Senate stands adjourned.
22 (Whereupon at 7:02 p.m., the
23 Senate adjourned.)