Regular Session - March 6, 1995
1803
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8 ALBANY, NEW YORK
9 March 6, 1995
10 3:02 p.m.
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13 REGULAR SESSION
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17 LIEUTENANT-GOVERNOR BETSY McCAUGHEY, President
18 STEPHEN F. SLOAN, Secretary
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1804
1 P R O C E E D I N G S
2 THE PRESIDENT: The Senate will
3 come to order. Would you please rise and join
4 with me in the Pledge of Allegiance.
5 (The assemblage repeated the
6 Pledge of Allegiance to the Flag.)
7 Senator Bruno.
8 SENATOR BRUNO: Madam President,
9 in the absence of clergy, can I suggest that the
10 members in this house bow their heads in a
11 moment of silent prayer and have their thoughts
12 turned to Senator Frank Padavan, his family, and
13 pray for his wife who passed away yesterday.
14 THE PRESIDENT: Yes. May we bow
15 our heads in a moment of silence.
16 (A moment of silence was
17 observed.)
18 The reading of the Journal,
19 please.
20 THE SECRETARY: In Senate,
21 Sunday, March 5. Senator Farley in the Chair.
22 The Senate met pursuant to adjournment. The
23 Journal of Saturday, March 4, was read and
1805
1 approved. On motion, the Senate adjourned.
2 THE PRESIDENT: Without
3 objection, the Journal stands approved as read.
4 Presentation of petitions.
5 Messages from the Assembly.
6 Messages from the Governor.
7 Reports of standing committees.
8 The Secretary will read.
9 THE SECRETARY: Senator Trunzo,
10 from the Committee on Civil Service and
11 Pensions, reports the following bills: Senate
12 Print 1045-A, by Senator Spano, an act to amend
13 the Civil Service Law, in relation to
14 disciplinary action.
15 Senate Print 1539, by Senator
16 Farley, an act to amend the Civil Service Law,
17 in relation to notifying candidates of a
18 preference for a resident.
19 Senate Print 1976, by Senator
20 Levy, an act to amend the Education Law and the
21 Local Finance Law, in relation to refinancing of
22 payments.
23 Senate Print 2223, by Senator
1806
1 Trunzo, an act to amend the Retirement and
2 Social Security Law, in relation to allowing
3 participating employers in the New York State
4 and Local Employees Retirement System.
5 Senator Present, from the
6 Committee on Commerce, Economic Development and
7 Small Business, reports: Senate Print 899-A, by
8 Senator Rath, an act to amend the State
9 Administrative Procedure Act, in relation to
10 guidance and compliance documents.
11 Senate Print 900, by Senator
12 Rath, an act to amend the State Administrative
13 Procedure Act, in relation to requiring that
14 regulatory impact statements deal with
15 conflicting state and federal requirements.
16 Senate Print 901, by Senator
17 Rath, an act to amend the Administrative
18 Procedure Act, in relation to advanced notice.
19 Senator Marchi, from the
20 Committee on Corporations, reports: Senate
21 Print 1038, by Senator Padavan, an act to amend
22 the Public Authorities Law, in relation to the
23 composition of a committee to review and report
1807
1 on contracts.
2 Senate Print 1720, by Senator
3 LaValle, an act to amend the Public Authorities
4 Law, in relation to financing and construction
5 of certain facilities.
6 Senate Print 1746, by Senator
7 Goodman, an act authorizing the Dormitory
8 Authority of the state of New York to plan,
9 design and acquire a facility.
10 Senate Print 2198, by Senator
11 Marchi, an act to amend the Not-for-Profit
12 Corporation Law, in relation to not-for-profit
13 corporations.
14 And Senate Print 2496, by Senator
15 Marchi, an act to amend the Public Authorities
16 Law, in relation to and for the purpose of
17 enabling the Dormitory Authority to construct
18 and finance dormitories.
19 All bills report directly for
20 third reading.
21 THE PRESIDENT: Without
22 objection, all bills will go directly to the
23 third reading.
1808
1 Reports of select committees.
2 Communications and reports from
3 state officers.
4 Motions and resolutions.
5 Senator Bruno.
6 SENATOR BRUNO: Madam President,
7 can we now take up the non-controversial
8 calendar?
9 THE PRESIDENT: There are two
10 motions at the desk.
11 SENATOR RATH: Motions and
12 resolutions.
13 SENATOR BRUNO: Without
14 objection.
15 THE PRESIDENT: Senator Bruno,
16 there are two motions here. Shall we take those
17 up first?
18 SENATOR BRUNO: Yes.
19 SENATOR RATH: Madam President.
20 THE PRESIDENT: Senator Rath.
21 SENATOR RATH: On page 4, I offer
22 the following amendments to Calendar 53, Senate
23 Print Number 208-A, and ask that said bill
1809
1 retain its place on the Third Reading Calendar.
2 THE PRESIDENT: Amendments are
3 received.
4 Oh, Senator DiCarlo.
5 SENATOR DiCARLO: Yes, Madam
6 President. On behalf of Senator Holland, on
7 page 6, I offer the following amendments to
8 Calendar 91, Senate Print 2046, and ask that
9 said bill retain its place on the Third Reading
10 Calendar.
11 THE PRESIDENT: Amendments are
12 received.
13 Senator Bruno.
14 SENATOR BRUNO: Madam President,
15 now can we take up the non-controversial
16 calendar?
17 THE PRESIDENT: The Secretary
18 will read.
19 THE SECRETARY: On page 4,
20 Calendar Number 52, by Senator Tully, Senate
21 Print 187, an act to amend the Penal Law, in
22 relation to the calculation of terms of
23 imprisonment.
1810
1 SENATOR PATERSON: Lay it aside.
2 THE PRESIDENT: Lay it aside,
3 please.
4 THE SECRETARY: Senate -
5 Calendar Number 60, by Senator Levy, Senate
6 Print 773, an act to amend the Penal Law, in
7 relation to including the theft of dogs and
8 cats.
9 SENATOR PATERSON: Lay it aside.
10 THE PRESIDENT: Lay it aside,
11 please.
12 THE SECRETARY: Calendar Number
13 74, by Senator Marchi, Senate Print 546, an act
14 to amend the Judiciary Law, in relation to
15 creating the 13th Judicial District consisting
16 of the county of Richmond.
17 SENATOR PATERSON: Lay it aside,
18 please.
19 THE PRESIDENT: Lay it aside,
20 please.
21 THE SECRETARY: Calendar Number
22 79, by Senator Levy, Senate Print 384, an act to
23 amend the Vehicle and Traffic Law, in relation
1811
1 to requiring school bus drivers involved in
2 personal injury accidents.
3 SENATOR PATERSON: Lay it aside,
4 please.
5 THE PRESIDENT: Lay it aside,
6 please.
7 THE SECRETARY: Calendar Number
8 95, by Senator Stafford, Senate Print 628, an
9 act to amend the Tax Law, in relation to the
10 distribution of the additional mortgage
11 recording tax.
12 THE PRESIDENT: Read the last
13 section, please.
14 THE SECRETARY: Section 2. This
15 act shall take effect on the 30th day.
16 THE PRESIDENT: Call the roll.
17 (The Secretary called the roll.)
18 THE PRESIDENT: Results.
19 THE SECRETARY: Ayes 50.
20 THE PRESIDENT: The bill is
21 passed.
22 THE SECRETARY: Calendar Number
23 109, by Senator Johnson, Senate Print 1637, an
1812
1 act to authorize payment of transportation aid
2 to the Lindenhurst Union Free School District.
3 THE PRESIDENT: Read the last
4 section, please. Oh, there is a local fiscal
5 impact note at the desk. Read the last section,
6 please.
7 THE SECRETARY: Section 3. This
8 act shall take effect immediately.
9 THE PRESIDENT: Call the roll.
10 (The Secretary called the roll.)
11 THE SECRETARY: Ayes 50.
12 THE PRESIDENT: The bill is
13 passed.
14 Senator Bruno, that completes the
15 non-controversial reading of the calendar.
16 SENATOR BRUNO: Madam President,
17 can we call for an immediate meeting of the
18 Rules Committee, Room 332?
19 THE PRESIDENT: Yes. There will
20 be an immediate meeting of the Rules Committee
21 in Room 332.
22 SENATOR BRUNO: Madam President,
23 can we now go to the controversial calendar?
1813
1 THE PRESIDENT: The Secretary
2 will read.
3 THE SECRETARY: Calendar Number
4 52, by Senator Tully, Senate 187, an act to
5 amend the Penal Law, in relation to the
6 calculation of terms of imprisonment.
7 THE PRESIDENT: Senator Bruno -
8 excuse me. Senator Bruno.
9 SENATOR BRUNO: Madam President,
10 can we return to motions on behalf of Senator
11 Levy -
12 THE PRESIDENT: Yes.
13 SENATOR BRUNO: -- and place a
14 sponsor's star on Calendar Numbers 60 and 79.
15 THE PRESIDENT: The bill will be
16 starred at the request of the sponsor.
17 SENATOR BRUNO: Thank you, Madam
18 President.
19 The regular order.
20 THE PRESIDENT: The Secretary
21 will read.
22 THE SECRETARY: Calendar Number
23 52, by Senator Tully, Senate 187, an act to
1814
1 amend the Penal Law, in relation to the
2 calculation of terms of imprisonment.
3 SENATOR PATERSON: Explanation.
4 THE PRESIDENT: An explanation is
5 requested, Senator Tully.
6 SENATOR TULLY: Thank you, Madam
7 President.
8 This bill removes the existing
9 limit on adding a time period of consecutively
10 imposed indeterminate prison sentences with
11 regard to both adult and juvenile offenders.
12 It's the outgrowth of the original problem that
13 we had in the Westbury Diner incident where
14 multiple felonies took place involving several
15 defendants and at that particular time, we
16 raised the then cap on sentences to no more than
17 20 years or if one of the sentences was for a
18 class B violent felony conviction, no more than
19 50 years. This bill removes the cap on limits
20 and provides for as long as the individual
21 felonies contained sentences can go on to beyond
22 as far as the individual will live.
23 THE PRESIDENT: Thank you,
1815
1 Senator Tully.
2 Senator Paterson.
3 SENATOR PATERSON: Madam
4 President, with the amount of time we're going
5 to spend on other issues today, I won't debate
6 this bill other than just to point out that last
7 year Senators Espada, Galiber, Gold, Kruger,
8 Mendez, Montgomery, Santiago and Smith voted
9 against it.
10 THE PRESIDENT: Read the last
11 section, please.
12 THE SECRETARY: Section 2. This
13 act shall take effect on the 1st day of
14 November.
15 THE PRESIDENT: Call the roll.
16 (The Secretary called the roll.)
17 SENATOR GOLD: Which calendar?
18 THE PRESIDENT: Calendar Number
19 52.
20 THE PRESIDENT: Results.
21 THE SECRETARY: Those recorded in
22 the negative on Calendar Number 52 are Senators
23 Connor, Espada, Galiber, Gold and Paterson.
1816
1 Ayes 48, nays 5.
2 THE PRESIDENT: The bill is
3 passed.
4 THE SECRETARY: Calendar Number
5 74, by Senator Marchi, Senate 546, an act to
6 amend the Judiciary Law, in relation to creating
7 the 13th Judicial District.
8 THE PRESIDENT: Read the last
9 section.
10 SENATOR BRUNO: Madam President,
11 Senator Marchi should be in momentarily. He's
12 in the Rules Committee. We've sent for him. I
13 expect he'll be here any second. If you will
14 give us a few seconds.
15 (Whereupon, the Senate stood at
16 ease.)
17 SENATOR BRUNO: Madam President,
18 I think in the absence of Senator Marchi, we
19 might recognize Senator Tully who can start the
20 explanation on behalf of Senator Marchi.
21 THE PRESIDENT: Senator Tully.
22 SENATOR TULLY: Thank you, Madam
23 President.
1817
1 In baseball, they have the
2 designated hitter and they're thinking of doing
3 something like that similar this year and -
4 when they don't have the regular players
5 available. I think that's really the situation
6 I find myself in, but suffice it to say, there
7 are currently under existing law, Section 70 of
8 the Judiciary Law and Section 140 of the same
9 law that provide for 12 judicial districts in
10 this state.
11 This bill seeks to create a 13th
12 Judicial District so that Kings County, which is
13 now in the 2nd Judicial District with Richmond
14 County, will be eliminated from the -- Richmond
15 County will be eliminated and Kings County will
16 remain in the 2nd Judicial District.
17 This measure would include
18 enabling provisions in both sections of the
19 Judiciary Law 70 and 140 which would ensure that
20 the employment status of employees of the
21 Supreme Court in the 2nd Judicial District in
22 office on January 1st, 1997 will not be
23 impaired. These employees would be continued in
1818
1 office in the 2nd Judicial District and in the
2 new 13th Judicial District depending upon former
3 work site.
4 THE PRESIDENT: Thank you,
5 Senator Tully.
6 Senator Leichter.
7 SENATOR LEICHTER: Madam
8 President, if Senator Tully would yield, please.
9 THE PRESIDENT: Senator Tully.
10 SENATOR TULLY: Yes, Madam
11 President.
12 SENATOR LEICHTER: Senator, I
13 appreciate -- think you referred to yourself as
14 a designated hitter, not a replacement player, I
15 was interested to see, and I think that's
16 appropriate.
17 Now, I have a couple of questions
18 on it, if you would yield, and my first one is,
19 what is the cost of that? When we create a new
20 judicial district, I assume you need a certain
21 amount of support staff, and I wonder if you
22 have a figure as to what that will cost?
23 SENATOR TULLY: Yes, Madam
1819
1 President.
2 THE PRESIDENT: Senator Tully.
3 SENATOR TULLY: The first pitch
4 has come in, I've let it go by as a ball and
5 pending counsel's appearance, if not Senator
6 Marchi who is here is going to tell you exactly
7 the answer to that question, Senator Leichter.
8 I'm glad you asked it. Senator -- Madam
9 President -
10 THE PRESIDENT: Senator Leichter,
11 you might want to repeat the question for
12 Senator Marchi.
13 SENATOR LEICHTER: I just want to
14 assure Senator Tully that that pitch was not
15 aimed at his head but, Senator Marchi, we were
16 just beginning to debate your bill on the 13th
17 Judicial District and Senator Tully, very ably,
18 seemed to have convinced all the other members
19 of the Legislature and Senate and possibly even
20 me, but I had a number of questions, one of them
21 -- and the first one which I just posed to him
22 related to the cost. What does it cost the
23 state of New York to establish a new judicial
1820
1 district?
2 SENATOR MARCHI: Well, frankly,
3 Mr. President -- Madam President, I had put that
4 question very directly to our administrator,
5 Judge Milonas. He said -- he said that was a
6 very, very miniscule, minor item.
7 THE PRESIDENT: Can't hear. It's
8 getting too noisy in here. Go ahead.
9 SENATOR MARCHI: That is a very
10 minor, miniscule item and it's awash with
11 respect to those minimal services that would not
12 be required in Kings County. We've gone through
13 this with other areas without -- without
14 impinging in any serious fashion.
15 I have to put in bold relief,
16 Senator, your -- you know the price that we -
17 that we feel, at least that minimal price that
18 we ought to be disposed to commit ourselves to
19 with -- in those circumstances where a -- people
20 are denied any opportunity or minimal
21 opportunity to formulate. I can assure you
22 that, in my county, there is strong bipartisan
23 support, so that the decisions are not made in
1821
1 other surroundings that are distant and remote
2 from the problems of the -- of the county of
3 Richmond.
4 We have passed this bill before,
5 but if you have any severe difficulty, I could
6 -- and you would like to discuss it with Judge
7 Milonas for any reason -- but I really don't see
8 any reason why we can't take this bill up in the
9 same fashion that we took Queens and other
10 areas.
11 This -- the cost is not a factor,
12 and this he assured me. Now, if things haven't
13 changed -- I spoke to him, I guess, in November,
14 December of '94, things haven't changed, I have
15 to assume that we're not talking about something
16 that would impinge in any serious way on -- on
17 the budget allocation, which is stringent for
18 every corner of the state.
19 SENATOR LEICHTER: Madam
20 President, if Senator Marchi would continue to
21 yield.
22 Senator, I'm not sure I
23 understood your answer, partly because your
1822
1 voice was uncharacteristically low -- I'm
2 sorry. I see you're suffering from a cold.
3 SENATOR MARCHI: I just came from
4 the nurse. She gave me a lot of -
5 SENATOR LEICHTER: I can offer
6 you a cough drop, and I don't want to impose on
7 you when your vocal cords aren't their usual
8 strong self but, you know, you referred to this
9 as a minimal cost, and it may be minimal
10 compared, let's say, to the budget for
11 education, but I think we're talking about a few
12 million dollars, because you've got to set up a
13 total structure now for a judicial district
14 which means presiding judges, administrative
15 personnel, and it really is not going to reduce
16 the cost of the Kings Judicial District because
17 it's really the support staff which has to be
18 separately established which I think is going to
19 be the cost of this. So would it be fair to say
20 that we're talking of a few million dollars
21 annually?
22 SENATOR MARCHI: No, I understand
23 that.
1823
1 THE PRESIDENT: Senator Marchi,
2 can I -
3 SENATOR MARCHI: Again, if I -
4 if you feel discomforted and you'd rather talk
5 to Judge Milonas about it -- but he assured me
6 that we're not dealing with anything
7 significant, certainly not in that magnitude.
8 SENATOR LEICHTER: Senator, is
9 OCA -- is Judge Milonas backing this bill?
10 THE PRESIDENT: Senator Marchi.
11 SENATOR MARCHI: I wouldn't -- he
12 said there would be no problem -- there would be
13 no problem, and he had no objections at that
14 point, but it would be misleading to tell this
15 body that I -- that he -- that this legislation
16 specifically has his backing. No, I wouldn't
17 want to say that. I just assume from that
18 conversation that he has no objection to its
19 consideration, and he was very supportive of -
20 if that's what we wanted to do, but again,
21 I'm -
22 THE PRESIDENT: Senator Leichter.
23 SENATOR LEICHTER: Yes, Madam
1824
1 President. Thank you very much, Senator
2 Marchi.
3 I think there are some arguments
4 for having a separate judicial district for the
5 county of Richmond. Obviously, it's a very
6 large county, and I can understand also Senator
7 Marchi's sense of identity of sort of Staten
8 Island nationalism which we've seen here, which
9 is understandable and even laudatory in many
10 ways.
11 I'm just concerned about the
12 Legislature creating additional judicial
13 districts, creating additional divisions as we
14 probably should be doing it and doing it in this
15 sort of an ad hoc fashion. I think it really
16 ought to be looked at for the whole state.
17 Maybe it ought to be part of the bill that deals
18 with this very nettlesome question of the Fifth
19 Department, although I can understand some
20 practical reasons why you may not want that,
21 Senator Marchi, but I think Senator Lack is
22 approaching this in a very thoughtful and a very
23 assiduous manner. I'm just concerned our doing
1825
1 it in this fashion without fully understanding
2 the cost, without having the backing of OCA -- I
3 mean, this really is a judicial, administrative
4 matter which certainly ought to have more input
5 and, frankly, I would think ought to have the
6 support of OCA before the Legislature wants to
7 act on it. So possibly we could do it in a
8 different fashion, in a more comprehensive
9 fashion later on this session. I really
10 question whether this is the proper way of
11 proceeding and the wise way of doing it.
12 THE PRESIDENT: Senator DiCarlo.
13 SENATOR DiCARLO: Thank you,
14 Madam President.
15 As a co-sponsor of this bill, I
16 want to applaud Senator Marchi. I happen to
17 represent both counties that are -- that seem to
18 be at odds on this issue, both Kings County and
19 Richmond County and I reside in Kings County,
20 and I support Senator Marchi and I'm a
21 co-sponsor on this bill.
22 This is very simple to
23 understand. The people of Staten Island do not
1826
1 have equal representation. The people of Staten
2 Island have absolutely no voice in the selection
3 of judges that represent them in their county,
4 and out of fairness, this bill should be voted
5 yes, and I would strongly recommend that the
6 vote be yes on this.
7 Thank you.
8 THE PRESIDENT: Thank you.
9 Read the last section, please.
10 SENATOR DOLLINGER: Madam
11 President.
12 THE PRESIDENT: I'm sorry,
13 Senator Dollinger.
14 SENATOR DOLLINGER: I just have
15 one question of the sponsor on the bill memo.
16 Perhaps Senator Marchi would yield to the
17 question.
18 SENATOR MARCHI: Yes, Senator.
19 SENATOR DOLLINGER: On the final
20 page of the -- on the second page of the
21 sponsor's memo it says that the New York State
22 Constitution prohibits amendments to the
23 Judiciary Law during the ten-year period
1827
1 subsequent to the last amendment. Therefore, it
2 is imperative the New York State Legislature
3 enact this proposal during the reapportionment
4 process. Is this still pertinent today? I
5 mean, we're out of the reapportionment process
6 by two and a half years. My question is, is the
7 matter still timely?
8 THE PRESIDENT: Senator Marchi.
9 SENATOR MARCHI: Outside of the
10 ten years, you can do it by statute, Senator, so
11 I don't see where it's applicable in this
12 situation.
13 SENATOR DOLLINGER: Could you
14 just explain why that's -
15 SENATOR MARCHI: The last
16 amendment was in the early 1980s, so we're well
17 beyond that.
18 SENATOR DOLLINGER: I apologize,
19 Madam President. I didn't hear the response.
20 SENATOR MARCHI: I'm sorry,
21 Senator. The last -- the last amendment was in
22 the early 1980s, '81 or '82. We're well beyond
23 that.
1828
1 SENATOR DOLLINGER: Okay.
2 THE PRESIDENT: Senator
3 Dollinger.
4 SENATOR DOLLINGER: On the bill,
5 Madam President.
6 I voted against this bill last
7 year. I intend to vote against it again this
8 year. I note that up in our neck of the woods,
9 Senator Kuhl and others that live in the Eighth
10 -- Seventh Judicial District, a county -- a
11 judicial district largely dominated by my
12 county, Monroe County, which has almost all of
13 the state Supreme Court positions, and I would
14 like to see a statwide approach where we would
15 rectify the general inequities and hopefully get
16 more people involved in both the nomination,
17 creation of judges, whether they're from urban
18 communities or suburban communities or rural
19 communities, and I certainly wouldn't have any
20 opposition to creating a Thirteenth Judicial
21 Department, but I think it needs to be looked at
22 on a statewide basis to make sure that all
23 communities get an adequate reflection of their
1829
1 population to be represented in state Supreme
2 Court.
3 So I'll continue to vote against
4 it on that basis but it's -- because I'm looking
5 for a bigger picture and a bigger solution.
6 THE PRESIDENT: Read the last
7 section, please.
8 THE SECRETARY: Section 6. This
9 act shall take effect immediately.
10 THE PRESIDENT: Call the roll.
11 (The Secretary called the roll.)
12 THE PRESIDENT: Results.
13 THE SECRETARY: Those recorded in
14 the negative on Calendar 74 are Senators Connor,
15 Dollinger, Galiber, Gold, Kruger, Leichter,
16 Montgomery, Paterson, Smith, Solomon. Ayes 44,
17 nays 10.
18 THE PRESIDENT: The bill is
19 passed.
20 Senator Bruno, that completes the
21 controversial reading of the calendar.
22 SENATOR BRUNO: Madam President,
23 can we now return to reports of standing
1830
1 committees? I believe there's a report from the
2 Rules Committee.
3 THE PRESIDENT: The Secretary
4 will read.
5 SENATOR BRUNO: In the interim,
6 recognize our colleagues on your right, my left.
7 THE PRESIDENT: Senator Mendez.
8 SENATOR MENDEZ: Madam President,
9 I was outside of the chambers when bill number
10 -- Calendar Number 52 was passed. I wish to be
11 recorded in the negative. Calendar 52, no.
12 THE PRESIDENT: I'll defer to
13 Senator Bruno.
14 SENATOR MENDEZ: Thank you.
15 SENATOR BRUNO: Without
16 objection.
17 THE PRESIDENT: Senator Smith.
18 SENATOR SMITH: I wish to request
19 unanimous consent to be recorded in the negative
20 on Calendar Number 52.
21 THE PRESIDENT: Senator Bruno.
22 SENATOR BRUNO: Without
23 objection.
1831
1 THE PRESIDENT: Recorded in the
2 negative without objection.
3 Senator Montgomery.
4 SENATOR MONTGOMERY: Yes. Thank
5 you, Madam President.
6 I would like unanimous consent to
7 be recorded in the negative on Calendars 52 and
8 109.
9 SENATOR BRUNO: Without
10 objection.
11 SENATOR MONTGOMERY: Thank you.
12 THE PRESIDENT: Recorded in the
13 negative. The Secretary will read the report of
14 the standing committee.
15 SENATOR BRUNO: Senator Bruno,
16 from the Committee on Rules, hands up the
17 following report directly to third reading.
18 Senator Bill Number 2850, by
19 Senator Volker and others, an act to amend the
20 Penal Law, the Criminal Procedure Law, the
21 Judiciary Law, the County Law, the Correction
22 Law and the Executive Law, in relation to the
23 imposition of the death penalty.
1832
1 THE PRESIDENT: Senator Bruno.
2 SENATOR BRUNO: Madam President,
3 can we move the adoption of the Rules Committee
4 report?
5 THE PRESIDENT: All those in
6 favor of adopting the Rules Committee report
7 signify by saying aye.
8 (Response of "Aye".)
9 Opposed, say nay.
10 (There was no response.)
11 The ayes have it. The report is
12 adopted.
13 Senator Bruno.
14 SENATOR BRUNO: Madam President,
15 we have before us the death penalty bill, and I
16 just want to take a moment at this time and
17 commend Senator Volker who has, for a lot of
18 years, worked on behalf of the constituency of
19 this state to help get this bill before us and
20 so many others that worked especially hard
21 through the night literally to get this bill on
22 the floor before us; Jim Collins, my counsel,
23 Ken Riddett and I know the staff of Senator
1833
1 Volker, as well as many others. So we're
2 indebted to them to get this issue before us.
3 And times like this comes the
4 question of debate, and I am asking, Madam
5 President, that people in this chamber recognize
6 this is an emotional issue. It's an issue that
7 people feel very strongly about, and I recognize
8 as do my colleagues that people want to be heard
9 on this subject. So I hope all of us use good
10 judgment as we express our thoughts on this very
11 important matter before us.
12 Thank you, Madam President.
13 THE PRESIDENT: The Secretary
14 will read.
15 THE SECRETARY: Calendar Number
16 166, by Senator Volker, Senate Print 2850, an
17 act to amend the Penal Law, the Criminal
18 Procedure Law, the Judiciary Law, the County
19 Law, the Correction Law and the Executive Law,
20 in relation to the imposition of the death
21 penalty.
22 THE PRESIDENT: Senator Volker.
23 SENATOR VOLKER: Mr. President -
1834
1 Madam President. I'm sorry. Madam President, I
2 might just start out by saying that it is,
3 indeed, a historic day for many, I think here,
4 some probably in exasperation, will probably say
5 it's a -- it's a day that maybe some thought
6 would never come.
7 Senator Leichter even followed me
8 from the Assembly over to the Senate to make
9 sure that maybe I couldn't do it, but we are
10 finally going to do it. In fact, I think
11 probably, Franz, you and I -- I'm trying to
12 think if there's anybody else who debated
13 against each other. I guess we've debated
14 against each other on this issue in both houses
15 of the Legislature, and I'm just thinking about
16 that today.
17 Senator Marchi, as far as I know,
18 is the only one here that was in the Legislature
19 at the time that the death penalty was virtually
20 abolished back in '65 and was part of the
21 process then. It is, indeed, historic, and I
22 would like to start out -- and although Senator
23 Bruno was good enough to mention that there were
1835
1 a lot of people that worked on this issue, both
2 in the Senate and the Assembly, that our people
3 here, I think, did yeoman duty on a very
4 difficult issue and a difficult time. Tim
5 Collins, who works for Senator Bruno, did a
6 tremendous job along with Ken Riddett, who's
7 been involved in this issue for a long time, and
8 my -- my staff person, Ken Connolly, along with
9 Ed Hallman, who is now toiling for the Governor
10 in his -- in the midst of negotiations, went
11 over to the Governor to help run Criminal
12 Justice for him, as well as Mike Finnegan and
13 Jim Maguire, who work for the Governor.
14 Nobody ever said that this issue
15 was an easy issue to deal with. In fact, I told
16 a story a couple times on the floor here about
17 how when I first came to the Legislature, I was
18 advised that nice people don't do death penalty
19 bills; that it's the kind of issue that some of
20 the really -- in fact, at the time, it was
21 described to me the upscale people, the real
22 social elite don't get involved in death penalty
23 bills. What they really meant was that it was
1836
1 -- it was the kind of issue, the down and dirty
2 issue that is a difficult issue to deal with,
3 and you always know and I always knew that we
4 would have, for instance, the editorial board of
5 the New York Times and Newsday and those sorts
6 of people who would always oppose this sort of
7 thing, and it's a difficult issue to deal with,
8 a very, very difficult issue to deal with.
9 To the people here, by the way, I
10 just want to say to you -- and some people said
11 some nice things about me in committee and I
12 want say the same thing. The debate on the
13 floor of the Senate over the years, I happen to
14 believe -- and we've had some emotional times,
15 no question about it, but I think the debate has
16 been as good on this issue as any place in this
17 country. We haven't agreed, certainly, and
18 we've come very close to overriding on a number
19 of occasions and it got very emotional. There
20 were times when there were even some -- some,
21 what I could call almost threats, and so forth,
22 back and forth.
23 Senator Gold will probably
1837
1 remember that we had some incidents back in the
2 '70s that were almost kind of comical that
3 occurred but -- yeah -- but the debate, I think,
4 generally was always on the issues. I may not
5 have agreed with some of the conclusions that
6 some people made or the use of some of the
7 statistics, and so forth, and people have
8 disagreed with mine, but I think we have
9 generally done this in a way in which I think
10 has made this Legislature, this Senate proud.
11 Let me just start out by just a
12 quick description of the bill that we have
13 before us here, and Assemblyman Graber is in
14 town today who has initially sponsored the bill
15 since 198... since 1977, which is really the
16 precursor of this bill that we see here which
17 has been fleshed out, but which is really a bill
18 that just amplifies the protections that we have
19 always had in the bill.
20 In fact, over the years, people
21 who have opposed the death penalty, have said to
22 me, you know, "If you have to have a death
23 penalty, why, this type of bill is the one that
1838
1 we would like to see even though we would prefer
2 not to see any death penalty at all", but a lot
3 of people have worked on the bill, this bill,
4 over the last couple of months and part of this
5 bill, by the way, is more than just the issue of
6 how you do the death penalty or who's involved,
7 but we also have done something in the bill that
8 we talked about doing afterwards, and that is
9 reforming the Correction Law and the whole
10 process and procedure within this bill.
11 So you have more than just the
12 issue of who's eligible for the death penalty
13 and how it's done, but you also have a
14 reformation of the Election Law, in all honesty
15 that was long overdue, that relates to the -- to
16 what happens afterwards and things of that
17 nature and, of course, as I think everybody well
18 knows, one big change in this bill is that
19 instead of the death penalty being enacted by
20 electrocution, it's by lethal injection, and
21 that is within this bill.
22 The big changes in this bill, as
23 opposed to the one that we passed last Monday, I
1839
1 think can be summed up in a -- in a few short -
2 a few short paragraphs.
3 As I said when we left here,
4 really there weren't that much -- there wasn't
5 that great difference between the Assembly and
6 Senate. A lot of it was relating to language.
7 There were just a couple of issues that needed
8 to be clarified. For instance, who makes the
9 appointments to the capital defense -- the
10 Capital Defenders Bureau? It's been decided in
11 this bill as opposed to the previous one that
12 the chief judge of the Court of Appeals, rather
13 than the Governor, would be the appointing
14 person in conjunction, of course, with the
15 Majority Leader of the Senate and the Speaker of
16 the Assembly.
17 Another major change was,
18 although it was never really one that was of
19 major contention except in the paper, was the
20 issue of when -- when the mentally retarded
21 would be -- would be able to request or to bring
22 an action for a -- for a hearing, and the
23 hearing could be before the -- or would be
1840
1 before the very trial itself, which was really
2 not as much in dispute as was indicated. That's
3 a change from last week's bill.
4 The torture provision of the -
5 of the aggravating circumstance was changed
6 somewhat, not -- not substantively but
7 languagewise.
8 And maybe the most important
9 change relates to the payment of defense
10 attorneys. In the bill last week, defense
11 attorneys -- the so-called enhanced payments
12 would not begin until the district attorney made
13 a final decision whether to seek the death
14 penalty or not, which would -- could be 120 days
15 after the indictment on a murder one -- in a
16 murder one case.
17 In this bill, as soon as the
18 indictment for murder one occurs or even if
19 there is a murder two indictment and the
20 prosecutor indicates that he intends to move for
21 the -- to move for the death penalty or might
22 move for the death penalty, then the defense is
23 entitled to an attorney at the enhanced rate
1841
1 rather than the so-called 18-b rate, which is
2 the local or county rate.
3 I suspect very strongly that
4 there is probably not a bill in America that
5 provides any more enhanced protection for the
6 defendant as far as the defense attorney than
7 this bill does. It is, I think, a bill that not
8 only provides funding and training for defense
9 attorneys who will handle capital cases, it also
10 provides funding and training for prosecutors
11 who will handle these cases.
12 Now, let me just get rid of one
13 other bit of -- bit of legal necessity that must
14 be done. There are some provisions in here -
15 one of the protections, one of the many
16 protections on the issue of race is a -- a -
17 several areas where there is individual
18 questioning. One occurs before the trial where
19 the judge questions the -- the questions are
20 made separately of jurors on the issue of
21 whether there is any race bias or anything of
22 that nature. That was suggested to us, by the
23 way, by a person who is an anti-death penalty
1842
1 advocate and who suggested that we put that in
2 the -- as part of the death penalty bill, which
3 we have done.
4 There is also a -- a provision in
5 the bill that provides for the judge to again
6 question jurors between the time that a person
7 is found guilty and before the new -- the
8 additional trial on the issue of whether they
9 should receive capital punishment or life
10 without parole; and what has been suggested to
11 us is that we should read into the record that
12 it is the legislative intent to establish good
13 cause, that the only way -- that the -- under
14 Sections 14 and 20, which are the sections of
15 the law which relate to the individual
16 questioning out of the hearing of the other
17 jurors and out of the hearing of other people,
18 that the bill intends to provide as much
19 openness as possible and that the only reason
20 for sealing would be for protection of the juror
21 or for some strong reason, other than just to
22 the idea of keeping the -- of keeping the record
23 sealed.
1843
1 So, in other words, there is a
2 strong intent here to provide as much of an open
3 record as possible. In fact, what we're saying
4 here for the record is that the judge will make
5 specific findings based on clear and convincing
6 evidence that a compelling govermental interest
7 exists to seal the record, two, that any order
8 sealing the record is narrowly drawn, and three,
9 that no record shall be sealed unless the court
10 has considered less restrictive alternatives.
11 Furthermore, it is envisioned that the sealing
12 of the record or any portion thereof of these
13 proceedings will be rare and only for cause
14 shown that outlies the value of openness.
15 The reason that I have been asked
16 to do that is to read into the record so if our
17 legislative findings -- that there's no question
18 that we intend to provide as open and fair a
19 proceeding as possible.
20 Now, let me just say, and I'll
21 try to be as brief as possible on a historic day
22 of this nature. I said it before and I'll say
23 it once again. I remember the situation that
1844
1 the state found itself in back in 1965 very,
2 very well. I was not here. My father at the
3 time was here in the Assembly. It is an
4 interesting -- I think an interesting story that
5 the Bartlett Commission which recommended
6 against the death penalty said -- and a lot of
7 law professors who are now making professorial
8 statements, the reverse of what they said then,
9 said, "Well, you know, if you abolish the death
10 penalty, don't worry about it. There won't be a
11 massive increase in murder. There won't be a
12 massive increase in violent crime. Everything
13 is going to be fine and society will be more
14 civilized. There's no problem."
15 Well, the fact is that people
16 like my father who wrote the minority report to
17 the Bartlett Commission said, unfortunately,
18 that's not going to happen. Unfortunately, we
19 are going to see a massive increase in murder.
20 We're going to see a massive increase in violent
21 crime, and what's going to happen is that
22 society is going to do some other things, which
23 we did by the way in the years that followed
1845
1 that. In keeping with the decision to abolish
2 the death penalty, we reduced sentences and we
3 did a whole series of things that followed up on
4 the abolition of the death penalty. By the way,
5 there was no death penalty in this country for
6 many, many years. Even though it was on the
7 books in a few states, it was thrown out by the
8 Supreme Court of the United States, which is
9 when the murder rate in this country really
10 started to escalate.
11 If you'll look at the numbers,
12 they are fascinating. By 1971, Buffalo set a
13 record for murders that it had never even come
14 close to in the 50 to 100 years where records
15 were kept before that.
16 New York City, within about ten
17 years, tripled the murder rate that it had. In
18 fact, I pointed out on a number of occasions
19 that what happened was that by ten years -- ten
20 years later, we had reached such a point that
21 where we had 4.7 per 100,000 killings in 1965,
22 we had actually reached 12 per 100,000 within
23 less than ten years. There was a peak, by the
1846
1 way, of murders just a few years ago of 2624 in
2 1990, which was 14.8 per 100,000.
3 You know, when I listened to the
4 discussion here the other day and I did not
5 comment on some of the people's discussion on
6 the reason for some of these things happening,
7 there was one comment that somehow there was
8 some demographics that had occurred that created
9 all of this problem. It wasn't the death
10 penalty. It had nothing to do with it. It was
11 demographics, and some of the law professors had
12 said, "You know, it was all these young people
13 we have. All these young people are killing
14 people." The interesting thing is, I was
15 looking at the 1993 homicide statistics and it
16 shows that of the 1372 known offenders, 30
17 percent were 16 to 24 years of age. The
18 interesting thing about that figure is that that
19 means that 70 percent were 25 or older.
20 And the truth is that we have not
21 seen an enormous number in increase of killings
22 by young people. We have seen an enormous
23 number of killings by all age groups, including
1847
1 young people. We have seen some spectacular
2 killings that involved some young people. The
3 truth is that, unfortunately, we have just seen
4 a huge and an almost incalculable number of
5 murders that has continued to ravage our
6 streets.
7 If we are going to find the
8 wherewithall to control our society -- and law
9 enforcement officers, by the way, have been
10 saying this for many, many years. They did not
11 argue, by the way, that the death penalty is the
12 sole solution to all of our problems. I have
13 never argued that. The Governor has never
14 argued that. Law enforcement people have never
15 argued that, but what they have said is that
16 this should be a vehicle, that is, a step that
17 should have been in our arsenal all along, that
18 if we are going to deal with the worst criminal
19 element and the people that kill, certainly, I
20 think, has to be classified as the worst
21 criminal element in our society, whether it's
22 through -- whether it's through vicious
23 killings, whether it's through terrorism,
1848
1 torture, whatever it is, and those kinds of
2 killings are covered in this bill.
3 Somebody said to me the other
4 day, "You know, the sad part of it is, if you
5 want to get the best representation in this
6 country, get an illegal gun, get on a train on
7 Long Island and kill a whole bunch of people and
8 you can get the best representation in the
9 nation." There's something a little sad about
10 that, and that's true that one of the things
11 that is absolutely factual is that the people
12 who have been subject to death penalty in this
13 country, capital punishment, have been easily
14 able to get some of the best attorneys in this
15 country.
16 We understand the need to
17 certainly represent those people. That's why
18 we, in this bill, provide the kind of defense
19 that is necessary, not only because we don't
20 want to execute anybody who is innocent but also
21 because we want to make sure that our statute is
22 sound, both in the Supreme Court and in Court of
23 Appeals. And let me give a warning to those
1849
1 people who are so flippantly running around
2 saying, "Well, the Court of Appeals -- this is
3 going to be challenged." Of course, it's going
4 to be challenged. Every death penalty statute
5 is challenged, but I would be a little careful
6 if I were the anti-death penalty people at
7 taking too much solace in the fact that somebody
8 in the courts is going to pull this out of the
9 fire.
10 I happen to believe that, despite
11 all that's been said, that there will come a
12 time that the statute that we are passing today
13 will cause the execution of a defendant and
14 probably in a lot quicker time than some people
15 would think, not in the immediate future, of
16 course not because it will take some time, but
17 it will happen, and it will, in my opinion, send
18 a message, not just to the people in the streets
19 of our state, by the way, but there is a reason
20 why we in New York draw so many people here and
21 why we have had all these people that have paid
22 so much attention to New York. We are a key
23 state in the Union.
1850
1 Our criminal justice system,
2 despite all the arguments against it and despite
3 all of the nonsense about -- that it's going to
4 cost tons of money and all of this stuff, much
5 of which, by the way -- and I have heard some
6 statistics the other day, that I have seen the
7 numbers in some of those states that have been
8 absolutely -- those numbers are grossly
9 exaggerated. This state is a state that,
10 despite what has been said here, there is no
11 solid evidence that anyone was ever executed and
12 found innocent later. The nonsense that those
13 two California professors perpetrated has been
14 disputed not only by the evidence in the cases
15 but it's been disputed by even a Law Review
16 article where a professor took a look at it and
17 he said, "What were these two people thinking
18 about? They're supposed to be -- they're
19 supposed to be professionals."
20 And throughout this country,
21 there is an assumption that, if somebody is
22 found not guilty in a capital case, that somehow
23 we have to think that they could have been
1851
1 executed and that they never did the crime.
2 Under our system, if you are found innocent, you
3 are absolutely right, you are innocent under the
4 law. As I have often said, that doesn't mean
5 that you didn't commit the crime, and there are
6 umpteen cases, by the way, where defendants have
7 been able to get new trials after five to ten
8 years. It's no secret how difficult it is to
9 ever find those people guilty again under our
10 system, because we have a tough system. It is a
11 very difficult system to deal with and
12 prosecutors know it, and that was their concern,
13 by the way, when they looked with this bill and
14 we dealt with their concerns.
15 In my humble opinion, this is one
16 of the fairer bills, certainly in the country,
17 for both prosecutors and for defendants. It is
18 a bill that I think we can -- you may not be
19 proud of it, those of you who are going to vote
20 against it, but I think what you must realize is
21 that it is a bill that we think is as fair as
22 any in the country. There are some things in it
23 that I probably would change if I had the best
1852
1 of all worlds, because I think there are things
2 in here that some defense attorneys will use to
3 delay the process, but one of the things that we
4 made sure in this process was to not allow those
5 people who would play games with the system to
6 continue to allow delays in the system any more
7 than was absolutely necessary, and I think
8 that's what we've done when we constructed this
9 bill.
10 So let me just finish by saying
11 to you all, I thank you for your patience with
12 me over the years. I have -- I have tried to
13 present what I happen to believe is the position
14 of, not just at this time the people of the
15 state -- it wasn't always, because when I began
16 this battle, there were a lot -- probably the
17 majority of the people were opposed to the death
18 penalty, but I think I have given what is the
19 strongest argument that I could give for making
20 our streets safer by dealing with an issue that
21 is a tough issue to deal with. It's not the
22 final issue at all, but if you talk to law
23 enforcement people and if you talk to people
1853
1 that have been involved in this issue and have
2 lived with it, they will tell you that if you
3 talk, in fact, even to the criminals who have
4 dealt with it, that most of the criminals will
5 recognize themselves that many of these people
6 would not have killed in some cases if we had a
7 death penalty.
8 I say to you, finally, I have
9 done my best to deliver to what, I think, is in
10 the proper order, a bill that save lives, a bill
11 that will send a message out to those people out
12 in the streets who would kill, you better be
13 prepared to give your own life if you take
14 someone else's life, and all the talk that you
15 have about nobody paying attention to what goes
16 on, they pay attention. It's not going to save
17 everybody by any means, but it is a first step
18 in something that this state has needed for many
19 years.
20 It'll also allow me to help me
21 sleep a little better at night. I'll tell you,
22 there were times when I saw -- for instance,
23 I'll never forget one night, seeing a little
1854
1 girl who was murdered and the suspect was a
2 paroled ex-killer, and my thinking to myself,
3 "Is there something that I could have done that
4 if I had been able to enact the death penalty,
5 that little girl might be alive today?" Or when
6 I think about the time that an Assemblyman
7 brought a gentleman to the floor of the Assembly
8 when I was debating the death penalty and
9 emotionally said, "Here's a fellow who might
10 have been executed if there had been a death
11 penalty, and I trust to have him with my child
12 even though he killed a small child," and he
13 went on to tell about this person had reformed
14 and what if there was a death penalty? Two
15 years later, that person killed another child.
16 The Assemblyman involved called me absolutely in
17 tears, and I said, "Look, you did what you
18 believed in. Don't blame yourself." It was a
19 very difficult time for him and in a sense for
20 me too, because I felt for him because I knew
21 that he was sincere and he had believed what he
22 had done.
23 But, ladies and gentlemen of this
1855
1 Senate, there isn't any doubt that, if you look
2 at people like Lemuel Smith, if you look at some
3 the other people who -- the multiple killers in
4 in state, the people who would have been subject
5 to the death penalty, there are people who are
6 dead today who would have been alive if we had
7 had a death penalty to deal with those kinds of
8 people, and just don't ever forget that.
9 THE PRESIDENT: Senator Connor.
10 SENATOR CONNOR: Thank you, Madam
11 President.
12 Here we are on the death
13 penalty. It seems like only last week we were
14 debating the same issue. Today is quite
15 different than the 32 or 33 other times,
16 counting overrides, which I have debated on this
17 bill. No mistake about it, it's for real today,
18 and no doubt about the short-term result. The
19 votes are there. The politics is clear. The
20 people of New York State today, as they have for
21 the last few years, want the death penalty.
22 Senator Volker quite candidly acknowledged that
23 when he began his efforts 18 or 19 years ago,
1856
1 the majority of the people in this state didn't
2 want the death penalty.
3 I suggest, Madam President, that,
4 as all of us in politics and government know,
5 that people do change their mind. The pendulum
6 swings, but it also swings back. Once upon a
7 time in the state, the Legislature virtually
8 abolished the death penalty in response to the
9 public will and the consciences of many members
10 of this Legislature. When we first began
11 debating Senator Volker's bill, when I did some
12 17 or 18 sessions ago, I looked across the aisle
13 and saw many members on the Majority side who
14 had been here and voted to repeal the death
15 penalty, and over time some of them had come to
16 switch and go with the prevailing political
17 wind.
18 So it's clear the Legislature's
19 mind on this issue has changed. Indeed, there
20 are some members still left in this house who
21 had it both ways, who voted against the death
22 penalty and then become supporters. The
23 Legislature's decision changes, and the public's
1857
1 mind changes over time with experience.
2 I suspect, to the public, the
3 death penalty is one of those measures that
4 looks a lot better when you don't have it than
5 when you have it. It looks a lot better as a
6 way to speak out in frustration at crime, at
7 murder and mayhem in society, and after you have
8 the death penalty for a while and it's used -
9 and New York once upon a time led the nation in
10 using the death penalty in actually executing
11 prisoners -- after you see the parade of death
12 officially done by the state, it doesn't look so
13 good to the public anymore, because invariably,
14 the somewhat freakish, arbitrary nature of the
15 ultimate irreversible penalty becomes apparent.
16 Who gets executed when there's a
17 death penalty? Well, if you're in Connecticut,
18 the answer is no one, I guess. New Jersey looks
19 like no one does. In Texas, it looks like
20 everybody does because -- just because the death
21 penalty is on the books, it doesn't mean it will
22 be used at all or often or frequently, sometimes
23 only a little bit.
1858
1 But one thing is certain. If the
2 death penalty is used -- is actually used, you
3 can almost to a certainty bet that those who are
4 executed will not be wealthy, a high likelihood
5 they'll be poor. And I suggest, Madam
6 President, in the context of what it takes to
7 mount a sustained offense to the death penalty,
8 most of our citizens are poor. They don't have
9 millions to spend fighting the state, albeit
10 that defend.. two lawyers will be provided, and
11 so on.
12 Another thing you can be sure
13 about when people are actually executed, that
14 it's most likely they will not have had the best
15 lawyers. Indeed, the experience, as much as
16 this bill attempts to find qualified lawyers,
17 identify qualified lawyers and make them
18 available to defendants, a trial is a drama
19 played out in an adversary system between
20 lawyers, and you can be sure that those who are
21 executed will have drawn the short straw when it
22 comes to lawyers.
23 If New York, despite all of the
1859
1 efforts in this bill to address the issue -- and
2 I applaud those efforts, but the fact of the
3 matter is nowhere in this country is there a
4 death penalty that's used where race is not a
5 factor, either the race of the convict to be
6 executed, and even more overwhelmingly proved by
7 statistics, the race of the victim seems to be a
8 major determinate as to who is actually
9 executed.
10 If we look further among the
11 thousands of murders committed regrettably in
12 this state, the mere handful who often -- who
13 pay for their life, among them will undoubtedly
14 be at least one person of a suicidal bent that
15 throws up his or her hands and says, "Oh,
16 execute me. I'm not going to appeal. I don't
17 want to fight it. I deserve it," the state will
18 become an accomplice to suicide in that
19 particular case. It will happen. It has
20 happened. It has happened in other states; it
21 will certainly happen in New York, and when we
22 look further at who will be executed, if enough
23 people are executed after enough trials, does
1860
1 anyone really doubt that somewhere in there at
2 least one innocent person will be executed? And
3 when I say "innocent", I mean in the sense not
4 of the technicalities; do you get convicted or
5 not, I mean somebody who didn't do the crime;
6 who didn't commit the murder, and I make that
7 distinction regrettably because the Supreme
8 Court of this United States doesn't seem to
9 think that's an important factor when you decide
10 whether or not someone can be executed, and we
11 know the cases. Newly discovered evidence
12 proves you didn't do it. Well, if you live in
13 Texas, you should have found out within 30
14 days. Sorry, we're going to execute you because
15 we have to have finality here as if it were a
16 case in small claims or landlord and tenant
17 court.
18 Just a few weeks ago in another
19 state, there was an execution of someone that
20 the prosecutor stood up and said, "He didn't do
21 it; his sister did it. The guy we convicted
22 last year, we now believe him. He didn't do
23 it. Somebody else did it". The Supreme Court
1861
1 said, "Fine, execute him", and they did.
2 This is the freakish, arbitrary,
3 discriminatory nature that is indeed inherent in
4 any penalty that's irreversible. Why do I say
5 that? Many of these factors, by the way, are
6 inherent in any court case, in any criminal
7 trial, but all the others have one thing that
8 distinguishes them from the death penalty, and
9 that is when it is recognized the person didn't
10 do the crime or when it is recognized the person
11 was convicted on the count of racial
12 considerations, it shouldn't ought not to have
13 entered the justice system, or when it is later
14 recognized that, "Gee, there is new evidence
15 that exonerates the person" or, "Gee, their
16 attorney was incompetent or was not of the
17 highest competence" -- when any of these factors
18 that propel people to be executed are present in
19 any other kind of case, there is a simple
20 remedy; unlock the jail door, often pay a
21 judgment or award as New York State has had to
22 do for wrongful imprisonment and the person gets
23 a chance to put their life back together again.
1862
1 The death penalty is different. Saying, "Oops,
2 we're sorry; we made a mistake" is not enough.
3 Now, there will be members here
4 who say, "Well, at the slim risk of ever
5 convicting and executing an innocent person,
6 it's worth it because of the great deterrent
7 value in the death penalty" -- and just as
8 Senator Volker says, there's no evidence that
9 the death penalty is not a deterrent, he feels
10 instinctively it is, I submit that there is no
11 evidence that it is a deterrent. Look at the
12 murder statistics in those states that have
13 turned executions into twice weekly events,
14 sometimes with double headers. Has their murder
15 rates gone down? Has their murder rate gone
16 down? No, they haven't.
17 So for all these reasons, Madam
18 President, I think that execution, the state
19 willfully, calculatedly picking out but a few
20 and killing them with premeditation and
21 calculation is unworthy of New York as a
22 civilized state. There are better ways to
23 protect the public from all the murderers, such
1863
1 as life without parole, that to just pick out a
2 few for reasons totally extraneous to the
3 quality of the crime, to all the other factors
4 we write in the bill about mitigating and
5 aggravating circumstances, to pick out a few for
6 reasons having nothing to do with it, because
7 they're not wealthy, they're not popular,
8 they're not well represented by counsel, they're
9 not of a favored race or class and say, you -
10 "Of all of the thousands of murders, you three
11 will be executed, you one person will be
12 executed", and if we don't mean -- if we don't
13 mean to use it at all as some states have, then
14 why bother?
15 And I submit, Madam President,
16 this issue will be revisited in this chamber, if
17 not in this decade, in a later decade when the
18 public, as it once did not 30 years ago, sees
19 the parade to the death house, hears the stories
20 of "why him and not him", recognizes -- God
21 forbid, but it'll happen, recognizes a mistake
22 made, a not guilty person executed, someone
23 framed perhaps by an accomplice or acquaintance
1864
1 who's really the guilty party, but under that -
2 you know, we will have plea bargaining, Madam
3 President, as we do in all cases. Can you
4 imagine the temptation to bend the truth and
5 finger someone else who didn't do it to save
6 your life? It will happen, and when the public
7 sees those instances -- and it may take ten
8 years, probably twenty, because I can't believe
9 anybody with the appeals process will be
10 proposed for execution much sooner than that,
11 but in this chamber, perhaps after all of us are
12 gone and succeeded by another generation of
13 legislators, the issue will be revisited, the
14 pendulum will swing, the public will recognize
15 the inherent cruelty and inhumanness in the
16 death penalty and will also recognize that it's
17 not a reasonable answer to the crime problem.
18 It's not a way to deter crime, and this issue
19 will be back here just as it was 30 years ago
20 with a different resolve.
21 Thank you, Madam President.
22 THE PRESIDENT: Thank you,
23 Senator Connor.
1865
1 Senator LaValle.
2 SENATOR LAVALLE: Thank you,
3 Madam President.
4 We have, as has been said over
5 and over again, debated this death penalty
6 issue, Senator Connor in his remarks said, some
7 32 or 33 different times over a 19-year period
8 of time, and I don't believe there is probably
9 an issue that has occupied more lines in our
10 transcript than this particular issue.
11 The debate each and every time -
12 and I'm amazed how professional the debate is,
13 how interesting, how the points of view that are
14 expressed go from philosophical and religious
15 and legal. The issue really is one that, I
16 believe, will shape how society exists for a
17 number of years, whether it be the next decade
18 or the next two decades. As Senator Volker has
19 said time and time again on this floor, that
20 this issue will change how the criminal justice
21 system and the penalties in our criminal justice
22 system will be changed as a result of this law.
23 It has been interesting that
1866
1 since 1977, the membership in both houses, both
2 the Senate and the Assembly have changed, every
3 year, the makeup of this body and the other
4 house have changed, and yet there there have
5 always been 31 votes in this house to pass the
6 death penalty, 76 votes in the Assembly. The
7 only issue has been whether there were
8 sufficient votes to override, and indeed we have
9 found sufficient votes in this house over that
10 18-, 19-year -- 18-year period of time, and it
11 always seemed to be illusive in the Assembly.
12 Today, we really are at a
13 historic moment because of the persistence and
14 the energy of Senator Volker. He would not be
15 deterred, and we are at an important time in
16 history, and that is the reason why I rise
17 today. I have never spoken on the death
18 penalty, but I feel it is important that the
19 legislative record is clear about the sponsor of
20 this issue. We are passing a very important
21 bill, and through the time in the debate and -
22 the transcript has never really talked about who
23 is the sponsor of this issue and what are really
1867
1 his motivations?
2 During the 19 years, Senator
3 Volker talked about it a wee bit, colleagues in
4 this body have been professional; they have been
5 respectful of Senator Volker's continuous
6 pursuit of trying to enact a death penalty, and
7 certainly there has always been contrary views
8 that have been expressed in the past as they
9 will again today, but this year because the
10 death penalty seemed more certain as we began
11 this session, those who have lobbied in the
12 halls have lobbied in the media, I felt, and I
13 must say as all of us know -- but no one will
14 know when they pick up this transcript a couple
15 years from now or ten years from now or someone
16 who wants to write about what happened in Albany
17 -- I am Senator Volker's seat mate, colleague
18 and friend, and so I have looked at the lobbying
19 that has taken place this year in the media, and
20 I have felt on many occasions that the
21 motivations and the persistence of our
22 colleagues have been blurred and really have not
23 been presented in the true spirit of why he has
1868
1 felt so strongly about this legislation.
2 We know him to be both steadfast
3 and loyal to principle, to institution, and to
4 people. Time and time again, not only on this
5 issue, but other issues, he has plotted on for
6 many, many years to see the issue through. He
7 has taken positions because it was important to
8 preserve the integrity of the institution of
9 this Senate, and he has been steadfast and loyal
10 to people in this body, staff, in the
11 Legislature, and to all those who come to
12 lobby.
13 He has probably one of the
14 softest touches of anyone who has served in this
15 body. He always has a moment to listen, to talk
16 to, and I say this because I am trying to, in
17 the sense of the record and sense of history,
18 that this is a person who is both a humanitarian
19 and a helper. It is a person who has pursued
20 this and as he has said, because he feels it
21 saves lives; because he feels that it is
22 important that the victims' rights be given some
23 consideration within our criminal justice
1869
1 system.
2 He has forged his belief in terms
3 of principle as a police officer and, yes,
4 Senator Volker has talked about it from time to
5 time and in his debate today, but what he has
6 never mentioned is that he, as a policeman, was
7 almost a victim. He, as a policeman, has had to
8 talk to families whose loved ones were taken
9 down by someone, and this has all touched him.
10 This has crafted a belief that we have a system
11 that is out of control.
12 He is an attorney, and through
13 his experiences in law school and as a
14 practitioner, has forged a belief in our Penal
15 Law and an understanding, a very scholarly
16 understanding, about what we should be doing and
17 how we should go about it.
18 That view was strengthened as
19 chairman of the Codes Committee and long before
20 Senator Volker ever got here, and he has
21 mentioned it, maybe he doesn't realize in each
22 debate the very early discussions that he had
23 with his father, Assemblyman Jules Volker, who
1870
1 was chairman of the Codes Committee in the
2 Assembly, the very scholarly reports that
3 Assemblyman Volker was involved in and relayed
4 to his son who he didn't realize would be
5 Senator and would be able to, after a long and
6 arduous path, bring to a conclusion something
7 that they had discussed back in 1965. Dale
8 Volker can't say that, but I can as his -- as a
9 colleague who knows him, and he believes in
10 that, in the principles, and we've heard that
11 over an over again.
12 Senator Dale Volker who is
13 sponsoring this bill that he talks about it's
14 not maybe the kind of thing you do to show that
15 you're warm and fuzzy, but it saves lives and he
16 believes in that.
17 He's a family man who believes
18 very, very deeply in the family. He's a church
19 going and practices his religion and reads
20 constantly, hasn't really discussed enough in
21 these debates, the religious principles that he
22 believes are important.
23 The legislation that he has
1871
1 sponsored well beyond this death penalty bill
2 that has improved his community, has dealt with
3 our youth, legislation and education and higher
4 education, and the arts, trying to ensure that
5 Western New York remains an economically viable
6 region of our state, and we could go on and on
7 and on.
8 We know what I am saying is true,
9 but I rise again so that the record is clear
10 that the person who has sponsored this
11 legislation had a very clear view, and that view
12 was that it saves lives; that hopefully he made
13 a difference serving in this body, and that
14 difference was that if it saves one life, it
15 will mean a difference, and that the democratic
16 process does work when the people in our
17 respective districts say that this is something
18 that they support and have supported for a long
19 period of time.
20 So today, we bring to fruition
21 and to a culmination what is really a dream in
22 seeing that this piece in our criminal justice
23 system is brought back, and it's not for any
1872
1 other reason that someone might say -- say
2 macabre personality, and that's why he is
3 pursuing this issue, and so it gives me pleasure
4 to rise today to support this legislation, and I
5 might say for the record, something that maybe
6 people did not realize, and that is -- for the
7 first time, I am a sponsor of this -- of this
8 legislation, had not been previously because,
9 certainly Senator Volker, by his words, has made
10 a difference in my thinking about the
11 legislation, but I think the people of our state
12 have spoken, and I think at a time when this
13 legislation will be signed into law, that the
14 people of the First Senatorial District who
15 support this by more than 70 percent will be
16 represented.
17 Thank you very much, Madam
18 President.
19 THE PRESIDENT: Thank you,
20 Senator.
21 Senator Saland.
22 SENATOR SALAND: Thank you, Madam
23 President.
1873
1 Madam President, I would be
2 remiss if I didn't certainly acknowledge the
3 overwhelming role of Senator Volker in having
4 sustained this issue as long as he has.
5 I saw a bit earlier today in this
6 chamber, a former Assembly colleague of mine,
7 Vince Graber who similarly battled on the same
8 front in the Assembly, and I don't think there's
9 anybody in this chamber or anybody who knows
10 Dale Volker who doesn't realize that he's a man
11 of extraordinary integrity, not only a
12 gentleman, but a very gentle man, and one who
13 comes to the issue purely on the merits of the
14 issue as he sees those merits, and I must
15 confess, I'm very much in lockstep with him in
16 the fashion in which he views those merits.
17 That's not to take anything away from any of my
18 colleagues who have battled long and hard in
19 opposition to us. Their beliefs are as
20 fervently held as ours and their passion, I'm
21 sure, runs as deeply as does ours.
22 I have always said that I was
23 troubled in those instances in which somehow or
1874
1 other, cries of political expedience surrounded
2 those who might labor in support of the death
3 penalty. I have long stated, and certainly
4 believed, that I'm not about to change anybody
5 who believes that the death penalty, in its
6 application, is inherently immoral.
7 I have said, however, that there
8 are sets of facts to which we could all agree
9 that are so outrageous and so heinous that you
10 probably could carve out exceptions. Whom among
11 us -- where they have sat on the Adolph Eichman
12 jury some three decades ago in a country that
13 does not permit capital punishment, state of
14 Israel, trying a rather depraved man who had
15 masterminded the most bestial of crimes, the
16 most horrendous crime against humanity, who
17 among us would have been twelfth juror who would
18 have hung that jury? It's hard for me to
19 believe that there would be such a person here,
20 but if that person could say that, then I could
21 not argue with them on moral grounds, but I
22 certainly believe even among some of the
23 opponents, that that would be so offensive to
1875
1 everything that they could possibly believe in,
2 that they too would agree that the death penalty
3 would be appropriate in that case.
4 We may differ in terms of the
5 quantum necessary for the enormity of the
6 crime. I have no problem with the crimes that
7 are enumerated in this bill, and perhaps I might
8 be willing to go further -- not perhaps, I would
9 be willing to go further, but if you look at
10 this bill at pages 2, 3 and 4, you see some
11 rather carefully enumerated crimes, crimes
12 dealing with the premeditated killing. This is
13 not a crime of passion. This is not a crime in
14 which somebody's senses have been dulled by
15 alcohol or drugs, the premeditated killing of a
16 police officer engaged in the course of his or
17 her duties, a corrections employee, a peace
18 officer, a judge, someone who is serving a life
19 sentence who commits life -- who commits a
20 homicide while serving that life sentence.
21 And as recently as this past week
22 when we debated this bill, I described a case to
23 you which had occurred in my country a number of
1876
1 years ago and, in fact, my law associate was one
2 of the special prosecutors appointed on the
3 Lemuel Smith case, and the things he told me
4 about that case just turned my stomach.
5 Here's a man who, as I said
6 earlier, killed not once, not twice, not three,
7 not four, but five times, and when he killed the
8 fifth time, the Court of Appeals, construing the
9 last remaining section of our death penalty
10 bill, in a four to three decision in which they
11 all agreed that the man had committed the crime,
12 killed a female correction officer at Green
13 Haven, Donna Payant, but because the law did not
14 provide for aggravating and mitigating
15 circumstances, threw out as unconstituional that
16 last remaining section; almost a bizarre
17 interpretation by any common sense dictate, but
18 the interpretation of the Court of Appeals
19 nonetheless.
20 Contract killers, not exactly the
21 kind of folks who you would bring home to show
22 your parents, contract killers. Felony
23 murderers, someone who walks into a crowded
1877
1 terminal, plants a bomb knowing full well what's
2 going to happen by reason of that bomb, that
3 there's going to be carnage, multiple murders.
4 Someone who walks into a church and, because of
5 the color of the worshipper's skin or the creed
6 and religion to which they adhere, begins to
7 indiscriminately spray bullets into that
8 church. That person is covered under this bill
9 too. Now, I have no problems with any of those
10 and I said, I may well go further.
11 This bill meets every
12 constitutional test. It goes back to the line
13 of cases from Furman and Gregg, provides for the
14 very things that the U.S. Supreme Court has said
15 in the '70s that you have to have, a bifurcated
16 trial, the weighing of aggravating and
17 mitigating circumstances and an expedited appeal
18 to the Court of Appeals. And we do better, as
19 Senator Volker pointed out to you in his earlier
20 comments. We do far better than many, if not
21 most or all states that currently have death
22 penalty bills or laws on their books.
23 A few years ago I looked at some
1878
1 of those death penalty statutes, Texas, Georgia,
2 Florida. Interestingly enough, they were rather
3 basic, didn't have all the protections for
4 defendants that we provide in this bill. It's
5 only been through a series of amendments over
6 the course of the past few years that they have
7 endeavored to do what we have been attempting to
8 do with the passage of this bill all along, to
9 provide rights beyond the bare necessity for
10 defendants.
11 Now, there's always the question
12 of deterrence, and last week when we addressed
13 this issue, Senator Leichter later, during the
14 course of his comments, acknowledged the fact
15 that I had said that perhaps this wasn't a
16 deterrent. Well, if that's what he thought I
17 said, that certainly is not what I said.
18 What I had said at that point, I
19 will repeat again. The statistics may vary, and
20 as recently as January of last year, FBI
21 statistics show that among the 13 states without
22 a death penalty, murder rates have gone up in
23 eight, down in four and the same in one. The
1879
1 biggest decreases among the five states showing
2 decreases in murder rates, four of those five
3 have death penalties. Conversely, the biggest
4 increases among those five states with
5 increases, three of the five do not have death
6 penalties, but the statistics may vary and I'm
7 willing to concede they may vary. The one thing
8 I will never, ever concede is how do you measure
9 the negative? How do you get into somebody's
10 head and find out that he was deterred or she
11 was deterred? It's an absolute impossibility.
12 You plan the murder of your
13 partner because he billed you out of tens of
14 thousands, if not hundreds of thousands of
15 dollars. You plan the murder of some supposed
16 friend of yours because he's involve in an
17 intimate relation with a loved one and you feel
18 that you have been cheated. You go out and you
19 buy a gun. You plant the bomb or you buy the
20 bomb. You get poisoned, all with the idea of
21 committing this premeditated murder and then you
22 decide at the last minute to pull the plug for
23 fear of the imposition of capital punishment,
1880
1 the death penalty. You're not willing to go the
2 last step in the progression because you fear
3 that it's going to cost you your life. How do
4 you measure that? It can't possibly be
5 measured. There's no social scientist in the
6 world who can measure it.
7 In Senator Connor's earlier
8 comments, he made some remarks about defendants
9 who might be of a suicidal bent, of the fact
10 that you could be prejudiced because new
11 evidence could occur subsequently and you would
12 not get the benefit of that new evidence. Well,
13 I would merely call attention to everybody, in
14 the bill, page 17, CPL Section 470.30,
15 Subsection (2), a defendant who has been
16 convicted in a capital case cannot waive his or
17 her appeal. It's not waiveable. So that person
18 with the suicidal bent, "I don't want to
19 appeal", has no choice but to appeal, and when
20 he or she appeals, they're going to get some
21 pretty damn good legal defense, because this
22 bill is stacked to provide legal defense, not
23 one counsel, but two counsel, associate and
1881
1 lead, and all the investigative services that
2 you need, all the expert witnesses that you
3 need, it's provided for in the bill. New
4 evidence? New evidence, CPL 4.40, always a
5 motion, post-judgment motion, no problem making
6 that kind of a motion. I've never really been a
7 criminal practitioner, but that's basic criminal
8 stuff.
9 You know, we hear about the death
10 penalty again not being a deterrent. Well,
11 certainly -- certainly the converse is clearly
12 true. The elimination of the death penalty did
13 not reduce murders in this state. Since the
14 elimination of the death penalty, murders have
15 gone up nearly three-fold. The reality is, I've
16 said it before and I'll say it again, if there's
17 anybody who believes that the death penalty is
18 somehow or other the key to the solution for our
19 criminal justice ills, they're sadly mistaken.
20 I believe Senator Connor, in his
21 comments, said this is not a reasonable answer.
22 I would beg to differ with him. This is not a
23 solution, it's merely a weapon in the arsenal
1882
1 and an appropriate one, but it is an answer and
2 it is a reasonable one for those who would
3 commit the most heinous of crimes, for those who
4 premeditatedly would commit those crimes, they
5 by their acts have effectively put themselves in
6 the position to forfeit their lives, not by an
7 act of an individual, but by an act of this
8 society, the people of the state of New York,
9 through a system that has been crafted so
10 carefully as to ensure not only the protection
11 of their rights, but representation of counsel,
12 experienced counsel, well paid counsel, and you
13 know what? I'm never sure who the best lawyer
14 is.
15 I know a lot of successful
16 lawyers who I consider to be lousy lawyers.
17 There are very good lawyers who I know who may
18 not been successful lawyers. It may well be
19 their demeanor or it may well be the manner in
20 which they market themselves, but let's not
21 confuse the quality of legal ability with what
22 someone charges as a billable hour or the way
23 somebody postures themselves for purposes of
1883
1 promoting their practice.
2 I would just call to your
3 attention one other part of the bill which deals
4 with the question of the appeal. That's over
5 again on page 17. The required appeal -- again,
6 when there's a capital sentence, keep in mind
7 that the jury will have the ability to sentence
8 to death, to life without parole, for an
9 indeterminate life sentence, 20 to 25 to life,
10 but where it imposes that death sentence and
11 there is an appeal as is required, "the Court of
12 Appeals has to determine whether the sentence
13 was imposed under the influence of passion,
14 prejudice, whether it was arbitrary or -- based
15 on arbitrary or legally permissive --" I'm
16 sorry, "illegally and impermissive factors,
17 including the race of the defendant or the
18 victim and whether it was excessive or
19 disproportionate, and the court's decision shall
20 include the aggravating and mitigating factors
21 established in the record on appeal and those
22 similar cases it took into consideration."
23 That, on top of the separate
1884
1 mechanism for voir diring to determine racial
2 bias among prospective jurors and the existing
3 case law, not only U.S. Supreme Court, the
4 Batson case, but courts in this state saying you
5 can't dismiss based on race. Certainly not an
6 enviable task to deal with the subject of the
7 death penalty.
8 Nobody should rejoice in the fact
9 that we're going to pass a death penalty bill.
10 We should take some comfort in the fact that
11 we've done right by our system of justice. We
12 should take some comfort in the fact that we
13 have now added to the weapons that we have to
14 deal with crime, a measure that, in the
15 circumstances described under this bill, is an
16 appropriate message, appropriate measure and one
17 which I very firmly believe will be a deterrent.
18 Thank you, Madam President.
19 THE PRESIDENT: Senator Paterson.
20 SENATOR PATERSON: Madam
21 President. This is an issue that has been
22 before us before. This is an issue that's
23 highly publicized. This is an issue that has,
1885
1 really, political symbolism. It is one that in
2 many respects hurts the process and yet at the
3 same time a number of people in their hearts
4 sincerely believe that the death penalty needs
5 to be established in the State of New York at
6 this time. They believe that this would help to
7 eradicate a great deal of the increases in
8 crime, particularly capital crimes, and I
9 respect that belief.
10 When you hear of the examples
11 that, for instance, Senator Saland is citing and
12 you hear of other examples such as individuals
13 pumping bullets into a van on the Brooklyn
14 Bridge because the occupants of the van happened
15 to be Hasidic students, for that reason alone,
16 when you hear about individuals getting on the
17 Long Island Rail Road and shooting people
18 randomly, there is certainly an understanding
19 why people have that point of view, and there is
20 no tear that will be shed for any of these
21 individuals or those who commit similar crimes
22 should they become some of the first to be
23 executed in New York State.
1886
1 And yet I think we have a message
2 of necessity. It doesn't come from the
3 Governor; it doesn't come from the Assembly; it
4 doesn't come from a standing committee. It
5 comes from a document whose interpretation we
6 may disagree on but all of us seem to -- the
7 overwhelming majority of us seem to believe in
8 it, and that's the Bible. "Thou shall not
9 kill." It's as simple as that, and yet that
10 compromise that we have made with something that
11 an overwhelming majority of us seem to feel is a
12 self-evident truth, we have made that compromise
13 because of conditions that abhor us, conditions
14 that so unnerve our sense of humanity that we
15 feel that it is important to exercise the death
16 penalty against those who would manifest
17 violence in the type of form that we've heard
18 described and will continue to hear described in
19 some of the examples this afternoon.
20 But it's that compromise, Madam
21 President. That's the difference. The
22 difference between the truest adherence to what
23 we believe in and that part which we're willing
1887
1 to sacrifice to accomplish something that exists
2 in our time period that we see as out of
3 control.
4 All of us believe that the
5 increase in crime is out of control, although
6 the crime increases have occurred whether there
7 was or was not a death penalty. It speaks to
8 more serious and difficult problems in society
9 than a shrill cry for the death penalty or an
10 imposition of it in a couple of states, such as
11 in New Jersey where there hasn't actually been
12 an execution since the death penalty was
13 established in 1983.
14 We sit here today getting ready
15 to enact into law a statute which we don't know
16 when it will actually have use. It could be ten
17 years from now. Senator Connor estimated it as
18 high as 20 years from now. The fact is it will
19 only affect a very few people, seemingly as
20 random a selection as the multitudes who would
21 commit crimes that would actually make us
22 eligible.
23 We have had an alternative that
1888
1 has been before us for nearly a score of years
2 and that is the alternative of life without
3 parole, and we have never used it. We've never
4 used it, and yet once we have the death penalty
5 being established, suddenly there is an
6 alternative of life without parole.
7 So had we been approaching this
8 situation seriously collectively, even if those
9 of us individually, particularly the sponsor,
10 who is as serious and as sensitive and as
11 sincere as anybody in this chamber and really
12 cares and has been very open and very willing to
13 listen to suggestions and has incorporated
14 suggestions into that bill, and there are a lot
15 of hard-working people whose names we don't know
16 who contributed, staff members who contributed
17 to that process; and yet all of that effort, as
18 sincere as it may have been, in my opinion, goes
19 in the direction of feeding this frenzy that is
20 going to create an illusion to the public that
21 we are solving a problem when, in fact, we are
22 only publicizing our contempt about the
23 problem.
1889
1 The families who sat around for
2 years, watching individuals sit on death row,
3 hoping they will be executed, never really
4 getting through the mourning period, never
5 really being able to discuss any other issues -
6 there is a long article about a family in New
7 Jersey that went through that. Over and over
8 again trying to lobby to see the murderer
9 executed for the crime that he or she committed
10 and not seeing it. Yet we are going to tell the
11 families of victims of crimes in New York after
12 today that their problems are solved; that we
13 are going to execute those involved, even though
14 very few will actually be executed.
15 It almost reminds me of the way
16 high school students are recruited to play for
17 sports even though only one or two or three of
18 them will actually reach sports like the
19 National Football League or the National
20 Basketball Association, yet we encourage high
21 school and college students to think more about
22 their activity than actually about receiving
23 their education, and we now are intoxicating the
1890
1 families who have already gone through the
2 travail of losing a member of the family in a
3 totally loathsome and despicable way. We are
4 now going to offer them hope from this
5 legislation. We are going to, in many cases,
6 sincerely believe that these types of
7 legislation are going to save lives, when we
8 know good and well that we have had a way to
9 incarcerate people for life without parole all
10 along and could have saved lives.
11 We see this legislation as a
12 deterrence, and yet we know that in states that
13 actually endorsed and established a death
14 penalty there hasn't been a deterrence. There
15 has been an increase in crime in those
16 particular states. We see these pieces of
17 legislation that we have finally synthesized and
18 are passing today in the form of a death penalty
19 as an act of retribution against the individual,
20 a punishment, yet those individuals who are on
21 death row actually know that the greatest
22 punishment is to make them sit there for the
23 rest of their lives rather than to give them a
1891
1 quick way out and execute them.
2 The real pain that Mr. Grasso,
3 who's on his way to Oklahoma to receive the
4 death penalty, the pain that he feared was life
5 without parole; and so when we look at this
6 legislation, we have to ask ourselves, what is
7 it actually accomplishing other than allowing us
8 the opportunity for a couple of days to feel as
9 if we solved the problem when all of the
10 criminal elements of society that have
11 contributed to the increases in violence in our
12 society will continue? And violence is exactly
13 the way we're trying to solve this problem,
14 fighting fire with fire and in many ways
15 contributing to the perception of violence, the
16 publicity and the attention that is given to
17 executions in this country. The message it's
18 sending to younger people, that when you are out
19 of moves, this is how you solve a problem, and
20 this is why we brought the death penalty back.
21 We agreed many years ago, after
22 the last execution of Mr. Kemler on August 15th
23 of 1963, that we wouldn't have a death penalty
1892
1 in this state. We brought it back because we
2 don't think we can solve the crime problem right
3 now, and this is a shrill solution. This is one
4 that we feel will help us escape from this
5 tremendous problem that is enveloping us, that
6 is making it even impossible sometimes even to
7 walk down the street or for people to drive in
8 their cars, and we're reading about these types
9 of cases, but we're also reading about the way
10 we as a society failed and were unable to handle
11 the results of these particular cases.
12 Senator Volker was talking about
13 how an individual can go on a train and shoot up
14 the train can get the best defense in this
15 country as in the case of the of the Long Island
16 Rail Road. My memory is that the individual got
17 the worst defense. He defended himself. He may
18 have been competent to stand trial, but he
19 couldn't have been competent to defend himself
20 if he was going to stand against 16 witnesses
21 who saw him do what he did to kill 6 people and
22 injure 26 others, and they all had the same
23 story and none of them ever met each other
1893
1 before. They had a note with his signature on
2 it about why he did it, and the only effective
3 counsel would have been to have taken the
4 insanity defense. Even if you lost, it was the
5 only possibility from the standpoint of a lawyer
6 to acquit this defendant, and yet he comes up
7 with a bizarre conclusion of how this went on
8 that never took the jury any time to determine.
9 This was a mockery of the judicial system.
10 What if it happened two years
11 from now? We were going to sit back and let
12 this individual defend himself on his way to
13 receiving the death penalty? Even if we
14 institute the death penalty, we're going to have
15 to change that law because we can not allow
16 individuals to defend themselves when they are
17 the prime candidates for the death penalty with
18 a crime as despicable of any that I have heard
19 of in my lifetime and we're going to let an
20 individual get up in front of a jury and say
21 that he didn't do it.
22 Senator Volker referred to the
23 report of individuals that may have been
1894
1 wrongful convictions. This is the report that
2 was issued in the Stamford Law Review by the two
3 law professors. Professor Bekar is actually
4 from Florida, and Professor Ratali is actually
5 from Massachusetts. Certainly it would be very
6 difficult to establish the innocence of eight
7 people executed in this country in the 20th
8 century if there can't be any proceedings after
9 the individuals are already deceased, and so
10 this was an attempt to establish that, and if
11 Senator Volker wants to refute that, I can
12 understand it, but the House Judiciary Committee
13 in 1993 issued a report that there had been 48
14 convictions since 1973 on capital crimes that
15 have been overturned. It is possible that some
16 of those individuals who had been convicted
17 could have received the death penalty.
18 Since 1980, when there were 187
19 people on death row in this country, 6 of those
20 sentences have been commuted, 46 of those
21 sentences were overturned, 67 of those
22 individuals are still on death row. But what's
23 interesting is 18 were convicted; 18 of those
1895
1 individuals were executed; 11 of those
2 individuals died while on death row, but 32 of
3 the actual convictions were overturned. Now, of
4 those individuals, it appears that a significant
5 percentage of them, maybe not a large percentage
6 but certainly a percentage of those individuals
7 could have been wrongly executed; and on May 4,
8 1990, there was a man named Gene Troferro who
9 was executed. His wife who was convicted under
10 the same circumstances and for the same crime in
11 September of 1992 had her conviction overturned
12 and was released because one of the codefendants
13 who had pled out finally admitted to what
14 actually happened, and neither the husband or
15 the wife were part of that crime, but the
16 husband was executed; and, incidentally, it was
17 considered a botched execution because the
18 husband was actually set on fire when he was
19 still alive, and it is very likely that he is
20 innocent of the crime. The wife, whose name is
21 Sonja Jacobs, is now lobbying against the death
22 penalty.
23 And so these are cases that we
1896
1 feel demonstrate that there have been wrongful
2 convictions. Maybe not a lot of them, but
3 certainly one of them is a huge blunt on our
4 society.
5 Then we come to the question of
6 the jury selection and the establishment of
7 those guidelines that make sure that those
8 individuals who happen to be minority will be
9 eligible to serve on juries in these types of
10 cases in spite of the fact that prosecutors have
11 the tendency to strike them and the fact that
12 this bill does not include any type of de novo
13 or searching procedure on the part of the Court
14 of Appeals such that we might establish whether
15 or not prosecutors are doing this.
16 And I would ask at this point if
17 Senator Volker would yield to a question and ask
18 him to explain to us how we can avoid that in
19 the bill, in spite of the fact that I don't
20 think there is anything in the bill that
21 provides any guidelines.
22 SENATOR VOLKER: I guess,
23 Senator, if I get your question, right, Senator,
1897
1 I doubt there is a bill in the country that set
2 up as many attempts to avoid racial bias as this
3 bill. In fact, what I read under the -- read
4 into the record before was a disclaimer as far
5 as the constitutional requirements of an open
6 jury system because there is two separate
7 questioning of jurors on the issue of race,
8 first before the jury in chief which -- in other
9 words, the guilt or innocence of the person, and
10 then between the time of the person being found
11 guilty and the sentencing hearing.
12 The Court of Appeals has always
13 -- in the old bill as well as this bill has the
14 right to look into the issue of race bias. It
15 was right in the old bill and it is in the bill
16 right now, "...whether the imposition of the
17 death penalty sentence was based upon the race
18 of the defendant or the victim of the crime for
19 which the defendant was convicted." The issue
20 of proportionality is right in this -- is listed
21 in this bill.
22 Senator, I have been accused at
23 times of putting too much into the bill that
1898
1 deals with this issue, but I think despite the
2 fact that I don't think that there is real
3 evidence that New York has gone through the kind
4 of race problems that the southern states have
5 gone through on the issue of the death penalty,
6 we have been I think especially sensitive. The
7 Governor has been especially sensitive and so
8 have we to the issue, and I think we have dealt
9 with it in as effective a way as we can.
10 THE PRESIDENT: Senator Paterson.
11 SENATOR PATERSON: Well, I want
12 to thank Senator Volker for answering that
13 question. I think that there is certainly no
14 question that there is a lot that has been
15 included in the bill, and there has been a lot
16 of rigorous research. I'm contending with the
17 results of that research.
18 I have another question, Senator
19 Volker, if you would yield for it.
20 SENATOR VOLKER: Certainly.
21 SENATOR PATERSON: And this
22 question relates to the venue of the actual
23 case. Now, what we are finding in a lot of
1899
1 these capital cases is that you have situations,
2 particularly in racially mixed cases, where they
3 can be held in a venue that would not provide
4 for jury selection that would not be conducive
5 to a fair trial. Do you have anything in the
6 bill or any thoughts on how to prevent that from
7 becoming a problem?
8 SENATOR VOLKER: No, we don't
9 have anything in the statute as regards venue.
10 But as you are well aware, Senator, New York law
11 provides for presently -- I think that's one of
12 the things about this death penalty bill is we
13 build in all sorts of protections, but New York
14 law provides a great number of protections
15 anyways, and the issue of venue is one that, if
16 there would be a problem or a potential problem,
17 the defense attorney would certainly have the
18 right to ask for a change of venue and if he
19 could show -- he or she could show extenuating
20 circumstances, that certainly could be done
21 under the present law.
22 There is nothing in the statute
23 that deals with that, but it is certainly
1900
1 something that could become an issue, I suppose,
2 in the case; and, by the way, if the attorney
3 raised it as an issue and it wasn't dealt with,
4 it certainly would be an issue on appeal that I
5 would think the defendant could use; and since
6 we have, as I said to you before the -- we have
7 the possibility, specific language to deal with
8 issues of race by the Court of Appeals. It's
9 certainly something they would look at.
10 But the possibility of changes of
11 venue are there right now, and I think that
12 attorneys will tell you that. Of course, you
13 have to have some real reason in evidence to
14 show that there was a necessity for it, but it
15 certainly could be done, and cases have been
16 transferred. Venue has been transferred because
17 of various -- most of the time because of the
18 spectacularness of the case or the inability to
19 get a fair jury, but that certainly could
20 happen.
21 THE PRESIDENT: Senator Paterson.
22 SENATOR PATERSON: Madam
23 President. Thank you, Senator Volker. If you
1901
1 would continue to yield.
2 SENATOR VOLKER: Sure.
3 SENATOR PATERSON: I'm turning to
4 a different subject. At the bottom of page 26
5 of the bill, point two, and into page 27, there
6 is the issue of the wish -- and it is a very
7 thoughtful one on your part and the other
8 sponsors -- not to execute a person who is
9 mentally retarded, but I have a problem with
10 that section because, assuming that the
11 defendant can not afford counsel and assuming
12 that the defendant has now used their first
13 post-conviction counsel apparatus, as I see it,
14 at the point that this would occur the defendant
15 would not have counsel; and since the provision
16 requires that there be a petition and the
17 petition is accompanied by an affidavit signed
18 by a psychiatrist, I don't understand how that
19 petition can be issued without the presence of a
20 lawyer, and I don't see a lawyer there. I see a
21 list of individuals who could do it, but I don't
22 see a protection for the inmate.
23 SENATOR VOLKER: Senator, I don't
1902
1 think there is much question that Prisoner Legal
2 Services as well as other lawyers are
3 traditionally around, and let me read you the
4 language here that deals with this issue where a
5 person might be considered -- as we discussed in
6 committee, the law says that a person cannot be
7 executed if that person is not competent. It
8 says, "The petition may be filed by the inmate,
9 the inmate's counsel, an employee of the
10 department, the inmate's legal guardian, a
11 member of such inmate's immediate family or, in
12 the event that the inmate does not have regular
13 contact with a member of his or her immediate
14 family, a bona fide friend who has maintained
15 regular contact with the inmate."
16 I think we, frankly, went
17 overboard to try to make sure that there is
18 somebody who is able to deal with that inmate's
19 problem, and I really think there is sufficient
20 language there; and I think, Senator, in a
21 prison system, particularly when you are talking
22 about death row, you certainly have a lot of
23 lawyers around who can represent anybody
1903
1 involved in such a system if -- there is
2 presently a great many lawyers, and I have a
3 suspicion once we develop a death row, there
4 will be a lot more that will be willing to get
5 involved in these cases.
6 THE PRESIDENT: Senator Paterson.
7 SENATOR PATERSON: Well, Senator,
8 I think I understand what you are saying in
9 reality, but I'm really addressing what exists
10 in this bill. I'm just trying to improve upon
11 the bill so that I will feel comfortable in
12 voting against it.
13 I want to tell you when I read
14 this section that's what actually piqued my
15 curiosity. I saw that you had "the inmate's
16 counsel" who the inmate might not have. The
17 inmate might not be able to submit the petition
18 because the inmate may be insane at that point.
19 The inmates's "family", the inmate's "friends",
20 there are a lot of things that are there; and
21 what I'm saying is the reason a lot of things
22 are there, as generous as it may have been, is
23 in a sense that it's shielding the element that
1904
1 should have been there and wasn't; and that
2 would be that I would recommend that the inmate
3 have a counsel all the way through the actual
4 proceeding.
5 I know there will be a lot of
6 lawyers around. I know the case may be so
7 public that there will be lawyers fighting over
8 who can assist this inmate and maybe not even
9 charge the inmate, but I'm just saying for the
10 benefit of the bill that I think it should be,
11 and I thank you for responding to the questions.
12 On the bill, Madam President.
13 I think that Senator Volker's
14 experience is going to be a message to those of
15 us who oppose the death penalty and will
16 continue to oppose it from now on.
17 Senator Volker, as he described,
18 came to the Assembly and, in 1974, issued this
19 bill, and he didn't get a very positive
20 response. He has worked on this bill for 24
21 years. He's fought and suffered and paid for
22 it; but, today, he has won, and I guess he
23 didn't do it to receive the accolades of
1905
1 victory, and he didn't do it just to receive the
2 flattery of his colleagues. He did it because
3 he thought it was right, and the truth was the
4 overriding motive.
5 And now that's going to be a
6 challenge for us who oppose this death penalty
7 and know that it's going to pass today and that
8 the Governor may even sign it by the end of the
9 day. We're going to have to start the fight.
10 We're going to have tell a dispirited and
11 confused society that has seen a lot of murders,
12 in cases tripling of the number of murders in
13 their cities and towns, and they want a
14 response. Who can blame them? No one. But who
15 can remind them? We can. Remind them of the
16 terrible truth that the death penalty hasn't
17 resolved any problems. It hasn't reduced the
18 crime rate. It hasn't really exacted any
19 retribution on the perpetrator. It has not made
20 anybody in the states that have it feel any more
21 comfortable. It is not administered properly.
22 The prosecutors seek the death
23 penalty sometimes 60 percent more based on the
1906
1 race or national origin of the victim of the
2 crime. Prosecutors seek the death penalty more
3 sometimes because of the race or national origin
4 of the perpetrator of the crime. This whole
5 process is riddled with holes that are
6 self-evident that the death penalty is a shrill
7 cry in the wilderness. It is not going to send
8 any more messages than those that ring with the
9 hollow sounds of empty pots or open cans.
10 What we need in our society is a
11 controlled demonstration of real punishment that
12 fits crimes and life without parole and no
13 opportunity for individuals who hurt others to
14 ever appear on our streets again when it's
15 manifested in that fashion; and while I
16 congratulate the sponsor and those who fought
17 for it, I think that this is really a very sad
18 day in this state, a lachrymose circumstance
19 when we return to something that we had started
20 in the late 19th century and then continued 613
21 executions into this century, and we finally got
22 the message that this was not the best way to
23 deal with capital crimes; that actually this
1907
1 compromise that we make between our moral and
2 spiritual values and our inability to handle
3 day-to-day problems in our society should not be
4 manifested in killing those who murder other
5 people.
6 But now we have returned to it.
7 Had the crime rate not gone up, are we saying
8 that we would continue not to have a death
9 penalties? What we need to do is to address the
10 criminality in our society and not believing
11 that passing this bill is going to intimidate
12 anybody. We have people who face the death
13 penalty on the streets of this state, all around
14 the cities and towns that make it up, who are in
15 that plight and know full well that their death
16 penalty will be administered right on the street
17 because of the actions that they engage in, and
18 they go ahead and they do it anyway, and we have
19 seen people in the highest echelons of society
20 who knew what the penalties were for their
21 crimes for all time, and it didn't stop them.
22 It's a passionate circumstance.
23 We feel that the death penalty is not
1908
1 constructed properly in this legislation, and it
2 is not a solution that society should be
3 seeking.
4 Thank you, Madam President.
5 THE PRESIDENT: Senator
6 Dollinger.
7 SENATOR DOLLINGER: Thank you,
8 Madam President. Will the sponsor yield to a
9 couple of questions on the penalty portion of
10 this bill?
11 THE PRESIDENT: Senator Volker.
12 SENATOR VOLKER: Sure.
13 SENATOR DOLLINGER: Senator, I
14 just want to make sure I understand the options
15 available to the jury, and the circumstances
16 under which either a jury or a judge can render
17 penalties under this bill.
18 Someone is indicted for a capital
19 offense for which the death penalty under this
20 bill would be an appropriate penalty. The
21 options that the defendant faces are either to
22 plead guilty -- enter a plea of guilty at the
23 time of arraignment or enter a plea of not
1909
1 guilty. Through Madam President, if the
2 defendant enters a plea of not guilty, what
3 options are available at that time.
4 SENATOR VOLKER: The options for
5 the jury are you talking about?
6 SENATOR DOLLINGER: If he enters
7 a plea of guilty.
8 SENATOR VOLKER: He can't enter a
9 plea of guilty to the death penalty because we
10 bar that.
11 SENATOR DOLLINGER: So if it's a
12 capital offense and he enters a plea of guilty,
13 he does not have to undergo the death penalty.
14 SENATOR VOLKER: He can not plead
15 guilty to the death penalty. That's one of the
16 provisions. He can plead guilty to life without
17 parole, but he can not plead guilty to the death
18 penalty.
19 SENATOR DOLLINGER: But if he
20 pleads not guilty, then the only options
21 available are 20 years, 25 years to life; or is
22 life in prison without parole also available.
23 SENATOR VOLKER: No, that's -- if
1910
1 he pleads not guilty are you talking about?
2 SENATOR DOLLINGER: If he pleads
3 guilty.
4 SENATOR VOLKER: Oh, guilty. If
5 he pleads guilty -- I'm sorry. I misunderstood
6 you. If he pleads guilty, his options are life
7 without parole or 20 to 25 years to life.
8 SENATOR DOLLINGER: Who makes
9 that decision?
10 SENATOR VOLKER: The judge makes
11 the decision.
12 SENATOR DOLLINGER: So there is
13 no jury involved.
14 SENATOR VOLKER: There is no jury
15 involved if he pleads guilty, right.
16 SENATOR DOLLINGER: He pleads not
17 guilty and proceeds to trial.
18 SENATOR VOLKER: Exactly.
19 SENATOR DOLLINGER: At the time
20 of trial, he is found guilty of a capital
21 offense.
22 SENATOR VOLKER: Right.
23 SENATOR DOLLINGER: And then the
1911
1 jury is given an option or given an instruction
2 by the judge to do what? Again, through you,
3 Madam President.
4 SENATOR VOLKER: Death penalty or
5 life without parole.
6 SENATOR DOLLINGER: Is there any
7 additional instruction given to the jury with
8 respect to the penalties at that time?
9 SENATOR VOLKER: Yes. The judge
10 would instruct the jurors that if they are
11 unable to come to an agreement, a unanimous
12 agreement, for the death penalty and if they are
13 unable to come to a determination on life
14 without parole, in that case the judge would
15 sentence the person to 20 to 25 years to life.
16 SENATOR DOLLINGER: So if a jury,
17 Senator, giving due weight to the aggravating
18 and mitigating factors, how does a jury arrive
19 at the fact -- can the jury arrive at the third
20 option?
21 SENATOR VOLKER: No. A jury can
22 not arrive at the third option. The third
23 option would only actually be open to the judge.
1912
1 SENATOR DOLLINGER: And then,
2 under those circumstances, how do you avoid the
3 problem of a jury that is hung up on the issue
4 of either life in prison without parole or the
5 death penalty of putting additional pressure on
6 the jurors, knowing that if they failed to agree
7 they are going to face a penalty that is less
8 than either of the two penalties that they are
9 currently in dispute over?
10 SENATOR VOLKER: That's, I think,
11 the option that they face; and, by the way,
12 there is ample constitutional basis for that.
13 There has been cases that deal just with that
14 issue. As you know, in some states the judge
15 gets the option. If the jury can't decide, in
16 certain cases, the judge can make the decision
17 himself. In certain states, we found that under
18 certain circumstances the judge can make the
19 decision even without the jury as long as the
20 jury hasn't made an adverse decision.
21 What we say here is that the jury
22 -- in order to enact the death penalty, it has
23 to be a unanimous decision. If there's no
1913
1 unanimous decision, if they can't arrive at a
2 decision for life without parole, then the judge
3 has the option then to make the decision to
4 sentence the person to 25 years to life, and
5 that's the procedure, and I don't see where that
6 procedure is necessarily something that would
7 create such a problem.
8 SENATOR DOLLINGER: Again through
9 you, Madam President.
10 THE PRESIDENT: Yes.
11 SENATOR DOLLINGER: My
12 understanding is that the jury, then, does not
13 get all three options. They only get two.
14 SENATOR VOLKER: Two.
15 SENATOR DOLLINGER: But they are
16 instructed if they fail to agree.
17 SENATOR VOLKER: That's right.
18 SENATOR DOLLINGER: Then the
19 penalty that will be imposed will actually be a
20 lesser penalty, is that -
21 SENATOR VOLKER: That's right.
22 SENATOR DOLLINGER: Is that
23 correct?
1914
1 SENATOR VOLKER: Yes. The jury
2 would be instructed that they are the ones that
3 make the decision on the more severe penalties;
4 and if they can not decide on the more severe
5 penalties, then the judge would then rule,
6 assuming everything else is equal, assuming the
7 judge doesn't find some problem or something.
8 We have to assume that the case is finalized and
9 so on. Then the judge would rule on the 20-25
10 years to life.
11 SENATOR DOLLINGER: Again,
12 through you, Madam President.
13 Was there consideration given to
14 including all three possibilities in the
15 instruction to the jury and not informing them?
16 That's number 1.
17 And, number 2, was there any
18 consideration given to the fact that they should
19 deliberate life in prison without parole or the
20 death penalty but that they shouldn't be
21 instructed about what the alternative was?
22 SENATOR VOLKER: There was
23 consideration given to that, and there was long
1915
1 discussion at one point in the negotiations as I
2 remember. There was a thought to have all three
3 options open to the jury. There was another
4 point at which there was a discussion that would
5 give the judge the option of enacting life
6 without parole or 20 to 25 years to life, but
7 the decision was made that the jury should make
8 the decision on the most serious of sentences,
9 obviously the most serious sentence being the
10 death penalty.
11 And I will be very honest with
12 you, I have received some -- I don't want to say
13 criticism but some flak from some people because
14 of the unanimous verdict. You know, there have
15 been several Supreme Court cases that said you
16 do not have to have a unanimous verdict for the
17 death penalty. But our feeling was if you are
18 going to have a jury enact something as serious
19 as the death penalty, you ought to have a
20 unanimous jury; and, very honestly, when we
21 discussed this thing with the Governor's people,
22 with the Assembly, the decision was to give the
23 jury the option for the most severe penalties
1916
1 and let them know that if they couldn't choose
2 one of those more severe penalties then the
3 judge would enact the lesser penalty which is
4 20-25 years to life.
5 SENATOR DOLLINGER: Again,
6 through you, Madam President.
7 But isn't it inherently coercive
8 to tell them that you have to do this;
9 otherwise, there is going to be another penalty
10 imposed?
11 SENATOR VOLKER: They don't have
12 to do anything. I mean what you do have to do,
13 I think, Senator, the problem would be -- my own
14 personal feeling is I think there could be a
15 problem if you didn't inform the jury right up
16 front as to what happens when they fail to make
17 a decision. I think that would be a much more
18 serious constitutional problem.
19 I think the fact that the jury is
20 told what their options are and that they are
21 given the options and that they know exactly
22 what will happen if they are unable to make a
23 decision or fail to make a decision or decide
1917
1 not to make a decision, or whatever, then it
2 seems to me that that is a proper procedure, and
3 I think that is what we agreed on in
4 negotiations.
5 THE PRESIDENT: Senator
6 Dollinger.
7 SENATOR DOLLINGER: On the bill,
8 Madam President.
9 Some have said that today is an
10 historic day in New York. I think it may end up
11 being an historically sad one. What we have
12 today is a debate over the concept of capital
13 punishment, and I can't help but think that a
14 lot of what we talk about today is purely a
15 matter of perception, and I went back to try to
16 get some history about the death penalty in New
17 York State, and I went back to the debate in
18 1965 when the death penalty was abolished; and,
19 sure enough, I see almost a mirror of the debate
20 today except it's coming at it from a different
21 perspective.
22 I see Senator Anderson, who
23 talked about the Michigan experience and said,
1918
1 "Gee, Michigan doesn't have the death penalty.
2 It doesn't have any different crime rate any
3 different death penalty rate," but it suggests
4 in Senator Anderson's mind at that time that the
5 death penalty wasn't working; we ought to get
6 rid of it. Senator Ohrenstein, of course,
7 argued that we ought to get rid of it. Senator
8 Quinn, Senator Thompson, Senator Erway, Senator
9 Brydges, Senator Lentol, and Senator Laverne,
10 all argued that we should get rid of the death
11 penalty, because it wasn't a deterrent and it
12 wasn't solving our crime problem. It wasn't
13 doing anything humane for the people of the
14 State of New York, and it was pure and utter
15 vengeance. That's all that they wanted.
16 And, sure enough, we debate that
17 issue again today with almost a reprise of that
18 debate thirty years ago. Senator Saland stands
19 up and says there's no evidence that it's not a
20 deterrent. You can't prove a negative. I'd
21 simply point out to him there is one study. Two
22 psychologists who interviewed the 240-or-so
23 people that sit on death row in Texas and asked
1919
1 them, Listen, you are going to die for your
2 crime. If you knew that you were going to die,
3 would it have changed your behavior? Would you
4 not have killed anyone? All but one said, Gee,
5 I didn't get the message.
6 Senator Volker says we got to get
7 a message out on the street. Their answer was,
8 "I didn't get the message. I either didn't
9 know or I wasn't thinking right when I did
10 this. It wouldn't have deterred me. It
11 wouldn't have changed my conduct." It's not a
12 deterrent. The best evidence we have is that it
13 isn't a deterrent.
14 But, in addition, what does the
15 death penalty mean to the people of the State of
16 New York. Well, let me show you what I think it
17 means. I brought along a little hypodermic
18 needle. It's not a "hypo." It doesn't have a
19 needle on it, but it's actually sent out by the
20 people from against the death penalty, and this
21 is what it looks like, just a little needle.
22 Carries about, oh, I don't know -- I won't.
23 I'll be careful. It doesn't have a needle on
1920
1 it.
2 But I guess what we're going to
3 do today is we're going to fill this with what I
4 think is the greatest venom present in our
5 society today, pure and simple vengeance.
6 That's what this is all about. We're going to
7 load it with vengeance. It's going to have a
8 little bit of politics in it, because at least
9 from my point of view in this chamber we could
10 have had a death penalty as long ago as twelve
11 years ago. It would be a form of death penalty
12 called death by incarceration. It's called life
13 imprisonment without parole. We could have had
14 it in this state.
15 The Governor, the previous
16 governor, supported the concept of life
17 imprisonment without parole. We could have had
18 a form of death by incarceration twelve years
19 ago if we wanted to send that so all important
20 message out to the people of this state. But,
21 no, we didn't do that, so we're going to have
22 vengeance. We're going to have a little scoop
23 of politics, and we're going to have a little
1921
1 bit of political hype, too, because this is one
2 of those where the comment made by Senator
3 Saland is right on point. It's an answer to the
4 crime problem. It's one of the answers to the
5 crime problem.
6 Well, I guess from my point of
7 view, it's very simple. You want an answer to
8 the crime problem? Fill this with immunizations
9 for children, fill it with hope for people that
10 live in our cities and our towns, fill it with a
11 sense of caring, fill it with a little bit of
12 compassion. Fill it, most importantly, with
13 jobs and a little bit of hope, and maybe we
14 won't have to use this lethal injection to kill
15 people in our state.
16 I think this is a sad day. I
17 could go on forever about what I think this bill
18 is and how I think it will change New York and
19 what message I think it sends about what kind of
20 society we are. But the one thing I think that
21 dies today is the notion of civilization, a
22 notion of a rational approach to the crime
23 problem, the notion of rehabilitation, the fact
1922
1 that someone who commits a heinous crime at 19
2 could at 30 be something different and should
3 have an opportunity to continue to live even
4 though they are confined and have an opportunity
5 to make some contribution. That notion dies
6 today with the death penalty.
7 I have here in front of me, and
8 it's just interesting to peruse it, the names of
9 the five most recent people who were murdered or
10 killed in this country. They run from a man
11 named Gregory Rezmover, who was killed in the
12 state of -- executed in the state of Indiana
13 because he was found guilty of the death of a
14 police officer, even though the prosecutor -
15 the prosecutor who prosecuted him and got the
16 death penalty went to a clemency hearing and
17 asked that he not be executed because he claimed
18 that there were material misrepresentations made
19 at the time of trial. An error was made. The
20 prosecutor, the man who was most vested with
21 fully prosecuting this crime said, "Give him
22 clemency; don't execute him."
23 Raymond Carl Kinneman was
1923
1 executed, as my colleague Senator Espada has
2 pointed out, at the home of state-sponsored
3 execution in the state of Texas. He was
4 executed for bank robbery; and, sure enough,
5 there were all kinds of claims about the
6 adequacy of the evidence. His lawyer on his
7 final appeal maintained that he received
8 ineffective legal help in his early appeals and
9 that the juries instructions were improper.
10 What's interesting about Mr. Kinneman is,
11 although he had a long criminal history , he had
12 been on parole for 21 months before the crime
13 was committed. During that time, he had obeyed
14 all his parole regulations. He'd finished
15 school, and he had earned $18,000 working as an
16 auto mechanic. Guilty or innocent, he was
17 executed.
18 Several of my colleagues have
19 pointed to Mr. Jacobs, Jessie Jacobs.
20 International attention. It's been described a
21 number of times. He was originally convicted,
22 sentenced to death, and later found out that his
23 wife had actually committed the crime -- or
1924
1 excuse me. It's correct. His wife had actually
2 committed the crime. The Supreme Court held
3 that they were going allow the execution,
4 stating that it could not overturn the jury's
5 determination of fact. The Vatican newspaper in
6 Rome said the court's decision was pedantic and
7 inhumane and likened the court to Pontius
8 Pilate.
9 Mario Markez, again, executed in
10 Texas, the 87th person to be put to death there,
11 and the fifth mentally retarded person to be
12 executed in Texas. He was a sixth grade
13 dropout. He had an IQ of 65. As a child, he
14 had been repeatedly beaten by his father. He
15 was abandoned by both of his parents when he was
16 12 years old. The younger children were placed
17 into foster care. He was left entirely on his
18 own. He began using drugs, inhalants that
19 caused brain damage and using additional drugs.
20 He was charged with murder and rape. He was
21 tried. He was convicted and he was executed
22 despite his 65 IQ.
23 Then there is Kermit Smith, who
1925
1 was executed in North Carolina. The trial and
2 sentencing only lasted four days. His lawyer
3 represented no evidence on his behalf. Jurors
4 were informed that if they imposed a life
5 sentence -- oh, excuse me, they were not
6 informed that if they imposed a life sentence
7 Smith would never have been eligible for
8 parole. A woman was allowed to sit as a juror
9 after she admitted during jury selection that
10 she could not give him a fair trial. The woman
11 later voted to impose the death penalty.
12 The last is Dana Ray Emmons.
13 Virginia executed him by lethal injection using
14 a little syringe just like the one I've got in
15 my hand. He had an IQ in the low 70s. He was
16 executed for killing a grocer in a $50 robbery
17 of the store. The district court judge who
18 reviewed his conviction said he had been denied
19 his right to effective counsel but said the
20 issue was raised too late for consideration.
21 I submit that as we sit here
22 today, we can't forget the names of those five
23 people. Sooner or later, sometime in the next
1926
1 decade unless we reconsider this decision, those
2 names and names like them will simply carry one
3 other little tag next to them "Executed in the
4 State of New York."
5 I'm not so sure what we
6 accomplish today. I know we don't solve the
7 crime problem. I know Senator Volker knows
8 that, but it seems to me we cave in to a view
9 that somehow punishment alone is going to deter
10 people's behaviors.
11 I said to my wife today when I
12 left that we were going to debate the death
13 penalty, that it would pass, and we will have
14 capital punishment in this state; and she
15 reminded me why we gave up striking our children
16 when they did something wrong, and the reason
17 was because we learned that violence did nothing
18 than begat other violence. State-sponsored,
19 family-sponsored, personal-sponsored, no matter
20 who the sponsor is, we have to turn away from
21 our violent ways in this state.
22 Enacting a death penalty only
23 marches us down the road to further violence,
1927
1 and I'm afraid what that violence could mean to
2 all of us. I do have to close, despite my
3 strong disagreement, as I said in the Codes
4 Committee, Senator Volker has conducted himself
5 with grace. He has conducted himself with
6 skill. Although I strongly disagree with it, I
7 do understand that he is performing, as Senator
8 Paterson said, something that he believes is
9 right.
10 I believe he is wrong; and,
11 therefore, I will not vote in favor of this
12 bill.
13 THE PRESIDENT: Senator Abate.
14 SENATOR ABATE: Madam President.
15 Would Senator Volker yield to a question?
16 SENATOR VOLKER: Sure.
17 SENATOR ABATE: It's my
18 understanding that two attorneys will be
19 assigned to a defendant during the trial phase
20 of a capital case, but post conviction only one
21 attorney would be assigned for the direct appeal
22 to the Court of Appeals and for one collateral
23 motion such as a 440 motion. Except in the
1928
1 initial case of a direct appeal if good cause
2 can be shown, two attorneys would be assigned.
3 SENATOR VOLKER: Right.
4 SENATOR ABATE: Other than those
5 -- that motion appeal and the direct appeal to
6 the Court of Appeals, it's my understanding that
7 no attorney will be assigned in addition to
8 those two procedures.
9 SENATOR VOLKER: No, it's not
10 true. What you are talking about is that under
11 the -- under this bill, this represents, of
12 course, a difference in the law now. After the
13 appeal and the motion and the appeal to that
14 motion, then you would revert back to the 18 B
15 section so that -- in other words, the defendant
16 then, if he wanted to go further. Remember,
17 we're going to the Court of Appeals. He has the
18 right to that. He has a right, in effect, to
19 two attorneys because -- I think you are aware
20 that if there is any showing that the fellow
21 needs another attorney, the likelihood is that
22 the Court is going to be very accommodating in
23 these kind of cases, in capital cases, where I
1929
1 assume we're all well aware that, certainly, in
2 this state, there's going to be flocks of
3 attorneys that are going to be willing to
4 represent people.
5 In fact, one of the reasons that
6 we're a little careful, very honestly, Senator,
7 is that we are well aware of what some of the
8 law firms in New York City have been doing in
9 some of the southern states in piling on cases
10 and motions, and so forth, and making a lot of
11 money with the motions that in some cases could
12 be considered to be some rather spurious motions
13 in delaying these cases forever.
14 We think that what we have given
15 here, the Assembly, the Governor and the Senate,
16 is a bill that goes a long way toward providing
17 the best possible defense that there is and give
18 that person the best available representation
19 right through the Court of Appeals and even
20 beyond that, with the motions; and, thereafter,
21 that nobody says that person can't continue to
22 appeal if he or she wishes to, can use the 18 B
23 procedures that are presently in place in our
1930
1 courts and, of course, can utilize himself of
2 all the services that are available by anti
3 death-penalty groups who carry these cases ad
4 infinitum to the Supreme Court and to the
5 federal courts.
6 SENATOR ABATE: But it is my
7 understanding that this bill represents a
8 critical departure from the former Volker-Graber
9 bill which provided assigned counsel from
10 arraignment all the way to the Supreme Court
11 because there was a recognition that it is an
12 adversarial process. There is a need to insure
13 adequate and competent counsel; and in order to
14 do so, written in the bill was an assignment of
15 counsel through the entire appeal process. Why
16 today does this bill represent a departure from
17 the bill that passed this floor for the past 18
18 years?
19 SENATOR VOLKER: First of all, it
20 represents a departure to start with because the
21 bill that we passed, it is true, had a guarantee
22 of counsel. It did not have a guarantee of two
23 counsels, as I think you are aware, as far as
1931
1 the trial court is concerned, and we have set
2 all kinds of additional standards into this bill
3 for those that represent defendants. But one of
4 the things that we tried to make sure in this
5 bill -- and it's true that the bill that we
6 sponsored many years ago before all the changes
7 occurred could have been interpreted and could
8 have interpreted to say that a counsel could
9 represent a person all the way to the Supreme
10 Court of the United States, but the feeling was
11 that the primary representation of that person
12 should be in the trial phase, in the appeal to
13 the Court of Appeals and the motions after that,
14 and that what we are giving that defendant is
15 the best possibly representation and that there
16 is no saying that he won't get representation
17 after that, but that we are giving that person
18 an enormous amount of -- if you want to call
19 high-paid talent or whatever in setting up the
20 process, and so forth, and that that is
21 certainly sufficient I think under the
22 circumstances to get that person to a point
23 where he or she has certainly been able to plead
1932
1 their case. After that, they certainly have the
2 right to go on from there, but the feeling was
3 that the state should not be -- should not be
4 mandated to pay the kind of costs that are being
5 paid up to that point.
6 THE PRESIDENT: Senator Abate.
7 SENATOR ABATE: Yes, I would like
8 to speak on the bill.
9 As I spoke last week, I am in
10 opposition to the death penalty, and I know that
11 today's vote is probably a foregone conclusion,
12 but I still feel the moral obligation, as an
13 attorney, as an elected official as many of you
14 do, the proponents and opponents of this bill,
15 to speak out; and I have thought over the last
16 couple of days and I searched for words. What
17 could I say to cause anyone, just one member of
18 the Senate, to look at this issue with a fresh
19 look, to examine the facts in a new way, to be
20 reflective? What could I say that would cause
21 us to put partisan politics aside and to be
22 reflective?
23 And I found that there are
1933
1 probably no words that I could express that
2 could do that. So I come here today with no
3 props, no gimmickry. What I bring today are
4 voice, voices of people in law enforcement,
5 voices of survivors, voices of crime victims,
6 individuals that cannot be heard today on the
7 floor, and this is what I think they would say
8 if they had the opportunity to speak. I'm
9 talking about Robert Morgenthau, former Justice
10 Louis Powell, Justice Harry Blackmun, Kathy
11 Dillon and Thomas McDermott, two victims of
12 heinous crimes.
13 If we look at Robert Morgenthau,
14 he has spent a lifetime as a federal and state
15 prosecutor, and he talks about how enacting the
16 death penalty is a grave mistake, and he also
17 speaks about the dirty little secret among
18 district attorneys, knowing that when the death
19 penalty is enacted it will take critical,
20 valuable resources from law enforcement and
21 other kinds of police strategies.
22 Former Justice Powell, along with
23 Justice Blackmun opposed the halting of the
1934
1 death penalty in 1972 and supported its return
2 in 1976. Both were appointed by President
3 Nixon. Both experienced and saw the
4 implications and impact of the death penalty,
5 and both are vehemently opposed to the death
6 penalty today; and Justice Blackmun has said
7 that he would no longer tinker with the
8 machinery of death and he was morally and
9 intellectually obligated to cede that the death
10 penalty experiment has failed.
11 What these law enforcement and
12 judicial leaders have said, that for sentencing
13 to be effective and rational, that sentencing
14 and punishment must be swift and certain, and
15 they understand the impact on victims and
16 survivors of crime, and they understand that the
17 death penalty further harms victims because they
18 can not rebuild their lives. They can not deal
19 with the mourning. They can not say that there
20 is some kind of conclusion to the case because
21 they must wait years and years and make sure due
22 process is served and that all the appeals which
23 justice demands are exercised.
1935
1 But all these experts agree, and
2 I agree with them, that life imprisonment
3 without parole with restitution to the survivor
4 is a sound and human criminal justice policy,
5 and they agree that victims never gain, and I
6 don't think we will find a victim that will say
7 the taking of one life for another will bring
8 solace to the survivors.
9 There are two letters that were
10 written by victims. One was to her legislator
11 and the other was to the Association of the Bar
12 of the City of New York. Kathy Dillon, who is
13 from Liverpool, New York, wrote a letter in
14 April 1994. And I just would like to read a
15 couple paragraphs from that letter. On October
16 24, 1974, she lost her father. He was a New
17 York State Trooper. He was shot and killed in
18 the line of duty on the New York State Thruway.
19 She was 14 years at the time, and she knew then
20 that the death penalty was wrong, and she said
21 that the death penalty would not bring her
22 father back. Ten years later in 1984, her
23 fiance was shot and killed in Poughkeepsie, New
1936
1 York; and she said in this letter, "I felt as a
2 result of suffering a second tragedy of this
3 nature that I would change my feelings about the
4 death penalty. It did not. Simply stated, it
5 only continues" -- and this is her words, "it
6 only continues the downward spiral of violence,
7 sadness, pain, suffering, and needless loss."
8 She says, "I know how it feels to have loved
9 ones murdered. I would not wish that on
10 anyone. The person sent to the electric chair
11 has innocent loved ones who will be made to
12 suffer like I did. It is senseless. It can't
13 right the wrong that has been done. The death
14 penalty is another wrong, and two wrongs do not
15 make a right." This is spoken by Kathy Dillon
16 from Liverpool, New York.
17 And then there was a recent
18 hearing in New York City, and Thomas McDermott,
19 who was injured in the Long Island Rail Road
20 case -- he witnessed the carnage. He thought
21 during that incident he too would die. He was a
22 former prosecutor; and prior to December 7,
23 1993, which is the date of the incident, he was
1937
1 a part of the so-called majority of New Yorkers
2 who favored the death penalty. But that's
3 because, he stated in his letter, that he never
4 gave any thought to the death penalty and what
5 it meant. Was it a deterrent? What was the
6 cost? He had no idea around these issues, and
7 then he said in the letter, "I then started to
8 talk to my now friends from the train, and we
9 started saying, 'Hold it. Is this going to come
10 back into existence and is it going to be more
11 costly? Then why are we doing it? If it's not
12 a deterrent, why are we doing it?' And
13 therefore it is our judgment that it is only for
14 the reasons of punishment." And he went on to
15 say, "Let's look at what's best for society.
16 Yes, if we pass the death penalty, it will cost
17 enormous amount of money. Yes, we can vent our
18 passion. We can vent our anger; and then twelve
19 years, ten years from now, some of us may
20 remember the name of the murderer who faces
21 execution, but most of us won't remember the
22 face or the name."
23 And he goes to say, "Let's talk
1938
1 about the living. The living are the victims,
2 the survivors of crime. He points to the
3 members of the Legislature, and he asks why
4 aren't there monies going to the survivors? Why
5 aren't we talking about the cost of implementing
6 the death penalty and taking those monies to
7 make sure the streets are safer and make sure
8 the children who have lost their parents are
9 left with a better world so that they can be
10 directly helped? We have lost sight," he said,
11 "of the victims and this is no solution for
12 survivors of people who have been killed."
13 So, then, if we're not doing it
14 for victims because victims are not a monolithic
15 group of people, and the experts say -- many of
16 the experts say that it's not a solution to
17 making our streets safer, so then why are we
18 tinkering with the machinery of death?
19 I have heard today that the death
20 penalty will save lives. I submit that is still
21 conjecture. There are no studies. There is no
22 scientific evidence. There is no proof that
23 that is the case. In fact, the contrary I
1939
1 believe is the case.
2 And then there is the reason to
3 tinker with the machinery of death is that it's
4 a cheap alternative to life imprisonment without
5 parole. But if we look at the cost and we
6 compare it, that's also not true; and, in fact,
7 the reality is if we implement the death
8 penalty, it will drain our precious resources in
9 the criminal justice system, the resources that
10 are needed to build prisons, that are needed for
11 rehabilitation and drug treatment and probation
12 and parole and law enforcement and more police
13 on the street.
14 What we need to do is take these
15 heinous criminals who commit murder and put them
16 behind bars and make sure they never see the
17 light of day and to ensure that we have monies
18 for other parts of the criminal justice system
19 so victims can be made whole and our streets can
20 be made safer.
21 And there's nothing that
22 convinces me that when we tinker with the
23 machinery of justice, there's no guarantee that
1940
1 innocent people will not be put to death. We
2 have seen chapter and verse. We have seen in
3 New York State 59 people were wrongly convicted
4 of homicide between 1965 and 1988.
5 And I ask this question, what is
6 in this bill that would change human nature and
7 make an imperfect system perfect? I know, like
8 many of you on this floor, I practiced law for a
9 number of years. I tried a number of cases for
10 ten years. I have worked in a prosecutor's
11 office. I was a trial attorney. This is a
12 system of criminal justice made up of men and
13 women. Our human judgments are subject to
14 error. They are subject to overstatement and
15 overzealousness and sometimes -- sometimes
16 incorrect behavior, but nonetheless it is an
17 imperfect system. It is an imperfect system
18 yesterday, today and tomorrow, and there is
19 nothing in this bill that will change human
20 nature.
21 So we know the ugly power of
22 racism in our society, and the death penalty
23 again will give racism its most brutal face. So
1941
1 whether we are talking about racism, innocent
2 lives, three times the cost of life
3 imprisonment, no deterrent value, those are the
4 facts; and what's left before us is the moral
5 argument.
6 Should we answer the violence of
7 our most heinous criminals with our own more
8 cold and more calculating violence? Shall we
9 make an eye for an eye the law of the land. We
10 already know that the law of the streets, the
11 law of the prisons, the law of the jails, are an
12 eye for an eye; and I believe if we enact the
13 death penalty today, we will perpetuate the
14 cycle of violence and give legal credibility to
15 the violence that we see on the street.
16 So I believe we need to look at
17 sound, good policy that makes good common sense,
18 that protects our communities, that protects our
19 loved ones, a bill that provides not just short
20 term solutions but long-term solutions to public
21 safety. I do not believe this bill today
22 represents sounds public policy, and I hope that
23 even after the vote today -- and I know that
1942
1 many people will vote their conscience. I hope
2 we understand the implications of today, and I
3 agree with Senator Dollinger this is a very sad
4 day, and I also project that in the future we
5 will be back here repealing the death penalty
6 because we will see that it hasn't worked. It
7 hasn't worked in the past, and it will not work
8 in the future; and that today we will pay by
9 passing this bill an awful price of violating
10 sanctity of life and that we will begin to
11 undermine the values that distinguish us as a
12 civilized nation.
13 THE PRESIDENT: Senator Skelos.
14 SENATOR SKELOS: Yes. Madam
15 President. With the consent of the Minority,
16 could we have the last section read for the
17 purposes of Senator Saland voting.
18 THE PRESIDENT: Read the last
19 section, please.
20 THE SECRETARY: Section 38. This
21 act shall take effect on the first day of
22 September.
23 THE PRESIDENT: Call the roll.
1943
1 (The Secretary called the roll.)
2 THE PRESIDENT: Senator Saland,
3 how do you vote?
4 SENATOR SALAND: I vote in the
5 affirmative. Aye.
6 SENATOR SKELOS: Close the roll
7 and resume the debate, please.
8 THE PRESIDENT: Okay. Withdraw
9 the roll call, please.
10 Senator DeFrancisco.
11 SENATOR DeFRANCISCO: Thank you.
12 In prior years, I did not stand
13 up to debate the death penalty, but I think it's
14 important that I at least put on the record my
15 reasons for supporting it.
16 I think anybody can argue
17 empirical data one way or the other. The fact
18 that homicides have risen in states that happen
19 to have the death penalty doesn't necessarily
20 mean that the death penalty did not work. There
21 may have been more homicides had the death
22 penalty not be in place.
23 There is no one in this room,
1944
1 also, that is saying that the death penalty is
2 the cure to violence in this society or that
3 with the death penalty violence is all of a
4 sudden going to be corrected. It is not a
5 cure-all.
6 But I think in some instances
7 that it's legitimate to argue that -- and I feel
8 strongly that in some instances the death
9 penalty will be a deterrent. The one that's
10 very clear in my judgment is a situation where
11 an individual is serving a life imprisonment
12 term and a corrections officer is killed or for
13 that matter a fellow inmate. Both of those
14 individuals are in a situation where without a
15 death penalty there is simply no additional
16 penalty for many of the inmates who are in the
17 position of the same environment that they are
18 living in.
19 To suggest that life without
20 parole is an alternative sentence for an
21 individual who is serving the rest of his life
22 for all intents and purposes in a jail and kills
23 an individual, simply is inaccurate. I firmly
1945
1 believe that if you are in a prison or an
2 individual in a prison or at least some
3 individuals in a prison would think twice about
4 stabbing an inmate or killing a corrections
5 officer if they know that there is another
6 punishment other than merely staying in that
7 same facility.
8 In addition, I think in some
9 instances where a witness to a crime -- it may
10 be a violent crime like a rape and a witness
11 sees the assailant and their punishment for that
12 rape, if caught, would be 25 years in jail. I
13 think some might feel that under those
14 circumstances they have a better chance of
15 getting away with their crime if they do away
16 with maybe the only victim -- the only witness,
17 namely, the victim of that particular crime. I
18 think in some instances people might consider
19 that.
20 And I believe strongly that
21 police officers, our last line of defense, have
22 to be protected; and by providing a death
23 penalty under these circumstances is
1946
1 reasonable.
2 Now, with all that said, unless
3 there were procedural safeguards I couldn't
4 support this bill, and I believe there are ample
5 procedural safeguards. The sentencing procedure
6 has been discussed by other individuals, and I
7 won't go over that again, but there are
8 opportunities for a jury to be convinced that
9 even though one of these terrible things have
10 occurred, one of these aggravated homicides
11 occurred, that even in those instances they are
12 not required to give the death penalty. They
13 must consider all factors before they make that
14 decision, and there is ample ground for appeal
15 in the event there is some procedural defect in
16 the way this all occurred.
17 And, finally, we all know that
18 there are different abilities in various
19 provisions including the legal profession. With
20 the Capital Defenders Unit, I think it's very
21 likely that there will be competent attorneys
22 who are representing individuals who are charged
23 with capital crimes.
1947
1 So for all those reasons, I
2 firmly belief that my vote is the correct vote
3 although it is not an easy one, and I would
4 support this bill as a reasonable approach to a
5 situation that we now have existing, namely,
6 that there are some crimes that simply do not
7 have penalties.
8 And for those reasons, I will
9 vote yes.
10 THE PRESIDENT: Thank you.
11 Senator Leichter.
12 SENATOR LEICHTER: Madam
13 President. Yes, we have heard all the
14 arguments; and, yes, this bill is going to
15 become law probably before the end of this day,
16 but I tell you I, for one, will not go into the
17 dark night of the death penalty in New York
18 State quietly.
19 We are surrendering to brutality
20 and violence. This is really an admission on
21 our part that we have failed to deal with
22 violence in our society. We have failed to deal
23 with the crime that clearly is the most
1948
1 horrifying, and that is murder because I truly
2 believe the people of New York State do not want
3 the death penalty, per se. What they want is a
4 peaceful, tranquil society, and we here in this
5 Legislature to the extent that we can deal with
6 it certainly have not.
7 The people of New York are not
8 blood thirsty, but I don't know whether one can
9 say the same thing for some of the leaders of
10 New York State, because this debate in the last
11 few weeks in this Legislature has been on the
12 part of those who want to kill the most number
13 of people and do it most quickly. That's what
14 this debate has been about. I think it's
15 shocking and it's appalling.
16 The fact is that the death
17 penalty is a cheap and illusory approach. You
18 can go out, and you can tell people we're doing
19 something about crime. You can tell people that
20 we're going to make this a safer society, but
21 you are certainly not doing it with this bill.
22 You are not doing it with the death penalty.
23 I want to say that Dale Volker -
1949
1 and he and I have debated this for many years
2 and I have the world of respect for him. There
3 really is no fairer, more decent person among
4 us. But, unfortunately, on this issue, I just
5 find such a blind spot not in his approach but
6 in his arguments, in his reasons. I just really
7 with all due respect to you, Senator Volker, it
8 is sheer fantasy for you to get up and to
9 support the death penalty as being a deterrence
10 by pointing to the fact that since the death
11 penalty was abolished in New York State in the
12 middle '60s that murder has increased. I think
13 it would be more credible for you to his that
14 since the consumption of milk went up in those
15 years that there is a causal relationship
16 between the consumption of milk and murder.
17 There is not a credible criminologist who will
18 support your argument; and in fact, if you take
19 a look at the history of executions in the
20 United States, you will see that very often
21 where there was no death penalty that in fact
22 the rate of homicides went down. That was
23 precisely the experience in Canada.
1950
1 The point is that you come down
2 to the statistical data, and it offers no
3 support whatsoever for the proposition that the
4 death penalty is a deterrent. The New York
5 Times had an article where they reviewed very
6 carefully the FBI records, and their conclusions
7 were -- and all of the statistical data was set
8 forth. This wasn't a columnist. This wasn't a
9 reporter expressing his own view. This was a
10 serious studied analysis of the figures; and it
11 said the statistics, using state homicides rate
12 issued this weekend by the FBI, that cover the
13 modern period of the death penalty lend little
14 support for the view that the death penalty is a
15 deterrence.
16 I said on this floor a week ago
17 that certainly those who argue for the death
18 penalty have the burden of proof on this issue,
19 and you have never, never been able to meet that
20 burden; and, frankly, it cannot be met, because
21 it you take a look at what happened in countries
22 that apply the death penalty and countries that
23 don't apply the death penalty, if there is any
1951
1 correlation it's almost that those countries
2 that have the death penalty have the higher
3 murder rate.
4 I'm not suggesting that
5 necessarily the death penalty will actually
6 increase homicides, although there seems to be
7 some statistical data which shows that where
8 there are executions that in the short period
9 following those executions there is a greater
10 likelihood of homicides occurring. But I think
11 what it shows is that those societies that
12 impose the death penalty are basically violent
13 societies, and what happens is that the state is
14 part of that violence.
15 Take a look at South Africa,
16 which applied the death penalty more harshly,
17 more severely, more frequently than anyone else,
18 had one of the highest homicides rates in the
19 world; whereas, if you take a look at the
20 countries of Western Europe which do not have
21 the death penalty, they have very low homicide
22 rates.
23 If you take a look -- I want to
1952
1 meet the argument that Senator DeFrancisco
2 said. Well, he said, that, after all, somebody
3 in prison who is serving a life term, it would
4 be more likely to commit murder, and that person
5 might be deterred if there was a death penalty.
6 I think part of the problem with this argument
7 is that we, being essentially lawful people,
8 yes, for us death penalty might be a deterrence
9 although I think that we don't need obviously
10 the death penalty to deter us from committing
11 particularly this crime or any crime. But those
12 people who commit these crimes are by and large
13 not subject to the reasoned argument that would
14 convince other people.
15 But if you take a look again at
16 the statistics of murders that are committed in
17 prisons, it shows that there is very, very few
18 that involve people who are in prison because
19 they have already committed homicides. Recent
20 studies showed that law enforcement officers are
21 not protected by the death penalty, either,
22 which is why most large city police chiefs and
23 at least a majority of district attorneys in New
1953
1 York City are opposed to capital punishment. In
2 1993, Texas led in deaths of law enforcement
3 officers for the sixth straight year even though
4 it has the highest execution rate, as well. In
5 that year, two men were executed for killing
6 police officers.
7 So where is the basis, where is
8 the rationale for the death penalty? I submit
9 that, unfortunately, in great measure it is
10 political. It is political because politicians
11 go out and campaign on the death penalty. They
12 campaign on simplistic solutions to very complex
13 and difficult problems, and it's a lot easier to
14 say I will give you the death penalty than to
15 say I will work with the difficult problem of
16 crime and with the solutions that need to be
17 applied and the painstaking work that goes in
18 creating a less violent society.
19 Unfortunately, this country,
20 great as it is, wonderful as it is, we know that
21 we've had an aura of violence since colonial
22 days, something we have never been able to
23 effectively address, and that has been
1954
1 particularly difficult in the last few decades
2 with drugs, the violence that's shown on
3 television and other factors that have become
4 part of it.
5 But I tell you to say to the
6 people of New York State we have done something
7 to make you safer by imposing the death penalty,
8 I think that's being at best disingenuous but
9 it's essentially being dishonest, and there's no
10 way that you can escape from the fact that you
11 are going to be killing innocent people.
12 Senator Volker, you sort of dismissed the fact
13 that good, sound studies show that innocent
14 people have been executed in this country. You
15 made the sort of amazing statement, "Well, the
16 fact that somebody is later found not to be
17 guilty doesn't mean that he didn't commit the
18 crime." I thought if you were acquitted in out
19 society, it means that you're not guilty.
20 Senator Volker, let me give you
21 the case of Nathaniel Carter. The case of
22 Nathaniel Carter -- you ask Governor Pataki
23 whether Nathaniel Carter was guilty of the crime
1955
1 of murder. He had been found guilty of the
2 crime of murder. The trial judge said I wish I
3 could sentence you to death, but it later turned
4 out that is he was framed, framed by the very
5 person who was then found to have committed the
6 murder. That man was innocent. Under your law
7 he would have been put to death, or he might
8 have been put to death. He might have been put
9 to death, and Governor Pataki was the first
10 person then, as either an Assemblyman or as
11 Senator, who greeted Nathaniel Carter when he
12 came out of jail and said, "Thank God we have
13 corrected a mistake." Under your bill when that
14 is law, there are going to be mistakes that we
15 can not correct.
16 I just think that people here
17 when they talk about, oh, we're not going to be
18 executing innocent people are in a state of
19 denial, because you will be executing innocent
20 people. Maybe some people can take pride in the
21 fact we have given New York State a death
22 penalty. I say it's a sad day for New York
23 State. It's a sad day for the people of this
1956
1 state. We have taken a big step backwards. We
2 have brutalized our society. We have given in
3 to violence. We have failed to do what we
4 should be doing, which is making this in reality
5 a safer society.
6 I will vote no as I voted all
7 these many years; and when I go to bed tonight
8 knowing that New York State has the death
9 penalty, I will be ashamed of what we have
10 done.
11 ACTING PRESIDENT DeFRANCISCO:
12 Senator Gold.
13 SENATOR GOLD: Thank you, Mr.
14 President.
15 You know, I know we've been going
16 for about 2-1/2 hours, and I look around the
17 room and I think of a scene from 1776 where
18 George Washington sends a messenger to the
19 Continental Congress, and he walks in and sees
20 basically an empty room, and the message says
21 from Washington, "Is anybody there? Does
22 anybody care?"
23 We debated this so many, many
1957
1 times and it's interesting. Today, it's almost
2 anti-climatic. I have been involved in debates
3 on the death penalty when there was a tension in
4 the room and the walls were lined with people.
5 Today, I understand that it's anti-climatic. We
6 have a governor who says he is going to sign it
7 and we have two houses that are going to pass
8 it, and so does anybody care? Is anybody
9 there?
10 I'm almost embarrassed for us
11 that a situation like this was decided not by
12 the Legislature the way we're supposed to be
13 doing it in open debate but with counsels
14 working weekends and nights; and then when the
15 Senate and the Assembly and the Governor agree,
16 it doesn't matter what we do after that. We
17 look at our watches. Well, last week was two
18 hours, and we called debate. This week, we'll
19 let you go three maybe if you need a little bit
20 more, and it really hurts me that the people
21 that I know in this room, 60 other people who I
22 know are feeling, sincere people, can talk about
23 killing, butchering as a society and just take
1958
1 it as such a matter of fact kind of thing.
2 Senator Leichter, I thought that
3 your reference to somebody up in Putnam county
4 or Peekskill was interesting, but did you know
5 that Senator Volker actually voted for a law I
6 sponsored to create a situation where Izzy
7 Zimmerman could sue the state. Izzy Zimmerman
8 was convicted of murder, sentenced to death, and
9 at one point before they were going to pull that
10 switch, Governor Harriman said, "Well, look,
11 we'll commute it to life," and it wasn't because
12 Governor Harriman thought he was innocent. They
13 commuted it to life. Well, thank God. Because
14 when it turned out that Izzy Zimmerman was
15 innocent and they had to let him go after some
16 twenty years, we let him sue the state he won a
17 little bit of money, and died within six
18 months. So don't tell me none of us know of
19 these mythical stories.
20 I just want to make a few points
21 because so much has already been said. I
22 understand that as a result of this magnificent
23 negotiation $750 is being put on one side and
1959
1 $750 on the other side to get this going.
2 And my question is, is that for
3 the first week? Will that get us through a
4 week? I mean are we serious about this? You
5 are talking about a huge procedure now where you
6 are going to have special offices of counsel,
7 and you put up 750,000. I know why you are
8 doing it. You are doing it because you don't
9 want to be honest with the people and tell them
10 what it's really going to cost in dollars. It's
11 not a question whether it's a deterrent or not.
12 This is big dollars, and you really don't want
13 to deal with that.
14 I don't know whether I should
15 give Senator Connor credit or not. I really
16 told him it was in my notes, but it really is
17 his point. If there are people in the State of
18 New York who are petrified of the death penalty
19 but there are people in the State of New York
20 who say, "Well, if I go out and kill somebody,
21 then I can only get 20 to life, there is nothing
22 to do it," I assume that from now to September
23 1st, when this becomes the law, we're going to
1960
1 have massive murders in this state because
2 people are going to say, "Hey, I better get my
3 kicks in before September 1st because then
4 they're going to kill me. If I kill somebody in
5 August, it's only 20 to life. Piece of cake."
6 I mean if that isn't ridiculous, and don't tell
7 Senator Connor I gave him credit for that. This
8 weekend I saw something in the movies,
9 "Shawshank Redemption". It's a film about
10 prison life, the brutality of prison. And today
11 in the New York Post, there is a really
12 wonderful story by one of their writers. I
13 won't mention his name. But -- all right. It's
14 Fred Dicker. But "Terror in the Teenage
15 Prisons."
16 You know, for any of you who have
17 not been involved in the Crime and Correction
18 Committee or have never gone to any of these
19 prisons, you really should. If you are sixteen
20 or seventeen years old and you go to one of
21 these institutions and are brutalized and are
22 subjected to the gangs and the guards and
23 everybody else, you tell me how you expect those
1961
1 young people to come out of those institutions
2 and not go out and kill, and this bill doesn't
3 deal with that.
4 The fact of the matter is there
5 is nothing that you put Senator Lack that deals
6 at all with the prison systems and what we do to
7 people and why we have people coming out of
8 prison every day who are recidivists. I mean
9 this is something to take a look at. It is
10 something serious you should take a look at it.
11 There was another thing in the
12 New York Post today. Don't ask me why but this
13 is really the only day of the year I read that
14 paper, but I read it today. "Believe That Crime
15 Rate is Dropping," it has in here that from last
16 year to this year the murder rate for the first
17 two months is down 36 percent. Now, you know
18 what you can learn from that figure. It's not
19 the death penalty that's a deterrent. Maybe
20 it's talking about the death penalty that's a
21 deterrent. So we shouldn't pass the bill. We
22 should just keep talking about passing the bill,
23 and that might do something. That's how your
1962
1 figures work out.
2 Maybe there is another way, I
3 don't know. I see Senator Marchi, Senator
4 Marchi, who many of us hold on a certain level
5 and pedestal when it comes to compassion and
6 feeling. Maybe, Senator Marchi, if more people
7 on your side listened to Puccini they would come
8 out with a better answer on all of this.
9 There was a radio program in
10 September of last year. It was called "All
11 Things Considered," and their guest was a Judge
12 Myron Love, and I tell you who Myron Love was.
13 Myron Love is the administrative judge of all of
14 the district courts in the county of Texas that
15 finds more people guilty of the death penalty
16 than any place I guess in America. Good old
17 Texas. We are always hearing they are killing
18 someone.
19 And what Judge Love says -- and
20 if you want the transcript, I will be glad to
21 give it to you. We're not getting what I think
22 we should be wanting, and that is to deter
23 crime. We're not getting it at all because
1963
1 we're having more and more capital indictments
2 filed; and, in fact, the result is the
3 opposite. We're having more violence and more
4 crime. Texas has the death penalty. More
5 police officers are killed in Texas than are
6 killed in other places.
7 Texas and Florida lead the way on
8 society butchering people and their death rates
9 go up and up and up. Tell me one of you, one of
10 you, who hasn't heard about murder in Florida.
11 My wife and I went on a vacation about a year
12 ago in the Bahamas, filled with foreign people
13 from Europe who said they used to go to
14 Florida. They won't go to Florida any more.
15 Florida is a dangerous place to go to. We said
16 it can't be dangerous in Florida. Florida has
17 the death penalty. Florida executes people.
18 How could that be a dangerous place to go?
19 USA Today, February 23, 1995,
20 "Death Penalty Useless" -- useless. Well, you
21 can expect that these wild liberal maniacs -
22 now, wait a minute. This isn't wild liberal
23 maniacs. This is the Police Chiefs of America.
1964
1 What do they say, "Attitudes Towards Death
2 Penalty," and when they asked 386 chiefs of
3 police throughout America if you had to choose
4 one way to reduce crime, what would you choose?
5 The death penalty was given as the solution by
6 one percent. Most of them said reduce drug
7 abuse. That was 31 percent, biggest answer.
8 Seventeen percent, improve economy, jobs.
9 Sixteen percent, fewer barriers to prosecution.
10 One percent, the death penalty. But you don't
11 want to hear that.
12 I have a brochure here from some
13 people I respect tremendously. New York State
14 Catholic Bishops, and when they tell you that
15 abortion is wrong, it's killing, those of you
16 who want to hear that, hear that. But when they
17 tell you that death is the answer, so many of
18 you who are willing to listen out of one side of
19 your head will not listen out of the other.
20 Somebody asked me. I was just
21 interviewed on the radio, and somebody said to
22 me, "Senator, do you think we ought to have
23 hearings on this bill?" And I said, "Why?"
1965
1 Why? If somebody testifies at that hearing and
2 says the death penalty is a deterrent and it's
3 this and that, those people who like the death
4 penalty are going to smile. They are going to
5 ask supportive questions. Then somebody will
6 get up and say it can't be a deterrent because
7 look at this and look at that, and those same
8 people will frown, and they will have different
9 kinds of questions; and at the end of the
10 hearing, there will not be anyone who has
11 changed their mind.
12 I want to be very candid with
13 Senator Volker. He deserves that of me. I
14 haven't read too much about this bill because I
15 don't care about the procedures. I will not
16 vote for the death penalty, so don't talk to me
17 about the procedures. I think that that's
18 silly.
19 One of the things I heard -- some
20 things seem to get a life of their own, and one
21 of the things I heard over the weekend from a
22 number of different sources -- oxymoron. Great
23 word; right? A jumbo shrimp is an oxymoron -
1966
1 jumbo shrimp. "Humane execution" if that isn't
2 an oxymoron. Humane execution. Isn't that
3 something? You are this brutal SOB, killed 50
4 people, slaughtered them, and we're worried
5 about a humane execution? If you want to kill
6 the son of a..., kill him! Tear him apart.
7 Let's get one horse on each arm and one horse on
8 each leg. Let's do it. Humane execution?
9 That's what we're worried about?
10 By the way -- by the way, I said
11 it before, I'm going to say it again. Mario
12 Cuomo, God bless you. Today is another day of
13 your vindication. George Pataki would never
14 sign the bill that you vetoed. Never. Why did
15 they have all of this nonsense going on for
16 weeks and weeks, "Got to have a bill"? Never
17 had that with Mario Cuomo. Why? So they could
18 create a political issue, but they didn't worry,
19 and Mario Cuomo was right. He said, "This is
20 not only wrong, it's a terrible bill." So,
21 Mario, God bless you. You should enjoy a good
22 healthy long life with your family. You were
23 right to veto the bill, because I assume George
1967
1 Pataki wouldn't have signed it anyway.
2 I also want to pay a tribute to
3 -- I think it's Dwyer, a writer of Newsday. He
4 had that article a couple -- I guess about a
5 week ago, and his conclusion was that if you
6 have the death penalty under the system that we
7 have in America it will not be the worst
8 murderers who will be executed; it will be the
9 murderers with worst lawyers.
10 If there ever was a situation
11 which I would have hoped would have sobered up
12 America, it's the O.J. Simpson trial. I'm not
13 judging O.J. Simpson. That's not mine to do,
14 and I don't watch the circus, to tell you the
15 truth. But you can't live in America without
16 picking up some of it some place, so I have seen
17 some of it some place. And what is going on?
18 Is there a trial out there to determine whether
19 or not O.J. Simpson is responsible for the
20 slaughter of two people?
21 Well, let's start at the
22 beginning. California could indict O.J. Simpson
23 for a crime where he could get the death
1968
1 penalty, and they didn't do it, and they didn't
2 do it for good reason. Now, was that reason
3 because the crime was a piece of cake? Somebody
4 walked in and injected two people and they died
5 in the middle of the night. The crime was
6 disgusting. Two people were slaughtered,
7 butchered. So why wasn't this individual
8 indicted for a crime where he could get the
9 death penalty?
10 Well, there are some really good
11 reasons. Number 1, he's got a lot of money, and
12 a lot of money means a lot of big name lawyers
13 and O.J. Simpson has a rep, and here's this idol
14 with a lot of money and a lot of lawyers before
15 a jury, and if the jury is saying, "Wow, it's
16 not only a question we could convict him but we
17 could fry him," I don't know. So O.J. Simpson
18 with a lot of money and big lawyers doesn't get
19 indicted in a crime that could bring him the
20 death penalty; and if you see from day to day
21 what's going on there, I mean how can you put
22 American justice on the level that can tell you
23 that it's fair to execute people?
1969
1 There is one other point and I'm
2 going to make it much shorter than I had planned
3 to, but, you know, I have a district that has a
4 very large Jewish population, and as a result of
5 a loss in my family, I have been pretty good
6 about getting to the synagogue about every day,
7 and let's face it. Let's face it. If you read
8 the Bible, if you read Talmudic Law, the death
9 penalty is in there. And I said to myself you
10 know maybe -- maybe I ought to go along with
11 that, and I want to tell you I could vote for a
12 death penalty bill today, but I looked at yours,
13 Senator Volker, and to tell you the truth, I
14 didn't see the Talmudic stuff in there. I
15 didn't see 23 judges. I didn't see two
16 witnesses, one of whom tells you before you
17 killed, "Do you know that if you kill, it's the
18 death penalty." I didn't see in there some of
19 the crimes for which you get the death penalty
20 -- being disrespectful to your father and
21 mother, that's certainly one you wanted to
22 include, et cetera, et cetera.
23 So the answer is that, you know,
1970
1 I'm glad that this year, different from other
2 years, we have not been dwelling on an eye for
3 an eye and blaming the Almighty as we vote to
4 kill people.
5 In conclusion, I just want to say
6 this. This is not a great day for us. This is
7 a day where we have basically surrendered and
8 said we have no answers; and, therefore, the
9 barbarians win. The barbarians win.
10 And, you know, I got to make a
11 comment about something today. I would think
12 that we would want to either teach those people
13 who are not as good as we are or think we are or
14 find people to use as examples that we think are
15 better than we are. I read a press release
16 today which I thought was incredible. I don't
17 support this bill, but there are people on my
18 side that do, people on your side. This is a
19 nonpolitical issue, and I'm told that because
20 the Speaker of the Assembly didn't act in such a
21 terrific way towards some of his members that
22 instead of saying to the Speaker, "Mr. Speaker,
23 you're acting as a petty politician, we are
1971
1 better than that," the Majority Leaders o this
2 house said, "Mr. Speaker, I can be as petty as
3 you can be." Now, if that isn't picking the
4 worst example rather than setting the best
5 example, I don't know.
6 I would have been prouder of
7 Senator Bruno if he said, "Mr. Speaker, I don't
8 care what you do." This is an issue that is
9 important to people and Senators ought to be
10 able to line up and say their feelings.
11 Now, that is relevant to what is
12 happening on the bill. Because we are not
13 saying to the barbarians, "We are better than
14 you are; you are going to go to jail, and you
15 are going to spend your life there, and we will
16 not kill, and we will not be brutal because you
17 are going to be brutal." But, instead, we say,
18 "Okay. You want to be a barbarian? Let me
19 tell you something. We can be barbarians."
20 And the result of it is very
21 simple. We are curing nothing, and the streets
22 that we want to make safe will be just as
23 violent; and when all is said and done, our
1972
1 teenage prisons will be just as violent; and
2 those teenagers that get out of jail will be
3 just as violent because they know no better.
4 There are things that are worse
5 than death, my friends. Living without hope is
6 worse. Living without hope is worse, and there
7 are people who every day are going to take the
8 opportunity and take the risk that they may die
9 for a crime rather than live in what they know
10 is utter despair. They may also decide to take
11 a look at New Jersey which just passed the tenth
12 anniversary of its capital punishment law, and
13 no one has been executed for ten years, and you
14 tell me who that deters.
15 So I thank you for your
16 patience. I thank you for those few who stayed
17 around to listen to their colleagues, and I say,
18 Senator Volker, you can always call me for a
19 reference. You are in my opinion the ultimate
20 gentleman. You are the ultimate person who does
21 what he believes in.
22 But just as, Senator Volker, with
23 every other human being who is as sincere as you
1973
1 are, we can be wrong, including me, and I hope I
2 am sincere. We are talking the state in a wrong
3 direction; and just as you have started this
4 fight so many years ago, all it means is that
5 others will take up the cudgel. 1965, death
6 went out; 1995 it comes in; and the year
7 2000-something it will go out, et cetera, et
8 cetera, et cetera.
9 So I will vote no, Senator, and
10 it is not because you are missing a comma on
11 page 3, and it's not because this happened and
12 it's technical. I'm voting no for a very simple
13 reason. I think society is better than this
14 bill demands. I think society ought to be able
15 to cure its problems without resorting to the
16 vulgarity and the barbarism as the criminals on
17 the street.
18 SENATOR SKELOS: Madam President.
19 THE PRESIDENT: Senator Skelos.
20 SENATOR SKELOS: Is there a list
21 of speakers?
22 THE PRESIDENT: Yes, there is.
23 There are 13 more -
1974
1 SENATOR SKELOS: How many
2 speakers -
3 THE PRESIDENT: Speakers on the
4 list.
5 SENATOR SKELOS: I beg your
6 pardon?
7 THE PRESIDENT: There are 13
8 additional speakers on the list.
9 SENATOR SKELOS: Could I just
10 remind the members that we are now into three
11 hours of debate at this time.
12 THE PRESIDENT: Thank you.
13 Senator Galiber.
14 SENATOR GALIBER: Madam
15 President, thank you for my recognition.
16 I didn't speak on this bill last
17 week, and Senator Volker and I almost had an
18 understanding on certain years because our
19 beliefs were there, and we almost knew how we
20 were going to vote.
21 Senator, I don't move as fast as
22 I used to move, so I want you to know that I
23 missed your Code meeting this afternoon not
1975
1 because you weren't serving lunch. It was
2 because I just couldn't move that fast.
3 Madam President. I'm going to
4 try to be as brief as I possibly can, and that
5 will be brief because it's all -- really has
6 been said. Senator Abate said it, Senator Gold
7 said it, Senator Connor, and many others of my
8 colleagues. I can recall as I sit here another
9 reason why I decided to speak on the bill is
10 that this is a period when we are now shifting
11 the burden, if you will, shifting the burden
12 from those of us who have been opposed to this
13 so long to those who have now the responsibility
14 to show the people of the State of New York that
15 they have been defrauded a bit because those
16 persons who are in favor, basically, of the
17 death penalty are persons who believe that there
18 will be no more muggings after the Governor
19 signs this piece of legislation. It will be
20 safe. In my house, there will be no more
21 burglaries. There will be no more drugs. There
22 will be no teenage killings in the streets of
23 New York, in the State of New York, for that
1976
1 matter, and we all know that is not so.
2 I can recall a former Senator -
3 no, he is still a Senator because once one,
4 always -- who made a mistake in my judgment
5 because I'm opposed to the death penalty. He
6 sent out a questionnaire in his community, and
7 my community is contiguous to his, and the
8 question was a very simple one, "Are you in
9 favor of the death penalty?" And it came out
10 overwhelmingly, "Yes."
11 I dare say that if I had sent out
12 a questionnaire that the answer would have
13 probably come out the same, but we are all
14 elected to office to deal with our own thoughts
15 on occasion to try to represent, if you will,
16 the general population and also what we think is
17 right and wrong. Senator, we are going to
18 revisit this issue, and I can recall some of the
19 comments that were made before during the course
20 of debates over the years. In one of them,
21 Senator, there was a clear indication that you
22 said something to the effect that so if we by
23 chance kill, execute an innocent person,
1977
1 sobeit. Now, I know that you didn't really mean
2 that, but that's what you said. So we do, in
3 fact, on occasion kill innocent people.
4 I can recall history, those of us
5 who went to law school and most of us -- some of
6 us did, anyway -- can recall that -- and you've
7 heard it before. It's worth repeating when we
8 talk about deterrence. Certainly this piece of
9 legislation, death penalty, if you will, is not
10 a deterrent. History has shown that at one
11 point in time there were 150 crimes -- Senator
12 Gold alluded to it before -- that carried a
13 death penalty if you were convicted, and one of
14 them was picking pockets, and everyone would go
15 to the hanging, and the pickpockets would go
16 there because the crowds were there and pick the
17 pockets.
18 So, Senator, I say to you as
19 brief as I possibly can, no one within the sound
20 of my voice respects you more for your
21 excellence and your industry and most of all
22 your patience. I agree with Senator LaValle
23 almost with all of what he said with the
1978
1 exception that you're soft. You are definitely
2 not soft but you are someone that we all
3 respect.
4 As we approach -- and I will end
5 on this note. Senator, recall as we approach
6 Easter that there was the first Christian martyr
7 who rode into town and people were saying
8 hosannas to it, and we know that the following
9 week thereafter, the crowd changed; and they had
10 a practice at that point in time where the
11 people decided who would go free from a hanging
12 of three; and they let Barabbas go free, if you
13 will; and Barabbas had a yellow sheet from here
14 to here, but the people changed their minds.
15 So, therefore, we find that innocence is a
16 factor that we wind up killing our first
17 Christian martyr, the first recordation, if you
18 will, of homicide, and he was on a garbage pile
19 between two thieves; and we found out, very
20 recently after that, that he was innocent.
21 So, Senator, I believed and I
22 will continue to believe that a death penalty is
23 not a deterrent; that we are going to find crime
1979
1 running rampant again in our streets; that the
2 people -- and we will revisit, as I mentioned
3 before. The people will be back to this chamber
4 through their representation to say that "We did
5 not understand" or "We were misled." We are
6 living in a community where our doors are open,
7 but we can't come out at night, locked in our
8 houses with open doors.
9 So, Senator, in appreciation for
10 all your excellence and your industry and what
11 you have put into this, the fact of the matter
12 is that this is not a deterrent; that this will
13 go down as one of saddest days that we have in
14 the history of New York, and we may not be
15 around to see the reversal of this what is going
16 to happen today.
17 This is a piece of legislation
18 that I have fought with all my heart throughout
19 the years because I do not believe that this is
20 the way that we do things. This is strictly a
21 political move; and as a result, as we review
22 this, we find that persons for political
23 reasons, also those persons who believe in
1980
1 retribution, are the ones who are in favor of
2 this, an eye for an eye, a tooth for a tooth.
3 The victims, if you will, that we are all
4 concerned with -- doesn't sound that way
5 sometimes, but we are -- the closest I ever came
6 to changing my mind on a death penalty was this
7 nut that killed seven people out there on Long
8 Island, the spraying of a van across the
9 Brooklyn Bridge, the bombing of the World Trade
10 Center, and I can go on and on and on.
11 But in my heart's heart, I do not
12 believe that this is a deterrent; that the
13 better way would be life imprisonment without
14 parole.
15 Thank you, Madam President.
16 THE PRESIDENT: Senator Jones.
17 SENATOR SKELOS: Madam President.
18 THE PRESIDENT: Oh, I'm sorry,
19 Senator Skelos.
20 SENATOR SKELOS: If we could -
21 THE PRESIDENT: Excuse me,
22 Senator Jones, just a moment.
23 SENATOR SKELOS: For the purposes
1981
1 of Senator Gold voting, again, and Senator
2 Galiber, could we have the last section read and
3 the roll called.
4 THE PRESIDENT: Yes. Read the
5 last section, please.
6 THE SECRETARY: Section 38. This
7 act shall take effect on the first day of
8 September.
9 THE PRESIDENT: Call the roll.
10 (The Secretary called the roll.)
11 SENATOR WALDON: No.
12 SENATOR GALIBER: No.
13 THE PRESIDENT: Senator Gold.
14 SENATOR GOLD: No.
15 THE PRESIDENT: Senator Galiber.
16 SENATOR GALIBER: No.
17 THE PRESIDENT: Senator Waldon.
18 SENATOR WALDON: No.
19 THE PRESIDENT: Senator LaValle.
20 SENATOR LAVALLE: Yes.
21 THE PRESIDENT: Senator Leichter.
22 SENATOR LEICHTER: No.
23 THE PRESIDENT: Shall we withdraw
1982
1 the roll call now?
2 SENATOR SKELOS: Please withdraw
3 the roll call and resume debate.
4 THE PRESIDENT: Senator Jones.
5 SENATOR JONES: I certainly agree
6 with my colleagues that we are at a moment in
7 history today. I think this is only the first
8 chapter that we're writing today.
9 I bet there are many emotions if
10 everyone were really honest with themselves in
11 this room today, perhaps myself included. If I
12 were purely selfish, or even my colleague
13 Senator Dollinger, we would probably say, "Thank
14 God. We will never see another brochure or
15 another TV ad that says I'm not worthy to be
16 here because I'm opposed to the death penalty."
17 Maybe all of us feel an element
18 of relief because, basically, what we're doing
19 now whether we are for or against it is passing
20 the burden of this responsibility onto the
21 prosecutors, the defense attorneys, and the
22 juries of 12.
23 I had an opportunity to be in New
1983
1 Jersey this weekend when a very famous, at least
2 down there, verdicts was handed in on a trial.
3 It was very interesting to me to read all the
4 accounts in the paper and see what happened with
5 that jury of 12. It was a heinous crime. It
6 was a carjacking of the worse kind, a woman and
7 a 3-year-old child in the car. They believed
8 that apparently the woman convinced him to let
9 the little girl out of the car where she sat in
10 a yard all night long, a 3-year-old child. The
11 woman, of course, was found murdered and raped,
12 a cruel, terrible killing.
13 However, the jury did not impose
14 the death penalty. When talked to some of the
15 people afterward, several of them commented, "As
16 long as I knew he wasn't going to get out of
17 jail, ever, I didn't feel comfortable doing
18 that." I wonder if our juries will be doing the
19 same thing years from now.
20 I didn't come here with any kind
21 of a preconceived notion. Death penalty was
22 never a topic of discussion in first grade
23 classrooms, I can assure you. So what I've
1984
1 learned and what I've studied about it all came
2 from being here, and I assure you I have read
3 every piece of literature that's available on
4 this. I've looked at the numbers like you did.
5 I agree with both sides that they're
6 contradictory, and none of them are totally
7 conclusive.
8 But what do I believe? Well, I
9 certainly believe that racial issues are going
10 to be a factor. As my colleague said last week,
11 I can count. I visited prisons. I've looked at
12 the faces that look at me from behind those
13 bars, and I know how many of them are clearly
14 black faces. I know it's going to effect the
15 poor. Look at the cost of a defense. How can
16 you say any different.
17 Do I believe an innocent person
18 can be convicted? Well, I'll tell you what.
19 Juries are people, 12 real people. If I just
20 went around this room today and said to you how
21 many of you believe Rosa Lopez told the truth?
22 I guarantee you I would not see every hand
23 raised yea or nay, and that may be the deciding
1985
1 factor that says whether O.J. Simpson is
2 guilty. Real people are listening to this, and
3 all of them come, as do you and I, with notions,
4 with beliefs, and with things that we think are
5 important, so of course it's possible.
6 I listened to a woman over the
7 weekend tell me, with pride, her story of being
8 on a jury. She was the only one who wanted the
9 person let go. She convinced 11 other people
10 and thought it was great that she did that.
11 So this does happen on juries in
12 our country, and don't -- I don't come from a
13 law background, and I didn't try the cases, but
14 I do know real people. I was one of them, and I
15 hope I still am.
16 I have to believe we're putting a
17 burden on our local governments. Our own
18 district attorney who has always been a strong
19 proponent of the death penalty railed in the
20 paper the other day that one of these trials
21 could mean his whole budget. This is a person
22 who believes we're doing the right thing today,
23 but he still questions what the cost is going to
1986
1 be.
2 And I also believe, Senator
3 Volker -- I think the one thing we could get a
4 unanimous vote on today is that clearly the
5 righteousness of your position is something you
6 truly believe in, and your sincerity wouldn't be
7 questioned by anybody in room. If you didn't
8 believe it, no one could persist all the years
9 that it appears that you have to get to this
10 day.
11 But now let me tell you what I
12 wonder about because I wasn't here and I don't
13 know. I wonder if you hadn't held all these
14 years to the position of all or nothing and you
15 did go with life without parole, would we be
16 here today? Would it have made a difference? I
17 wonder if maybe you'd spent a little more money
18 for job training or drug treatment or education,
19 would that have made a difference in the crime?
20 I wonder if maybe we worked harder at
21 revitalizing our cities, maybe more low-income
22 housing, maybe that would have helped; and maybe
23 the crime picture would have been the same. I
1987
1 wonder if we had taken a stronger position on
2 gun control, would that have made a difference?
3 Well, you know what, my
4 colleagues, I don't know the answer to any of
5 those questions; but you know what, neither do
6 you because none of them were tested. So what
7 we're doing today is making a decision that
8 killing is the answer; and regardless of whether
9 it would mean there would never be another
10 successful election as long as I lived, I
11 couldn't change my position, nor could any of
12 you, because I know that you truly believe that
13 what you're saying is right.
14 So I'll just end by borrowing a
15 quote from one of our local newspapers, and
16 surprisingly enough it was not the so-called
17 liberal Gannett paper. It was our conservative
18 weekly newspaper who -- I frankly was stunned
19 when I read it, but the bottom line it said,
20 very short, "We shouldn't do it. Killing is
21 killing whether it's done by the criminal or the
22 state."
23 And that's, finally, the
1988
1 conclusion that I reach, and I will continue to
2 vote no.
3 THE PRESIDENT: Thank you.
4 Senator Rath.
5 SENATOR RATH: Thank you, Madam
6 chairman.
7 Senator Volker, I believe, at the
8 beginning of the debate framed the issue when he
9 said that he has done his best to make our
10 streets safer, that he has done his best to
11 deliver a bill which will save lives, and he
12 asked a question when he had seen the young girl
13 who had been brutally murdered, "Would a death
14 penalty have made a difference to the
15 perpetrator? Would the little girl be alive
16 today?"
17 When I came down this morning -
18 I had a very early flight. As I was reading the
19 Buffalo News, I happened to see on the front
20 page that a gentleman who was always part of the
21 debate in years gone by -- and it's former
22 Governor Cuomo -- spoke out against the death
23 penalty, and let me say what the Buffalo News
1989
1 quoted him as saying that the law makers will
2 succumb to a tendency we have to be swept away
3 with the current mood of the people even if it's
4 wrong. Quote, "It's politically popular. So
5 are a lot of things politically popular that are
6 wrong."
7 I think the question then is
8 begged, if it's politically popular, is it
9 necessarily wrong? What about other issues that
10 we would have to consider now being politically
11 popular, are they always going to be wrong just
12 because they are politically popular? I don't
13 think so. I think all of us would recognize how
14 specious that kind of an argument would be.
15 I listened to the debate last
16 year. I listened to the debate last week. I
17 listened to the debate today, and I think
18 everything has been said. Maybe there will be a
19 few more things that will be said as we wind
20 this on down. It's not an easy vote for
21 anyone. It's not a casual vote for anyone. But
22 in the course of human events that have been
23 brought forward today and will happen as this
1990
1 item passes, I think we need to look back to the
2 goal, and I think, again, Senator Volker set out
3 the goal.
4 All of us in so much of
5 everything that we do here are trying to make
6 our world a better place to live, a better place
7 for our children to live, a better place for
8 future generations, and that's a road we travel
9 down together. But are we traveling down a
10 straight road? I don't think so, and I think
11 that's so much of what I heard all of you say
12 today. That road takes a little shift to the
13 left, a little shift to the right, a little to
14 the left, a little to the right, but it is
15 moving forward all the time, but it is not a
16 straight road; and, today, that road is shifting
17 a little bit to the right. It shifted a little
18 to the left in 1965, if you will, if you want to
19 take a conservative and/or liberal brush to it
20 but we aren't moving forward.
21 And there are enough people today
22 who believe that what they're doing is right,
23 and a vote will take place and a death penalty
1991
1 will be put in place, but let us remember that
2 as we move down that road, it's a road to a
3 success, hopefully a road to a goal that we
4 believe in, and that road is presently under
5 construction and it's not going to be finished
6 with this bill or most of the other things that
7 we pass; and as our time in the Legislature
8 passes, the road will continue on, and hopefully
9 we will make some progress. Whether we like the
10 way we're making it or don't like the way we're
11 making it, hopefully it will be progress.
12 THE PRESIDENT: Thank you.
13 Senator -- she's not here. Pass
14 her by.
15 Senator Waldon.
16 SENATOR WALDON: Thank you very
17 much, Madam President. It's been a long day. I
18 will try not to extend the day too much.
19 First, I would like to compliment
20 Senator Volker on the crafting of this
21 legislation. I think all of the concerns within
22 reason raised over the course of the last few
23 days and weeks in preparation have been
1992
1 addressed. I do believe that with his whole
2 heart he believes that what he has done is
3 correct, and I respect that and, in fact, I
4 admire his tenacity and admire his belief that
5 this is the correct thing to do. I respect that
6 and I hope that he respects the fact that I
7 believe what I believe and for all of the
8 reasons that make Al Waldon who he is.
9 I would also like to commend the
10 Majority Leader for having received a copy of
11 the bill timely at my home over the weekend so
12 that we would not have the agita and
13 consternation as previously experienced
14 regarding absence of due notice on this issue.
15 Those of us who are somewhat
16 Biblically-oriented Christians can look in
17 Exodus and see that Moses when he came down from
18 the mountain received a mandate -- not a
19 mandate, but a directive from God, quote, "You
20 must not murder", close quote, and that's a
21 strong admonition, and I'm sure that it's
22 present in our similar treatises, the Koran or
23 the Torah; and so those of us who look to our
1993
1 past history as a people are given guidance that
2 we should not do what we're doing here today.
3 We're taking the road that is
4 less traveled; and in taking this road, which I
5 call the road of retribution, the via of
6 vendetta, the rue of revenge, the boulevard of
7 base instincts, we are separating ourselves from
8 nations which do not act in a similar fashion;
9 and for the record, let me tell you that we are
10 separating ourselves from Australia, Austria,
11 Denmark, Norway, Germany, Switzerland, Ireland,
12 Israel, Brazil, New Zealand, France, Spain,
13 Sweden, Italy, Netherlands, Finland, Portugal,
14 Iceland and the United Kingdom. We have
15 encouraged other countries to extend human
16 rights to all of their people and many have.
17 The nations that gave rise to
18 Hitler, Franco, Mussolini; Pol Pot, Cambodia;
19 and Ceausescu, Romania, have all abolished cap
20 ital punishment. Let me remind that Israel is
21 under constant continuous terrorist threats and
22 has been since its birth as a nation, and it has
23 suffered the tragic deaths of literally
1994
1 thousands of innocent people in a most brutal
2 fashion, and yet Israel has no capital
3 punishment.
4 But with what we do today in this
5 chamber, we are now in the company of and will
6 be forever associated with Iraq, China, Libya,
7 Vietnam, Syria, Cuba, and the Commonwealth of
8 Independent States formerly the USSR.
9 What legacy is this, this death
10 penalty? What will our children -- what will,
11 in fact, our children's children say about our
12 failure with this act, this action, this
13 superceding of the Almighty who said, "Vengeance
14 is mine." What value are promises made? What
15 value are political promises made which result
16 in such barbaric action in the name of the
17 people of the State of New York?
18 And when it comes to the poor
19 especially those of color, this legislation is
20 an even greater tragedy. Let me give you some
21 examples.
22 The race of the defendants
23 recently executed in this nation are as
1995
1 follows: 55 percent were white, 143. 38
2 percent were black, 99. 6 percent were
3 Hispanic, 15. Less than one percent were native
4 Americans, only 1.
5 On death row as we speak, 49
6 percent of those on death row are white, 1,446.
7 40 percent of those on death row are black,
8 1,180. 7 percent are Hispanic, 204; and the
9 others comprise 4 percent or 117.
10 Yet black folk,
11 African-Americans, Caribbean-Americans,
12 constitute but 14 percent of the population.
13 January 23, 1995, marked the first instance in
14 which a white person in this nation was executed
15 for killing a black since the death penalty was
16 reinstituted in 1976.
17 What I'm really driving at is,
18 though Senator Volker has carefully crafted this
19 legislation and though there were promises made,
20 I called them the punitive promises of Governor
21 Pataki, that he would deliver the grim reaper of
22 death and this grim reaper has honed his scythe
23 to an irreversible edge -- eternity; that even
1996
1 though these promises were made and this grim
2 reaper will forever guard the door of this
3 chamber, it is going to be most negative and
4 most disparately impact those who have been most
5 disparately impacted in this nation from time
6 immemorial -- the poor, the blacks, the Latinos
7 and other people of color.
8 So even if I had an inclination
9 to recognize the intelligence in terms of
10 crafting of this legislation, because it took an
11 intelligent mind to bring it along for so many
12 years; even if I wanted to say, Gee whiz, the
13 political process had to be refined -- he had to
14 stroke a lot of people; he had to make sure that
15 everyone fully understood what he was putting
16 together, meaning Senator Volker, because this
17 doesn't just happen, even though it took so many
18 years, happenstance; even though I might
19 recognize that somehow the will of some of the
20 people of the State of New York said, "We want
21 to be barbaric, we want the death penalty," I
22 could not vote for it and will not vote for it
23 because I do not believe that we as a people
1997
1 have the right to supercede the Almighty, and I
2 do believe in my heart of hearts that it will
3 always and forever more disparately impact most
4 of the people who look just like me and the
5 taint of death will reek in this place for a
6 long, long time.
7 Thank you, Madam President.
8 THE PRESIDENT: Senator Mendez.
9 SENATOR MENDEZ: Madam
10 President. I want to join my colleagues in
11 recognizing the long hours of work and
12 commitment of a dear colleague that we respect
13 and so very much -- Senator Volker. He really
14 has shown tenacity and conviction in an issue
15 that he believes very strongly in. So,
16 therefore, for the past seventeen years that I
17 have been in this chamber, I have consistently
18 also -- have shown strong commitment to the
19 opposite view regarding this issue.
20 And pertaining to the bill that
21 we are voting on today, I have one little
22 question. I have been told by lawyers, I am not
23 a lawyer, that often times the criminal mind
1998
1 develops a tremendous sophistication -- a
2 tremendous sophistication concerning the in's
3 and out's of legislation, anything that has to
4 do with the criminal law. So since the options
5 that are presented on this bill stipulate -- and
6 I don't -- want my clear colleague, Senator
7 Volker, to correct me. If I understand
8 correctly, the options are that the jury will be
9 instructed and will be deciding on whether to
10 unanimously decide on imposing the death penalty
11 or unanimously deciding to impose life without
12 parole.
13 So my question is could it
14 possibly be, then, that a lawyer who is
15 defending a person who committed a heinous crime
16 will, say, advise the person by saying, Look,
17 don't risk it to go into a trial. Just declare
18 yourself guilty and at least you will be alive
19 with a sentence of 20 or 25 years to life?
20 If that scenario occurs, then the
21 main motive that Senator Volker has to impose
22 the death penalty in terms of saving lives would
23 not -- wouldn't be occurring because most of the
1999
1 people, the hardened criminals, the ones that
2 commit those crimes, will be opting for
3 declaring themselves guilty.
4 So, Madam President, I would like
5 Senator Volker to answer a question.
6 THE PRESIDENT: Senator Volker,
7 do you yield?
8 SENATOR VOLKER: Certainly.
9 SENATOR MENDEZ: I was just
10 saying that the options that are offered in your
11 bill, one is that the person would declare him
12 or herself guilty. In doing so that person
13 would be he is escaping the death penalty.
14 SENATOR VOLKER: True.
15 SENATOR MENDEZ: Is that the
16 case?
17 SENATOR VOLKER: In the bill,
18 Senator, a person can not plead guilty to the
19 death penalty, you're right. But the person
20 could plead guilty to life without parole, or I
21 suppose the person would try to -- more likely
22 to plead guilty to 20 to 25 years to life,
23 that's true.
2000
1 SENATOR MENDEZ: So if that
2 happens, then, many terrible criminals would be
3 -- because they become so sophisticated about
4 Criminal Law, isn't it likely that they would be
5 declaring themselves guilty of the crime that
6 they are charged with? So, therefore, we would
7 not be executing that many people.
8 SENATOR VOLKER: Senator, there's
9 one small problem with that. First of all, you
10 can not pled guilty to the death penalty; but if
11 you are going to plead guilty to anything else,
12 you've got to get the consent of the D.A. The
13 D.A. does not have to accept your plea of guilty
14 to 20-25 years to life or to life without
15 parole. He doesn't have to accept it. He can
16 move on, but the person under the law can not
17 plead guilty to the death penalty. But other
18 than that, you have to have the consent of the
19 D.A.
20 SENATOR MENDEZ: Well, Senator,
21 I'm not saying that the person will plead guilty
22 to the death penalty. I'm saying that if a
23 person pleads guilty to the crime that he or she
2001
1 committed.
2 SENATOR VOLKER: Yes, I'm saying
3 he can't unless the D.A. consents.
4 SENATOR MENDEZ: Oh, so it needs
5 the approval of the D.A.?
6 SENATOR VOLKER: It needs the
7 approval of the D.A., yes.
8 SENATOR MENDEZ: Oh, I see. I
9 see. I see. Thank you.
10 SENATOR VOLKER: You're welcome.
11 SENATOR MENDEZ: Thank you.
12 So we all know, Madam President,
13 that anything that I might say here or anything
14 that any one of us will say here will not change
15 an iota the conviction that for such a long
16 period of time many of my colleagues have
17 concerning the need to impose the death penalty
18 to provide greater safety in our communities;
19 and I, for one, knowing that the people out
20 there are clamoring for the death penalty in the
21 belief -- in their frustration -- rather, in
22 their frustration that it would be a panacea and
23 therefore, the frustration about the criminal
2002
1 justice system that has been a mess, having the
2 full conviction that -- the full conviction that
3 we do have, in fact, a criminal justice system
4 with double standards, I think it's risking too
5 much imposing the death penalty because built in
6 within the system is the horrendous reality that
7 those who have money will never feel the impact
8 of the sentences based on the crime that they
9 committed and those that do not have any money
10 will, in fact, feel that full impact of the
11 law.
12 But above everything else, the
13 reality is that I strongly believe that the
14 death penalty, taking the -- no state, no
15 government, should ever have the power to take
16 lives away from anybody; and since everything
17 that is done by all of us human beings here is
18 very fallible, the only kind of infallibility
19 that I believe in is in the Pope's
20 infallibility. The rest of the things that we
21 do here are very susceptible to error.
22 So, as usual, I will vote no on
23 the death penalty.
2003
1 Thank you.
2 THE PRESIDENT: Senator Espada.
3 SENATOR ESPADA: Thank you, Madam
4 President. If fear and the reality of crime
5 needed intelligent, courageous and workable
6 solutions and if they were to be found in this
7 bill, then I would vote for it. But this bill,
8 instead, provides the protocols of death. We
9 have been down that road before.
10 This bill not only tinkers with
11 the machinery of death but, in fact, creates it;
12 and we're ready now to feed this evil impulse
13 that many of my colleagues have spoken to.
14 But we're also putting out this
15 hoax that Senator Galiber spoke to, that many
16 others spoke to; and, in fact, that's been
17 reported throughout the papers who are
18 continually trying to tell us that the crime
19 rate is going down. "Murders and robberies take
20 dramatic dive," says the New York Post.
21 Senator Gold did an excellent job
22 sharing some other information from the
23 conservative think tanks and the conservative
2004
1 literature even backs this up.
2 Local law enforcement people, the
3 people we turn this over to, four out of the
4 five district attorneys in the City of New York
5 have told us they can not trust this new law to
6 fight crime, that it will not remove the taint
7 of racism, that innocent people will die; and
8 the fifth one in Staten Island says that a
9 couple of these cases will devastate his
10 budget.
11 That is the reality of the impact
12 that we know so far, and there's much that we
13 can't measure today that future generations will
14 measure, all of it mostly bad, because all of it
15 feeds into this new death industry where all new
16 jobs as described last week, executioners, strap
17 down specialists, will be created. Our law
18 enforcement officials tell us that not only will
19 this drain them of their budgets and the
20 initiatives that have led to these kinds of
21 results that have been reported but that it also
22 will thwart and take away from the efforts that
23 deal with rape, the efforts that deal with
2005
1 juvenile delinquency prevention, and all of it
2 comes back to our obsession and our zeal with
3 the death penalty.
4 You know, Senator Galiber did an
5 excellent job of talking about this eye for an
6 eye kind of mentality, and I have heard Senator
7 Marchi do an excellent job in the couple of
8 years that I have been here on this whole
9 immorality that's endemic and inherent in this
10 kind of approach, but this eye for an eye kind
11 of mentalitiy will some day result in people
12 getting up in these chambers and talk about
13 maybe proposing raping the rapist for having
14 raped, abusing the children of pedophiles for
15 their crimes, torching the arsonist. Why not?
16 It's all in keeping with our visit and our head
17 plunged into the moral abyss.
18 You know, the Governor, despite
19 the admonitions of Senator Saland, will
20 celebrate this tonight and many others will
21 celebrate and sign onto this death penalty today
22 or tomorrow, and the supporters of death will
23 say, "Hey, we've had our loan deferred, loan
2006
1 delayed, dreams come true," but I say that what
2 we've really done is revisited a nightmare that
3 I thought we buried in 1963 and that we outlawed
4 in the mid-'70s, and we will pay a price for
5 this.
6 You know, the anti-death, the
7 pro-justice, the anti-violence groups out there,
8 need not despair. We have a court system and we
9 have a Constitution in this state, and that will
10 not come to an end this evening, and we will
11 visit this issue in our court systems, and we
12 will also be everywhere and anywhere where the
13 capital punishment will rear its ugly and
14 vengeful, hateful face. The moral fortitude,
15 the moral authority that led a couple of
16 generations ago to outlast and overcome the old
17 death penalty bill, that same sort of dedication
18 will be reinforced and it too will outlive this
19 one.
20 My colleague, Senator Jones,
21 issued an invitation. I just want to make it a
22 little clearer or at least put it in my own
23 words: To all those forces that have made this
2007
1 -- this a success today, your dreams have come
2 true. You have summoned all of your forces, all
3 of your energies, all of your courage, and this
4 is your result.
5 The invitation is very simple.
6 Can we extrapolate with that sort of passion,
7 with that sort of vigor and visit some of the
8 issues that she outlined -- the kind of
9 hopelessness, the lack of employment and
10 opportunity, teenage pregnancy, all of those
11 things that have been wrapped up into this
12 so-called welfare reform. But we can't do that,
13 because the first thing that Senator Holland and
14 many others will say, it's fraud and abuse.
15 It's mistakes with that kind of approach, and so
16 when we talk about the fact that some innocent
17 people may die as a result of this approach, we
18 say, "Well, that's okay. I mean, that will
19 happen", but we can't take the same kind of
20 approach, can't have the same kind of value
21 system with respect to welfare reform, with
22 respect to ending poverty and hopelessness
23 because just a few of those out there will take
2008
1 advantage and steal from the system. It is a
2 moral inconsistency, the kind of contradiction
3 that will have us still fighting after the day
4 is done for real solutions to violence in our
5 society.
6 Thank you so much, Madam
7 President.
8 THE PRESIDENT: You're welcome.
9 Senator Bruno. Senator Bruno,
10 did you ask to be recognized?
11 SENATOR BRUNO: Madam President,
12 we have been -- at 7:30 we will have been
13 talking about this and debating this bill for
14 very, very close to four hours. There is still
15 a long list of speakers at the desk. We asked
16 at the opening of debate that people just be
17 mindful of how many would like to talk on this
18 issue, and some of you have and most of you
19 haven't. I would just ask those remaining to
20 speak, just recognize the fact that we would
21 like to aim at stopping this discussion and
22 getting to a vote some time in the neighborhood
23 of 7:30.
2009
1 So let's see how we go, Madam
2 President.
3 THE PRESIDENT: Senator Solomon.
4 SENATOR SOLOMON: Thank you,
5 Madam President.
6 Senator Bruno, I had this hour
7 and a half speech ready, I don't know what -
8 I'm going to try and be brief.
9 I was first elected in February
10 of '78, and I think I voted for the death
11 penalty one year three times; otherwise,
12 generally, it's probably been an average of over
13 30 times now that I voted for this bill, 34
14 times. However, this is a different occasion.
15 (a) The bill is quite different from the ones we
16 initially had, and I really wish there wasn't
17 the need to even be dealing with this
18 legislation today. However, there is a need.
19 In my own personal beliefs, I
20 have always believed in representative
21 government and representative democracy, and I
22 think the operative words are "representative",
23 and there's a perceived fear out there among the
2010
1 public. The public thinks this bill is going to
2 result in the reduction of crime. It may or may
3 not happen. However, I think the highest courts
4 in this land have certainly gone forward and
5 said, "Yes, the death penalty can pass legal
6 muster; it can be instituted in the various
7 states in this land."
8 Now, I plan to vote for that bill
9 again this evening. However, I really want to
10 carry a warning to the members of this house and
11 to the citizens of this state. I think we have
12 to be careful, and I think the ones we have to
13 also be careful of are the prosecutors who take
14 an oath to seek justice but in many instances
15 only seek press, and that's why I'm glad that
16 we've put some of the changes in these -- in
17 this bill, and I just hope that prosecutors are
18 mindful of their oath of office and not of the
19 glare of television lights and newspaper
20 reporters, because we know and we've all seen
21 instances where prosecutors can use their
22 overwhelming resources to take advantage of a
23 defendant and, in fact, it's the very cases that
2011
1 upset prosecutors where the defendants can
2 muster resources to match the prosecutors that
3 they have problems with.
4 And for this bill to work, we in
5 the Legislature and the citizens of this state
6 have to make sure that it's not abused, not
7 abused by individuals who, for whatever their
8 reasons, seek to take advantage of this severe
9 penalty, because nothing can be more severe than
10 death, and take -- to use this penalty for their
11 own political advantages. It has to be done
12 with justice, and they have to think what
13 they're going to do.
14 I hate to see the day where the
15 prosecutors try and protect themselves with the
16 grand jury and hide behind that grand jury as
17 they do in many instances. We have to be
18 vigilant in this house to make sure that those
19 capital defender funds stay there to make sure
20 that this isn't abused by people, the one group
21 that has the power to abuse this law; and
22 there's only one group in this state, and I vote
23 for this bill because I think we can have this
2012
1 -- as I said, the United States Supreme Court
2 has said that you can have this penalty
3 instituted in this country in certain
4 instances. I just hope that in the institutes
5 -- instances where it's called for, that it's
6 applied fairly where people are really seeking
7 justice, not press.
8 Thank you.
9 THE PRESIDENT: Senator Marchi.
10 SENATOR MARCHI: Madam President,
11 certainly I believe that Senator LaValle struck
12 a common chord in imputing some of the qualities
13 that he exemplifies to Senator Volker, and I
14 don't think I've ever differed with you on any
15 issue except this one, but you certainly have a
16 tremendous -- you're of tremendous moral
17 stature. I remember your father, I co-sponsored
18 many bills with him and it's a continuity that
19 has graced and enhanced the workings of this
20 chamber.
21 Nevertheless, that does not
22 relieve us of the responsibility of making a
23 very careful analysis of what we're doing. We
2013
1 ought to be putting this whole issue under a
2 jeweler's eye, and to some extent, this has been
3 done. There are redemptive aspects to the bill,
4 the question of proper and informed and
5 qualified representation for a -- for defendants
6 certainly received a powerful lift in some of
7 the provisions that are embodied in the
8 legislation that has been submitted to us.
9 I won't go back into some of the
10 historical review except a very brief reference
11 to Charles Dickens who interviewed 287 people
12 who were about to be executed in crowded
13 squares, and all but three had witnessed prior
14 executions. If that didn't tell me that a
15 morbid propensity was not triggered by the
16 spectacle now sanitized with -- with
17 out-of-the-way lethal injection, it's still -
18 it still is operative.
19 I would remind you that since
20 1977, when we -- when we started -- we commenced
21 the executions, the first execution was in
22 1977. California at that time introduced the
23 death penalty. They have 138 -- they have 403
2014
1 people on death row, but they have executed two
2 people during all those years.
3 I cite Colorado, Connecticut,
4 Kansas, Kentucky, Montana, New Hampshire, New
5 Jersey, New Mexico, Ohio, Oregon, Pennsylvania,
6 South Dakota, Tennessee, another 70 million with
7 30 million in California. You've had two
8 executions in California and all those other
9 states have not executed a single individual.
10 There must be some realization that we are
11 dealing with a very, very regressive, in terms
12 of human respect, penal system. All of these
13 states coming in zero, almost 100 million
14 people, yet we've had 352,000 homicides since
15 then. Are there better ways? Yes, there are
16 better ways.
17 Robert Morgenthau, who has been
18 quoted last time and this time, stated "To deter
19 crime, punishment must be prompt and certain.
20 In 1975, when I became district attorney, there
21 were 648 homicides." We want some statistics.
22 I'm going to give you some, and from Manhattan.
23 "In 1994, there were 330." He cut it in half.
2015
1 The number has been virtually cut in half
2 without executions, proof to me that they are
3 not needed to continue that trend.
4 I won't be repetitive on
5 arguments, but mention was made a little earlier
6 about the Eichmann execution in Israel and the
7 action taken at that time. Adolph Eichmann -- I
8 believe that was his first name -- personified
9 -- personified the shuttling of millions of
10 people in an organized fashion and feeding them
11 into the charnel houses of Europe where they
12 were destroyed by acid, by gas, by the most vial
13 systems imaginable, and that was an act to kill
14 -- kill in a physical way -- the greatest -
15 the greatest series of crimes that this planet
16 has ever known.
17 But what does Israel do today,
18 and what has Israel been doing since the
19 founding of the Republic? Israel does not have
20 a death penalty. Mind you, when you read that
21 five people in Israel were slain by fanatics,
22 you've got to multiply that by a factor of over
23 80. It's as if we had 400 people wiped out by
2016
1 fanatics, and Israel does not apply the death
2 penalty. Don't you think that, if it was a
3 matter of survival, that they would have
4 resorted to that? We had over 20 in Israel that
5 were slain recently. That would be almost 2,000
6 homicides in this country if you applied the
7 rationale that -- of the experience that was -
8 that took place in the state of Israel.
9 What did I see in Israel? I saw
10 the Hadassah Hospital that one day a week, in
11 the waiting room, there were many Arabs that
12 were waiting for treatment, and they treated
13 them, and I asked them, I said, "Might they come
14 back and perhaps cause some problems", and they
15 said, "No. We feel that this is an investment
16 in humanity and we should continue it." This is
17 at the same time that they were experiencing
18 living in a fortress state to preserve their
19 life. Going into a supermarket, you were
20 frisked because of the fear that -- what might
21 happen, yet they did have a face of compassion
22 in the face of this, and they continued after
23 the Eichmann -- after the Eichmann example.
2017
1 So when we -- when we show our
2 face, this is the state speaking. These are the
3 people. We don't want to mime the killers. We
4 want to show a face of respect. Yes, society
5 has to defend itself, but it has to do it in a
6 way that Israel, in its wisdom, has found to be
7 highly beneficial -- highly beneficial because
8 when Sadat sealed his pact with Begin, he went
9 to Cairo and there were a million people there
10 to -- to praise these two people for having
11 brought peace, so that 3- or 4- -- 3.5 million
12 Israelites would not be able to survive in a
13 city surrounded by 60- or 70 million people, not
14 because of their brute strength, but there's a
15 great deal more going for them, and this is the
16 great deal more that we ought to be having for
17 ourselves, and this is the great deal more that
18 is functioning for most of the nations in the
19 western hemisphere, in the so-called West, and
20 in Europe. These are the functions and this is
21 the response that we ought to be making if we
22 scramble to high ground and solicit and elicit a
23 greater respect for human life.
2018
1 I would hope, Madam President,
2 that -- I know Gus Bliven was here many years
3 ago when he saw us -- when we enacted the -
4 when we abolished the death penalty. My
5 prediction is that -- and there will be many of
6 you who will be here to see it, I think -- when
7 we will undo what is certainly on the horizon at
8 this moment, but I would hope -- none of you
9 have voted yet. I don't want to give up on you
10 yet. I would hope with all respect to the
11 concerns that are felt here and so sincerely
12 expressed in civilized terms, that you vote this
13 measure down. We don't need it. Violence
14 begets violence, and I don't think we ought to
15 be doing -- in that business.
16 THE PRESIDENT: Thank you.
17 Senator Oppenheimer.
18 SENATOR OPPENHEIMER: I'll only
19 take a minute due to the hour.
20 I, like everyone else, believe
21 that Senator Volker is an honorable man, and I
22 think I heard something else when Senator
23 LaValle was talking about the background on
2019
1 Senator Volker's father, and I have a feeling
2 that Senator Volker has been sticking with this
3 issue, not only for himself, but also as a
4 mission which he is carrying on for his father
5 who also deeply believed this. At least that's
6 what I thought I heard, but I do disagree when
7 he says that this will provide safety on the
8 streets. I can only say that my fears would be
9 of muggings, of rapes.
10 This bill does nothing. This
11 death penalty will not begin to impact on -- on
12 the fears that many ordinary citizens, men and
13 women, have when they walk in some areas of our
14 state. So I don't believe it makes us feel any
15 safer. It certainly doesn't make me feel any
16 safer, and I also believe that it doesn't save
17 lives.
18 We have seen many prosecutors and
19 many D.A.s come forth saying that they support
20 -- we have heard this this afternoon and this
21 evening -- that they support the death penalty,
22 but almost none of them will say that it is a
23 deterrent. They don't know if it's a
2020
1 deterrent. They don't believe it's a deterrent
2 even though they do support the measure. I
3 personally feel it won't change a thing and that
4 we might be executing an innocent person.
5 I do not understand why we need
6 this. There is no other industrialized nation
7 in the western world that has this penalty. I
8 don't understand why it's necessary for the
9 United States to be so much more vicious and
10 violent than other nations in a similar
11 position. Furthermore, almost all religious
12 leaders in our state have approached us and
13 asked us not to adopt this measure.
14 My question is, in a few years
15 when we have adopted this and we do have a death
16 penalty in New York State and we see two, three
17 years from now that really nothing has been
18 accomplished, what at that point will we do to
19 make our streets safer, to allay the fears of
20 our residents, and what will we do to decrease
21 crime at that point, because this will no longer
22 be the panacea. It will have been shown to be
23 of little use -- probably, in my opinion, of no
2021
1 use -- and then what do we do? I hope we think
2 about attacking some of the major issues that
3 cause crime in our society at that point as we
4 are not doing it now.
5 THE PRESIDENT: Senator Hoffmann.
6 SENATOR HOFFMANN: Thank you,
7 Madam President.
8 This is an historic occasion for
9 many reasons, and I too want to congratulate and
10 thank Senator Volker for his unflagging
11 leadership on this issue. You have never lost
12 your composure or your patience through the 10
13 years that I have been here; this makes 11 which
14 I have had the opportunity to vote on this bill
15 and several which I have been a co-sponsor, and
16 I thank you for both of those examples of
17 leadership; and I would also like to thank
18 Senator Bruno for having the courage to take an
19 appropriate stand of leadership in this house
20 that will show that we are committed to justice
21 in this chamber in the form of sponsorship of
22 important measures.
23 Even if the other house is
2022
1 sometimes unfair or does not allow
2 co-sponsorship to members of the minority party,
3 I'm proud that the leader of this house has
4 decided to make sure that those of us on the
5 Minority side of the aisle who had previously
6 been sponsors will continue to be sponsors on
7 this bill today. Thank you, Senator Bruno, for
8 your leadership by example.
9 Taking the high road is not going
10 to hurt us in this Senate, and I believe that
11 there are people around the state who are
12 watching much more than the debate on this
13 bill. They are watching our conduct; they are
14 watching our manners; they are watching our
15 civility, and it's important as we pass this
16 bill, to let people know that our principal
17 concern is justice. It is the administration of
18 justice for which we seek the death penalty, for
19 those situations in which there is no other form
20 of justice appropriate.
21 I have made this speech before.
22 I will not belabor the issue again of Donna
23 Payant, the rookie prison guard who was killed
2023
1 by Lemuel Smith, a murderer serving two life
2 sentences for murder. He had also been
3 convicted -- he had also been arrested, indicted
4 but not tried for two additional murders and was
5 serving a third sentence for a rape/kidnapping.
6 Donna Payant would be alive today
7 had the death penalty been in effect when Lemuel
8 Smith was originally sentenced and convicted for
9 the original murders; the murders that he was
10 serving at the time that he killed in a most
11 horrendous way, in a hideous fashion, a young
12 woman with three small children who was doing
13 her job as a correction officer at Green Haven
14 Correctional Facility.
15 We're sending today a message to
16 the public who felt that their wishes on this
17 matter had been thwarted year after year, that
18 we hear their desire to reinstate the death
19 penalty in this state. We're sending a warning
20 to those people who commit the crime of
21 premeditated murder, that there will be
22 punishment in a way that there has not been
23 punishment for many years in New York State, and
2024
1 we're sending a message to citizens and law
2 enforcement officers who have been at risk
3 because their rights have been secondary to the
4 rights of the murderers themselves many times in
5 this state.
6 Finally, we send a message to the
7 families of the victims like the family of Donna
8 Payant, for whom there was no justice, that
9 their pain has been recognized by this state,
10 that we acknowledge the need to do what we can
11 to see that there will be justice in the future.
12 I thank my colleagues. It's with
13 a heavy heart that we have to introduce and pass
14 a measure of this sort for any reason because it
15 is a symbol of the deterioration of some of the
16 fabric of our society that the issue of murder
17 is out there at all, that requires us addressing
18 it in a punitive manner, but we must -- we have
19 done it as fairly and carefully as we can, and
20 we should go forward with the passage of this
21 bill.
22 I vote aye.
23 THE PRESIDENT: Senator DiCarlo.
2025
1 SENATOR DiCARLO: Thank you,
2 Madam President. I will be brief.
3 Senator Volker and I have a
4 little bit of history going on here. Both our
5 fathers were involved with this legislation. As
6 a matter of fact, my dad was the chairman of the
7 Codes Committee when a slightly younger
8 Assemblyman Volker, a member of the committee,
9 got the death penalty bill, and I was on the
10 phone with my father earlier today and he's very
11 proud of you, Senator Volker, and so am I.
12 Let's set the record straight.
13 Capital punishment is a deterrent, the people
14 know it and, as the Senator before me just said,
15 it is justice. It is just that those who kill
16 and commit the worst types of crimes in society
17 are put to death.
18 My conscience is clear and there
19 are those who would argue that -- all of the
20 religions talk against capital punishment, and
21 let's set the record straight here, at least for
22 me as a Roman Catholic.
23 "Preserving the common good of
2026
1 society requires rendering the agressor unable
2 to inflict harm. For this reason, the
3 traditional teachings of the church have
4 acknowledged as well founded the right and duty
5 of legitimate public authority to punish
6 malefactors by means of penalties commensurate
7 with the gravity of the crime, not excluding in
8 cases of extreme gravity, the death penalty.
9 For analogous reasons, those holding authority
10 have the right to repel by armed force,
11 aggressors against a community in their charge."
12 Pope John II in the Magisterium as explained in
13 the Catechism of the Catholic church, page 546,
14 Canon 2266.
15 I have absolutely no problem with
16 my vote in the affirmative on capital
17 punishment. My conscience is clear, and after
18 many, many years, I think it's about time that
19 the voters and the residents of the state of New
20 York had their will done and their will is for
21 the capital punishment to be put back into the
22 law books.
23 I commend the Governor, and I
2027
1 commend Senator Volker.
2 THE PRESIDENT: Thank you.
3 Senator Markowitz.
4 SENATOR MARKOWITZ: Thank you
5 very much, Madam President.
6 It is with a great amount of
7 grief that we have to once again revisit this
8 and, as Caesar Trunzo would say, in the past for
9 our many years that most issues are not for
10 real, this evening it is for real.
11 I've heard, as I have heard in
12 the past, some very valid, meritorious arguments
13 for those that believe in capital punishment and
14 those that are opposed. In fact, I don't
15 believe there's any of us here this evening that
16 really know with 100 percent certainty that our
17 positions are, indeed, the correct solution.
18 Not one of us here can say that with 1,000
19 percent.
20 I know all the arguments
21 certainly against this bill and, yet, when I
22 read about Joanne Byrne -- I'm sorry, Denise
23 Raymond who was shackled with three sets of
2028
1 handcuffs, blind folded and gagged with a sock
2 that stifled her screams, then she was shot
3 twice in the back of the head, and here in the
4 community that I serve, they created a wall for
5 the young men that have been shot and killed.
6 Richard Green, head of the Crown Heights Youth
7 Collective, he's certainly one of the most
8 charismatic community leaders in this city and
9 state. He said it's young men like them who
10 make up most of the names on the wall, they're
11 between 16 and 25, some in gangs and some in the
12 drug business, others just trapped in
13 neighborhoods that consume them. If the walls
14 were reserved for spotless souls, most of their
15 space would be blank. Basically, they have been
16 killed because someone wanted their sneakers or
17 their shirts or coats.
18 Lost cabby riding in part of the
19 Bronx -- I'm sorry, in East New York, came out
20 and asked for directions, three teenagers
21 approached the car and killed him.
22 Mr. Nesbitt -- Mr. Nesbitt was
23 convicted of the murder of an innocent Bay Ridge
2029
1 resident, Mr. Winslow, a teacher, a beloved
2 teacher. The murderer just wanted his bicycle.
3 Mr. Winslow, I guess, didn't turn it over fast
4 enough. Murdered!
5 An infant daughter survives
6 sidewalk attack, but I'm afraid her mother was
7 killed.
8 Claudia Diaz Ruanova, the
9 murderer took refuge behind the mother of his
10 daughter to protect himself from the gunfire
11 from some druggies across the street. Dead!
12 Beloved businessman slain -- this
13 is all, by the way, within the last year -
14 suspect tackled by two men in the street, 70
15 year-old jewelry merchant, Greenwich Village.
16 Passerby -- engaged a passerby, his throat was
17 cut with a steak knife. Dead!
18 Three young men charged with the
19 killing of a Korean minister in Flushing
20 Queens. Killed, dead!
21 Bloodbath -- the woman played
22 dead, but the five others that were with her
23 were all butchered. She lived even though her
2030
1 throat was cut because she faked being killed.
2 And a retiree, a woman 88 years
3 old, Chaquita -- Chaquita Morris in Manhattan,
4 known in the neighborhood as "Grandma", a
5 druggie murdered her.
6 Here's what I'm trying to say, my
7 fellow colleagues, listen. This is the most
8 difficult vote for a lot of us here.
9 I want to go past the issue,
10 Senator Bruno, because I believe, and I know
11 that this bill, as best human beings can
12 construct it, even though not all of us are
13 sure, Senator Volker, this bill will pass, and
14 it will pass the Assembly, and I know that the
15 Governor will approve it, but I want to go
16 beyond it and I want to raise some questions,
17 Senator Bruno, and that is looking at tomorrow,
18 rather than looking at today. I hope that you
19 and Governor Pataki and a lot of my colleagues,
20 especially among the Republican Party,
21 understand that when people are not part of the
22 game, they don't play by the same rules that you
23 and I do. If they're not part of the game, they
2031
1 don't play by the same rules.
2 If we continue to allow the movie
3 industry, for instance, to continue to glorify
4 murder and death, is it any wonder that some of
5 our younger people who are being brought up
6 without solid parental direction and discipline,
7 that they begin to emulate what they believe is
8 the norm in society? It doesn't surprise me.
9 And so we have to make sure that the movie
10 industry and the television industry act more
11 responsibly, much more responsibly, in ending
12 the glorification of crime.
13 Secondly, the gun manufacturers.
14 Any 19-year-old in my district in Brooklyn for
15 50 bucks can buy a gun. Every single one of
16 them could buy a gun, and they believe that guns
17 make them all sorts of macho, all sorts of macho
18 and manliness by having a gun, by carrying a
19 piece, and you know as well as I do, the
20 19-year-olds have not -- do not have the
21 discipline yet, the wherewithal to know the
22 difference of resolving complaints peacefully
23 and amicably rather than taking a gun out, and
2032
1 so the availability of guns also certainly
2 drives up our crime rate.
3 Senator Rath, I enjoyed your
4 comments, because I think you're right on in
5 terms of your sensitivity on this issue. Most
6 of us here are not very happy campers this
7 evening about this issue but, Senator Bruno, I
8 would hope that you also understand that, if we
9 take away programs such as education, if we take
10 away monies from public schools, if we take away
11 decent food programs, if we take away decent
12 medical care, if we take away all the programs
13 that the Governor has proposed in this budget,
14 God forbid, if the Legislature approves the
15 budget as we have seen here in Albany and as
16 we're watching in horror in Washington, if that
17 happens, Senator Bruno and my dear colleagues, I
18 don't care if we have the death penalty or not,
19 there can be no possible reduction in violent
20 crime if we don't take away the reasons why
21 crime occur.
22 People that are happy generally
23 don't murder. That's true. People that are
2033
1 happy with their life and their station in life
2 don't murder. People that have been given solid
3 education and see a hope for the future, for
4 livelihoods for themselves and their future
5 families, generally don't murder.
6 And so, while tonight I vote for
7 this death penalty bill because I believe in
8 life -- I believe in life, I believe that the
9 society has a right -- a right to say to all
10 that the most dreadful crime against other
11 people is to take that life away, and be warned
12 that, if you do that to someone in society, that
13 that life of yours can be taken away. How else
14 do we express a value for human life?
15 Over and over again, every one of
16 these young people that have committed these
17 murders, every one of the lives they've taken,
18 it's a total disregard for human life. Whether
19 they're black folks who have murdered black
20 folks or white folks that have murdered black
21 folks or whites on whites and blacks on blacks,
22 which is the usual number, to me, as I said last
23 week, all life is equal. White life is worth no
2034
1 more than black life and black life is worth no
2 less than white life. We are equal to the
3 greatest degree in this society.
4 Let's move forward -- let's move
5 forward, Senator Bruno, and I know you're here
6 and you're a strong leader and you're raring to
7 go and make your mark. The way you can make
8 your mark is by sensitivity and caring and
9 creating the kind of programs that give people
10 in our society hope for living. So have them
11 have a value for life, and I'm convinced that,
12 if government programs can be enhanced
13 especially for the populations in our society,
14 great is the need, and I think that in the near
15 future, death penalty, all of this will be third
16 and fourth on the list. The number of jail
17 spaces we'll need, the number of judges and all
18 the billions of dollars that we spend on
19 criminal justice in prisons, all of that will
20 become secondary to helping people make
21 something of themselves, to become the success
22 that we all want for all of us in New York
23 State.
2035
1 THE PRESIDENT: Senator Bruno.
2 SENATOR BRUNO: Madam President,
3 can we have the last section read on this bill
4 so that Senator Libous might vote?
5 THE PRESIDENT: Yes. Read the
6 last section, please.
7 THE SECRETARY: Section 38. This
8 act shall take effect on the 1st day of
9 September.
10 THE PRESIDENT: Call the roll,
11 please.
12 (The Secretary called the roll.)
13 THE PRESIDENT: Senator Libous,
14 how do you vote?
15 SENATOR LIBOUS: I vote aye.
16 THE PRESIDENT: Withdraw the roll
17 call, please. I'd like to recognize one more
18 speaker, Senator Onorato.
19 SENATOR ONORATO: Thank you,
20 Madam President.
21 I rise as one of the sponsors of
22 this bill. I have been a co-sponsor of the bill
23 for the past 12 years, and I want to thank
2036
1 Senator Bruno for allowing me to go back on
2 again this year. I also want to thank him for
3 opening up the floor to debate beyond the normal
4 two-hour period today, giving everyone an equal
5 opportunity to speak on the bill. We've heard
6 both sides of the aisle and both sides of our
7 commitments pro and con on the issue.
8 I certainly believe that the
9 death penalty will certainly make a difference.
10 Whether it's a deterrent or not -- I think Marty
11 Markowitz stated my position very eloquently,
12 that the taking of a human life is the ultimate
13 in crime on this earth, and likewise, deserves
14 to be meted the same type of punishment.
15 Some people don't believe in the
16 eye for an eye or tooth for a tooth, but in this
17 particular case, I certainly do believe that it
18 makes sense. Some say that it doesn't make a
19 deterrent, but we can apply the same rule of
20 reasoning to all of the laws that we have on the
21 books today regardless of the crime that's being
22 committed, whether it's petty crime, grand
23 larceny or felony. We have recidivism at the
2037
1 rate of about 60 or 70 percent, so it really
2 means that the crime that we are punishing is
3 not a deterrent, but does that mean that we
4 should no longer put people in prison for
5 committing the crime?
6 And I think that the crime -- the
7 punishment should fit the crime, and in this
8 particular case, death certainly deserves to be
9 met with death. We've got to get a loud and
10 clear message out to those people who may be
11 contemplating it, that New York State is now,
12 while it's guaranteeing more protection than any
13 other state around, they're also telling you
14 that, if you do commit one of these particular
15 crimes, it's going to be met swiftly and it's
16 going to cost you your life.
17 So I'm agreeing with my
18 colleagues today and I'm urging them to go along
19 and give it an aye vote.
20 THE PRESIDENT: Thank you.
21 Read the last section, please.
22 SENATOR PATERSON: Slow roll
23 call.
2038
1 THE SECRETARY: Section 38. This
2 act shall take effect on the 1st day of
3 September.
4 THE PRESIDENT: A slow call call,
5 please.
6 THE SECRETARY: Senator Abate.
7 SENATOR ABATE: I vote no.
8 THE SECRETARY: Senator Babbush,
9 excused.
10 Senator Bruno.
11 SENATOR BRUNO: Yes.
12 THE SECRETARY: Senator Connor.
13 (Negative indication.)
14 THE SECRETARY: Senator Connor,
15 no.
16 Senator Cook.
17 SENATOR COOK: Yes.
18 THE SECRETARY: Senator
19 DeFrancisco.
20 SENATOR DeFRANCISCO: Yes.
21 THE SECRETARY: Senator DiCarlo.
22 SENATOR DiCARLO: Yes.
23 THE SECRETARY: Senator
2039
1 Dollinger.
2 SENATOR DOLLINGER: To explain my
3 vote, Madam President.
4 THE PRESIDENT: Senator
5 Dollinger.
6 SENATOR DOLLINGER: This is, I
7 guess, a forgone conclusion. I would like,
8 however, as we fallible people create a fallible
9 law, that it will be instituted and executed by
10 fallible people, I would just ask for one minute
11 of silence so that the one thing we all agree
12 on, we perhaps join in a prayer, will never
13 happen, that no one innocent of a crime will be
14 executed under this statute. I would ask for
15 one minute and then I will be voting negative.
16 THE SECRETARY: Senator Espada.
17 SENATOR ESPADA: No.
18 THE SECRETARY: Senator Farley.
19 SENATOR FARLEY: Explain my vote.
20 Madam President, for 19 years, I
21 voted for this death penalty legislation.
22 Society has a right to regulate itself. The
23 people of the state of New York have asked for,
2040
1 as a matter of fact, spoken very clearly on this
2 subject. They want restoration of the death
3 penalty. Our first duty in this chamber is to
4 be representative, and I choose to represent the
5 people that sent me here.
6 I think this is a well crafted
7 law. Senator Volker has worked very hard with
8 this to stand the constitutional test and to
9 make sure that anybody that is charged with a -
10 with one of these crimes to make them subject to
11 the death penalty would be adequately
12 represented and treated fairly under the law.
13 It's a good piece of legislation,
14 and it pleases me to be able to vote for this
15 legislation which I expect will be signed into
16 law very shortly.
17 I vote aye.
18 THE PRESIDENT: Continue the roll
19 call.
20 THE SECRETARY: Senator Galiber
21 voting in the negative earlier today.
22 Senator Gold voting in the
23 negative earlier today.
2041
1 Senator Gonzalez.
2 SENATOR GONZALEZ: No.
3 THE SECRETARY: Senator Goodman.
4 SENATOR GOODMAN: Yes.
5 THE SECRETARY: Senator Hannon.
6 SENATOR HANNON: Yes.
7 THE SECRETARY: Senator Hoblock.
8 SENATOR HOBLOCK: Yes.
9 THE SECRETARY: Senator Hoffmann.
10 SENATOR HOFFMANN: Yes.
11 THE SECRETARY: Senator Holland.
12 SENATOR HOLLAND: Yes.
13 THE SECRETARY: Senator Johnson.
14 SENATOR JOHNSON: Aye.
15 THE SECRETARY: Senator Jones.
16 SENATOR JONES: No.
17 THE SECRETARY: Senator Kruger.
18 SENATOR KRUGER: Yes.
19 THE SECRETARY: Senator Kuhl.
20 SENATOR KUHL: Aye.
21 THE SECRETARY: Senator Lack.
22 SENATOR LACK: Aye.
23 THE SECRETARY: Senator Larkin.
2042
1 SENATOR LARKIN: Aye.
2 THE SECRETARY: Senator LaValle
3 voting in the affirmative earlier today.
4 Senator Leibell.
5 SENATOR LEIBELL: Madam
6 President, to explain my vote, please.
7 THE PRESIDENT: Senator.
8 SENATOR LEIBELL: I have had the
9 opportunity 12 times previously to participate
10 in debates on this issue and to cast my vote as
11 a sponsor in favor of death penalty
12 legislation.
13 This is the first time I've had
14 an opportunity in this chamber to listen to the
15 deliberations, to sponsor this legislation and
16 to cast my vote in the affirmative.
17 I don't think anyone in this
18 chamber or any of our constituents takes lightly
19 the concept of taking another life. It's a
20 tragedy that we have reached that point in
21 society's history where we find it necessary to
22 take such draconian steps. I'm absolutely
23 convinced, though, that the overwhelming number
2043
1 of people throughout New York State -- and I can
2 certainly feel this way for my own Senate
3 district -- feel most strongly that at this
4 point in time in our history, the death penalty
5 is most critical to our survival as a society.
6 I compliment Senator Volker and
7 his colleagues in the Assembly who have over the
8 years labored on this legislation. I don't
9 believe any piece of legislation is perfect, and
10 certainly this will not be a complete solution
11 to the most violent acts which occur in our
12 society, but I do feel it is a first strong step
13 forward and delivers a most powerful message.
14 Similarly, I salute our governor
15 for the strong stand he has taken and for making
16 this such a strong part of his agenda for the
17 future of New York State. I cast my vote in the
18 affirmative.
19 THE PRESIDENT: Continue the roll
20 call.
21 THE SECRETARY: Senator Leichter
22 voting in the negative earlier today.
23 Senator Levy.
2044
1 SENATOR LEVY: Aye.
2 THE SECRETARY: Senator Libous
3 voting in the affirmative earlier today.
4 Senator Maltese.
5 SENATOR MALTESE: Aye.
6 THE SECRETARY: Senator Marchi.
7 SENATOR MARCHI: Madam President,
8 I only rise for one purpose. Earlier a
9 reference had been made to the Catholic -- the
10 most recent Catholic Catechism. I believe the
11 record should also show where there was consent
12 given in extreme gravity, the death penalty -
13 the rest of it goes, "If bloodless means are
14 sufficient to protect public order and the
15 safety of persons, public authority should limit
16 itself to such means because they better
17 correspond to the concrete conditions of the
18 human good and are more in conformity to the
19 dignity of the human person." I just didn't
20 want to have that stand as the -- as the
21 position of the church on the question. It's
22 still a matter of conscience and you're
23 addressing it, I assume, on that basis.
2045
1 THE PRESIDENT: Senator Marchi,
2 have you voted?
3 SENATOR MARCHI: No.
4 THE PRESIDENT: Thank you.
5 THE SECRETARY: Senator
6 Markowitz.
7 SENATOR MARKOWITZ: Yes.
8 THE SECRETARY: Senator Mendez.
9 SENATOR MENDEZ: No.
10 THE SECRETARY: Senator
11 Montgomery.
12 SENATOR MONTGOMERY: No.
13 THE SECRETARY: Senator Nanula.
14 SENATOR NANULA: Madam President,
15 if I can explain my vote.
16 I have risen recently in regards
17 to this legislation primarily in criticism of
18 the fiscal aspects or lack thereof. I felt that
19 in previous drafts of this legislation we've not
20 given enough attention to the cost of the
21 implementation, the prosecution of the death
22 penalty, to the state, to local municipalities,
23 to our government in general.
2046
1 I still don't feel we've properly
2 addressed that issue, and from a more
3 philosophical perspective, in my opinion,
4 whether we've addressed that issue or not, I
5 don't feel certainly in times of fiscal
6 restraint, in times when we all agree, Democrats
7 and Republicans, our Governor, Assembly people,
8 Senators, that we need to cut back, that we need
9 to restructure the way in which our government
10 provides service, that we need to cut, that
11 we're going to be allocating the millions of
12 dollars in resources to this legislation.
13 In my opinion, I think that money
14 could be far better spent, as Senator Markowitz
15 would refer to as allocating our time, our
16 energy and our financial resources to the real
17 solutions that will avert crime in the future,
18 the real solutions that will stop the 10-, 11
19 and 12-year-old children who I see in the city
20 of Buffalo, and we hear about, and Senator
21 Markowitz talked about, who are giving up on
22 their own lives, who have given up hope, who
23 have lost any sense of dignity or self-worth.
2047
1 They don't care about killing because they don't
2 care about themselves.
3 I'm hopeful for the future of
4 this state, for the future of those being
5 affected most by violent crime, our youth, our
6 at-risk youth, that we can work together to find
7 productive solutions that will provide for a
8 more safe society, one that will restore hope in
9 all, but especially in our young.
10 For all of those reasons, Madam
11 President, I vote no.
12 THE PRESIDENT: Continue the roll
13 call.
14 THE SECRETARY: Senator -
15 Senator Nozzolio.
16 SENATOR NOZZOLIO: Mr. President
17 -- Madam President, I ask for permission to
18 explain my vote.
19 THE PRESIDENT: Senator.
20 SENATOR NOZZOLIO: Madam
21 President, my colleagues, I rise in support of
22 this penalty. As chairman of the Senate Crime
23 and Corrections Committee, I have a unique
2048
1 responsibility of visiting the correctional
2 facilities of our state. Those correctional
3 facilities have housed in them many who have
4 committed one or more murders. Those inmates
5 are now behind bars and are existing in a
6 situation where they have absolutely nothing
7 left to lose.
8 Every year at Auburn Correctional
9 Facility, the largest maximum security facility
10 of the state, there is at least one or two
11 stabbings perpetrated by an individual who's
12 behind bars, who ostensibly has killed before
13 and is there to kill again. To those who say
14 the death penalty is not a deterrent, I say to
15 you, look at those types of murderers who are
16 existing in our facilities today.
17 The death penalty is not a
18 panacea; it's not going to end crime, but it
19 will stop that type of repeat murderer, and most
20 importantly, it will send a signal to those who
21 are committing the most heinous of acts, the
22 most violent of crimes, that New York will not
23 be a place where murder will be tolerated.
2049
1 Madam President, my colleagues, I
2 rise in support of this measure.
3 THE PRESIDENT: Continue the roll
4 call, please.
5 THE SECRETARY: Senator Onorato.
6 SENATOR ONORATO: Aye.
7 THE SECRETARY: Senator
8 Oppenheimer.
9 SENATOR OPPENHEIMER: No.
10 THE SECRETARY: Senator Padavan,
11 excused.
12 Senator Paterson.
13 THE PRESIDENT: Senator Paterson.
14 SENATOR PATERSON: Madam
15 President, to explain my vote. When you hear
16 about the heinous crimes that Senator Nozzolio
17 describes and the ones that we've heard
18 described all day, the first reaction if this
19 had happened to anyone that we knew, the
20 reaction is that you would want to kill the
21 person that did it. I think that's the natural
22 reaction, but in this case, it's not the correct
23 reaction.
2050
1 We are a society of laws. We are
2 a society of civilization. We are a society of
3 reasonable thinking. We think that the
4 reasonable punishment for those crimes is life
5 without parole, no opportunity to ever live in a
6 free society but, at the same time, an
7 understanding that society knows that we are not
8 going to punish anyone by proliferating the
9 process that created the crime, which is
10 violence. Violence begets itself in those
11 cases, and we feel, as I vote no, that violence
12 is not going to intimidate any future
13 perpetrator.
14 THE PRESIDENT: Thank you.
15 Continue the roll call.
16 THE SECRETARY: Senator Present.
17 SENATOR PRESENT: Yes.
18 THE SECRETARY: Senator Rath.
19 SENATOR RATH: Aye.
20 THE SECRETARY: Senator Saland
21 voting in the affirmative earlier today.
22 Senator Santiago.
23 SENATOR SANTIAGO: No.
2051
1 THE SECRETARY: Senator Sears.
2 SENATOR SEARS: Aye.
3 THE SECRETARY: Senator Seward.
4 SENATOR SEWARD: Aye.
5 THE PRESIDENT: Yes.
6 THE SECRETARY: Senator Skelos.
7 SENATOR SKELOS: Yes.
8 THE SECRETARY: Senator Smith.
9 SENATOR SMITH: Madam President,
10 to explain my vote.
11 THE PRESIDENT: Senator.
12 SENATOR SMITH: Several of my
13 colleagues today have referred to a speech which
14 was given by John Cardinal O'Connor on the 4th
15 of February of this year to the Association of
16 the Bar of the City of New York, and I would
17 like to leave you with his last thought in that
18 speech, and his question was about capital
19 punishment.
20 He said, Whether it is a quick
21 fix capable of lulling us into believing that we
22 have solved problems that we simply refuse to
23 face. Today we are refusing to face the
2052
1 problems of society, and we are trying to give a
2 quick fix with a death penalty.
3 I vote no.
4 THE PRESIDENT: Continue the roll
5 call.
6 THE SECRETARY: Senator Solomon.
7 SENATOR SOLOMON: Yes.
8 THE SECRETARY: Senator Spano.
9 SENATOR SPANO: Aye.
10 THE SECRETARY: Senator
11 Stachowski.
12 SENATOR STACHOWSKI: Yes.
13 THE SECRETARY: Senator
14 Stafford. Senator Stafford.
15 SENATOR STAFFORD: Aye.
16 THE SECRETARY: Senator Stavisky.
17 SENATOR STAVISKY: No.
18 THE SECRETARY: Senator Trunzo.
19 SENATOR TRUNZO: Yes.
20 THE SECRETARY: Senator Tully.
21 SENATOR TULLY: Aye.
22 THE SECRETARY: Senator Velella.
23 SENATOR VELELLA: Yes.
2053
1 THE PRESIDENT: Senator Bruno,
2 would you care to explain your vote before
3 Senator Volker?
4 SENATOR BRUNO: Madam President,
5 yes. Thank you.
6 We're -- as we close debate on an
7 issue that's as important as this one, I would
8 just like to commend our Governor who was
9 elected by the people of this state to represent
10 them, and this is an important issue on their
11 minds and on his mind, and I would also like to
12 commend Senator Volker for his diligence over
13 all of these years and perseverance, and Speaker
14 Shelly Silver for, in his house, having this on
15 the floor and moving this to become law.
16 Because we have differences of
17 opinion in this house and in the other house,
18 the fact of the matter is, the majority of the
19 people in this state want a death penalty
20 because they do feel that it delivers the right
21 message to the perpetrators and they, as
22 potential victims, feel comforted and safer that
23 violent felons will get the message that, in
2054
1 this state, we are going to be concerned about
2 the citizens of this state and protect their
3 interests, and this is a message to all of those
4 that would create violence in this state and
5 bodily injury.
6 And, Madam President, I do think
7 it's the right message and I consequently vote
8 aye.
9 THE PRESIDENT: Thank you.
10 Senator Volker.
11 SENATOR VOLKER: Madam President,
12 to explain my vote.
13 Let me just say to my colleagues,
14 first of all, thank you for your kind thoughts.
15 I appreciate it, and I used to try to think over
16 the years as we went through so many of the
17 override votes, tried to think of what it would
18 be like to finally have this issue done.
19 Tonight it's still hard to believe, I guess,
20 that after all these many years that we finally
21 have come to that point, and I said to Vince
22 Graber who was here just a little while ago -
23 and I congratulated him for his work, of course,
2055
1 in the Assembly, and I said it's still rather
2 hard to believe.
3 I expect, by the way -- and I
4 probably shouldn't say this. I expect that I
5 will receive a phone call from a former governor
6 before this week is out, because if I know that
7 former governor, he will call me to tell me how
8 he won because the death penalty didn't happen
9 during his watch. And that's true. It didn't
10 happen, and I would have liked to have been able
11 to override, not just for the fact of
12 overriding, but because I believe so strongly in
13 the necessity for restoring the death penalty.
14 Keep in mind one thing. You can
15 talk all you want about whether the death
16 penalty is a deterrent and all those other
17 things, but something the anti-death penalty
18 people nationwide have had a terrible problem
19 with in New York. Why did the murder rate soar
20 in this state right after death penalty was
21 abolished? Of course, there were some other
22 things that happened, because what happened was
23 we began a trend, and the trend was to blame the
2056
1 wrong people. We started blaming the victims
2 and we blamed society.
3 What this death penalty says is
4 that the people who commit these crimes are
5 going to have to answer for their crimes, and I
6 say to you, I happen to believe -- people have
7 asked me, "Will you accept the death of one
8 innocent person?" No. I don't accept the death
9 of any innocent people, whether they're in the
10 streets of this state or whether it's done by
11 the state, and I challenge -- and I have
12 challenged the anti-death penalty people, and I
13 continue to challenge them for the nonsense
14 about the literally reams of people who have
15 been executed in this country; they don't have
16 the evidence to back that stuff up, and I'm
17 tired of it, frankly, and I want to tell you,
18 they don't have any of it; it's in New York.
19 What we want to do here is to see
20 that a law is passed that says that people have
21 to live up to their actions and, when it comes
22 to murder, this is the only way, in my opinion,
23 to deal with it. Is it the only way we deal
2057
1 with crime? Of course not, and the Governor is
2 committed. Senator Bruno is committed. We're
3 all committed to moving on from here. I'm
4 certainly committed, and I think we all are.
5 This isn't the end. This is the first step. I
6 think it's a very important step. I think that
7 all of us tonight that have had this debate, I
8 think, realize how serious it is.
9 And one final note. If the death
10 penalty is not a deterrent and if it really
11 doesn't matter, why are so many people afraid of
12 it? Why are people all throughout this country
13 so afraid of it? The answer is, it is so
14 serious that it does send a message and the
15 message is one that no one can ignore.
16 THE PRESIDENT: Continue the roll
17 call, please.
18 THE SECRETARY: Senator Waldon
19 voting in the negative earlier today.
20 Senator Wright.
21 SENATOR WRIGHT: Madam Chairman,
22 to explain my vote.
23 THE PRESIDENT: Senator Wright.
2058
1 SENATOR WRIGHT: As I commence my
2 second term, I recognize fully that no one has
3 come into this chamber without understanding the
4 seriousness of this issue. I don't think any
5 colleague that I have served with in the last
6 three years views this as a quick fix or
7 something that you take lightly in terms of
8 making this decision. I also think anyone who
9 has sought the office of Senate and served in
10 this chamber is very cognizant of the issues and
11 understands fully the matter that's before us.
12 I'm supportive of this bill
13 because I believe it represents the changing
14 priorities within this state, because the people
15 of this state expect that, number one, we're
16 going to provide added protection for our police
17 officers and for our correction officers, and,
18 number two, we're sending a very clear message
19 that individuals will have to answer and be
20 responsible for their actions particularly when
21 that action is a violent crime taking the life
22 of an innocent victim. The message we are
23 sending is a very clear message, that victims
2059
1 and their families have the first priority when
2 it comes to rights, not criminals.
3 As a result, I vote aye.
4 THE PRESIDENT: The results,
5 please.
6 THE SECRETARY: Ayes 38, nays
7 19.
8 THE PRESIDENT: This death
9 penalty bill is passed.
10 Senator Bruno.
11 SENATOR BRUNO: Madam President,
12 there being no further business -
13 THE PRESIDENT: Senator Bruno, we
14 do have a few housekeeping items.
15 SENATOR BRUNO: Would you
16 proceed.
17 THE PRESIDENT: Senator Farley.
18 SENATOR FARLEY: Thank you, Madam
19 President.
20 On behalf of Senator Seward, I
21 move that the following bill be discharged from
22 its respective committee and be recommitted with
23 instructions to strike the enacting clause:
2060
1 That's S.2539.
2 THE PRESIDENT: The bill will -
3 the bill will be recommitted.
4 SENATOR FARLEY: On behalf of
5 Senator Levy, Madam President, on page 10, I
6 offer the following amendments to Calendar
7 Number 128, Senate Print 2591, and I ask that
8 that bill retain its place on the Third Reading
9 Calendar.
10 THE PRESIDENT: Amendments
11 received.
12 SENATOR FARLEY: Madam President,
13 on behalf of Senator Volker, I move to recommit
14 Senate Print Number 2241, Calendar Number 100,
15 on the order of third reading to the Committee
16 on Rules with instructions to the said committee
17 to strike the enacting clause.
18 THE PRESIDENT: Recommitted.
19 Senator Paterson.
20 SENATOR PATERSON: Madam
21 President, I move that the current bill, Senate
22 Number 2703, be removed from its committee and
23 recommitted, striking the enacting clause.
2061
1 THE PRESIDENT: Recommitted.
2 Senator Bruno.
3 SENATOR BRUNO: Madam President,
4 there being no further business to come before
5 the Senate, I move we stand adjourned until
6 tomorrow at 3:00 p.m.
7 THE PRESIDENT: Without
8 objection, the Senate stands adjourned.
9 (Whereupon, at 8:12 p.m., the
10 Senate adjourned.)
11
12
13