Monday, February 27, 1995

1299 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 February 27, 1995 10 3:01 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 LT. GOVERNOR BETSY McCAUGHEY, President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 1300 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 come to order. 4 Will everyone please rise and 5 repeat with me the Pledge of Allegiance. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag.) 8 I would ask everyone to bow in a 9 moment of silence. 10 (A moment of silence was 11 observed.) 12 The reading of the Journal, 13 please. 14 THE SECRETARY: In Senate, 15 Sunday, February 26th. The Senate met pursuant 16 to adjournment, Senator Hoblock in the Chair. 17 The Journal of Saturday, February 25th, was read 18 and approved. On motion, Senate adjourned. 19 THE PRESIDENT: Without 20 objection, the Journal stands approved as read. 21 Presentation of petitions. 22 Messages from the Assembly. 23 Messages from the Governor. 1301 1 Reports of standing committees. 2 Reports of select committees. 3 Communications and reports from 4 state officers. 5 Motions and resolutions. 6 Senator Bruno. 7 SENATOR BRUNO: Madam President, 8 at this time, I would like to call for an 9 immediate Rules Committee meeting in Room 332. 10 THE PRESIDENT: There will be an 11 immediate meeting of the Rules Committee in Room 12 332. 13 Senator Bruno, are you ready for 14 the calendar? 15 SENATOR BRUNO: Yes, Madam 16 President, at this time we are ready for the 17 non-controversial calendar. 18 THE PRESIDENT: The Secretary 19 will read. 20 THE SECRETARY: Calendar Number 21 62, by Senator Kuhl, Senate Print 659, an act to 22 amend the Agriculture and Markets Law, in 23 relation to imposing liability for attorneys' 1302 1 fees and costs based on sound agricultural 2 practices. 3 SENATOR PATERSON: Lay it aside. 4 THE PRESIDENT: Lay it aside, 5 please. 6 THE SECRETARY: Calendar Number 7 64, by Senator Kuhl, Senate Print 1385, an act 8 to amend the Agriculture and Markets Law, in 9 relation to exempting working search dogs from 10 licensing fees. 11 THE PRESIDENT: Read the last 12 section. 13 THE SECRETARY: Section 3. This 14 act shall take effect on the 1st day of 15 January. 16 THE PRESIDENT: Results. Call 17 the roll, please. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 33. 20 THE PRESIDENT: The bill is 21 passed. 22 THE SECRETARY: Calendar Number 23 71, by Senator DeFrancisco, Senate Print 769, an 1303 1 act to amend the Public Authorities Law, in 2 relation to the Onondaga County Resource 3 Recovery Agency. 4 THE PRESIDENT: Read the last 5 section, please. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 THE PRESIDENT: Call the roll, 9 please. 10 (The Secretary called the roll. ) 11 THE PRESIDENT: Results. 12 THE SECRETARY: Ayes 44. 13 THE PRESIDENT: The bill is 14 passed. 15 THE SECRETARY: Calendar Number 16 73, by Senator Maltese, Senate Print 1654, an 17 act to amend the Administrative Code of the city 18 of New York, in relation to criminal possession 19 of a knife, exception of ambulance personnel. 20 THE PRESIDENT: Read the last 21 section, please. 22 THE SECRETARY: Section 2. This 23 act shall take effect on the 1st day of 1304 1 November. 2 THE PRESIDENT: Call the roll, 3 please. 4 (The Secretary called the roll. ) 5 THE PRESIDENT: Results. 6 THE SECRETARY: Ayes 44. 7 THE PRESIDENT: The bill is 8 passed. 9 THE SECRETARY: Calendar Number 10 75, by Senator Lack, Senate Print 1294, an act 11 to amend the Estates, Powers and Trusts Law, in 12 relation to the exercise of powers of 13 appointment in further trust. 14 THE PRESIDENT: Read the last 15 section, please. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 THE PRESIDENT: Call the roll, 19 please. 20 (The Secretary called the roll. ) 21 THE PRESIDENT: Results. 22 THE SECRETARY: Ayes 44. 23 THE PRESIDENT: The bill is 1305 1 passed. 2 THE SECRETARY: Calendar Number 3 76, by Senator Lack, Senate Print 1623. 4 SENATOR PATERSON: Lay aside. 5 THE PRESIDENT: Lay it aside, 6 please. 7 THE SECRETARY: Calendar Number 8 78, by Senator Levy, Senate Print 355, an act in 9 relation to requiring the Department of Motor 10 Vehicles to compile information on driving while 11 under the influence of drugs. 12 THE PRESIDENT: Read the last 13 section, please. 14 THE SECRETARY: Section 3. This 15 act shall take effect on the 90th day. 16 THE PRESIDENT: Call the roll, 17 please. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 45. 20 THE PRESIDENT: Results. The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 79, by Senator Levy, Senate Print 384, an act to 1306 1 amend the Vehicle and Traffic Law, in relation 2 to requiring school bus drivers involved in 3 personal injury accidents to submit to a 4 chemical test. 5 SENATOR PATERSON: Lay aside, 6 please. 7 THE PRESIDENT: Lay it aside, 8 please. 9 THE SECRETARY: Calendar Number 10 80, by Senator Velella, Senate Print Number 11 1745, an act to amend the Vehicle and Traffic 12 Law, and the Criminal Procedure Law, in relation 13 to authorizing the discovery of blood samples 14 and records relating thereto in certain cases. 15 THE PRESIDENT: Read the last 16 section, please. 17 THE SECRETARY: Section 5. This 18 act shall take effect on the 1st day of 19 November. 20 THE PRESIDENT: Call the roll. 21 (The Secretary called the roll. ) 22 THE PRESIDENT: Results. 23 THE SECRETARY: Ayes 45. 1307 1 THE PRESIDENT: The bill is 2 passed. 3 Senator Bruno, that completes the 4 non-controversial reading of the calendar. 5 SENATOR BRUNO: Madam President, 6 could we now take up the controversial reading 7 of the calendar. 8 THE PRESIDENT: The Secretary 9 will read. 10 THE SECRETARY: Calendar Number 11 62, by Senator Kuhl, Senate 659, Agriculture and 12 Markets Law. 13 SENATOR PATERSON: Explanation. 14 THE PRESIDENT: Senator Kuhl. 15 SENATOR KUHL: Thank you, Madam 16 President. 17 This is a bill that essentially 18 would define the liability for costs associated 19 with a court proceeding to the losing party. 20 Two years ago this house adopted 21 a bill called the Family Farm Preservation Act 22 of 1993, and it was hailed as being one of the 23 most responsible pieces of agricultural 1308 1 legislation that was passed in several years. 2 Part of that legislation allows for what is 3 considered to be generally accepted agricultural 4 practices to be determined by the Department of 5 Agriculture and Markets, and what this bill 6 essentially does, it says that, if that opinion 7 of the Department is not accepted and is 8 challenged by somebody in court, in the course 9 of bringing a suit and they lose, that they will 10 be responsible for paying the legal fees 11 associated with that lawsuit. 12 THE PRESIDENT: Senator Paterson. 13 SENATOR PATERSON: Will Senator 14 Kuhl yield? 15 THE PRESIDENT: Senator Kuhl. 16 SENATOR KUHL: Absolutely. 17 SENATOR PATERSON: Thank you, 18 Senator. 19 I would imagine that a number of 20 civil lawsuits may have brought you to this 21 point where this legislation is deemed to be 22 necessary. 23 My question to you is that, in a 1309 1 sense, establishing a rule of law that becomes a 2 penalty would dissuade individuals from bringing 3 lawsuits in those cases where the lawsuit would 4 be appropriate, or at least in the mind of the 5 plaintiff the lawsuit is appropriate. Aren't we 6 really, as the New York Trial Lawyers Associa 7 tion advises us, in a sense intimidating 8 individuals from bringing lawsuits? 9 SENATOR KUHL: Senator, in 10 response to your question, this piece of 11 proposed legislation was not meant to be 12 intimidating in any way, shape or form. As I 13 indicated to you in the explanation, the part of 14 the process that I would anticipate would be the 15 action of the Department of Agriculture and 16 Markets. It's a question as to whether or not a 17 simple practice is generally accepted, a 18 generally accepted practice in the course of 19 carrying on the business of a farmer; so we will 20 have or anybody would have a preliminary 21 opinion. Then, of course, if you wish to 22 challenge that and you have the perception that 23 the Department of Law, with the expertise that 1310 1 they provide, is not sufficient and at least not 2 acceptable to you, then I think you should stand 3 the risk of bearing the cost if, in fact, you're 4 doing this out of your own desire and your own 5 intent. 6 It's -- as I said, it's not meant 7 to be an intimidating law. What it is meant to 8 do essentially is to preclude people from using 9 the courts, in fact to harass the agricultural 10 practices that have been accepted in this state 11 for years. 12 THE PRESIDENT: Senator 13 Paterson. 14 SENATOR PATERSON: Actually, I 15 want to apologize, Senator Kuhl, if I even 16 suggested that the intention of the legislation 17 was to intimidate people. What I was saying was 18 that this would be the result of it. In other 19 words, sometimes our intentions may be quite 20 apt, but what I'm saying is from the point of 21 view of the plaintiff, they go to the Department 22 of Agriculture and Markets. The Commissioner 23 renders an opinion. No one knows how much they 1311 1 can research that. The individual doesn't like 2 the opinion and then likes to sue and what we're 3 saying is, if you don't win, you're going to 4 then have to pay the attorneys' fees because we 5 have had other lawsuits that were frivolous in 6 their nature, and that all may be true, but I'm 7 saying the precious ability of our society to 8 seek legal redress when there is an injury with 9 which we're concerned is what actually bothers 10 me. But I didn't mean to suggest that the 11 intention of the legislation was to intimidate. 12 THE PRESIDENT: Read the last 13 section, please. 14 THE SECRETARY: Section 2. This 15 act shall take effect on the 30th day after it 16 shall have become a law. 17 THE PRESIDENT: Call the roll, 18 please. 19 (The Secretary called the roll. ) 20 THE PRESIDENT: Results. 21 THE SECRETARY: Ayes 47, nays 1, 22 Senator Paterson recorded in the negative. 23 THE PRESIDENT: The bill is 1312 1 passed. 2 THE SECRETARY: Calendar Number 3 76, by Senator Lack, Senate 1623, proposing 4 amendment to Section 15 and 16 of Article VI of 5 the Constitution. 6 SENATOR PATERSON: Explanation. 7 THE PRESIDENT: Senator Lack, an 8 explanation, please. 9 SENATOR LACK: Thank you, Madam 10 President. 11 This is second passage of the 12 resolution that passed both houses in 19... 1993 13 which would raise the monetary jurisdiction of 14 the Civil Court of the city of New York and the 15 District Courts to $50,000. 16 THE PRESIDENT: Senator 17 Paterson. 18 SENATOR PATERSON: Would Senator 19 Lack yield for a question? 20 SENATOR LACK: Yes, Senator. 21 Yes, Madam President. 22 SENATOR PATERSON: Thank you. 23 My question, Senator Lack, is 1313 1 simply that at this point raising the -- the 2 monetary value of the jurisdiction is also at 3 some point limiting the jury trials that 4 individuals could seek, and I cite that as an 5 issue that really is at the crux of this 6 legislation. Just wanted to know what your 7 point of view about it was. 8 SENATOR LACK: My point of view, 9 Senator, is that I support that. I supported it 10 in 1993. I would also point out that this is a 11 supported measure by the Office of Court 12 Administration and most specifically by the 13 chief judge of this state, and it is one of her 14 most important measures to pass. 15 THE PRESIDENT: On the 16 resolution, all those in favor say aye. 17 (Response of "Aye.") 18 THE PRESIDENT: Call the roll, 19 please. 20 (The Secretary called the roll. ) 21 THE PRESIDENT: Results. 22 THE SECRETARY: Those recorded in 23 the negative on Calendar Number 76, Senator 1314 1 Abate, Connor and Gold. 2 THE PRESIDENT: The resolution is 3 adopted. 4 THE SECRETARY: Ayes 46, nays 3. 5 THE PRESIDENT: The resolution is 6 adopted. 7 THE SECRETARY: Calendar Number 8 79, by Senator Levy, Senate 384, an act to amend 9 the Vehicle and Traffic Law. 10 SENATOR PATERSON: Explanation. 11 SENATOR BRUNO: Madam President, 12 can we lay that bill aside for one day at the 13 request of the sponsor? 14 THE PRESIDENT: The bill is laid 15 aside. 16 Senator Bruno? 17 Senator Kuhl. 18 SENATOR KUHL: Madam President, 19 just a few minutes ago you passed Calendar 20 Number 78, by Senator Levy. I'd like unanimous 21 consent to be able to be recorded in the 22 negative on that bill. 23 THE PRESIDENT: Without 1315 1 objection, Senator Kuhl will be recorded in the 2 negative. 3 SENATOR KUHL: Thank you. 4 THE PRESIDENT: Senator Bruno. 5 SENATOR BRUNO: Yes, Madam 6 President. My understanding is that the Rules 7 Committee has finished its business and a 8 message is on its way into the chamber and when 9 it arrives, I would ask that we go back on the 10 calendar to the reports of standing committees, 11 and the Rules Committee report be read, and 12 Senator Skelos, if you would. 13 SENATOR SKELOS: On its way. 14 SENATOR BRUNO: They're moving 15 very slowly, Madam President, but we'll try and 16 have them move a little quicker in the future. 17 THE PRESIDENT: Senator Bruno, we 18 have the Rules Committee report at the desk. 19 SENATOR BRUNO: Madam President, 20 may it be read at this time? 21 THE PRESIDENT: The Secretary 22 will read. 23 THE SECRETARY: Senator Bruno, 1316 1 from the Committee on Rules, reports the 2 following bill directly to third reading: By 3 Senator Volker, Senate Bill Number 2469, an act 4 to amend the Penal Law, the Criminal Procedure 5 Law, the Judiciary Law, the County Law, the 6 Correction Law and the Executive Law, with 7 relation to the imposition of the death penalty. 8 THE PRESIDENT: Senator Bruno. 9 SENATOR BRUNO: Madam President, 10 I move that we adopt the report of the Rules 11 Committee. 12 SENATOR CONNOR: Madam President. 13 THE PRESIDENT: Senator Connor. 14 SENATOR CONNOR: Yes. I'd like 15 to object to the adoption of the Rules report 16 and explain my reasons. 17 The Senate has a very fine 18 committee structure. In the case of this bill 19 which deals with the death penalty, probably 20 undoubtedly the most significant piece of 21 criminal justice legislation that will be taken 22 up this year, and we find it reported out 23 directly to third reading from the Rules 1317 1 Committee. It's reminiscent -- and I know we'll 2 never see it again -- but it's reminiscent of 3 those days when important legislation came out 4 at 3:15 in the morning directly from the Rules 5 Committee. 6 Now, what we see is the hurry up, 7 lack of respect for the committee process being 8 done in the middle of the day instead of the 9 middle of the night, but the substance is the 10 same, if the -- even if the energy level of the 11 members is quite different at three in the 12 afternoon than three in the morning. 13 This bill, in the dead of night 14 at 10:00 o'clock Friday night, was placed on the 15 members' desks -- no members were here, of 16 course, Madam President, 10:00, 10:30 at night 17 -- so that it would have three days on the 18 members' desks, being Friday, Saturday and 19 Sunday. 20 It's now brought directly to 21 third reading without benefit of stopping by the 22 Codes Committee which is a very fine committee. 23 The members on both sides of the aisle in the 1318 1 Codes Committee, I think, among them are some of 2 the finest legal minds in this state. That's a 3 committee I once served on as one of my 4 colleagues pointed out to me. I guess there are 5 exceptions to that rule, having once served on 6 it, and the -- my recollection of the committee, 7 and I know it's so under its present chair and 8 with its present ranking member and membership, 9 is a committee where great thought is given to 10 bills, bills are analyzed in great detail. 11 Bills are very often improved in 12 that committee by the discussion of the 13 members. The committee holds its meetings in 14 public. The public gets some advance notice of 15 it, and in the ordinary course when it reports a 16 bill, it then comes to the calendar for a couple 17 days until it's taken up. 18 What we're seeing here today is 19 either one of two things: It's an attempt to do 20 serious legislation in the old-fashioned hurry 21 up way, bills on the desk in the middle of the 22 night, members first get to see them on Monday 23 morning perhaps. Rules Committee report is 1319 1 directly to third reading. 2 This bill was not on the 3 calendar. It wasn't on any active list last 4 Friday. It didn't exist until Friday night, so 5 I think there was a new rule about the active 6 list that would be available 24 hours 7 beforehand, and I don't want to say we didn't 8 know it was coming. We certainly did get -- the 9 Majority counsel certainly notified our counsel 10 that they were taking up a death penalty bill on 11 Monday. We just -- it wasn't printed until 12 Friday night. 13 I don't think it's a good way to 14 do business, and I don't really see the reason 15 for doing it this way in February. The Rules 16 Committee is a vehicle when the other committees 17 shut down, that was always used in that rush to 18 do hundreds and hundreds of bills in just a few 19 days when the leadership, the Majority Leader 20 ship realized, My goodness, it's getting awfully 21 hot, 4th of July is either right around the 22 corner or just behind us, and we have to get out 23 of here; and Rules would meet, push these bills 1320 1 right out. 2 There's no need for that in 3 February, Madam President. There's no need for 4 that whatsoever. I object to this procedure. I 5 think we have a fine Codes Committee. I have 6 faith in the Codes Committee, the ability of its 7 members, its chair, its ranking member, to give 8 due consideration to this legislation, and I 9 think the public expects that, whether it's a 10 big important issue like the death penalty where 11 the eyes of the entire state are focused on the 12 Legislature, or any other legislation. 13 We ought to use the committee 14 system. We ought to give due deliberation and, 15 you know, I know we're going to hear, Well, 16 we've been talking about the death penalty for 17 17 years. Yeah, we've been passing a bill for 18 17 years that nobody pretends to think we can 19 actually enact now. 20 This is not the same bill. This 21 is a new bill. It ought to be in print for a 22 much longer time than from a Friday night at 23 10:30 in the evening until a Monday in mid 1321 1 afternoon. That's why, Madam President, I 2 object to the Rules Committee report because I 3 think it's not the way to do business. I think 4 it's a bad way to do business when it's the last 5 week of the session. I think it's certainly a 6 terrible way to do business when we're only in 7 February. 8 SENATOR LEICHTER: Madam - 9 THE PRESIDENT: Senator Bruno. 10 SENATOR BRUNO: Madam President, 11 I appreciate the Minority Leader lecturing us on 12 the procedures that are appropriate in the Rules 13 Committee and in this chamber. Thank you very 14 much, Senator, and while we are having notifica 15 tion and full disclosure, I would have appreci 16 ated knowing from the Minority Leader and his 17 colleagues that they plan on handing up eight 18 amendments that we just found out five minutes 19 ago, and it would have been very nice to have 20 been notified earlier today that you planned 21 this exercise just by way of sharing information 22 with your comrades and your colleagues. I think 23 that's very inappropriate procedure, Madam 1322 1 President. It isn't in the spirit of what we're 2 trying to do here in deliberating and working 3 together, and I would hope the Minority Leader 4 might give us a little more notice. I think 5 that's fair and appropriate and it strikes me, 6 Madam President, that in order to have prepared 7 these amendments, study must have been made of 8 this bill. Plenty of time to study the bill, to 9 review the bill, to know what's in it, so you 10 must have had plenty of time apparently to do 11 that. So, so much for disclosure and 12 procedure. 13 We all understand what's going on 14 in this chamber this afternoon. This house will 15 pass a meaningful, constitutionally correct 16 Governor's program pass penalty bill -- death 17 penalty bill. Death penalty bill. Death knell 18 -- death penalty bill. That's all right; wait 19 until you hear the debate on that. I am giving 20 notice today that that's next. 21 SENATOR CONNOR: Only two things 22 are certain, right? 23 SENATOR BRUNO: And the Minority 1323 1 Leader comments, and I will sit down, that these 2 are the only two things certain in life, death 3 and taxes. 4 THE PRESIDENT: Thank you, 5 Senator Bruno. 6 I'll recognize you in a moment, 7 Senator Leichter. 8 Senator Connor. 9 SENATOR CONNOR: Thank you, Madam 10 President. 11 Just briefly, Madam President. 12 My counsel informs me that we first got to look 13 at this bill at 10:30 this morning and drafted 14 the amendments since then, so I guess if four 15 hours or five hours is a lot of time to study a 16 bill, we have it. 17 Counsel did notify Majority 18 counsel when we came to the floor that we had 19 amendments. I think the amendments are hot off 20 the press, but they're in reaction, and I do 21 want to assure you, Madam President, and assure 22 the public that when the day comes that we are 23 in charge, we will do things differently. 1324 1 THE PRESIDENT: According to Rule 2 VII, section 2, on page 17 of the Rules govern 3 ing this body, a Rules Committee report is 4 always in order and, if the report is adopted, 5 all inconsistent rules of the Senate shall 6 automatically be suspended until the subject of 7 the report has been disposed of, including the 8 final action on it. 9 Senator Leichter. 10 SENATOR LEICHTER: Yes, Madam 11 President. 12 In all my 25 years in the 13 Legislature, this is the worst abuse of the 14 committee system that I've ever seen. There 15 have been other instances when significant bills 16 have failed to go through committee, usually 17 these are budget bills, maybe bills at the end 18 of the session, but never have we had a bill of 19 this significance, death penalty bill, that is 20 being rushed through. It almost seems as if 21 there's a blood lust by those proponents of this 22 legislation that they've got to pass this bill, 23 come what may, and to hell with the legislative 1325 1 procedure. 2 Senator Bruno, I'm really 3 disappointed because you committed yourself to 4 an open process. You committed yourself to a 5 fair process. You committed yourself to a 6 deliberative process, and all of that is being 7 torn up. Those promises are torn up and thrown 8 in the wastebasket and, Senator, let me tell 9 you, you made the best argument that I've heard 10 on this floor yet why we should not proceed this 11 way, and why we should allow this bill or any 12 bill that deals with matters that finally come 13 before this house to go through the regular 14 committee process. 15 You complained about the fact, 16 well, there's amendments here. We didn't have 17 time to consider them, so oh, that's what the 18 committees are for, because those issues are 19 raised in committees and they're discussed in 20 committees, and in the 20 years or so I've been 21 in the Senate and I think we've had a death 22 penalty bill before us in all of those 20 years, 23 they have always gone through the Codes 1326 1 Committee, and it's a very responsible 2 committee. It's a fair committee. We may 3 differ strongly on certain issues. I certainly 4 differ with Senator Volker on the death penalty, 5 but in all those years that bill has always come 6 before the committee. It's been discussed and 7 we've had a deliberative process, and I argue 8 very strongly against the adoption of the Rules 9 Committee report and rushing through a death 10 penalty bill without allowing the members a 11 chance to look at the bill, consider the bill, 12 have it go through the committees and, in this 13 instance, I think it would be appropriate to 14 have public hearings, allow the district 15 attorneys to be heard. 16 What's the rush? What are you 17 hurrying for? What is the need? Is there a 18 constitutional deadline? Does it say death 19 penalty has to be adopted by February 27th, 20 1995? 21 There's no rush. It can be done 22 in a deliberative proper way. Are we in such a 23 speed to put people to death that we're not even 1327 1 going to pay attention to our own rules? 2 Senator Bruno, I really urge you 3 to pay heed to implement the promises you've 4 made and let's have a deliberative body. Let's 5 not disgrace this body by rushing through a 6 death penalty bill without proper 7 consideration. 8 SENATOR VOLKER: Madam President. 9 THE PRESIDENT: Senator Volker, 10 do you wish to be heard on the adoption of the 11 Rules Committee report? 12 SENATOR VOLKER: Yes, Madam 13 President. 14 I just might say very quickly, 15 Senator Leichter, I -- that was an excellent 16 speech. I remember hearing it about 10 years 17 ago when we did three death penalty bills in one 18 year. In fact, I remember we reported one out 19 of Rules; we did one out of the then Codes 20 Committee. In fact, I think we did two out of 21 Rules when we changed the bill, one bill that 22 was on the floor. 23 Let me just point out that one 1328 1 reason why the amendment process was much easier 2 for the Senate Minority is that they had 3 certainly a bill that they could look at because 4 the bill that's on the calendar now, Calendar 5 Number 100, Senate Print 2241, is basically the 6 same bill with the few changes that were made 7 since then after the agreement between the 8 Speaker of the Assembly, the Governor and the 9 Majority Leader on Wednesday when we left almost 10 two weeks ago. At that time, the agreement was 11 that we would do an agreed bill which was agreed 12 in principle. 13 Of course, I would prefer to - 14 to see the process move through my committee, 15 but let me -- let me just tell you the problem, 16 Senator Leichter. It's amazing that we have not 17 heard anything basically from the Assembly until 18 this morning. Well, maybe last night. Soon as 19 we were prepared to move the bill, this bill, 20 which probably represents about 99 and two 21 thirds percent of an agreement -- I won't get 22 into the comparatively minor issue -- that the 23 Assembly just walked completely away from us. 1329 1 Can I finish, Senator? 2 SENATOR LEICHTER: Yes. 3 SENATOR VOLKER: And I don't 4 think it's wise to get into that debate here on 5 the floor. I would only say to you this: Let's 6 not kid ourselves. The issue here is the death 7 penalty. This bill is -- is a magnified version 8 of a bill that has been -- that we have been 9 passing for 18 years actually. We've been 10 trying to restore the death penalty completely 11 since 19 -- basically since I've been here since 12 1973. 13 Admittedly, there are more 14 protections for the defendants, and there are 15 some changes in this bill that relate to 16 constitutional issues. They're issues, by the 17 way, that, as I say, that were in -- most of 18 which were in the bill that was already reported 19 out on the floor of this Senate that's been, in 20 fact, debated in the papers. People have been 21 discussing this all over the place. 22 If there's ever a bill, by the 23 way, Senator, that doesn't need a public 1330 1 hearing, I think this is it. The issue of the 2 death penalty is not an issue of procedure. 3 It's an issue of whether you want to do the 4 death penalty or you don't want to do the death 5 penalty. It really always has been. We want to 6 make sure that there is a bill here that gives 7 protections to the defendant and that properly 8 protects victims and that's, I think, what this 9 bill does. 10 But, Senator, let's not -- let's 11 not talk about that this is the worst abuse of 12 the committee procedure. That's not what the 13 issue is all about. The issue is the death 14 penalty, and the issue is moving this matter 15 along. 16 SENATOR LEICHTER: Madam 17 President. I just wanted to -- would you yield 18 to me? I just want to ask Senator Volker a 19 question. 20 THE PRESIDENT: Senator Volker. 21 SENATOR LEICHTER: Senator, would 22 you yield? 23 Senator, I'm trying to understand 1331 1 your argument, not on the death penalty because 2 you and I have debated that and we know we 3 disagree, and I think we respect each others' 4 positions, but on the issue of what this body 5 ought to take up and in what order and how the 6 process should function, is it your view that if 7 the Majority Leader and the Speaker agree on a 8 bill, that that bill should not go through 9 committee and need not go through committee? 10 SENATOR VOLKER: Senator, I would 11 prefer that the bill go through my committee 12 although I must tell you something, that I can 13 not honestly say to you that if we put this bill 14 through my committee tomorrow that we wouldn't 15 be here next week still going through the same 16 sort of exercise because the way this whole 17 process has gone over the last couple of months, 18 I certainly couldn't guarantee that, and I think 19 if we're going to move this process along, this 20 may be the only way to do it. 21 SENATOR LEICHTER: If Senator 22 Volker would yield. 23 Senator, you really led me to my 1332 1 next question, which is you could hold the 2 hearing; in fact, I think the Codes Committee is 3 having a meeting tomorrow, is that right? 4 SENATOR VOLKER: Right. 5 SENATOR LEICHTER: And you could 6 put this bill on the agenda of the Codes 7 Committee, isn't that right? 8 SENATOR VOLKER: Probably could 9 with unanimous consent. 10 SENATOR LEICHTER: Unanimous 11 consent! Have you ever asked unanimous consent 12 when you put something on the calendar of the 13 committee? 14 SENATOR VOLKER: The bill that 15 was drafted on Friday would have to have 16 unanimous consent to be on the calendar because 17 as of Thursday -- and I must tell you something, 18 I'm very doubtful that the Senate Majority, and 19 I understand why, would ever give unanimous 20 consent on that short a notice. That's why we 21 use the Rules Committee, because I think it's 22 the best procedure to get things moving along. 23 SENATOR LEICHTER: Senator, my - 1333 1 the question I asked, and I'm not sure that the 2 answer is correct. Are you saying that it would 3 require unanimous consent for you to put this 4 bill on the agenda of the -- of the Codes 5 Committee tomorrow? 6 SENATOR VOLKER: Yes, would 7 require it from the Minority. 8 THE PRESIDENT: Senator 9 Leichter. 10 SENATOR LEICHTER: Would Senator 11 Volker continue to yield, please? 12 THE PRESIDENT: Senator Volker? 13 SENATOR VOLKER: Yes. 14 SENATOR LEICHTER: And if that 15 consent were required and if it were given, and 16 I know no reason why it wouldn't be given, and 17 the bill were reported out of committee, could 18 it not be acted on by the Senate on Wednesday? 19 THE PRESIDENT: Senator Volker. 20 SENATOR VOLKER: Again, with 21 unanimous consent, it would have to receive 22 unanimous consent from the Minority. If you 23 remember, when we -- when we report bills, you 1334 1 have to list, as Senator Gold I think will tell 2 you, that you have to get agreement in order to 3 report a bill directly out of committee to the 4 floor for the next day. 5 So that there is no guarantee 6 that that would happen. 7 SENATOR LEICHTER: Senator - 8 THE PRESIDENT: Senator 9 Leichter. 10 SENATOR LEICHTER: Yes, if 11 Senator Volker would yield, please. 12 Senator, isn't it a fact that by 13 the same way that you brought the bill here 14 today without consent of the Minority you could 15 have done that on Wednesday after it went before 16 the Codes Committee? So the fact is that we 17 could have this bill before your committee, 18 discussed in committee, and still be voted on by 19 the Senate this week if you wanted to follow 20 deliberative -- a deliberative process. 21 SENATOR VOLKER: The Rules 22 Committee is the only committee of the Senate 23 that can report directly to the floor without - 1335 1 without consent. 2 SENATOR LEICHTER: Calendar. 3 SENATOR VOLKER: To the calendar, 4 I'm sorry, without consent, to the calendar and, 5 Senator, if you're talking about last Wednesday, 6 we didn't have a bill last Wednesday. We do 7 have a bill right now which is on the calendar 8 which is very similar to this bill which has 9 been on the calendar, as I say, for two weeks 10 now, but that bill is not exactly the bill that 11 we have reported here out of the Rules 12 Committee. 13 SENATOR LEICHTER: Madam 14 President, Senator Volker. 15 THE PRESIDENT: Senator. 16 SENATOR LEICHTER: And the fact 17 is, Senator, that that initial bill of two weeks 18 ago was not considered in committee. We now 19 have a different bill that came out Friday and 20 my question to you is, if you wanted to do it 21 this week, you could still have it go through 22 your committee and there is a procedure to then 23 bring it before the full Senate on Wednesday, or 1336 1 you could wait one week, Senator, and have a 2 deliberative process. 3 Is there any reason or any need, 4 Senator, that that bill has to be passed this 5 week, that you can not wait until next week so 6 that you follow the procedures of the Senate so 7 that you have the deliberation that I think we 8 owe to this important subject? 9 THE PRESIDENT: Senator Volker. 10 SENATOR VOLKER: Madam President, 11 the Majority Leader last -- a week ago 12 Wednesday, when the press conference was held 13 that stated the agreement, the agreement in 14 principle or agreement between the Speaker, the 15 Majority Leader and the Governor, let it be 16 known that whatever occurred that the Senate was 17 going to move this death penalty today, and that 18 it was -- it was his intention to make sure that 19 a death penalty bill was passed today as best he 20 could. That was his commitment, and that's why 21 this bill is here. 22 I think I would prefer just to 23 have the committee process, but I think, under 1337 1 the circumstances, the Majority Leader feels 2 that this is the best way to move this process 3 along. 4 THE PRESIDENT: Senator 5 Dollinger, do you wish to be heard on the 6 adoption of the Rules Committee? 7 SENATOR DOLLINGER: I do, Madam 8 President. I would, however, like to ask 9 Senator Volker if he would yield to a question. 10 THE PRESIDENT: Senator 11 Dollinger, do you wish to be heard on the 12 adoption of the Rules Committee report? 13 SENATOR DOLLINGER: I do, but at 14 this time I'd simply like to ask Senator Volker, 15 does he still have the floor? If so, I'd simply 16 like to address a question. 17 THE PRESIDENT: He does not have 18 the floor. You have the floor. 19 SENATOR DOLLINGER: Well, could I 20 then ask Senator Volker, since I have the floor, 21 if he would yield to a question. 22 THE PRESIDENT: Is it on the 23 adoption of the Rules Committee report? 1338 1 SENATOR DOLLINGER: It is on the 2 Rules Committee. 3 THE PRESIDENT: Senator. 4 SENATOR DOLLINGER: Senator, I'm 5 intrigued because, in your comments a moment 6 ago, you made reference to the bill on the 7 calendar and referred to Bill 2241, is that 8 correct? That is the bill that was in the 9 calendar that was published on Friday, correct? 10 SENATOR VOLKER: 2241, yes. 11 SENATOR DOLLINGER: Right, but 12 that isn't the bill before us today. 13 SENATOR VOLKER: No. 14 SENATOR DOLLINGER: And, in fact, 15 the bill before us today, 2649, is twice as 16 long, twice -- presumably twice as complicated 17 as the bill - 18 SENATOR VOLKER: No, I wouldn't 19 say it's twice as long or twice as complicated. 20 In fact, Senator, although this is the 21 Governor's program bill, it is the Governor's 22 Program Bill Number 1, most of the languaqge in 23 here does not change the process as regards the 1339 1 death penalty. It does add quite a bit of 2 language as regards the process after the -- how 3 the death penalty is carried out, the Correction 4 Law, amendments and things of that nature, but 5 it is mostly detail as far as the Correction Law 6 is concerned. 7 SENATOR DOLLINGER: But is it - 8 THE PRESIDENT: Senator 9 Dollinger. 10 SENATOR DOLLINGER: Again, will 11 Senator Volker yield? 12 But the bill that we have in 13 front of us, 2649, is 29 pages long; the bill 14 that you made reference to that was in the 15 docket on Friday is only 12 pages long. 16 SENATOR VOLKER: H-m-m. 17 SENATOR DOLLINGER: So something 18 happened between the publication of this 19 document on Friday and the preparation of, I 20 assume maybe 5:00 o'clock Friday, or some time 21 in the afternoon on Friday when this was 22 published, and this bill which I think Senator 23 Connor properly pointed out was plunked on my 1340 1 desk to meet the three-day aging period at about 2 10:00 o'clock Friday night. 3 SENATOR VOLKER: M-m h-m-m. 4 THE PRESIDENT: Senator Volker. 5 SENATOR DOLLINGER: Again, Madam 6 President, through you, could you explain to me 7 what that process was, what happened between the 8 publication of the calendar and the publication 9 of the bill? 10 SENATOR VOLKER: Well, obviously 11 what happened was that the Assembly, the 12 Governor and the Senate discussed the -- the 13 legislation and -- and made certain changes in 14 the bill. What I'm tellin' you though, as far 15 as the implementation of the death penalty is 16 concerned, that a lot of it is just expanding on 17 what was already there. That's what I'm telling 18 you, which was in the previous bill. Sure, 19 there was some additional language that was put 20 in this bill, but I'm telling you and that's 21 why, by the way, when you went to amend the 22 bill, you're amending basically the same 23 sections as you amended in a previous bill or 1341 1 would have amended in the previous bill. 2 THE PRESIDENT: Senator. 3 SENATOR DOLLINGER: Again through 4 you, Madam President, one final question. Were 5 you, Senator Volker, a participant in the 6 discussions that occurred presumably after the 7 calendar was published and before the bill was 8 put on our desks, about the contents of this 9 bill? Were you a participant in this? 10 SENATOR VOLKER: I'd hasten to 11 tell you I was, yes. 12 SENATOR DOLLINGER: Do you know 13 anybody else who was? 14 SENATOR VOLKER: There was the 15 Speaker's people, the Majority Leader's people, 16 the Governor's people and myself, and some 17 others also. 18 THE PRESIDENT: Senator Volker. 19 SENATOR DOLLINGER: Could you 20 tell me whether there were any other members of 21 the Senate who participated in those 22 discussions? 23 SENATO VOLKER: Any other members 1342 1 of the Senate who participated? No. 2 SENATOR DOLLINGER: Madam 3 President, on the bill. 4 THE PRESIDENT: No, Senator, I'm 5 going to recognize Senator Waldon now. 6 SENATOR DOLLINGER: No, on the 7 resolution to accept the Rules Report. 8 Madam President, I rise to join 9 the voice of Senator Leichter and Senator 10 Connor. I guess I'm astounded that we're 11 standing here today to change the law, probably 12 the most critical law in the state, to impose 13 the death penalty that hasn't even actually gone 14 through committee, and I'll apologize -- I'll 15 apologize publicly to Senator Volker, because I 16 don't like asking Senator Volker picayune 17 questions about the procedure when what we 18 should be debating is about principles that we 19 hold, perhaps different principles but 20 principles that we hold to be very, very 21 important about the death penalty. 22 It's a shame that I stand up here 23 and talk to you about the little points of 1343 1 procedure because the Senate has decided to bend 2 all of its rules to accommodate what appears to 3 be the political agenda of the Majority Leader, 4 and that's what troubles me most, is that 5 someone promised that the bill would be acted 6 upon today, and when if agreement wasn't 7 reached, all of a sudden the rules of the 8 Senate, the body that I joined two years ago - 9 and one of the first things I did was the last 10 Majority Leader came out in the middle of debate 11 over the bill involving the joint resolution to 12 create -- to appoint a Comptroller, and he came 13 out, Senator Marino came out and he and I had a 14 little tussle on the floor and he lectured me 15 about the importance of the Senate, the value of 16 the institution he'd been in for 28 years and 17 how this was the importance of the Senate and 18 how I should be reminded of that and mindful of 19 that, because we were debating a resolution 20 about exercising the prerogatives of the 21 Senate. 22 Well, here we are bending the 23 rules, manipulating the rules again to 1344 1 accommodate something other than an agenda about 2 passing substantive legislation. We could 3 easily do it, as Senator Leichter points out, 4 through the Codes Committee. Senator Volker has 5 been a leader in that, in the Codes Committee. 6 He's been a leader on this bill, should have 7 gone through the Codes Committee before it came 8 here. 9 In addition, it doesn't appear to 10 me, and I've got lots of questions on the bill 11 which I'll talk about when we come to the bill, 12 but I'll just point out that Senator Leichter's 13 point about a public hearing is well taken, is 14 very well taken. We hold public hearings in 15 this Legislature about minor league baseball 16 development. We've held them about grape price 17 cuts and price supports for the grape industry. 18 We've held public hearings in the last couple 19 years about diapers in the waste stream. We 20 held them about zebra mussels in our water 21 system. We've heard them about tanning salons, 22 and now we're not going to hold a public hearing 23 on the imposition of the death penalty? 1345 1 What's the rush? What's the big 2 rush? Why did we change our rules? It seems to 3 me and maybe cynically, that I have a view of 4 why it's supposed to happen today. Tomorrow the 5 Catholic Conference is coming down. They're 6 coming down in part to lobby members of this 7 chamber against this bill. But they won't get a 8 chance if today this body, through the Rules 9 Committee, receives a report which includes the 10 death penalty and we pass it today. 11 It seems to me that the 12 motivation is clear. It seems to me that it's 13 obvious why this is happening today. I most 14 strenuously object to the receipt of the Rules 15 Committee report. 16 SENATOR BRUNO: Point of order. 17 THE PRESIDENT: Senator Bruno. 18 SENATOR BRUNO: Point of order, 19 Madam President. 20 I believe the rules of the Senate 21 are such that we can only debate for one half 22 hour a report of a standing committee including 23 Rules, and I believe that half hour has just 1346 1 ended, so we thank our colleagues for their 2 remarks. 3 SENATOR CONNOR: Point - 4 THE PRESIDENT: Senator Connor. 5 SENATOR CONNOR: I believe the 6 rule is a half hour on each side. 7 SENATOR BRUNO: Yes. 8 THE PRESIDENT: That's right. 9 SENATOR CONNOR: I don't know if 10 we used all of it. 11 SENATOR BRUNO: Yes, that was 12 your side. We have some time to go. 13 Madam President. 14 THE PRESIDENT: Senator Connor, 15 you have used a half hour. 16 SENATOR BRUNO: Madam President. 17 THE PRESIDENT: Yes. 18 SENATOR BRUNO: I would move the 19 adoption of the Rules report. 20 THE PRESIDENT: Senator Bruno has 21 moved that we adopt the report of the Rules 22 Committee. All those in favor. 23 SENATOR DOLLINGER: A point of 1347 1 order, ma'am. 2 In reaching the conclusion, as I 3 assume this body is, that the half hour has 4 expired, is the Minority being charged with the 5 time that Senator Volker used in discussing the 6 bill? 7 THE PRESIDENT: No, no. 8 SENATOR DOLLINGER: Then there 9 should be additional time because I know he 10 spoke for several minutes. 11 SENATOR BRUNO: On - 12 THE PRESIDENT: But the entire 13 debate, it's been more than half an hour. 14 SENATOR WALDON: Madam President, 15 with all due respect, I wish to make - 16 THE PRESIDENT: Senator Waldon. 17 SENATOR WALDON: I wish to make a 18 reasoned rational decision on this resolution as 19 a result of due deliberation. I did not see you 20 timing a clock in regard to the debate on both 21 sides of the aisle. I have some valid concerns 22 about this resolution. 23 I respectfully ask this body to 1348 1 recognize me to raise my concerns so that my 2 decision will not be in the dark on this 3 resolution. 4 THE PRESIDENT: Senator Waldon, 5 can you do it in just one minute? 6 SENATOR WALDON: I can't 7 guarantee -- I used to be quick enough, Madam 8 President, to do a lot of things in one minute. 9 THE PRESIDENT: Senator, we have 10 already consumed the half hour. 11 SENATOR BRUNO: Madam President, 12 excuse me. I have the floor. We move the 13 adoption of the Rules Committee. 14 THE PRESIDENT: Yes, you're quite 15 right, Senator Bruno. 16 SENATOR BRUNO: And I would 17 appreciate a vote on that. 18 THE PRESIDENT: All those in 19 favor signify - 20 SENATOR ABATE: So - 21 SENATOR CONNOR: We'll have to 22 have a slow roll call so Senator Waldon can 23 explain his vote. 1349 1 THE PRESIDENT: The question is 2 on the adoption of the Rules Committee report. 3 Call the roll, please. 4 THE SECRETARY: Senator Abate. 5 SENATOR ABATE: Against it, no, 6 and I'd like to explain my vote. 7 I'm a new Senator - 8 THE PRESIDENT: Senator Abate 9 will explain her vote. 10 SENATOR ABATE: Yes, if I may be 11 heard. I'm the newest member of this chamber 12 and I'd hate to be hearing years from now that 13 we followed some rules and we talked more about 14 rules than we talked about the substance of 15 these issues. 16 We all have to go home some day 17 and answer the question of our constituents: Did 18 we read the bill? It's not enough to say we're 19 for or against the bill. Do we understand the 20 nuances, the details? We're not being 21 responsible legislators if we cut off debate at 22 30 minutes or we cut off debate at two hours 23 because this is a critical issue. 1350 1 Whether we're for or against the 2 death penalty, we must understand what 3 protection it will provide and what it does not 4 provide. I'm -- I'm ashamed because I know that 5 there are individuals in this room, and I 6 include myself, I received the bill this 7 morning. Did I have adequate time to read it 8 and understand it? I don't think so. I don't 9 think any of us did, and the fact that we've 10 been debating it for many, many years, is not 11 the same thing because legislation changes. One 12 word can change the intent and spirit of a piece 13 of legislation. 14 I ask that all of us, let's be 15 rational. If we pass the death penalty bill at 16 midnight, but it is said about us that we had 17 fair and honest debate, we just do not live by 18 certain rules that did not make sense for such a 19 critical piece of legislation. Let's look to 20 our consciences today. 21 THE PRESIDENT: The question is 22 on the adoption of the Rules Committee report. 23 We'll continue a slow roll call. 1351 1 SENATOR ABATE: I vote no. 2 THE SECRETARY: Senator Babbush. 3 (There was no response. ) 4 Senator Bruno. 5 SENATOR BRUNO: Yes. 6 THE SECRETARY: Senator Connor. 7 SENATOR CONNOR: No. 8 THE SECRETARY: Senator Cook. 9 SENATOR COOK: Yes. 10 THE SECRETARY: Senator 11 DeFrancisco. 12 SENATOR DeFRANCISCO: Yes. 13 THE SECRETARY: Senator DiCarlo. 14 SENATOR DiCARLO: Yes. 15 THE SECRETARY: Senator 16 Dollinger. 17 SENATOR DOLLINGER: Explain my 18 vote, Mr. President. 19 THE PRESIDENT: Senator Dollinger 20 to explain his vote. 21 SENATOR DOLLINGER: It seems to 22 me, in the past, when we've done this bill that 23 the Codes Committee has done a good job on the 1352 1 bill. I think now, given the fact that this is 2 a bill that's going to become law, I think the 3 Codes Committee could have done an excellent 4 job. 5 Unfortunately, Senator, the 6 amendments, three of them are mine, I would have 7 loved to have put them before the Codes 8 Committee. Instead, I found out, whether or 9 not -- I had to play sort of hit-or-miss on 10 whether or not they'd be included in 2649. 11 Turns out all three of them are not, even though 12 I tried to get them in the discussion much 13 earlier. That's why the amendments are now 14 being presented. That's why they're being 15 presented at this time. 16 All that could have been 17 avoided. We might have had a discussion. I 18 would have been glad to present you the 19 amendments in the Codes Committee. 20 I'm going to vote no, Madam 21 President. It just seems to me there's no 22 reason to rush this. The people of the state of 23 New York could wait for this body to engage in 1353 1 the kind of deliberation that we're -- we should 2 be well known for. 3 THE PRESIDENT: Senator Dollinger 4 in the negative. 5 Continue, please. 6 THE SECRETARY: Senator Espada. 7 SENATOR ESPADA: To explain my 8 vote. 9 THE PRESIDENT: Senator. 10 SENATOR ESPADA: Just to depart a 11 little bit from my colleagues on this issue, I 12 for one find it altogether fitting that the 13 precursor to a -- a full debate on the death 14 penalty be as arbitrary and capricious as the 15 bill itself, so I think we're living up to form, 16 unfortunately. 17 I vote no on the resolution. 18 THE PRESIDENT: Continue, 19 please. 20 Senator Senator Espada recorded 21 in the negative. 22 THE SECRETARY: Senator Farley. 23 SENATOR FARLEY: Aye. 1354 1 THE SECRETARY: Senator Galiber. 2 SENATOR GALIBER: No. 3 THE SECRETARY: Senator Gold. 4 SENATOR PATERSON: Mr. President, 5 to explain my vote. 6 THE PRESIDENT: Senator Gold to 7 explain his vote. 8 SENATOR PATERSON: And I will be 9 brief. Senator Bruno, I've known you for a day 10 or two, and you and I have had a number of 11 conversations in the back of this chamber while 12 other people happen to have been the leaders, 13 and I remember your comments and your sympathies 14 toward the particular late night sessions and 15 starting on time, and I think that's why, when 16 you took over, you initially announced some 17 reforms that we've been fighting for because 18 we've got to get down to business. 19 I think now you're, however, 20 getting some very bad advice from some people 21 and you're starting to confuse the concept of 22 getting down to business and getting rid of a 23 lot of the nonsense with what I call the 1355 1 bulldozer syndrome. 2 Now, the fact of the matter is, 3 Senator, that we do not vote on concepts. A lot 4 of people wish we did. A lot of people would 5 like to just go to the voters and say, "I'm for 6 capital punishment." "I'm for abortion." "I'm 7 against" or this and that, and not explain to 8 people that bills have words in them and each 9 word is something that affects the lives of 10 people because it's a law. 11 Big mistake. If the Governor is 12 waiting to sign this, that's one thing, but 13 under the circumstances where you know that the 14 Assembly is not going to do it, where it's only 15 posturing, what you do is, unfortunately, 16 tarnish what many of us hoped was a good start, 17 a reformed start. 18 I vote in the negative. 19 THE PRESIDENT: Senator Gold 20 reported in the negative. Continue the roll. 21 THE SECRETARY: Senator 22 Gonzalez. 23 (There was no response. ) 1356 1 Senator Goodman. 2 SENATOR GOODMAN: No. 3 THE SECRETARY: Senator Hannon. 4 SENATOR HANNON: Yes. 5 THE SECRETARY: Senator Hoblock. 6 SENATOR HOBLOCK: Yes. 7 THE SECRETARY: Senator 8 Hoffmann. 9 (There was no response. ) 10 Senator Holland. 11 SENATOR HOLLAND: Yes. 12 THE SECRETARY: Senator Johnson. 13 SENATOR JOHNSON: Yes. 14 THE SECRETARY: Senator Jones. 15 SENATOR JONES: Explain my vote. 16 THE PRESIDENT: Yes, Senator 17 Jones to explain her vote. 18 SENATOR JONES: I just want to 19 join and echo some of the things I've heard my 20 colleagues say today. Certainly, we all know 21 that none of us sitting here is going to change 22 our vote as far as the substance of the death 23 penalty. We all know it's inevitable, and we 1357 1 all know we will have a death penalty this year 2 whether we're for or against it. 3 So where is our obligation now? I 4 think Senator Abate explained it perfectly. Our 5 obligation now is knowing what is in this piece 6 of legislation. I'm not going to change whether 7 I support or I don't support the death penalty 8 but I do have to go back to my constituents and 9 be able to say, when somebody involved with 10 mental health said to me, Are these people 11 protected under the death penalty; when somebody 12 says to me, Is there going to be adequate 13 defense for those who are going to be charged 14 with murder and perhaps subject to the death 15 penalty; or better yet, my local government who 16 says to me, Am I going to be stiffed with the 17 bill for the defense of these people? 18 I don't know the answer to these 19 questions because Senator Abate is a half a day 20 ahead of me. I got this an hour ago, so I 21 haven't read it, and I certainly cannot support 22 it being voted on today regardless of how I'm 23 going to vote. The procedure is wrong. 1358 1 I vote no. 2 THE SECRETARY: Senator Jones in 3 the negative. 4 Senator Kruger. 5 SENATOR KRUGER: No. 6 THE SECRETARY: Senator Kuhl. 7 SENATOR KUHL: Aye. 8 THE SECRETARY: Senator Lack. 9 SENATOR LACK: Aye. 10 THE SECRETARY: Senator Larkin. 11 (There was no response.) 12 THE SECRETARY: Senator LaValle. 13 SENATOR LAVALLE: Aye. 14 THE SECRETARY: Senator Leibell. 15 SENATOR LEIBELL: Yes. 16 THE SECRETARY: Senator 17 Leichter. 18 SENATOR LEICHTER: Mr. President, 19 to explain my vote. 20 ACTING PRESIDENT KUHL: Senator 21 Leichter to explain his vote. 22 SENATOR LEICHTER: Here we go 23 again acting at the whim and whimsy of the 1359 1 Majority Leader. Rules mean nothing. Proced 2 ures mean nothing. We rush ahead. We really 3 make ourselves look foolish. 4 What is more important than the 5 wording of a bill that deals with how people are 6 going to be put to death, when they're going to 7 be put to death, what their rights are, what the 8 procedure is? To have a bill of that sort be 9 printed over the week end, first seen by the 10 members on Monday, and then rush ahead and not 11 have it go through committee, it's appalling. 12 You know, what so often happens 13 here, we're sort of within the walls, the thick 14 stone walls of this building, and we lose all 15 perspective. Senator Bruno, I think most of the 16 people in this state support the death penalty, 17 but I think that they would agree with me and 18 with others who, say, have a fair, reasoned 19 position. That's why they send us up here, to 20 act in a deliberative, sensible, rational 21 fashion. 22 This is not doing it, and it's 23 going back to those procedures that I know you 1360 1 and members on both sides of the house 2 criticize. It's not necessary. You wanted to 3 pass a death penalty bill this week. You could 4 have done it, and I showed you in the questions 5 to Senator Volker how you could have gone 6 through committee and done it. 7 I would have hoped that you would 8 have also -- I say "you", but that the whole 9 body would agree that hearings would have been 10 proposed, so on, you probably would have passed 11 the bill by the end of March. 12 It's going to pass this year. 13 There's no question about it, but to force this 14 body to vote on a complex, complicated bill 15 dealing with death and not give members an 16 opportunity and a chance to do it in a reasoned 17 manner is totally wrong. 18 I vote in the negative, Mr. 19 President. 20 ACTING PRESIDENT KUHL: Senator 21 Leichter in the negative. 22 Secretary will continue to call 23 the roll. 1361 1 THE SECRETARY: Senator Levy. 2 SENATOR LEVY: Aye. 3 THE SECRETARY: Senator Libous. 4 SENATOR LIBOUS: Yes. 5 THE SECRETARY: Senator Maltese. 6 SENATOR MALTESE: Aye. 7 THE SECRETARY: Senator Marchi. 8 SENATOR MARCHI: Aye. 9 THE SECRETARY: Senator 10 Markowitz. 11 SENATOR MARKOWITZ: No. 12 THE SECRETARY: Senator Mendez. 13 SENATOR MENDEZ: No. 14 THE SECRETARY: Senator 15 Montgomery. 16 SENATOR MONTGOMERY: No. 17 THE SECRETARY: Senator Nanula. 18 (There was no response. ) 19 Senator Nozzolio. 20 SENATOR NOZZOLIO: Aye. 21 THE SECRETARY: Senator Onorato. 22 SENATOR ONORATO: No. 23 THE SECRETARY: Senator 1362 1 Oppenheimer. 2 (There was no response. ) 3 Senator Padavan. 4 SENATOR PADAVAN: Mr. President, 5 I'd like to explain my vote. 6 ACTING PRESIDENT KUHL: Senator 7 Padavan to explain his vote. 8 SENATOR PADAVAN: I listened very 9 carefully to Senator Dollinger and Senator 10 Leichter. Now, there are a few things that I 11 think you overlooked. 12 Number one, are you aware of the 13 fact that your counsel, your counsel for the 14 Minority, a week end ago, not this past week 15 end, the one prior to that, subsequent to a 16 press conference which everyone could attend and 17 where many questions were asked both by the 18 media and others, were you aware that your 19 counsel attended those negotiations? Apparently 20 not. 21 Now, your counsel was there along 22 with the Senate Majority and the Assembly and 23 the Governor's people to discuss what's in this 1363 1 bill. 2 Secondly, as Senator Volker 3 indicated, the bill that has been on the 4 calendar for a number of weeks, is essentially 5 the bill that will be before us today. 6 Now, even after that, if you 7 don't understand it all, if you still have 8 questions, then we're going to have a two and a 9 half hour debate probably, if not longer, with 10 all due respect to the rules and you can ask 11 them then. 12 The point I'm trying to make is 13 that the Senate Majority has done everything 14 within the last three or four weeks, including 15 allowing your counsel to participate -- I 16 shouldn't use the word "allow". I should use 17 the word properly "permit" your counsel to 18 participate in those negotiations. 19 Now, if you didn't get the 20 information that was presented at that point in 21 time, if it was not shared with you, then I 22 suggest you have an internal problem to take 23 care of, but it's not with the Senate Majority. 1364 1 This bill came out of Rules, where it was also 2 discussed, I might add, by some of the very same 3 people who spoke here a little while ago, and 4 where questions could be asked and answers 5 given. 6 Gentlemen, there's been more - 7 and ladies, there's been more than ample 8 opportunity for everyone to know what's in this 9 bill, and your rhetoric this afternoon really 10 falls rather thin in terms of substance. 11 I vote aye. 12 ACTING PRESIDENT KUHL: Senator 13 Padavan in the affirmative. Secretary will 14 continue to call the roll. 15 THE SECRETARY: Senator Paterson. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson to explain his vote. 18 SENATOR PATERSON: Mr. President, 19 I feel like Lieutenant Columbo. I have the 20 counsel that Senator Padavan is referring to 21 sitting right here. He was part of the 22 negotiations and actually we wanted to 23 congratulate the Majority for really opening up 1365 1 five-way negotiations since they have taken 2 office and that's very good, and our counsel was 3 part of the negotiations until they broke off. 4 We are looking at a substantially 5 different bill than the one that was on the 6 calendar two weeks ago Monday, two weeks ago 7 Tuesday. We are now looking at a completely 8 different bill and negotiations that we were not 9 included in, and so it came as a surprise to us 10 when we heard about the bill today, and this is 11 the reason that we could only offer the 12 amendments at this time. We're not saying we 13 wouldn't have offered amendments to the previous 14 bill, but we had different amendments and we 15 would have made the notification. What we're 16 saying is that we didn't know about the bill 17 until today. 18 Now, in New York City, there's an 19 inscription on the Supreme Court that says -- of 20 New York County, "The True Administration of 21 Justice is the Firmest Pillar of Good Govern 22 ment." "The True Administration of Justice is 23 the Firmest Pillar of Good Government." 1366 1 Good government is not tested in 2 the regular day-to-day procedures. Good 3 government is tested at times like this when 4 very controversial bills are brought to the 5 floor. There had to be a better way. We could 6 go to Manufacturers Hanover, there had to be a 7 better way than to have done this today. 8 There had to be a way that the 9 committee procedure could have even allowed for 10 the discussion even if we then sent the bill to 11 the Rules Committee. That is the only objection 12 that we're making. That is why we have made the 13 objection at this time, because we feel that the 14 citizens of New York demand it. 15 Thank you, Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson, how do you vote? 18 SENATOR PATERSON: I vote no, Mr. 19 President. 20 ACTING PRESIDENT KUHL: Senator 21 Paterson in the negative. 22 Secretary will continue the 23 role. 1367 1 THE SECRETARY: Senator Present. 2 SENATOR PRESENT: Aye. 3 THE SECRETARY: Senator Rath. 4 (There was no response. ) 5 Senator Saland. 6 SENATOR SALAND: Aye. 7 THE SECRETARY: Senator 8 Santiago. 9 SENATOR SANTIAGO: No. 10 THE SECRETARY: No. 11 Senator Sears. 12 SENATOR SEARS: Aye. 13 THE SECRETARY: Senator Seward. 14 SENATOR SEWARD: Yes. 15 THE SECRETARY: Senator Skelos. 16 SENATOR SKELOS: Aye. 17 THE SECRETARY: Senator Smith. 18 (There was no response. ) 19 Senator Solomon. 20 (There was no response. ) 21 Senator Spano. 22 SENATOR SPANO: Aye. 23 THE SECRETARY: Senator 1368 1 Stachowski. 2 SENATOR STACHOWSKI: No. 3 THE SECRETARY: Senator 4 Stafford. 5 (There was no response. ) 6 Senator Stavisky excused. 7 Senator Trunzo. 8 SENATOR TRUNZO: Yes. 9 THE SECRETARY: Senator Tully. 10 SENATOR TULLY: Aye. 11 THE SECRETARY: Senator Velella. 12 SENATOR VELELLA: Yes. 13 THE SECRETARY: Senator Volker. 14 SENATOR VOLKER: Yes. 15 THE SECRETARY: Senator Waldon. 16 ACTING PRESIDENT KUHL: Senator 17 Waldon to explain his vote. 18 SENATOR WALDON: Thank you very 19 much, Mr. President. 20 I have great respect for this 21 institution. I have greater respect for life, 22 and what I wanted to do earlier on the 23 resolution was to ask the learned gentleman from 1369 1 Wyoming, Erie and Livingston County, had 2 something happened since we last discussed the 3 bill which compelled the speed with which we 4 were now processing this proposed resolution. 5 For example, had he any new 6 information regarding the per capita murder 7 rate? Had it gone up so dramatically that we 8 had to act now as opposed to waiting? Was there 9 a change in the mathematics of dollars from the 10 last time I had been advised regarding the death 11 penalty that to impose the death penalty on New 12 York State will at the very least triple the 13 cost of trials regarding the death penalty. Had 14 that changed, and should I be edified and made 15 aware of that? 16 Had anything else happened in 17 terms of variables and invariables that would 18 force this body to act now as opposed to waiting 19 and having due deliberation to make the 20 decision? 21 I was not afforded that 22 opportunity, so hypothetically I ask Senator 23 Volker to address those issues when we debate 1370 1 the bill a little later. 2 I would like to know; I think we 3 need to know. What's more important than my 4 need to know though, is the fact that we're 5 talking about the gravest of issues, the taking 6 of life, and we're doing it in a very cavalier 7 fashion. 8 I feel like I've been in a street 9 fight where the bully said, "I'm bigger than 10 you. I'll take your ball. I'll take your 11 glove. I'll take your bat and get off the 12 field." That is exactly how I feel. I feel 13 violated that I did not have an opportunity to 14 properly discuss this issue. 15 We're talking about life and 16 death. We're talking about the undermining 17 financially perhaps of our criminal justice 18 system, and we're doing it in a very cavalier 19 fashion. 20 I have great respect for this 21 institution. I hope everyone here has great 22 respect for this institution, but I can tell you 23 that today I've seen a display which shows me 1371 1 that perhaps others do not respect this body as 2 I do. 3 I rue this day. I vote in the 4 negative on this resolution. 5 ACTING PRESIDENT KUHL: Senator 6 Waldon in the negative. 7 Secretary will continue to call 8 the roll. 9 THE SECRETARY: Senator Wright. 10 (There was no response. ) 11 ACTING PRESIDENT KUHL: Secretary 12 will call the absentees. 13 THE SECRETARY: Senator 14 Gonzalez. 15 (There was no response. ) 16 Senator Hoffmann. 17 (There was no response. ) 18 Senator Larkin. 19 SENATOR LARKIN: Aye. 20 THE SECRETARY: Senator Nanula. 21 (There was no response. ) 22 Senator Oppenheimer. 23 (There was no response. ) 1372 1 Senator Rath. 2 SENATOR RATH: Aye. 3 THE SECRETARY: Senator Smith. 4 SENATOR SMITH: No. 5 THE SECRETARY: Senator Solomon. 6 SENATOR SOLOMON: No. 7 THE SECRETARY: Senator 8 Stafford. 9 SENATOR STAFFORD: Aye. 10 THE SECRETARY: Senator 11 Gonzalez. 12 SENATOR GONZALEZ: No. 13 THE SECRETARY: Senator Nanula. 14 SENATOR NANULA: No. 15 THE SECRETARY: Senator Wright. 16 (There was no response. ) 17 ACTING PRESIDENT KUHL: Announce 18 the results. 19 THE SECRETARY: Ayes 33, nays 20 20. 21 ACTING PRESIDENT KUHL: Motion to 22 accept the Rules report is adopted. 23 The Chair recognizes Senator 1373 1 Bruno. 2 SENATOR BRUNO: Mr. President, we 3 would now like to take up Calendar Number 106. 4 ACTING PRESIDENT KUHL: Secretary 5 will read. 6 THE SECRETARY: Calendar Number 7 106, by Senator Volker, Senate 2649, an act to 8 amend the Penal Law, the Criminal Procedure Law, 9 the Judiciary Law, the County Law, the 10 Correction Law and the Executive Law, in 11 relation to imposition of the death penalty. 12 SENATOR PATERSON: Explanation. 13 ACTING PRESIDENT KUHL: Senator 14 Volker, an explanation has been asked for. 15 SENATOR VOLKER: Mr. President - 16 Mr. President, could we, with the consent of the 17 Minority Leader and Majority Leader, read the 18 last section so that several people who have 19 asked to vote could vote? 20 SENATOR BRUNO: Without 21 objection, Mr. President. 22 ACTING PRESIDENT KUHL: Secretary 23 will read the last section. 1374 1 THE SECRETARY: Section 38. This 2 act shall take effect on the 1st day of 3 September next succeeding the date on which it 4 shall have become a law. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll. ) 8 ACTING PRESIDENT KUHL: The chair 9 recognizes Senator Tully. How do you vote? 10 SENATOR TULLY: Aye. 11 ACTING PRESIDENT KUHL: Senator 12 Solomon. 13 SENATOR SOLOMON: Yes. 14 ACTING PRESIDENT KUHL: Senator 15 Stafford. 16 SENATOR STAFFORD: Aye. 17 ACTING PRESIDENT KUHL: Senator 18 Larkin. 19 SENATOR LARKIN: Aye. 20 ACTING PRESIDENT KUHL: Senator 21 Bruno, are there any other Senators you wish 22 called? 23 Senator Oppenheimer. 1375 1 SENATOR OPPENHEIMER: This is 2 concerning the resolution? 3 ACTING PRESIDENT KUHL: Secretary 4 will withdraw the roll call. The chair 5 recognizes Senator Volker. 6 SENATOR VOLKER: Mr. President, 7 this has been a long -- and it's always 8 interesting, I guess, that when you get to an 9 issue such as this and we've debated this issue 10 so many times over the years, that I guess 11 there's bound to be, no matter what happens, 12 some partisan bickering on this issue. It's 13 just in the nature of the business, and then I 14 guess I understand that. 15 One thing I think everyone should 16 understand that this is the beginning of a 17 process that has been going on really not for 18 18 years, but it's really been going on for 23 19 years, because what really happened was that 20 when the People v. Gregg or -- Gregg v. Georgia 21 was passed many years ago after the Furman case, 22 it was really no surprise to some people that we 23 would have to once again deal with the death 1376 1 penalty issue because the Supreme Court had done 2 a flipflop back in the '70s on the issue of the 3 death penalty. 4 One of the things that the 5 anti-death penalty people, many of them, don't 6 understand, people that have gone around this 7 country fighting the death penalty, and have 8 paid little attention to it because they would 9 rather not pay attention to it is the fact that 10 there was a long period of time in this country 11 when there was no death penalty anywhere and at 12 that time primarily as the death penalty 13 declined and there was no death penalty is when 14 the murder rate surged across this country. 15 In talking to some of the younger 16 people who talked to me about the death penalty, 17 they are totally unaware of the fact that New 18 York probably is an example more than any other 19 state in the Union of what happens when you're 20 not careful with the criminal justice system. 21 When we eliminated the death 22 penalty in 1965, we set off not just because of 23 that, but it was the harbinger of a huge change 1377 1 in this state. My father, who was on the 2 Bartlett Commission -- and there's only one 3 member of this chamber now who was around at the 4 time in the Legislature, Senator John Marchi - 5 when the Bartlett Commission recommended the 6 abolition of the death penalty, I've read so 7 many misstatements about what happened. 8 I read in the paper the other day 9 that part of the reason for the death penalty 10 being abolished was because somebody almost got 11 executed, which is all nonsense. The death 12 penalty was abolished in part because the murder 13 rate was low and the violent crime rate was low 14 and people said, We want a more civilized 15 society; we want a society where people can walk 16 the streets, but also because we don't have the 17 kind of terrible criminals that people say we 18 really have, and we really need a more civilized 19 society and, if we abolish the death penalty 20 there won't be any enormous increase in murder 21 as some of the critics have said, and there 22 won't be an enormous increase in violent crime. 23 That's all nonsense; that won't happen. 1378 1 Well, the death penalty was 2 abolished. New York City hit record numbers 3 within a matter of a couple of years. The death 4 -- the murder rate tripled. By 1971, I believe 5 it was, it had doubled rather, and that it 6 tripled in the '70s. Buffalo reached a record 7 in 1971. It had never seen numbers anywhere 8 close to that. What happened is that the murder 9 rate went from around 800 to 2500 within a 10 fairly short period of time, and I remember a 11 quick story, and I realize that very honestly 12 this is not the end of the process, that we'll 13 be back here again dealing with this process. 14 But I must tell you a story that 15 dawned on me the other day. When I was in law 16 school as a police officer at the time and I was 17 also in law school, and my criminal justice 18 professor was Herman Schwartz, who some of you 19 may know, a rather liberal professor who was 20 just on television the other night regards the 21 O.J. Simpson trial. He was my criminal justice 22 professor, and we were discussing at the time - 23 this would be about 1964, I would think, or 1379 1 1965, right about the time the death penalty was 2 abolished, and I remember saying to him, you 3 know what's going to happen is, Herman, if we 4 don't deal with the murder rate as it soars and 5 the crime rate in our streets, what's going to 6 happen is the rise of drugs in our streets is 7 going to become enormous and, worse than that, 8 guns are going to show up all over the streets. 9 This is back in the '60s. 10 The interesting thing is, people 11 are saying, you know, if we could get rid of the 12 guns and drugs, why, the killings would go 13 down. The truth is, the killings came first. 14 The killings came before the guns and drugs. 15 It's a fact. You have got to look at it. 16 If we're going to deal with 17 society, one of the things we have to do, and 18 it's not the be all and end all, nobody ever 19 said that the death penalty was going to solve 20 all of these problems, but the murder rate in 21 this state, if there's anyone that thinks that 22 we have a more civilized society since the death 23 penalty was abolished, I'd like to know who they 1380 1 are. 2 There's no question that it's 3 time that we sent that message that I've been 4 talking about for so many years. If there's 5 ever a time we need a message to the streets in 6 behalf of the people of this state, it's now. 7 You know, there's no -- I talked to a person 8 today, there's really no organized group that 9 supports the death penalty. It's just called 10 "the people". They're not really organized. 11 They vote. 12 My good friend, Mario Cuomo, said 13 over the years, you know, "If people really 14 wanted to get the death penalty, they could vote 15 against me, they could take me out of office," 16 and they did. 17 I'm not telling you that it was 18 by any means the only issue. It certainly 19 wasn't. There were many other issues, but I 20 will tell you that it was a very potent issue 21 because criminal justice is a potent issue and 22 the death penalty is really in a -- the 23 harbinger of that issue. 1381 1 Keep in mind that the murder rate 2 in this state went from 4.3 per 100,000 to over 3 13 per 100,000, and it's hovered around that 12 4 to 13 per 100,000 for some decade now. It has 5 never reached those proportions anywhere near 6 that before we abolished the death penalty. 7 If there's ever a time to move, 8 it's now. Now, across the country, by the way, 9 people have recognized the importance of New 10 York, and just let me just deal with a couple of 11 issues very quickly. Over the years, we've 12 discussed all sorts of issues on this floor. 13 We've discussed the issue of race. If you look 14 at the cases involving race, the interesting 15 thing about it is, there's no question and I've 16 said it before and I'll say it again, Georgia, 17 South Carolina, Texas, and about three other 18 states where really all the bad race cases were, 19 the Supreme Court had to move. There was no 20 question about it. None of those cases, by the 21 way, occurred in the Northeast, Midwest or even 22 the West. The far west there were a couple. 23 The reason I mention that is that 1382 1 -- and I'm speaking only really for New York. 2 We have had protections in our law for many, 3 many years to deal with the issues that we are 4 dealing with, in fact, in this bill, many of the 5 things that are in this bill very honestly are 6 already dealt with in the law, but there were so 7 many, many people that felt that, since we're 8 doing a death penalty bill, there's a lot of 9 things that we ought to do to make it more 10 clear. 11 One of the things that I always 12 said, and I negotiated a death penalty bill 13 many, many years ago with the Assembly, the bill 14 that we've been passing over the years didn't 15 come whole cloth from me by any means. It came 16 from a negotiation with people, in fact, who 17 were anti-death penalty in the Assembly, the 18 majority of the Assembly at that time, the 19 leader of that house was anti-death penalty at 20 the time. We negotiated a bill we thought was 21 fair, and I still do and, by the way, it's the 22 basis for this bill that we have here, that 23 dealt with the issues of representation, of 1383 1 client -- of defendants. There's no question we 2 have enough proper representation, dealt with 3 the issue of payment. We faced some of the 4 nonsense that has been going on. It's, I think, 5 one of the things that has frustrated me the 6 most is the issue of cost that has been blown 7 completely totally out of proportion. 8 Some people did a study one time 9 on costs, and it's still being quoted. We found 10 out, for instance, that they went to the state 11 of Florida. There was one death penalty case 12 that year and they used the figure of $3.2 13 million. We found out that the entire -- the 14 entire budget for the Attorney General's office 15 was $3.2 million, and that's the number they 16 figured because they figured that's all the 17 Attorney General's office did for that whole 18 year. It was a ridiculous figure and the 19 Attorney General's office, the defense attorneys 20 and everyone out there told us it was ridiculous 21 and we checked a number of other cases. 22 We found one case that was hugely 23 expensive, the Ted Bundy case. The reason the 1384 1 Ted Bundy case was hugely expensive had nothing 2 really to do with the death penalty. It had to 3 do with the fact that Ted Bundy was dragged all 4 over the United States of America looking for 5 bodies. If you remember, he was a serial 6 killer. That case cost millions of dollars 7 because he was held by various states and went 8 from state to state to find bodies until finally 9 they got tired of listening to him and tired of 10 the fact that his information was now very poor 11 and stale and he was executed. 12 There is no question that the 13 first couple of cases will be somewhat 14 expensive. But after that, we have not been 15 able to find any evidence that the cost of such 16 cases will be anywhere near as enormous. That's 17 because, once again, much of the myth around 18 this issue has been blown up. 19 But what we've done to deal with 20 that is to make sure that localities are not 21 saddled with the costs, not only as far as the 22 defense attorneys are concerned but also as far 23 as the district attorneys, by putting provisions 1385 1 in this bill that deals with the costs of expert 2 witnesses and deals with the cost that district 3 attorneys have to face. 4 It's interesting that, when we 5 questioned some people about the costs and tried 6 to really pin down what the costs will be, we 7 never could get enormous numbers from anybody 8 except that there was an assumption somehow that 9 maybe there was some numbers out there. 10 The truth is that saving people's 11 lives is incalculable. As the Governor said, 12 when we deal with this issue, we intend to deal 13 with a situation where we believe very firmly 14 that we will save lives. Keep in mind some 15 thing: We're talking about the taking of 16 innocent lives by killers all over this state. 17 The amazing thing is that there 18 are people involved in the death penalty issue 19 who can only think of one thing, that somehow 20 out there, there might be somebody who is 21 innocent and might be convicted and executed. 22 I've been asked the question, do I believe that 23 if this bill passes, will anybody be executed 1386 1 who is innocent? 2 I have said to them, no one can 3 say that for sure, but I will tell you what I 4 believe: In the history of this state -- and I 5 have looked at the nonsense that was done by 6 those two California professors who have been 7 totally discredited; in fact, there was a Law 8 Review article that totally discredited them - 9 the one killing involving somebody in my - 10 almost in my home town where the -- one of the 11 killers said, "Oh, those other two guys were 12 innocent." The two guys confessed; there were 13 three witnesses, and the whole thing was a farce 14 and it turned out to be a farce, but was it 15 deliberately intended to misrepresent the issue 16 of innocence. 17 What I happen to believe is that 18 this bill has enough protections in it that this 19 bill is set up the way it is that no innocent 20 person will be executed under this bill, and I 21 will say that I am convinced of that. I've had 22 people say to me, Well, how can you say that? 23 Well, I can say it just as much as anybody can 1387 1 say that an innocent person will be executed, 2 and I'm saying to you that because the history 3 of this state shows that, and because the 4 protections that we have put into this bill, I 5 think, make that clear. 6 I think that what we have done 7 here in this bill, and I can say to you and I'm 8 being very honest now, that the differences 9 between the Senate and the Assembly are very 10 small, very small. Some of the things that you 11 may have read in the paper about what's being 12 said are not really issues that were big issues 13 in the negotiations. There's been talk about 14 different things. 15 The truth is, we were down to a 16 couple of minute issues involving the issue of 17 several hearings, and so forth, that are not 18 integral to the death penalty itself, but the 19 Assembly, very honestly, walked away. 20 The reason we're here today is 21 because we are going to move this process and my 22 thought is that the time has come that we must 23 restore the death penalty and now is the time, 1388 1 and you can all criticize the process, and I 2 would prefer a different process myself, but the 3 issue is that we have been trying since December 4 to get this issue all wrapped up, and we have 5 not done it. 6 We have a bill here that 7 represents, I think, a balanced procedure. In 8 fact, some would argue there is material in here 9 that is absolutely not essential to the death 10 penalty process, although what we have done with 11 the Correction Law is to make changes in that 12 that hadn't been made since the 1800s and I 13 could detail that, but I don't want to get into 14 that, that are not essential to the issue of the 15 death penalty, but really more essential to the 16 issue of what happens afterward and that's one 17 of the big reasons why the bill is as expanded 18 as it is. 19 But the final word, I think, is 20 this: That what the Senate Majority is committed 21 to, and what I think the Majority in the 22 Assembly is committed to -- by the majority in 23 the Assembly I mean the majority of people over 1389 1 there in the Assembly -- and the Governor of 2 this state, is a fair and just bill that will 3 protect the citizens of this state, at the same 4 time will protect the defendants who are to be 5 represented by this bill, but will deal with an 6 issue that must be dealt with that we have been 7 so close to dealing with so many times and that 8 is restoring the death penalty so that we can 9 send the kind of message to the street that says 10 that New York is not fooling around any more. 11 We're going to deal with those 12 people who would kill, and we're not going to 13 let people deter us from doing that, no matter 14 how they try. 15 SENATOR SALAND: Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Saland. 18 SENATOR SALAND: Mr. President, I 19 would request that we interrupt the proceedings 20 for the purposes of recognizing Senator 21 Oppenheimer to enable her to cast her vote on 22 this particular bill. 23 ACTING PRESIDENT KUHL: Secretary 1390 1 will read the last section. 2 THE SECRETARY: Section 38. This 3 act shall take effect on the 1st day of 4 September next succeeding the date on which it 5 shall have become a law. 6 ACTING PRESIDENT KUHL: Call the 7 roll. 8 (The Secretary called the roll. ) 9 ACTING PRESIDENT KUHL: The Chair 10 recognizes Senator Oppenheimer. How do you 11 vote? 12 SENATOR OPPENHEIMER: I'd like to 13 be recorded in the negative. 14 ACTING PRESIDENT KUHL: Senator 15 Oppenheimer will be recorded in the negative. 16 The roll call is withdrawn. The 17 Chair would note that debate on this issue 18 started at 4:10. There is a list currently in 19 place, starting next with Senator Connor and 20 Senator Saland, Senator Espada, Senator Maltese, 21 Senator Montgomery, Senator Leichter and Senator 22 Marchi. 23 The Chair recognizes Senator 1391 1 Connor. 2 SENATOR CONNOR: Thank you, Mr. 3 President. 4 In the past few years, we've seen 5 some very perfunctory and somewhat abbreviated 6 debates on the death penalty because, frankly, 7 it got boring after 17 years in a row, knowing 8 full well that it wasn't going to become law 9 and, frankly, now the bill before us and the 10 bill under negotiation prove that we were 11 right. That bill is never going to become law. 12 The bill before us is different 13 in some respects, in some respects it's better 14 if you can, being an opponent of the death 15 penalty, put a gradation on such things. 16 My position, frankly, has been 17 unaltered in the time I've been here, and it 18 doesn't relate to what the people say they want 19 now because, in effect, when you're dealing with 20 an issue like the death penalty, the people are 21 venting a very understandable frustration and 22 fear and dissatisfaction with the inadequate way 23 we have secured our streets and allowed our 1392 1 criminal justice system to function. 2 Why is it that the people's views 3 aren't paramount? Well, in some respects they're 4 predicated on a fallacy, the concept of 5 deterrence. I will always concede that there is 6 a certain elemental eye for an eye vengeance/ 7 retribution element of justice in the death 8 penalty, but no one has ever demonstrated that 9 it's a deterrent, and I understand Senator 10 Volker and the Governor will say, but if it's 11 saved -- who knows, if it saves one life, it was 12 worth it. 13 Well, I look to the states that 14 have now, some of them Florida, Texas, become 15 nothing but execution assembly lines. Their 16 murder rates haven't gone down. If anything, I 17 know in the case of Florida they've actually 18 increased dramatically since they began 19 executing with great frequency convicted 20 murderers, to say nothing of the fact that in a 21 couple instances both in Florida and in Texas, 22 they executed a couple of people even though 23 they weren't sure they were murderers. Just a 1393 1 few weeks ago we had an instance of that in 2 Texas. 3 The problem with the death 4 penalty is two-fold: Certainly a rationale is 5 justified to say you're saving innocent life. 6 No one's pretending that in most cases the 7 convicted murderer is an innocent life. My 8 problem is with who's perfect -- who's 9 perpetrating the killing? The state is doing it 10 in a calculated way. 11 In the case of most murderers we 12 recognize their culpability. We recognize the 13 evil in their action. The inherent evil in the 14 action of killing, killing is per se evil and 15 the state ought not engage in it. 16 Deterrent? No evidence of that. 17 Possibility of convicting and executing innocent 18 people? It has happened before, it has happened 19 in this state. It has happened everywhere that 20 human beings through the state, the mechanism of 21 the state, presume to play God and exact the 22 ultimate penalty. 23 Now, I'm glad that Senator Volker 1394 1 is confident that no innocent person would ever 2 be subject to the death penalty under this 3 bill. But the fact of the matter is we have - 4 we are a state of laws made by human beings, 5 enforced by human beings, the jurors, the 6 judges, the witnesses, all the actors in this 7 drama of a trial are fallible human beings and 8 no one can ever be certain, all the safeguards 9 in the world, that a mistake won't be made, and 10 we've had enough instances of the mistake being 11 made with respect to other crimes, including 12 convictions for murder when we didn't have a 13 death penalty, only to discover a mere few years 14 later, how the system had broken down or a 15 confluence of coincidences had made someone 16 appear guilty or in one case, in fact, the 17 person was convicted was the victim of -- of his 18 ex-spouse who was given immunity and falsely 19 accused him, and the jury bought it and it was 20 only really through reinvestigation and the 21 happenstance that she 'fessed up that it was 22 learned that he was totally innocent. 23 So it can happen. It can 1395 1 happen. It has happened. The state of New York 2 has paid damages to people wrongly convicted in 3 murder cases and other cases. The fact that the 4 penalty is death absolutely makes it irrevers 5 ible. We ought not play God. 6 The press most recently has been 7 full of first-hand accounts of executions. I 8 read with interest yesterday one account of a 9 member of the Assembly, a new member of the 10 Assembly, who witnessed a couple of executions 11 on the same day in Texas, and in these accounts 12 they talk about the -- the idea of -- of lethal 13 injection somehow sanitizes the act of killing. 14 One of the more macabre aspects, 15 I think, is when the technicians use an alcohol 16 swab to prevent infection before they insert the 17 needle. What's being created there is the myth, 18 the illusion that this is some routine medical 19 action performed by medical technicians when, in 20 fact, it's just as deliberate killing as pulling 21 an electric switch, dropping a trap door or 22 firing a gun in a firing squad. It's the state 23 killing, and that commandment, Thou shalt not 1396 1 kill, is without a codicil. It's an absolute in 2 my mind; it's an absolute direction as to how we 3 ought to conduct ourselves. 4 We don't teach anyone -- we don't 5 deter anyone from killing by doing killing in 6 the name of the state. Inherently, in the death 7 penalty, and the statistics bear it out, other 8 factors come into play. Only a handful are 9 executed of the many thousands of murderers. 10 What distinguishes this handful 11 from all the other murderers who don't get the 12 death penalty? Several things. Some - 13 sometimes the race regrettably, the race of the 14 perpetrator, of the convict. More often the 15 race of the victim is a major factor in 16 selecting those few who will pay the ultimate 17 price from among the many who perhaps, if you 18 applied the letter of the law, would deserve 19 it. 20 Thirdly, economics: The best 21 appointed counsel in the world, the best two 22 appointed counsels in the world will undoubtedly 23 in most cases just not be up to the kind of 1397 1 legal talent a millionaire killer can purchase. 2 The history of the death penalty in this country 3 is replete with examples of very wealthy 4 murderers who escape totally the death penalty 5 because they have legal talents. 6 The famous case of Leopold and 7 Loeb comes to mind. There was a case about 25 8 years ago in Texas where the multi-millionaire 9 was allowed to plead out and finger the hitman 10 he hired who then went to the chair, and the 11 millionaire did 10 or 12 years and was paroled. 12 Economics does play a part. Rich people don't 13 fry. They don't hang, and I dare say they won't 14 be injected lethally by the state. 15 What else distinguishes those few 16 who pay this price from all the others who might 17 be liable to it? Geography. Statistics show in 18 virtually every state it's one or two D.A.s who 19 account for a gravely disproportionate 20 percentage of those who are sentenced to death 21 because ultimately we have a fundamental 22 principle in our jurisprudence, and that is 23 prosecutorial discretion. The prosecutor 1398 1 decides whether or not to seek the death 2 penalty. 3 Perhaps the major distinguishing 4 factor in all cases, the way 90 percent of the 5 killers avoid the death penalty, is that initial 6 decision by a prosecutor not to seek the death 7 penalty, and those who pay the price, those who 8 are executed, probably in 90 percent of the 9 cases, their gravest or the reason why they are 10 singled out is where they committed their crime, 11 in a county with a prosecutor who is either a 12 zealous advocate and adherent to the death 13 penalty, believes in it to an extreme or, heaven 14 forbid, for whatever political reasons in that 15 year or the next year, feels that seeking the 16 death penalty most frequently is a very popular 17 thing to do with the voters. 18 So, for the reasons, why do you 19 go to the chair? Why do you -- why is someone 20 executed? Because they committed a murder? 21 Well, that's not the reason they're executed. 22 Lots of people commit murders, whether or not 23 executed. They're executed because either 1399 1 they're poor, they're from a group that's in 2 grave disfavor because of racial or other 3 reasons. Their victim is from a favored race or 4 class, or they just happen to live or commit 5 their crime in the wrong county, none of it 6 having to do with the quality of the crime, none 7 of it having to do -- and we can put in the law 8 all you want about mitigating or aggravating 9 circumstances. The fact of the matter is the 10 major distinguishing traits are these things 11 that ought not be part of the justice system, 12 that ought not -- that are not equitable, that 13 are not fair. They're not objective and these 14 are some of the reasons why you find even a 15 Supreme Court justice, upon retirement, upon 16 reflection would say, you know, inherently - 17 inherently, after all the experience that I've 18 had with the death penalty, I've just concluded 19 that it's inherently flawed, the irreversibility 20 of the penalty, the flukiness and the fact that 21 only a very, very small percentage of the 22 convicted pay the price. 23 I would add another factor. This 1400 1 Assemblyman who witnessed the Texas executions 2 was quoted as saying he didn't think the person 3 he saw executed deserved to die. Why? It was a 4 different person. It was 18 years after the 5 crime. 6 Because it's the ultimate price, 7 naturally people will fight in courts and in 8 collateral appeals, and so on, to prolong the 9 situation, to try and escape the death penalty. 10 In the end, they end up executing someone who in 11 time, at a time that's so remote from the crime 12 that it's very, very difficult to relate what 13 that person has become after 12 or 15 years in 14 prison, with the kind of person he or she was 15 when the crime was committed, so I think we're 16 dealing with a penalty here that is not worthy 17 of a civilized state. It's one which this very 18 state -- this very Legislature once all but 19 abolished. It's one which some of the members 20 who are still here and many, many more who have 21 left in recent years once opposed and then came 22 to support again. 23 I don't think that relates to 1401 1 crime statistics. I think it relates to the 2 public winds that blew based on people's 3 frustrations and fears. I think there are 4 better way to apply the resources that we might 5 be able to generate for the criminal justice 6 system to fight crime in a way that will protect 7 more and more of our citizens than wasting 8 millions of dollars to execute a very few who 9 perhaps, and certainly we would hope in most 10 cases, are murderers but a very few whose major 11 fault is they're unpopular; they're poor; they 12 just belonged to the wrong group; they were just 13 in the wrong town on the wrong night. 14 We owe it to all of our citizens 15 to use the resources and the law to protect them 16 from -- from the crimes that really affect them 17 and not simply to make an example of a poor, 18 unfortunate few in a way that conveys to our 19 children that somehow or other killing can be 20 sanitized. Killing can be made to seem a 21 positive value when, in fact, killing is 22 killing. 23 (Applause) 1402 1 ACTING PRESIDENT KUHL: There 2 will be order in this chamber. I would remind 3 the people here that we're not conducting any 4 kind of a theatrical event. If you don't 5 restrain yourself and your composure, you will 6 be removed. So please honor the tradition of 7 this chamber and maintain your silence. 8 Senator Saland is next on the 9 list. 10 SENATOR SALAND: Mr. President, 11 could we have just one moment, Mr. President? 12 ACTING PRESIDENT KUHL: 13 Absolutely, Senator. 14 SENATOR SALAND: Mr. President, 15 would you please recognize Senator Galiber for 16 purposes of casting his vote on this measure as 17 well. 18 ACTING PRESIDENT KUHL: Secretary 19 will read the last section. 20 THE SECRETARY: Section 38. This 21 act shall take effect on the 1st day of 22 September next succeeding the date on which it 23 shall have become a law. 1403 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll. ) 4 ACTING PRESIDENT KUHL: Chair 5 recognizes Senator Galiber for the purpose of 6 casting his ballot. 7 SENATOR GALIBER: No. 8 ACTING PRESIDENT KUHL: Senator 9 Galiber recorded in the negative. 10 Chair recognizes Senator Gold. 11 SENATOR GOLD: Thank you, Mr. 12 President, and I appreciate the courtesy but, as 13 I indicated I would just like to explain my vote 14 and I will stay within my two minutes. 15 I think, first of all, my leader 16 has said so much very well that it doesn't take 17 too much more and -- but -- and when the real 18 bill comes around, I'll have plenty to say but, 19 number one, in Newsday today, a writer made an 20 interesting comment, and that is that under this 21 bill, it will not be the worst murderers that go 22 to the chair, but the murderers with the worst 23 lawyers. Interesting! 1404 1 Secondly, I heard on the radio 2 only within the last four hours the anniversary 3 of New Jersey's ten years with the death 4 penalty, no one's been executed in New Jersey in 5 ten years. 6 I also would like to point out as 7 to this particular bill that there really are 8 constitutional flaws and, Senator Volker, you 9 ought to take a look at them. This whole 10 business of limiting the jury to two options out 11 of three has to be unconstitutional, and the way 12 that the psychiatrist is handled, forcing a 13 defendant to be interviewed before a trial where 14 that's not even an issue, and giving the 15 prosecutor a crack at the defendant before he's 16 even put in his defense, when you can't even use 17 that testimony until the second phase, has to be 18 a terrible prejudice. 19 But the last thing I want to 20 make, the last point I want to make is that 21 today's bill does nothing on the issue of the 22 death penalty. It does one thing, however. It 23 is the beginning of the vindication of Mario 1405 1 Cuomo on this issue, because this bill before us 2 proves one thing. It proves that George Pataki 3 wouldn't have signed a bill for the last few 4 years. It proves that, when Mario Cuomo vetoed 5 these bills and when Governor Carey vetoed these 6 bills, they knew what they were doing because 7 those bills weren't real. They weren't real. 8 They were political statements, and it's just 9 like today is not real. It's a political 10 statement because this bill will not go to 11 George Pataki to sign. 12 So I'm going to vote no on this, 13 but, Mario, you did good all those years. I 14 vote no. 15 ACTING PRESIDENT KUHL: Senator 16 Gold in the negative. 17 The Secretary will withdraw the 18 roll call. 19 The Chair recognizes Senator 20 Saland on the bill. 21 SENATOR SALAND: Thank you, Mr. 22 President. 23 Mr. President, I note that the 1406 1 bill before us is a Governor's program bill, one 2 which I am sure that the Governor would be most 3 willing and eager to sign, and I view this not 4 as a vindication of former Governor Cuomo, but 5 basically a reaffirmation of the persistence of 6 those who have advocated for so long for the 7 enactment of a death penalty, one which was 8 carefully crafted, one which would certainly 9 bend over backwards to accommodate the rights of 10 defendants, those who would be accused under 11 this particular proposed legislation. 12 Governor Pataki was unequivocal 13 in his support for the death penalty and said he 14 would eagerly await arrival of the death penalty 15 measure for his signature upon becoming 16 governor. He had labored with representatives 17 of both houses, the leadership and their 18 counsel, in endeavoring to craft a bill that can 19 pass readily in both houses. 20 This represents the best effort 21 to date. The Assembly, for whatever reasons, 22 has yet to make their commitment and we intend 23 to continue this battle, and I take an offense 1407 1 at different times during the course of these 2 debates -- and I've debated this bill some 14 or 3 15 times -- at somehow or other being cast as 4 being less than sincere or being motivated by 5 things political in advocating for a death 6 penalty. 7 Nobody has cornered the market on 8 sincerity or integrity on this bill. The people 9 who support this bill, regardless of where they 10 stand politically, what party they may be 11 associated with, I would hope, feel as fervently 12 as they profess to feel, and I would similarly 13 hope that those who oppose feel as fervently as 14 they profess to feel. 15 This is not the kind of issue 16 where one should be posturing, certainly not at 17 a time when what we see is certainly at the very 18 least the precursor of a bill that's going to be 19 signed. 20 Now, what does the bill do? The 21 bill basically goes back to the cases in the 22 '70s that came through the U. S. Supreme Court, 23 the Furman and the Gregg cases, and makes a 1408 1 statement that it's in compliance. It provides 2 for a bifurcated trial. It provides for the 3 weighting of aggravated and mitigating 4 circumstances. It provides for an expedited 5 appeal to the Court of Appeals, the highest 6 court in our state. 7 Now, remember we're talking about 8 a bunch of carefully enumerated crimes. This is 9 not an example of some poor joker winding up in 10 some town where he doesn't belong and having the 11 misfortune or unfortunate circumstances, as the 12 Minority Leader indicated, of being saddled with 13 this onerous, onerous conviction. 14 The fact is, to have been 15 convicted necessitated your committing one of a 16 number of specifically enumerated crimes. These 17 crimes have been determined by the state - 18 we're part of that mechanism -- to be crimes so 19 heinous and so beyond the power of anything that 20 we would accept that the person who commits them 21 by reason of the acts that they commit in a 22 premeditated fashion, have made themselves 23 candidates for the death penalty. 1409 1 We're talking premeditation. 2 We're not talking about somebody who gets 3 liquored up or who's on drugs, drives a car, 4 hops up on a curb and kills somebody. That's 5 not premeditated. There we're talking about 6 something in the nature of manslaughter. We're 7 talking about somebody who, with intent to kill, 8 kills a police officer while that police officer 9 is acting in the course of their duties or who 10 similarly kills a correction officer while that 11 correction officer is acting in the course of 12 their duties, or a peace officer under similar 13 circumstances, or somebody who tortures somebody 14 at great length and then kills them, or somebody 15 who's a contract killer or somebody who -- who 16 knows full well because they premeditated it, 17 plants a bomb, for instance in a crowded airport 18 terminal or a bus terminal, knowing that there 19 will be countless lives at risk, countless 20 people who may well be killed. 21 That, to me, is not some poor 22 unfortunate soul who happens to be in the wrong 23 town, and yes, there may well be differences in 1410 1 geography. And I would only point out to you 2 when we deal with things such as the felony 3 offense law here in New York, what happens to 4 you may well be a function of where you are 5 sentenced, because if you get to major 6 metropolitan areas, and particularly the major 7 metropolitan area in the city of New York, the 8 city of New York, and you get indicted on 9 multiple counts, let's say, for instance, you're 10 indicted for drug possession, which happens to 11 be the lowest type of an indictment when you've 12 broken into a house, committed a burglary and 13 raped somebody. If that happens to you in 14 Plattsburgh, if that happens to you in Potsdam, 15 if that happens to you in Poughkeepsie, I can 16 assure you you're going to get sentenced based 17 upon either the rape or the burglary, not on the 18 possession charge. But if you happen to come 19 out of a situation in a major metropolitan area 20 -- and again I cite the city of New York, where 21 the system is reeling -- they'll take any plea 22 they can get unless it's something that's so 23 heinous that the newspapers have gotten a piece 1411 1 of it, and you can well find yourself pleading 2 out to a possession charge on a drug charge, 3 controlled substance. 4 So yes, geography may well make 5 an impact. Who's to say who's right? I'm not 6 going to tell you that the fact that a 7 prosecutor may not choose to apply the death 8 penalty is not within his or her discretion. 9 This bill provides a 120-day period within which 10 to express your intent to do that. 11 There's talk about whether the 12 death penalty is a deterrent. Now, we're 13 talking here not exactly hard empirical data. 14 We're talking social science at best. There 15 have been reports indicating, based on studies, 16 death penalty is not a deterrent. 17 As recently as January last year, 18 there was a piece, if I remember correctly, it 19 was a front page piece in the Times-Union -- I 20 have a copy of it with me -- which went back and 21 looked at death penalty rates in states with 22 death penalties and without, and why the premise 23 for which it's cited as to the effect that 1412 1 there's nothing -- there's no reliable evidence 2 indicating that the death penalty is a 3 deterrent. 4 What it shows is, for example, 5 among 15 states without a death penalty, murder 6 rates have gone up in eight, down in four, and 7 the same level in one, and the states having the 8 biggest increases in murder rates, three of the 9 five are states that do not have death penalties 10 including the state of New York. Three of the 11 states with the biggest crime, the states with 12 the biggest decreases in death penalties all 13 have a death penalty bill or law on their 14 books. 15 So assuming that we can't make a 16 conclusive argument on the question of 17 deterrence by way of any of that data certainly 18 the converse is not true. I beg to differ; 19 certainly the converse is true. The repeal of 20 the death penalty has not seen any marked 21 reduction in the homicide rate here in the state 22 of New York. If anything, it's gone up by mul 23 tiples. We now have 2300 to 2400 homicides 1413 1 being committed in New York. The number was 2 less than a thousand when the death penalty 3 ceased to be on our books here in the state of 4 New York. 5 And I would ask who among us has 6 the wisdom -- who among us has the ability to 7 determine when somebody has contemplated 8 committing a homicide and then because of the 9 fear of being convicted and sentenced to death, 10 decided not to fulfill that urge, that wish, 11 that premeditation? 12 The person who goes out and buys 13 a gun to kill the partner who cheated him, or 14 poison? The person who goes out and contem 15 plates placing a bomb in the car of someone who 16 he believes is passionately involved with his 17 spouse, and says, Whoa! I've thought about this 18 for weeks. I actually took steps to do it, but 19 I'm not going to do it; I don't want to risk the 20 death penalty, and that person goes and 21 confesses to their clergyman, gets it off their 22 chest, feels a lot better, has this wonderful 23 catharsis. Clergyman can't talk to anybody, 1414 1 barred by confidentiality. 2 So who can identify those people? 3 I did one of them, Lord only knows there's one, 4 there's got to be one, and I'll venture there's 5 more than one, not dozens, hundreds, perhaps 6 even thousands of them who go undetected because 7 nobody can prove a negative, nobody can prove 8 that their fear of having to sacrifice their 9 life by reason of the application of the death 10 penalty didn't deter them from pulling the 11 trigger, dumping the poison or planting the 12 bomb. 13 I had in my county a number of 14 years ago perhaps what was the ultimate. There 15 was an individual who had already killed not 16 once, not twice, not three times but four times, 17 serving time at Green Haven, Dutchess County, 18 maximum security. The fourth time wasn't 19 enough. He killed a fifth time. He killed a 20 female correction officer and, interestingly, 21 that case went to the Court of Appeals because 22 it was the one portion of a section left, the 23 one section that said you could sentence a lifer 1415 1 who kills while sentenced, while serving time, 2 to the death penalty. 3 The Court of Appeals in a 4 four-to-three decision were all agreed that he 5 had committed the crime, but the four-to-three 6 decision said that portion of the state's death 7 penalty that was still on the books was 8 unconstitutional because it didn't provide for 9 aggravating and mitigating circumstances. 10 Lord only knows what those 11 aggravating and mitigating circumstances may 12 have been, but the man is still serving time in 13 our prison system. I would not attempt to tell 14 anybody here because I certainly don't believe 15 that the death penalty is somehow a panacea or 16 an cure-all for all of our criminal justice 17 ills. It is not and, if anybody thinks it is, 18 then they are sadly mistaken. 19 It is, however, and should be a 20 portion, and an effective portion of our 21 criminal justice arsenal. There are those 22 crimes, and I cited some of them earlier, that 23 are just so heinous that the death penalty is 1416 1 warranted. 2 Nobody should take it lightly. 3 Nobody should take joy or rejoice in the fact 4 that we are going to have a death penalty bill 5 enacted, but I would suggest to you that, as you 6 read this bill -- and I have to assume that the 7 vast majority of that which is in this bill will 8 also be in the final bill -- that there are 9 things in here that do require some fine tuning. 10 One of the things that is of 11 concern to me that's in this bill is the 12 provision for the second trial, and whereas 13 Senator Volker's earlier bill basically placed 14 that subject in such terms so as to enable in 15 most cases the reading from "the impaneling of 16 the second jury" the language in this bill 17 clearly states a preference to stay with the 18 first jury, citing extraordinary circumstances 19 and good cause as being the main ingredients to 20 get that second jury impanelled. 21 I must express my concern also 22 about some of the language with respect to 23 mental retardation and incompetence, not because 1417 1 we shouldn't be attempting to address the issue, 2 but the number of trials, the number of 3 hearings, the stays that are involved, I fear, 4 could result in a considerably extended 5 proceeding. 6 Let me touch just on one other 7 point, and that's the subject of race. This 8 bill attempts to provide a mechanism whereby 9 juries and jurors in the course of their being 10 voir dired, would have the ability to be voir 11 dired individually by either the prosecutor or 12 the defense attorney out of the ambit of the 13 remaining members of the jury on questions of 14 racial bias. 15 Now, New York by no stretch of 16 the imagination is some backwater state. This 17 isn't exactly what you'd call the bastion of 18 red-necked justice. I think we have a tradition 19 here, notwithstanding Senator Connor's earlier 20 remarks, of -- we have a tradition of being 21 keenly sensitive to the rights of defendants. 22 We have a Court of Appeals who, 23 by any stretch of the imagination, would be 1418 1 viewed, I'm sure, as if not the most liberal, 2 certainly one of the most liberal in this 3 country. There currently is case law, whether 4 it's the Batson case through the U. S. Supreme 5 Court, or whether as recently as a year and a 6 half ago in our own Appellate Division, People 7 v. Pearl, basically you can't screen or remove 8 jurors based on race. That's the law in New 9 York. It's not something that can be 10 accomplished readily. 11 There's a whole host of 12 mechanisms that have been built into this bill. 13 The reality is that this has been 18 years in 14 the making, perhaps as Senator Volker says some 15 23 years. I believe Senator Volker is entitled 16 to an inordinate amount of credit for his 17 efforts. He has really been a giant in trying 18 to sustain this issue. 19 There are a number of colleagues 20 on the other side of the aisle who certainly 21 have been outspoken and on this side of the 22 aisle in their opposition to the bill. The time 23 is here. The time is now. This, as I said, is 1419 1 the precursor, but what we are debating today is 2 certainly going to be substantially that which 3 we will ultimately pass and sign into law. 4 Governor Pataki is entitled to an 5 inordinate amount of credit. The man has said 6 what he said he would do. He's been a player. 7 This is a Governor's program bill, and he will 8 continue to be a player and there will be a 9 death penalty bill signed into law. It won't be 10 time for rejoicing. It will be time for 11 justice, justice that has long been denied here 12 in the state of New York. 13 Thank you, Mr. President. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes Senator Espada. 16 SENATOR ESPADA: Thank you, Mr. 17 President. 18 We've heard throughout these 19 protracted negotiations that happened mostly in 20 the media, terms like a fair and just death 21 penalty bill. It is the ultimate oxymoron. 22 There is no such thing as a fair death penalty 23 bill. What death penalty bill? The one before 1420 1 us guarantees that the taint of racism and 2 prejudice against African-Americans, against 3 Puerto Rican and Latinos, against poor people - 4 do I see a bill -- do I read a bill that 5 guarantees that that won't happen? I hear a lot 6 of people who are not eligible to be victims of 7 racism, talking about how we're immune from 8 racism. That's a Southern thing. That doesn't 9 happen up here. That's old and tired, I'll have 10 you know. 11 The death penalty bill is a crude 12 and uncivilized, barbaric, political response, 13 to the unbridled thirst for vengeance and 14 retribution that exists out there in society 15 today. It is the institutionalization of an 16 irrational primal scream with no therapeutic 17 value, my friends. 18 You know -- you want to know why 19 we're really doing this? It has nothing to do 20 with 18 years of this or crime statistics; it 21 has to do with the sweet symphony that comes to 22 the ears of those folks out there that you and I 23 as political people visit. We know how to get 1421 1 votes. We love it when people clap for us, and 2 the easy way to do it is to say that we're for 3 the death penalty. Automatically, the arms 4 start waving, the hands start clapping, feet 5 stomping, and we choose the easy way. We give 6 in to that. It's so few that wouldn't, but most 7 of us do. Most of us will. 8 I want to talk about -- as 9 Senator Connors did, about Assemblyman Phil 10 Boyle, and I mention him by name only because he 11 was in the article in Newsday yesterday. He 12 chose to be a witness to an execution in the 13 murder capital -- state-sponsored murder capital 14 of the United States of America, Texas, and so 15 he traveled over there because he wanted to feel 16 comfortable with himself. He went in a tortured 17 soul and came out a tortured soul, and I want to 18 borrow from that article directly because I 19 don't want to misquote. 20 The columnist here was a Mr. 21 Dwyer from Newsday. He did ask of the 22 Assemblyman, who happens to be a Republican and 23 who happens to be for the death penalty, and he 1422 1 said -- we asked of the young Assemblyman, 2 "Would you push the plunger on the IV?" In 3 other words, could you be executioner? He said, 4 "Never", Assemblyman Boyle, "Never." Dwyer 5 says, "But you would ask someone else to do it," 6 and Boyle says, "But that's their job," and 7 Dwyer says, "Yes, but it's a job you're doing - 8 that they're doing for you. You have empowered 9 -- you have enabled them to do this job for 10 you." 11 According to the article, Boyle 12 decided and said, "You couldn't pay me enough to 13 do it. You couldn't pay me enough to do it," 14 and after reading this article, I was reminded 15 of another -- another article that I read about 16 Manhattan D.A. Frank Hogan's policy where, if 17 you are a lawyer/prosecutor in his office, 18 unless you are willing to attend the execution, 19 you would not be allowed to prosecute a death 20 penalty case. 21 And it's with all the respect in 22 the world that I say to you, my colleagues, if 23 you are for this death penalty, you are morally 1423 1 obligated to attend those executions. You are 2 morally obligated to attend and witness. As you 3 do, be aware, that between 1973 and 1994, the 4 courts have reversed or commuted 31 percent of 5 all death penalties. 54 death penalties have 6 been vacated because the defendants were 7 innocent, and these were just the people that 8 were fortunate enough or they were unfortunate 9 enough through the persistence of friends and 10 through plain luck to come out that way. 11 The fallibility of the justice 12 system is -- is backed up by empirical data. We 13 know the facts. Governor Pataki knows the facts 14 firsthand. Nathanial Carter, the Governor's 15 childhood friend, arrested, served two and a 16 half years for a crime he did not commit. Had 17 the death penalty been in effect, Nathanial 18 Carter, the Governor's friend, would have been a 19 candidate. The Governor, upon Mr. Carter's 20 release said how terrible, how horrific it would 21 have been if an innocent person had to remain in 22 jail or die. 23 The Governor and lots of us have 1424 1 been talking about creating jobs. We have a 2 budget that we're having hearings on and we'll 3 have full debate on that and, as I visit my 4 district, I'm sure all of you are doing the same 5 thing; you're visiting the health centers and 6 the hospitals and the senior programs and 7 they're telling us why. Am I going to lose my 8 home attendant, my doctor, my teacher? Why am I 9 going to lose that kind of assistance? 10 We say there's a budget deficit. 11 There's no appropriation in this bill and in the 12 real one that will come, there will be an 13 appropriation. The Assembly will pass it on $11 14 million. Way, way too low. We all know that. 15 Millions, millions for death, but nothing that I 16 can report back to my constituents -- constitu 17 ency about health care to the children out there 18 on improving their education. 19 We're going to skirt the issue 20 and we're going to create some new job 21 descriptions, some new Civil Service titles, 22 executioners. Who is going to do this? Some 23 title, person, called an executioner. How many 1425 1 of those will we need? We're going to have some 2 strap-down specialists, some people that will 3 put the straps once the person is on the 4 gurney. Well, that's a specialty. It's a new 5 found specialty. We'll have to develop some job 6 titles for that. 7 So there's money, there's job 8 creation for this new death industry and nothing 9 to go back to my home district for health care, 10 for education, for real jobs. These jobs are 11 not going to be in my district. You don't even 12 pretend that you're going to be fair even about 13 that. 14 And so my colleagues, as you are 15 a witness to these executions, please dress up 16 for the affair, because there are already rumors 17 that CNN and Geraldo and Oprah and Donahue, 18 they're all going to be bidding for this air 19 time, and I can just see the state participating 20 in negotiations about whether there's a rightful 21 and fair share of that money that comes back to 22 the state treasury. Exaggeration? 23 Already, we are valuating through 1426 1 some auctioneers the value of the two electric 2 chairs that we have, 250,000 apiece, $500,000. 3 It's not beyond our value system to behave that 4 way. 5 We jail in this proud democracy 6 of ours, over one million people, more than any 7 other nation on this earth, this proud democracy 8 does that, and so with enactment now of this 9 bill -- we all know it's a dress rehearsal, but 10 when we do it, and we will -- we will join the 11 ranks of the Ayatollah, Saddam Hussein, North 12 Korea, the perpetrators of the massacre of T'ien 13 An Men Square. That's the kind of company this 14 great democracy is going to be keeping when we 15 finally enact this barbaric law. 16 I am, Mr. President, not naive to 17 the fact that our hopes rest with the courts, 18 that this state's system of jurisprudence will 19 have to come in on this issue. I know when they 20 do, they'll have to take up the fact that 21 they'll have to weigh the necessity for the 22 death penalty away from the political maelstrom 23 that we're involved in here today, and when they 1427 1 do, they'll consider that we have other 2 alternatives -- life imprisonment, no parole. 3 There are other options to this. Anything that 4 goes into the realm of this kind of punishment 5 is cruel and unusual, is uncivilized. 6 And so I dedicate my no vote to 7 that resistance that is out there, that is 8 manifesting itself to the young children. I 9 apologize for the behavior of the adults that 10 are for this bill who send the worst, worst 11 message we can to young people, and to the 12 future generation of political leadership that 13 will one day repeal what we're about to do. 14 Please heed the wisdom of Justice Blackmun who 15 said that he would no longer tinker with the 16 machinery of death. I choose not to do so here 17 and now, and vote no. 18 Thank you. 19 (Applause) 20 ACTING PRESIDENT KUHL: The Chair 21 recognizes Senator Maltese. 22 I'll remind those people in the 23 chamber once again that this is not a theatrical 1428 1 event. If you continue with the disruption, we 2 will remove all of you. We don't want to do 3 that. Please bear with us and obey the rules of 4 the house. 5 Thank you. 6 Senator Maltese. 7 SENATOR MALTESE: Mr. President, 8 I think Senator Volker and Senator Saland have 9 gone into a great deal the details of the bill 10 before us. The issue before -- before us, as 11 all have indicated, is a momentous issue. Those 12 of us who have waited many, many years for the 13 enactment of the death penalty, now take no 14 pleasure in the probable passage and signing of 15 a death penalty bill. 16 The bill before us and the bill 17 that will ultimately be before us is not a 18 perfect bill, but what it seeks to do is prevent 19 further murders in the future, and at the same 20 time enact, if you will, just retribution on 21 those who would commit the most heinous crime, 22 the taking of another human life. 23 If we speak about moral outrage, 1429 1 if we speak about acts that are bestial, the 2 acts we speak of, the moral outrage we speak of 3 must be directed at the murders that have been 4 perpetrated by the ones who face justifiable 5 execution. 6 We see the figures. They're 7 before us. Since 1940, over 65,000 murders have 8 been committed in New York State. We are now at 9 a deplorable stage where some 2500 murders are 10 committed every year, more than the populations 11 of towns, of villages, and in some cases, small 12 cities wiped out in a single year. When 13 references are made to possible racism, we can 14 look at the victims of these murders, the 15 victims that figures indicate are over 51 16 percent black and more Hispanics in the mix. 17 They are the victims. 18 We have before us a bill that is 19 not a perfect bill. I myself take some issue, 20 if you will, with putting judges and prosecutors 21 in a special protected class. Having been a 22 prosecutor myself, I think I can say that there 23 are others that possibly should be in that 1430 1 class, having tried a case against a murderer 2 who murdered a police detective from a D.A. 3 squad. Should we also seek to protect police 4 detectives? Should we protect others who take 5 any part in the law enforcement process? But 6 this we had to do in order to enact a death 7 penalty statute. 8 I don't take any pleasure in the 9 felony murder Corrections made, if you will, 10 that remove what I have always considered a 11 prosecutor's tool, the ability to give a co 12 conspirator or a real man or a co-perpetrator of 13 the person who actually pulled the trigger, the 14 right to be able to negotiate with a district 15 attorney and possibly provide very, very 16 important evidence against the actual puller of 17 the trigger, the perpetrator of the crime, but 18 at the same time, we have before us the best 19 death penalty bill that can be enacted at this 20 time and at this place. 21 Am I happy that the little old 22 lady or the man on Fresh Pond Road in my 23 district or in Howard Beach in my district isn't 1431 1 protected against the deliberate act of murder? 2 No. But this bill will go a long way toward 3 punishing perpetrators of murders. 4 It's enumerated, the witnesses, 5 the contract killings, the multiple killers, the 6 torture killers, the people that argue so 7 vehemently against the death penalty, they talk 8 about the bestiality of the act itself. What 9 about the victims? What about the persons that 10 have been killed? 11 There was reference made to 12 whether we would go out and be able to witness 13 an execution. I can only speak personally. 14 I've been an advocate for years of pro-animal 15 and pro-pets, and what-have-you, and yet, after 16 being three and a half years in the Homicide 17 Bureau in Queens County, in talking to victims 18 -- in talking to victims who expired before my 19 eyes, in talking to the families of victims who 20 are killed in a variety of horrible ways, I 21 could participate in that act, in that 22 justifiable act. 23 We talk about equating the 1432 1 victims with the murderers. We've tried in this 2 bill to put every protection in, to protect the 3 murderers, to protect the perpetrators who we 4 are absolutely positive committed these crimes. 5 We talk about the possibility of an error. 6 Sure, there's a possibility of an error, but 7 we've taken every step -- every possible step to 8 protect against that happening. But what do we 9 do about the 2500 homicides? How do we redress 10 those wrongs? What do we do about the 100,000 11 robberies that have taken place in that same 12 period of time? What do we do about the over 13 5,000 forcible rapes that have taken place in 14 this same period of time? 15 We must take some steps, and 16 among those steps is the enactment of a death 17 penalty. We have an absolute obligation to 18 attempt to pass this bill and enact it into 19 law. This is what our constituents expect of 20 us. Common sense tells us that it's a 21 deterrent. Our constituents across the state 22 and across the nation, the vast majority of 23 which who have expressed an opinion, over 75 to 1433 1 80 percent have come down on the side of the 2 death penalty as justifiable. We must get 3 across the fact that if you take a -- you commit 4 a deliberate act and take a human life, you must 5 pay the ultimate penalty. 6 Unfortunately, in so many cases, 7 it's the same way before a jury. The perpetrat 8 or is there. The victim is not. The victim's 9 family in many cases is not. So what does a 10 jury and what does a legislator and what do many 11 lawmakers see? They see before them a 12 perpetrator, as was mentioned earlier in the 13 debate, who is a different man. He saw the 14 error of his ways and is a different person with 15 the passage of time. I'll even grant that, but 16 then it is not the deterrent effect of the death 17 penalty we're talking about; we're talking about 18 an imperfect system that provides an excessive 19 length of time between the actual commission of 20 the crime and the execution of the perpetrator. 21 It's the system that's at fault, not the 22 enactment of the death penalty. 23 The death penalty now in this 1434 1 statute, we take steps to provide that they 2 shall be not the inexhaustible remedies 3 available to the murderer, remedies that he 4 never made available to his victim. 5 We talk about bestiality; we talk 6 about how horrible these killings would be if 7 perpetrated by the state. The state has an 8 absolute obligation to restore order, to try to 9 take steps to eliminate the killing of 2500 10 innocent people. What about the victims? The 11 famous case of Grasso, how many people spoke 12 about the 87-year-old lady who was strangled 13 with a Christmas cord, her Christmas cord? Who 14 spoke about the fact that he then committed 15 another murder against a senior citizen? 16 Who speaks about other murderers 17 who strangle, rape innocent victims? A murderer 18 in Washington, D.C. who killed and raped a 19 90-year-old lady after nailing her hands to a 20 chair, or in New York, about the rape murders of 21 nine-year-old girls, of -- the rape murders of 22 one-and-a-half-year-old girls that took place in 23 our city? We are trying to do the best we can 1435 1 to stop these murders from taking place. The 2 best we can at this time and place is this death 3 penalty legislation. 4 Mr. President, I urge its 5 enactment into law. 6 ACTING PRESIDENT KUHL: The Chair 7 -- yes, Senator Waldon. 8 SENATOR WALDON: I don't know if 9 I'm in order, but I just wanted to know, has 10 time been kept on the debate, and where are we 11 in the time so that those of us who would like 12 to speak later -- if you could share that 13 information with the chamber, I'm sure it would 14 be deeply grateful. 15 ACTING PRESIDENT KUHL: Senator 16 Waldon, I will be happy to. The debate started 17 at 4:10, so if you're keeping with the two-hour 18 limit, the debate would be over at 6:10. 19 Currently, Senator Montgomery is 20 next to speak and Senator Leichter, Senator 21 Marchi, Senator Paterson wants to move up some 22 amendments, so I'm told, Senator LaValle, 23 Senator Dollinger, Senator Mendez, possibly and 1436 1 Senator Abate. So that's where we are. 2 Senator Montgomery. 3 SENATOR MONTGOMERY: Thank you, 4 Mr. President. 5 I think it is very interesting 6 that we're having this debate at the same time 7 as we are celebrating our annual "Corrections on 8 Canvass" downstairs, and I am reminded each year 9 of the number of prison facilities that we have 10 in our state already, 68 facilities, I believe, 11 and 65,000 people in those facilities. 12 Mr. President, I think we are, 13 again this year in debating this death penalty 14 bill, putting the cart before the horse, if you 15 will, because, although Governor Pataki 16 campaigned on the death penalty, he also 17 campaigned on reducing costs to our state, and 18 within that context, he campaigned that he was 19 going to work with the Legislature to change the 20 Second Felony Offense Law. 21 Now, I don't know if the Governor 22 has backed away from that position, but I have 23 not heard him come forth with a bill -- with a 1437 1 proposal to the Legislature, unless it's going 2 to happen in the way that our death penalty bill 3 happened today. As we all know, the latest 4 figure that I have, we are now spending 5 somewhere around $9 million every 24 hours on 6 our prison system in the state, and my 7 assumption is or was that the Governor intended, 8 by looking to change the Second Felony Offense 9 Law, to reduce the overcrowding and the need for 10 further expansion of the prison system by 11 removing some of those inmates who are now 12 incarcerated for non-violent drug offenses. 13 That was welcomed, but we don't have that. 14 We're not discussing that today, 15 and that's unfortunate, and at the same time, 16 the proposal that the Governor has put forth, 17 along the lines of a budget, is to reduce 18 probation services, to reduce and back away from 19 the expansion of alternatives to incarceration, 20 to reduce spending for youth services, to reduce 21 spending for preventive juvenile services, and 22 so forth, and so on. 23 So we're not talking about 1438 1 prevention. We're not talking about supporting 2 especially young people because I suppose all of 3 us are aware that it's -- a large percentage of 4 the inmates in our facilities are young. They 5 began with having -- having a negative relation 6 ship with the Justice Department, judicial 7 system, at a young age and continued along those 8 lines. Many of them have been through our youth 9 detention facilities and end up in the state 10 facilities. So not to address this critical 11 area, I think, is a crime. 12 And here we are discussing this 13 death penalty which is, in fact, Mr. President, 14 a budget bill, a budget buster, if you will. 15 Now, the Governor has said -- I have heard him 16 refer to his death penalty proposal as saving 17 lives, and I'm not clear where he gets the idea 18 that he is going to save lives, and I understand 19 Senator Maltese talks about the victims, and I 20 too represent a district where there are 21 probably more victims of heinous crime or as 22 many victims as are in any district in the state 23 of New York. 1439 1 So I also am very concerned and 2 sensitive about what victims -- what happens to 3 victims, but I think the people in my district 4 want results, and as we look at, for instance, 5 now the "death belt state" or the number 6 one "death belt" state is Louisiana, the number 7 two "death belt" state is Texas, and they have 8 some of the highest crime rates in the nation. 9 Louisiana has 20.3 per 100,000 inhabitants, so 10 it is not helping the victims of crime in 11 Louisiana, and Texas similarly has almost 12 per 12 100,000. So it doesn't help the victims in 13 Texas either. 14 So I am not sure, and even the 15 Attorney General of the state of Texas has 16 stated that the incidence of using the death 17 penalty is so prevalent, that nobody pays any 18 attention, so it's as if it doesn't even exist. 19 And I know that Senator Volker is 20 going to stand up in his closing remarks and 21 he's going to say, "Senator Montgomery, you're 22 totally wrong," but I have a quote here from 23 Justice Powell. It says, "Capital punishment 1440 1 has not deterred murders." This is -- this is a 2 Supreme Court -- former Supreme Court Justice 3 who was very familiar with capital punishment. 4 And we know that the justice 5 system does not work perfectly. We have debated 6 that point. We have statistics on that point. 7 We have lives to prove, we have cases to prove 8 that point. There is no such thing as an equal 9 justice system. That's very unfortunate, but 10 it's true. 11 We have many, many instances of 12 people who have served time in prison, were in 13 itially convicted only to have their convictions 14 overturned. Many of them have served even on 15 death row. So we do not have a perfect judicial 16 system. We don't have a perfect process. It is 17 not failsafe. So undoubtedly, we are going to 18 make some mistakes or continue to make mistakes. 19 I have in my -- my records here 20 from my staff one, two, three, four, five, six, 21 seven, eight cases where people have been 22 wrongly executed in the state of New York, Mr. 23 President. So we're bound to do that again. 1441 1 I was recently in Louisiana, and 2 it was very, very interesting to me to find that 3 a group of law enforcement people had been very 4 instrumental in coming together to talk about 5 prevention because they feel that the state of 6 Louisiana is going to be bankrupted by the ex 7 panded use of the prison system, including the 8 death penalty, and again, I know that my col 9 league, Senator Volker, is going to say, "That 10 is hogwash; it's nonsense. You can't prove 11 that", but there have been studies. There is 12 information that we have that we can look at in 13 terms of how much it costs to deal in this 14 capital punishment business. 15 North Carolina spent an extra 16 $2.16 million per execution. We have the 17 figures from Texas. In Texas, a death penalty 18 case costs an average of $2.3 million. This is 19 three times the cost of imprisoning someone in a 20 single cell at the highest security level for 40 21 years. That comes from the Dallas Morning News, 22 March 8, 1992, Senator Volker. You can look 23 that up. 1442 1 The death penalty costs 2 California $90 million annually beyond the 3 ordinary cost of the justice system. Florida 4 spent an estimated 57 million on the death 5 penalty from 1973 to 1988 to execute 18 people. 6 That's an average of $3.2 million per 7 execution. That comes from the Miami Herald, 8 July 10, 1988, for Senator Volker's reference. 9 And even closer, our own 10 corrections service -- DOCS, Department of 11 Correctional Services, estimated that the death 12 penalty will cost New York State taxpayers $1 13 million per capital trial. 14 So, Mr. President, in addition to 15 everything else, this is a budget bill, it's a 16 budget buster, and while we're not talking about 17 saving money with this -- with this bill, we're 18 talking about saving money at the expense of the 19 future of young people, because we don't want to 20 support them in terms of their preventive 21 activities -- involving them in preventive 22 activities. 23 I want to leave with you a quote, 1443 1 Mr. President, from the Attorney General of 2 Massachusetts. He said, "Virtually every major 3 program designed to address the underlying 4 causes of violence and to support the poor, 5 vulnerable, powerless victims of crime, is being 6 cut even further to the bone. In this context, 7 the proposition that the death penalty is a 8 needed addition to our arsenal of weapons lacks 9 credibility and is a sheer matter of equity, 10 morally irresponsible. If this is really the 11 best that we can do, then our public value 12 system is bankrupt, and we have truly lost our 13 way." 14 Thank you, Mr. President. That's 15 the end of the quote, and the end of my -- my 16 comments, except to say that this is a very dark 17 moment. As we view the beautiful art from the 18 souls of people who are currently incarcerated 19 for any number of reasons, we are debating a 20 moment in the state's history that, I believe, 21 is going to be viewed in history as a darker, 22 less fortunate one. 23 Thank you, Mr. President. 1444 1 ACTING PRESIDENT KUHL: The Chair 2 recognizes Senator Skelos. 3 SENATOR SKELOS: Yes, Mr. 4 President. I believe several members would - 5 well, two members would like to vote at this 6 time. So with the consent of the Minority, if 7 you could have the last section read. 8 ACTING PRESIDENT KUHL: The 9 Secretary will read the last section. 10 THE SECRETARY: Section 38. This 11 act shall take effect on the 1st day of 12 September next succeeding the date on which it 13 shall have become a law. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll.) 17 ACTING PRESIDENT KUHL: The Chair 18 recognizes Senator Farley. How do you vote, 19 sir? 20 SENATOR FARLEY: I vote aye. 21 ACTING PRESIDENT KUHL: Senator 22 Farley in the affirmative. 23 Senator Mendez, how do you vote? 1445 1 SENATOR MENDEZ: Mr. President, I 2 will vote no, and I want to explain my vote. 3 ACTING PRESIDENT KUHL: Senator 4 Mendez, you have two minutes to explain your 5 vote. 6 SENATOR MENDEZ: Mr. President, 7 this is the 17th year that I say -- serve in 8 this great chamber of ours, and this is going to 9 be my 17th consecutive no to the issue of the 10 death penalty. 11 We are all politicians here and 12 we know that politics is the art of compromis 13 ing, but on this issue, Mr. President, I con 14 sider that it is absolutely impossible to com 15 promise. It has been proven already that - 16 that by polls, by service, that there are about 17 over 70 percent of residents in New York State, 18 and definitely my district as well, of people 19 who want the death penalty. 20 The issue is, why are they 21 clamoring for the death penalty? They're 22 clamoring for the death penalty, Mr. President, 23 not because they really want it out of their 1446 1 frustration of being able to deal with the 2 disastrous criminal justice system that has been 3 operated in New York City. 4 I, for one, Mr. President, 5 personally, I think that no government on earth 6 should have the capacity to take life away from 7 another human being. It is the most dangerous 8 precedent history has shown us that that has 9 been the case. Also, I believe that -- that the 10 -- the courses of crime could be dealt with in 11 a different fashion, and it has been proven that 12 it is not a deterrent. 13 So, therefore, Mr. President, I 14 say to my constituents, and all of them do want 15 -- most of them do want the death penalty -- if 16 the only way that I could remain representing 17 them in a job that I love is by voting for this 18 -- for the death penalty, I say to them, "No, 19 thank you. Get somebody else to represent 20 you." So it's an absolute belief that it will 21 not resolve the issue of crime in New York 22 State. It is an absolute belief that those that 23 will end up in the electric chair will be people 1447 1 who are poor members of minority groups. 2 SENATOR LEICHTER: Mr. President. 3 ACTING PRESIDENT KUHL: Senator 4 Leichter. 5 SENATOR LEICHTER: Mr. President, 6 I believe that we have a procedure where, as a 7 matter of accommodation, we allow people to cast 8 their vote out of order, Mr. President, and I 9 believe that courtesy was granted to Senator 10 Mendez and others, but I don't think it's our 11 practice that people explain their vote or go on 12 for some period of time. 13 ACTING PRESIDENT KUHL: Senator 14 Mendez, how do you vote? 15 SENATOR MENDEZ: Mr. President, I 16 vote in the negative. I do not think that I 17 exceeded the two minutes time. So, definitely, 18 I do not appreciate being interrupted by my dear 19 colleague, Senator Leichter. 20 Thank you. I vote no. 21 ACTING PRESIDENT KUHL: Senator 22 Mendez will be recorded in the negative. 23 The Secretary will withdraw the 1448 1 roll call. 2 Senator Skelos. 3 SENATOR SKELOS: Mr. President, I 4 would just like to point out to the members, and 5 Senator Leichter did raise a good point that, if 6 we're going to accommodate the members where 7 it's necessary for them to leave the chambers, 8 that they should vote and perhaps not explain 9 their vote at that time, and also that debate 10 began at ten after 4:00 and it's the intention 11 of the leader to close debate at ten after 6:00. 12 SENATOR MENDEZ: Mr. President. 13 ACTING PRESIDENT KUHL: The Chair 14 recognizes -- Senator Mendez, why do you rise? 15 SENATOR MENDEZ: I just wanted to 16 mention that prior to -- that I did explain my 17 vote on this issue because prior to my doing so, 18 there was a member of the Senate who, in fact, 19 did explain his vote before he left. 20 Thank you. 21 ACTING PRESIDENT KUHL: Thank 22 you, Senator Mendez. 23 The Chair recognizes Senator 1449 1 Paterson. 2 SENATOR PATERSON: I'm being 3 recognized? 4 ACTING PRESIDENT KUHL: Senator 5 Paterson. 6 SENATOR PATERSON: Mr. President, 7 we have a number of amendments, and I would like 8 to move the first amendment at this time. 9 ACTING PRESIDENT KUHL: Which one 10 of your members, Senator Paterson, is going to 11 offer up the first amendment? 12 SENATOR PATERSON: I will offer 13 up the first amendment, Mr. President. It's at 14 the desk and I'll waive its reading, and I will 15 talk about the amendment at this time. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson on the first amendment. 18 SENATOR PATERSON: The Governor's 19 bill, Mr. President, purports to exempt mentally 20 retarded persons from the death penalty. Since 21 1980... 22 SENATOR MARCHI: Mr. President, 23 out of all respect to Senator Paterson, are we 1450 1 charging this time against the two-hour limit? 2 ACTING PRESIDENT KUHL: Senator 3 Marchi, the - 4 SENATOR MARCHI: I would have to 5 move for a closed call of the house under those 6 circumstances. 7 ACTING PRESIDENT KUHL: Senator 8 Marchi, the rules of the house say that any 9 amendments and the discussion of the bill, prior 10 bill will be - 11 SENATOR MARCHI: The subject - 12 ACTING PRESIDENT KUHL: -- a two 13 hour limit. So, yes, the answer to that 14 question is yes. 15 Senator Paterson. 16 SENATOR PATERSON: Mr. President, 17 what confused me was I thought that Senator 18 Marchi was ahead of me on the list. 19 SENATOR LEICHTER: Mr. President. 20 ACTING PRESIDENT KUHL: Yes, 21 Senator Leichter. 22 SENATOR LEICHTER: You announced 23 an order of speakers, and I believe actually 1451 1 that I was the next speaker; am I correct? 2 ACTING PRESIDENT KUHL: You are 3 correct, Senator Leichter. Senator Paterson and 4 the staff indicated to me that you were under 5 standing of the need to present the amendments 6 that are currently being offered up. Now, if 7 that is incorrect and you wish to maintain your 8 spot and preempt the Acting Minority Leader in 9 offering up those amendments, then I'm happy to 10 entertain you. 11 SENATOR LEICHTER: Mr. President. 12 ACTING PRESIDENT KUHL: That's 13 your choice, Senator Leichter. 14 SENATOR LEICHTER: Mr. President, 15 when you put it in those terms, may I just - 16 excuse me just a moment, Senator Paterson. 17 I would hope very much that a 18 bill of this significance, that there would be 19 understanding, as I believe over the years, 20 members have shown respect for each other, have 21 shown respect for the issue. 22 I think Senator Marchi certainly 23 ought to be heard on this. I know that other 1452 1 members want to be heard. I would certainly 2 like to be heard on it. I don't mind being 3 preempted by as distinguished a person as my 4 good colleague and Minority -- Deputy Minority 5 Leader, Senator Paterson, and if he wishes to 6 move ahead with the amendment, that's fine, but 7 I would hope that members would have a chance to 8 be heard on a bill of this momentous 9 significance. 10 ACTING PRESIDENT KUHL: Thank 11 you, Senator Leichter, who yields the floor to 12 Senator Paterson to offer up the first 13 amendment. 14 Senator Paterson. 15 SENATOR PATERSON: Mr. President, 16 I don't want this to appear to be tennis, but I 17 will yield the floor back to Senator Leichter. 18 He apparently wasn't informed and we would like 19 to hear him on the bill. 20 ACTING PRESIDENT KUHL: Senator 21 Leichter, the floor is yours. 22 SENATOR LEICHTER: I thank my 23 good friend, and I'll say again that I believe 1453 1 some of the most eloquent debate that I have 2 heard over the years has been on this bill, 3 because it is a bill of such significance, and I 4 think members feel very strongly about it, and I 5 would really hope that we would give each other 6 the courtesy of listening to ourselves on a bill 7 of this importance, but I appreciate the time is 8 short. I think a lot of points have been made, 9 and I will try to be brief on this. 10 What really concerns me is that I 11 see on the part of the proponents of this bill, 12 particularly the Majority in this house, such a 13 rush, a drive to get death penalty enacted that 14 it's no longer a means to an end. This has 15 become the end in itself, to pass a death 16 penalty bill irrespective of the procedures and 17 the process of this house, irrespective of the 18 provisions that are in this bill, irrespective 19 that the public hasn't had an opportunity to be 20 heard. 21 This has become political dogma. 22 We will pass a death penalty bill. We will tell 23 the public we will put people to death, and when 1454 1 I listen to Senator Maltese, he's not just 2 talking about horrible crimes, terrible crimes 3 that need to be punished, must be punished. He 4 talked about burglaries. 5 He -- I heard Senator Volker talk 6 about guns, narcotics. This has become like the 7 universal solvent, the universal solution for 8 the Republicans to impose a death penalty and we 9 will go back and have a nice, orderly, peaceful 10 society as it was in the 1950s and 1940s. 11 Wasn't that peaceful then? It was probably more 12 peaceful than it is now, but let me say the 13 reason is not as Senator Volker says, because 14 then we had a death penalty. 15 Senator, there isn't one credible 16 criminologist who will say the reason that 17 murder is greater now in New York State than it 18 was 25, 30 years ago is because we do not have 19 the death penalty. The reason is very simple. 20 It's the demographics. It's the young people. 21 There's also undoubtedly a loosening of moral 22 values. There's greater poverty in some 23 respects, all of which have entered into what is 1455 1 a violent society, and we have an obligation to 2 try to deal with that, but not to come up with 3 simple solutions, not to say, "Put somebody to 4 death and we're going to have a nice, orderly 5 society", because that's not the case. It's not 6 true. 7 The point is that those who argue 8 for the death penalty in the first instance have 9 to establish clearly -- they have to establish 10 by the preponderance of the evidence that the 11 death penalty really deters murder, and that has 12 never been shown. It has never been 13 established. 14 Senator Saland, to his credit, 15 admitted that the proof is mixed on it. I don't 16 think that I could stand up here and say absol 17 utely that the death penalty in each and every 18 instance is -- will not act as a deterrent. 19 There may be some instances where it will, but 20 if you look at the broad scope of crime in this 21 country and in the world, you can point to case 22 after case, country after country, state after 23 state, that has a death penalty and has seen an 1456 1 increase in murders. Take a look at Western 2 Europe. Western Europe does not have a death 3 penalty; has a murder rate that is so far below 4 that of the United States that we can only be 5 envious. 6 Take a look at states that have 7 imposed a death penalty in the last eight or 8 nine years since the Supreme Court validated the 9 imposition of this penalty, and many of them 10 have had increases in the murder rate that 11 exceed that of New York State. In fact, New 12 York State, in the last couple of years, has had 13 a decline in the murder rate, and we're going to 14 have an increase probably in the murder rate and 15 in the crime rate because the demographics show 16 that we're going to have in the next 10, 15 17 years a younger population that is by and large 18 younger people, mostly younger males that commit 19 murder. 20 What we will undoubtedly do by 21 the imposition of the death penalty is we will 22 have the state put to death innocent people. 23 Senator Maltese said, I cannot exclude the 1457 1 possibility of error. Of course, you cannot 2 and, as Senator Montgomery has shown us, there 3 are documented cases. This weekend the New York 4 Times gave us one of these cases, and there was 5 a picture of the person who, when he was 6 sentenced to life imprisonment, the judge said, 7 "I wish I could sentence you to death", and the 8 picture was that person who had -- after years 9 in jail, new evidence came forth, he had been 10 convicted on trumped-up charges, and now he came 11 back to his community and there was a 12 celebration that an innocent man had been freed, 13 and with him at that celebration was his local 14 representative, either Senator or Assemblyman 15 George Pataki at that time and, of course, he 16 celebrated the fact that an innocent person had 17 finally been freed, but if you had the death 18 penalty, that person would never have had the 19 time to be freed. He would have been killed. 20 There's also no question that the 21 death penalty is inherently racist, not that the 22 people who propose this are racist. They are no 23 more racist than I am or Senator Montgomery or 1458 1 anybody else. That's not the point. The point 2 is that society tends to kill those it looks 3 down on and those may be minorities. It may be 4 poor people. Do you think that under any death 5 penalty bill that somebody with the notoriety 6 and the wealth of an O.J. Simpson -- and I'm not 7 commenting on whether he's guilty or not, but we 8 know that somebody like that will never be 9 executed because society does not execute those 10 who either have the wealth to buy a good defense 11 or who have a certain stature in the society. 12 It is those who society, in some way or other, 13 despises and looks down on, and no bill can 14 avoid that sort of bias and that sort of error 15 creeping into a system. 16 Clearly, the proof is there. 17 Senator Volker, you may want to deny it but, 18 frankly, I think you're in a lot of denial on 19 this bill, but the proof is there that the death 20 penalty is greatly expensive, much more so than 21 if you had punishment of life without parole. 22 Clearly, anybody who commits a 23 heinous crime must be punished. We're not for 1459 1 letting murderers go free. We support 2 imprisonment for life without the possibility of 3 parole. Somebody who commits a murder of the 4 sort that's dealt with in this bill, as far as 5 I'm concerned, he is resigned from society; he 6 is out, he or she are put in jail forever. 7 So we are for punishment, but 8 we're for punishment with justice. We are for a 9 form of punishment that does not brutalize 10 society, that recognizes the dignity of life, 11 and how can you establish and uphold the dignity 12 of life which, I think, is what we're all about, 13 and all of us care about that; all of us want to 14 accomplish this, but how can you do it if you 15 have the state engaging in what is the most 16 brutal act, and that is putting somebody to 17 death. 18 We will have a death penalty bill 19 and I'm sure the courts will review it, and 20 hopefully, will declare it unconstituional, but 21 I would hope that our better instincts, our 22 better care, our better -- our better desire for 23 a tranquil, peaceful and just society will lead 1460 1 us to see that the death penalty is never the 2 answer. The answer is to affirm life, and by 3 doing the death penalty, by going down this dark 4 and vicious road, we are really surrendering to 5 the basest and the worst instincts. 6 We as legislators, we as leaders 7 of our society have the obligation, I think, to 8 say that society can be better, and when we have 9 the death penalty, we say that we cannot be 10 better. We say that society has reduced itself 11 to the acts, has reduced itself to the behavior 12 of the worst within that society. I urge you to 13 reject the death penalty. It is not an answer 14 to what we need in this state. 15 ACTING PRESIDENT KUHL: The Chair 16 recognizes Senator Marchi. 17 SENATOR MARCHI: Thank you, Mr. 18 President. 19 My -- my concern with the death 20 penalty goes back many, many years. I remember 21 debating this under intercollegiate auspices in 22 the late '30s. At that time, we had six states, 23 Michigan, Rhode Island, Maine and three others 1461 1 that did not have the death penalty, and the 2 comparative statistics I'm not sure prove 3 everything, but Michigan, surrounded by other 4 states -- and I believe they still don't have a 5 death penalty -- surrounded by other states that 6 had the death penalty, did not -- did not have a 7 -- as low a rate of homicides as the state of 8 Michigan. 9 The twin cities of Detroit and at 10 that time Windsor -- well, it's still - 11 geography hasn't changed. In Windsor, Ontario, 12 both Windsor, the capital of Canadian 13 manufacturing of automobiles and Detroit holding 14 that distinction in the United States, Detroit 15 had a better record, and yet we know that 16 Windsor, Ontario did have the death penalty. 17 I was going to go through some of 18 the historical turns that have taken place, 19 going back to Thucydides back in the year 247 20 B.C., this is almost 200 millenniums ago, 21 raising the very same considerations that have 22 been raised by some of the members here today, 23 and he found that wanting -- he said we kept 1462 1 escalating the punishment, yet we never found 2 the one that worked. How far could you go? 3 I certainly give great credit to 4 Senator Volker. On moral sensitivity, he has 5 elevated everybody's concern about fairness in 6 the administration of the -- of law and law 7 enforcement. He has sensitized us. This is not 8 the best vehicle, in my point of view, but, 9 Senator, I admire you. You are a morally 10 sensitive individual, and you have made a 11 contribution because we are discussing it in 12 much more realistic terms. Hopefully, it will 13 help us also in identifying what I see will 14 inevitably happen in orienting ourselves in 15 better directions, not only in this aspect of 16 illegal and violent behavior but -- but the 17 problem of crimes generally. 18 You know, the whole -- the whole 19 business -- we haven't really gotten into the 20 vitals of what goes into a crime of this 21 dimension. The mens rea -- and I appeal to 22 those who are attorneys -- the guilty state of 23 mind, the premeditation, the intentional 1463 1 infliction of a wrong, even the President of the 2 United States who was then governor and running 3 for president did not stay the hand of the 4 executioner in Arkansas when that individual had 5 the problem of being mentally deficient and he 6 was -- he was executed for a crime. Is it a 7 crime if the person didn't even know perhaps - 8 and I believe Senator Connor mentioned the fact 9 that there are big problems in those borderline 10 cases that make it very difficult to apply that, 11 but I think everyone recognizes that problem. 12 I bring you up a little further 13 into history, Charles Dickens conducted - 14 conducted a -- an interview of 287 people who 15 were to be executed. This was in these vast 16 squares where they had thousands of people, and 17 they could cut your hands off if you were caught 18 pick-pocketing, and it was a field day for pick 19 pockets. 200 and -- all but three, 284 had 20 witnessed prior executions. 21 It's not a question of race or 22 racism. It's a question of triggering the 23 morbid propensity that an individual may have. 1464 1 If you're going to go out and manifest that kind 2 of justice, aren't you going to cheapen the 3 feeling that we have for life itself, and 4 shouldn't the state be the champion of life in 5 that respect, in all respects? This was the 6 experience that Charles Dickens had. 7 I go to the records -- you know, 8 I don't like to prove the record one way or the 9 other, even with Detroit and some of the 10 statistics I cited, because there's a remarkable 11 consistency. If you look back over the last 25 12 years, the homicide rate in this country has 13 oscillated around nine homicides per 100,000 14 population and, as population increases, that 15 has been the norm. 16 So are there better ways? Yes, 17 there are better ways. There are better ways 18 that are rooted in social justice. There are 19 better ways in appreciating what we are doing 20 and presenting a human face and containing the 21 damage, taking that person out of circulation so 22 that they cannot inflict. This is public 23 mores. This is public policy that I'm talking 1465 1 about. 2 We have today -- we have the 3 death penalty; 37 states of the United States 4 have the death penalty. You know what New 5 Jersey, Connecticut, Pennsylvania, Ohio have in 6 common? They all have the death penalty and 7 they have not executed anyone and they've had it 8 for over ten years. 9 We go to California and 10 Illinois. Now we have better than 70 to 80 11 million people to each state. Are they using 12 it? Maybe there's a wiser frame of mind that's 13 taking over, and they don't intend to use it. I 14 don't know whether we'll ever get around to 15 using it. I am not advocating it certainly, 16 because I oppose it, but there are better ways. 17 I would like to call your 18 attention to what I thought was an excellent 19 piece in the New York Times, an Op Ed piece by 20 Robert Morgenthau, the District Attorney of 21 Manhattan County -- of New York County. He 22 said, "Last year --" this was a statement that 23 he issued on February 7th. "Last year 6100 1466 1 criminals were sentenced to state prison in 2 Manhattan, and 9,000 more were sent to city 3 jail." 4 Now, I -- I accept some of the 5 characterizations that were made here about what 6 constitutes a crime in Manhattan and what may - 7 what it may constitute somewhere -- somewhere 8 else in a more remote area. Now, this is the 9 constructive way to be tough on crime. 10 In 1975, when he became district 11 attorney, there were 648 homicides in Manhattan. 12 In 1994, there were 330. That's less than half 13 -- less than half that he found when he went 14 in. Now, I don't think that's -- I think that's 15 some indication that perhaps there are ways that 16 have escaped people within and without those 17 states. 18 Why is it that a nation such as 19 England that had many homicides, the European 20 community, they are only a tiny fraction of what 21 we have? Their population exceeds our 22 population. We have a good people, but if we 23 glorify brutality, if we glorify -- and I'm not 1467 1 talking about -- I'm not casting aspersions on 2 comments that have been made here, but if we 3 glorify violence, we're going to get violence, 4 it's inevitable. The only way that we're going 5 to make progress is to select ways and treat the 6 problem -- treat the entire person holistically, 7 as Morgenthau would like to do, and those 8 circumstances are beyond him for a variety of 9 social problems, but that is the way to approach 10 it. 11 I liked his closing. "The only 12 honest justification for the death penalty is 13 vengeance", but the Lord says "The vengeance is 14 mine." It is wrong for secular governments to 15 try to usurp that role. 16 There are just wars. There are 17 the right of self-defense. There are 18 justifiable homicides, but when we come right 19 down to it, when we treat the problem, a vast 20 social problem, we're not sending messages to 21 anybody. We're not sending a message that's 22 going to be heard. It's not going to move 23 people. We're not going to get better 1468 1 behavior. I hope I'm proven wrong that this 2 will be cited as a classic state -- understate 3 ment of the century. I hope so, but I fear that 4 none of these things are going to happen, but I 5 do believe -- I do believe that the -- raising 6 the sensibility of all of us to the problems 7 that we face, with the death penalty which 8 reflects, to some extent, the unease and the 9 frustration of so many people, that we will move 10 to better ways, but I submit the best thing we 11 can do is to reject this legislation and to move 12 to those higher grounds that we all want to see 13 happen in this chamber at least. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes the next person on the list, Senator 16 Paterson. My understanding is you wish to 17 waive? 18 SENATOR PATERSON: Yes, Mr. 19 President. 20 ACTING PRESIDENT KUHL: The next 21 person on the list is Senator LaValle. I don't 22 see him in the chamber. 23 Senator Hoffmann. 1469 1 SENATOR HOFFMANN: Thank you, Mr. 2 President. 3 Like Senator Marchi, I had the 4 experience to debate this issue back in school. 5 I debated it in high school. It was in the 6 early '60s, Senator Marchi, and my memory 7 doesn't go back to the year yours did, but my 8 memory may not be as sharp as yours, and I 9 respect your eloquence, and I would not have 10 wanted to be your adversary in those debate 11 sessions, but I remember that there was no more 12 difficult issue to debate, and all of us were 13 required to debate both sides, and to become 14 facile with the arguments pro and con, and like 15 everyone else in this chamber, I would imagine, 16 I have given considerable thought over the 17 years. 18 We have traveled a very long and 19 tortuous road in this state to come to a point 20 where we can now pass a death penalty bill in 21 New York State without expecting a veto. And I 22 do understand and respect the opinions of those 23 who continue to feel bound by their consciences 1470 1 to oppose a death penalty under any circum 2 stances, and I remember even during the years 3 when I debated the bill in a rather esoteric 4 setting that my own mother, who was an avowed 5 pacifist, was angry and disappointed that I was 6 able to muster as much emotion to express the 7 position in favor of a death penalty even back 8 in those days. 9 But I am concerned that over 10 these last few decades in New York State, the 11 rights of the victim have been given less 12 consideration than the rights of those who 13 murder. Civilians as well as law enforcement 14 officers are increasingly at risk in this 15 state. Prison guards every day face the risk of 16 knowing that they are guarding long-term killers 17 who can kill again without any fear of further 18 retribution, and over the years the debate has 19 become clouded with issues other than the matter 20 of appropriate justice for some murderers. 21 I want to make it very clear that 22 I am not voting on the ancillary issues such as 23 deterrence. I am voting on the simple issue of 1471 1 justice. 2 We hear a great deal about the 3 sanctity of human life from those who oppose the 4 death penalty under any circumstances, but when 5 I research this issue, I think inevitability 6 about the sanctity of life of one individual 7 whose life most likely would have been spared 8 had the death penalty been in place in New York 9 State in the 1970s. I'm referring to Donna 10 Payant, a rookie prison guard, who was murdered 11 in New York State in 1981 by a man named Lemuel 12 Smith who was serving two life sentences for 13 murder. He had been indicted, tried, but never 14 tried for two additional murders of women in New 15 York State. He was also serving a third 16 sentence for kidnapping and rape. 17 Lemuel Smith's MO was 18 particularly hideous. He mutilated his victims 19 by biting them and then he murdered them. 20 During the course of his trial, there was a 21 great deal of drama and attention given to his 22 MO because his defense attorneys worked so hard 23 to prevent an imprint of his teeth being 1472 1 admitted into evidence. They felt that there 2 would be an invasion of his constitutional 3 rights should an imprint of his teeth be taken. 4 I read the transcripts of the 5 trial, and I noted with great interest that back 6 on July 24th, 1981, after the defendant, Lemuel 7 Smith, had been arrested for the first degree 8 murder of Donna Payant, the prosecution moved 9 for an order which would authorize the acqui 10 sition of photographs and dental impressions of 11 the defendant's lower teeth and bite. They did 12 it noting that a forensic expert would then be 13 able to analyze them in comparison to some 14 previous murders in which Lemuel Smith's dental 15 impressions had been the instrument that was 16 used to convict him. 17 The court records further 18 indicate in 1981, following Donna Payant's 19 murder, that the attorneys for Mr. Smith 20 resisted the motion to obtain the dental record, 21 claiming that the court had no legal authority 22 to compel the seizure of his dental records and 23 that it would be a violation of the defendant's 1473 1 constitutional right to privacy. The court in 2 Dutchess County, however, felt differently, and 3 ultimately the records were admitted at the 4 hearing. 5 Reading from the court records at 6 the time, June 12th, 1981, the prosecution 7 called New York State Police Investigator Jack 8 Fox, through whom a photo of the body of the 9 deceased, Donna Payant, was introduced. The 10 photograph depicts her as mutilated by apparent 11 bite marks. The proof at that hearing further 12 established that the medical examiner, Dr. 13 Michael Baden, upon observing Donna Payant's 14 body, contacted Dr. Lowell Levine, a leading 15 forensic odontologist. Dr. Levine then 16 testified that he examined the photographs of 17 the deceased, Donna Payant, for possible bite 18 mark identification. At the time of the 19 examination, Dr. Levine was acquainted with the 20 defendant's dental characteristics since he had 21 in December of 1977, acquired and examined a 22 cast of the defendant's teeth in an examination 23 of a Schenectady County homicide. On the basis 1474 1 of that examination, he had concluded that the 2 defendant, Lemuel Smith, had imposed the bite 3 marks on that victim, Marilee Wilson, in that 4 other homicide. 5 On the basis of these compari 6 sons, Dr. Levine concluded to a reasonable 7 scientific certainty that the same person 8 administered the bite marks to both Donna Payant 9 in the Green Haven Correctional Facility and 10 Marilee Wilson in Schenectady County. Dr. 11 Levine added that it required a cast of the 12 defendant's teeth to confirm that opinion, to 13 make sure that they were in the same position 14 they were in 1977, and the point was made in the 15 court records that Dr. Levine testified that the 16 process of casting and photographing Lemuel 17 Smith's lower teeth would be painless and risk 18 free. Remarkably kind and considerate of Lemuel 19 Smith, I would say. 20 The court went to inordinate 21 lengths to make sure that Lemuel Smith's rights 22 were protected and that he was, quote, "not 23 subjected to any undue pain", but what Donna 1475 1 Payant went through was entirely different. 2 After Dr. Levine concluded his 3 examination, the court records state, "The body 4 of Donna Payant revealed torn nipples and 5 mutilation of the abdomen." There was one 6 distinctly discernible bite mark which formed 7 the basis of his findings and proved beyond any 8 question of a doubt that Lemuel Smith had 9 murdered Donna Payant, mutilated her body and 10 ultimately allowed it to be disposed of in a 11 landfill outside of the prison walls where he 12 served time. 13 Had the death penalty been in 14 effect in the 1970s when Lemuel Smith was 15 originally convicted of murder, there would be 16 no doubt that rookie prison guard Donna Payant 17 would be alive today. She was a young woman 18 with three children who are now all young 19 adults, and the question has to be asked about 20 the justice for the Payant family. The question 21 has to be asked by the taxpayers of this state 22 if, in fact, we have been so preoccupied for the 23 rights of the killers that we have overlooked 1476 1 the rights of the victims of this state. 2 Mr. Smith, Lemuel Smith, 3 continues to make appeals for improvements in 4 his housing condition. He now has a fiancee who 5 writes letters to the court protesting that the 6 housing conditions in which he lives deny them 7 an opportunity for conjugal visits. Mr. Smith's 8 rights continue to be a preoccupation of the 9 court system in this state, but the rights of 10 Donna Payant and the justice afforded to Donna 11 Payant and her family were non-existent. 12 Regrettably, Mr. President, I see 13 no other form of justice that would address the 14 situation in which a rookie prison guard 15 guarding an inmate convicted of two previous 16 murders charged with but not tried for two 17 additional murders faces no other form of 18 retribution. 19 In the name of Donna Payant, I 20 will vote aye, Mr. President. 21 THE PRESIDENT: Senator Bruno. 22 SENATOR BRUNO: Madam President, 23 I believe the two hours has expired. Will you 1477 1 call the question? 2 THE PRESIDENT: Yes. The 3 question is on Senator Bruno's motion to close 4 the debate. 5 Senator Paterson. 6 SENATOR PATERSON: Madam 7 President, since under the rules I can't debate 8 this motion - 9 THE PRESIDENT: No. 10 SENATOR PATERSON: -- I would 11 like a slow roll call. 12 THE PRESIDENT: Slow roll call, 13 please. The clerk will call the roll. 14 THE SECRETARY: Senator Abate. 15 SENATOR ABATE: It's with a great 16 deal of regret that this afternoon - 17 THE PRESIDENT: Is Senator Abate 18 explaining her vote? 19 SENATOR ABATE: Yes, I'm 20 explaining my vote. 21 It's with a great deal of regret 22 that I feel, and I think that regret is shared 23 by many of my colleagues, that we did not have 1478 1 extensive debate on the bill, and that the 2 Minority Conference did not have an opportunity 3 to present a number of very credible hostile 4 amendments. 5 If I had had the opportunity to 6 speak, and unfortunately, I only have about, 7 what, a minute and a half, I would have talked 8 about the need for open and full discovery in 9 capital cases. I would have talked about 10 quality representation issues, the funding of 11 defense counsel to ensure that innocent people 12 are not executed. I will not have that 13 opportunity to speak this afternoon on these 14 critical issues and we will not have full 15 debate, and yet still we will pass the death 16 penalty today. 17 I want to be on record opposed to 18 the death penalty. I will not have an 19 opportunity to explain why I vote this way. I 20 will have to talk to my community. I will have 21 to talk to the press because, in this chamber, I 22 was not given the time to debate this issue. 23 THE PRESIDENT: Continue the slow 1479 1 roll call. 2 THE SECRETARY: Senator Babbush 3 excused. 4 Senator Bruno. 5 SENATOR BRUNO: Yes, and I'd like 6 to explain my vote. 7 Madam President, I understand 8 that people are very emotionally involved in 9 this issue and people have a lot to say. I am 10 also concerned in that we seem to get caught up 11 in this house with procedure, and I hear loud 12 and clear from people on that side of the aisle 13 about procedure, and all I'm listening to is 14 procedure. 15 Now, the rules of this house are 16 very clear for everyone to understand, and 17 they're there before the debate, during the 18 debate and after the debate. Now, if we want to 19 change the rules of this house so that when we 20 agree that some issue is major, that we extend 21 the rule to three hours instead of two, eight 22 hours instead of two, I and my colleagues are 23 open to that, but let's do it procedurally and 1480 1 in an open and fair way. 2 And, Madam President, as for the 3 amount of time for study, Minority counsels on 4 both sides of -- both houses, both sides of the 5 aisle have been in all of the debates and all of 6 the negotiations on this issue. Hopefully, they 7 have been keeping people informed. We have been 8 talking about this issue in this state for 18 9 years. It is no mystery to anyone how we got 10 where we are this afternoon, and having said 11 that -- and I think I may be close to my time - 12 I vote yes. 13 THE PRESIDENT: Continue the slow 14 roll call, please. 15 THE SECRETARY: Senator Connor. 16 SENATOR CONNOR: Madam President, 17 to explain my vote. 18 I would point out, Madam 19 President, that the rule of the house is not 20 that no debate can run longer than two hours. 21 The rule of the house is that after two hours, 22 and only after two hours, can a motion to close 23 debate be made, and nowhere in the rules does it 1481 1 say it must be made. Nowhere in the rules does 2 it say that all the members of the Majority 3 party must vote for it if it's made. It simply 4 is a measure to ensure that there is at least 5 two hours of debate on any matter. 6 It has been the long custom of 7 this house, and I have -- this is the 18th year 8 I have debated on the death penalty, both in 9 chief and also many of those years on motions to 10 override, and it has been the custom of this 11 house on issues like this, other issues 12 involving abortion, other matters that are - 13 that we all recognize are not party matters - 14 and this is not a party matter, the death 15 penalty. 16 THE PRESIDENT: Senator Connor, 17 are you explaining your vote or are you debating 18 the motion? 19 SENATOR CONNOR: I'm explaining 20 my vote, Madam President. I'm entitled to do 21 that in any way I choose. 22 And so, while I appreciate 23 Senator Bruno saying that he would welcome a 1482 1 rules change, I suggest that by at least the 18 2 sessions I have been here, by unvarying custom 3 on this bill, we have allowed the debate to 4 often run to three and a half and four hours. 5 The members understand that they wouldn't make 6 that motion because -- and I'm sure there are 7 members who are for the death penalty who would 8 like to be heard today, and I -- this is rather 9 unprecedented. 10 I understand the rules are the 11 rules. I'm opposed to the motion. I intend to 12 vote no on the motion. I suspect that we will 13 debate the death penalty once again in the near 14 future, and I would just urge, as a matter of 15 procedure, that if we can't do it in the old 16 members agreement, quiet, unspoken -- of course, 17 we let these debates go longer when they involve 18 a matter of conscience, then we do it in some 19 written rule, and I'll certainly ask my counsel 20 to talk to Senator Bruno's counsel first thing 21 in the morning about devising this new rule. 22 THE PRESIDENT: Continue the slow 23 roll call, please. 1483 1 THE SECRETARY: Senator Cook. 2 SENATOR COOK: Yes. 3 THE SECRETARY: Senator 4 DeFrancisco. 5 SENATOR DeFRANCISCO: Explain my 6 vote, please. 7 I don't take any great pride in 8 voting for a death penalty in the state of New 9 York. In order for me to be satisfied that this 10 was a good bill to support, I had to be certain 11 that there were certain -- there were sufficient 12 procedures in sentencing in order to bring all 13 factors before the jury to make certain that an 14 individual will be given a capital sentence only 15 when it's deserved, and that there were many 16 options for the jury other than death. 17 In addition, I wanted to make 18 certain that there was an opportunity since I 19 have done defense work, for competent 20 representation, and I believe that the Capital 21 Offense Defenders Unit provides for that 22 eventuality, provides for that protection. 23 The reason I am supporting the 1484 1 death penalty is that right now, without it, 2 there are certain crimes that have no 3 punishment. If you're a corrections guard and 4 someone is serving two life imprisonments, you 5 have absolutely no reason -- or there's no 6 deterrent whatsoever for an individual to commit 7 the crime of murder. In some instances, if it's 8 a police officer who's trying to -- may be the 9 only witness to a crime that may be trying to 10 apprehend that individual or a witness, why not 11 kill the witness since it's -- there's a chance 12 that maybe you will never be convicted? There's 13 no additional punishment, especially in the 14 cases that I have just mentioned. So these 15 aggravating factors present those cases where 16 right now I don't believe there's a punishment 17 and there should be for all crimes, and as a 18 result, I vote yes for this bill. 19 THE PRESIDENT: Continue the slow 20 roll call. 21 THE SECRETARY: Senator DiCarlo. 22 SENATOR DiCARLO: Yes. 23 SENATOR ONORATO: Are we voting 1485 1 on the bill? 2 THE PRESIDENT: No. We are 3 voting on the motion to close the debate, 4 Senator Bruno's motion to close the debate on 5 Calendar Number 106. 6 THE SECRETARY: Senator 7 Dollinger. 8 SENATOR DOLLINGER: I rise to 9 explain my vote, Madam President. I actually 10 had a whole series of questions that I wanted to 11 ask Senator Volker about the bill. I wanted to 12 turn to page 29 and ask him what the standards 13 were for the financial burdens under which local 14 communities could get state assistance for 15 funding death penalty cases? 16 I wanted to ask him some 17 questions about the cost of that. I wanted to 18 ask him questions about the disposal of the 19 body, an interesting issue that crops up in this 20 piece of legislation. I had never seen it 21 before. I wanted to ask him whether a 22 17-year-old could be executed under the statute 23 because we rigorously say "No person under 18 1486 1 years of age shall be permitted to witness one." 2 I want to know why we would 3 invite six citizens to witness an execution. I 4 wanted to know who would determine who would 5 make judgments about death at the time of 6 death? I wanted to ask all of those questions. 7 I wanted to get up and agree with my colleague, 8 Senator Marchi. I brought Charles Dickens with 9 me, a Tale of Two Cities and Barnaby Welch in 10 which the hangman, Ned Dennis, is mocked by 11 Dickens because he believes that hanging people 12 will change their behavior. 13 I'm not going to get a chance to 14 do that. I'm not going to get a chance to get 15 answers to my questions. I'm not going to get a 16 chance to introduce further protections through 17 amendments by doubling the penalty for perjury 18 so if you lie in a capital case, you'll 19 recognize that it's very, very serious. It's 20 now only a D felony. I'm not going to be able 21 to introduce one that talks about a double 22 indictment and gives the power to a grand jury 23 to indict you, not only for murder, but to 1487 1 impose the penalty or at least put the penalty 2 before the jury so we take it out of the hands 3 of those politically motivated district 4 attorneys. 5 And the last thing I won't be 6 able to do is to put a sunset in this bill so 7 that six years from now before we execute 8 anyone, we'll actually have data about the 9 trials. We'll actually have information about 10 the racial implications. We'll actually know 11 whether innocent people have been convicted, and 12 then we'll be able to make an intelligent choice 13 about this penalty. We should have a chance to 14 debate those today. 15 THE PRESIDENT: Continue the slow 16 roll call. 17 THE SECRETARY: Senator Espada. 18 SENATOR ESPADA: I vote yes. 19 THE SECRETARY: Senator Farley. 20 (There was no response.) 21 Senator Galiber. 22 (There was no response.) 23 Senator Gold. 1488 1 (There was no response.) 2 Senator Gonzalez. 3 SENATOR GONZALEZ: No. 4 THE SECRETARY: Senator Goodman. 5 SENATOR GOODMAN: Aye. 6 THE SECRETARY: Senator Hannon. 7 SENATOR HANNON: Yes. 8 THE SECRETARY: Senator Hoblock. 9 SENATOR HOBLOCK: Yes. 10 THE SECRETARY: Senator 11 Hoffmann. 12 SENATOR HOFFMANN: Explain my 13 vote. 14 I feel very uncomfortable about 15 closing debate prematurely on an issue of this 16 substance. For the last decade, when we have 17 debated this bill on many other occasions, I 18 remember us going over the time limit and with 19 all due respect to Senator Bruno, who is running 20 a very tidy house this year and has earned us 21 great kudos across the state with his good 22 housekeeping, I do feel that in this one 23 instance that it would be inappropriate to 1489 1 curtail debate prematurely, and I take some 2 responsibility in having asked my colleague to 3 hold off on amendments in order that some other 4 members might be able to speak, and I apologize 5 to anybody who may have had that opportunity 6 foreclosed because it had not been made clear 7 that the rule would be enforced so narrowly, and 8 I do hope that Senator Bruno might reconsider 9 the possibility of giving everyone an additional 10 two minutes or three minutes to make abbreviated 11 explanation rather than simply closing debate at 12 this point. 13 If we could have a ladies' and 14 gentlemen's agreement to conclude within the 15 next 10 or 15 minutes, I'm sure that everyone 16 would be satisfied under those circumstances. I 17 understand the list only includes approximately, 18 I believe it's only five people, three and two, 19 and if Senator Dollinger would agree not to 20 engage Senator Volker in a whole series of 21 questions, the decision would be so much easier 22 for Senator Bruno to make to allow a very 23 abbreviated form of discussion. 1490 1 SENATOR DOLLINGER: I never got 2 my chance to ask my questions either. 3 THE SECRETARY: Senator Holland. 4 SENATOR HOLLAND: Yes. 5 THE SECRETARY: Senator Johnson. 6 SENATOR JOHNSON: Aye. 7 THE SECRETARY: Senator Jones. 8 SENATOR JONES: No. 9 THE SECRETARY: Senator Kruger. 10 SENATOR KRUGER: No. 11 THE SECRETARY: Senator Kuhl. 12 SENATOR KUHL: Yes. 13 THE SECRETARY: Senator Lack. 14 SENATOR LACK: Yes. 15 THE SECRETARY: Senator Larkin. 16 (There was no response. ) 17 Senator LaValle. 18 SENATOR LAVALLE: Yes. 19 THE SECRETARY: Senator Leibell. 20 SENATOR LEIBELL: Yes. 21 THE SECRETARY: Senator 22 Leichter. 23 SENATOR LEICHTER: Mr. 1491 1 President. I'm afraid there's really a 2 diminution in the civility and the courtesy that 3 I think has characterized this house. It really 4 is unheard of on a debate on a bill of this 5 significance to impose a two-hour limitation 6 and, as Senator Connor rightly pointed out, 7 there's nothing in the rules that says you must 8 stop after two hours. 9 I think that there are members 10 who wish to be heard on this bill. They 11 certainly should have had the opportunity but 12 it's part of the rush of the Majority and of the 13 Majority Leader to pass a death penalty bill. I 14 mean it's as if there are drums here beating 15 death, death, death, death, death without regard 16 to the processes of this house, without regard 17 to the committee system, without regard to the 18 practice and the civility that has obtained in 19 this house; and it is just wrong and it demeans 20 this house, and I think it makes us look foolish 21 before the people of the state of New York. 22 Senator Bruno, I think the people 23 of this state, a majority of them, want a death 1492 1 penalty bill, but they don't want us to act in 2 this fashion. Maybe some members say it's 6:30, 3 it's time for me to go out for dinner. I think 4 we have more important business right here to 5 debate this bill. 6 I vote no. 7 THE SECRETARY: Senator Levy. 8 SENATOR LEVY: Aye. 9 THE SECRETARY: Senator Libous. 10 SENATOR LIBOUS: Aye. 11 THE SECRETARY: Senator Maltese. 12 SENATOR MALTESE: Aye. 13 THE SECRETARY: Senator Marchi. 14 SENATOR MARCHI: Yes. 15 THE SECRETARY: Senator 16 Markowitz. 17 SENATOR MARKOWITZ: Briefly to 18 explain. 19 Senator Bruno, on this issue, 20 we've waited 18 years. I support capital 21 punishment. I'm certainly willing to wait 22 another hour, an hour and a half, and I know the 23 restaurants in Albany will welcome us no matter 1493 1 when we come this evening, and provided it's not 2 too late, because they close kind of early, 3 that's true. 4 But I think for my colleagues, 5 many on this side of the aisle that may be 6 contrary on this issue, they certainly deserve, 7 in my opinion, every opportunity. This is one 8 of those issues that really touches us 9 personally, not just professionally, and I think 10 it would be very decent of you, if you would 11 yield on that, allow those people on both sides 12 that wish to have an opportunity for a few 13 minutes longer. 14 Something tells me we're going to 15 be back on this issue in the next few weeks any 16 way, maybe even the next few days, but still 17 because of the importance of the issue, I hope 18 you will allow us to have a few more moments of 19 debate. 20 I vote no on this. 21 THE PRESIDENT: Continue the slow 22 roll call. 23 THE SECRETARY: Senator Mendez. 1494 1 (There was no response. ) 2 Senator Montgomery. 3 SENATOR MONTGOMERY: No. 4 THE SECRETARY: Senator Nanula. 5 SENATOR NANULA: Explain my 6 vote. 7 Madam President, I too, at the 8 desk, had a hostile amendment that I am very 9 disappointed that I will not have the 10 opportunity, nor will we as a chamber here be 11 able to debate and discuss. 12 I personally feel that it's a 13 vital aspect of this legislation, one that has 14 not been covered sufficiently, and that is the 15 fiscal aspects of the administration and 16 prosecution of the death penalty. 17 My amendment very simply requests 18 a study by the Division of Criminal Justice 19 Services, in conjunction with the Office of 20 Court Administration, to analyze the fiscal 21 impact of this legislation and, as far as I'm 22 concerned, especially for the people of my 23 district, this is an unfunded mandate, something 1495 1 we're supposed to be getting away from. The 2 local D.A.s, our criminal justice system, 3 aspects that are being cut in this budget, at 4 the same time are not being given a fiscal 5 allocation within this legislation that would 6 provide the resources needed to prosecute this 7 penalty if the bill was passed. 8 I've had other reservations to 9 the bill in the past. This, in my opinion, if 10 we're going to be moving forward with this 11 legislation, especially in difficult fiscal 12 times as we all degree exist today, we should be 13 focusing on the fiscal aspects of this bill. 14 Again, I'm disappointed that we won't be 15 substantively debating that on this floor 16 today. 17 For that reason, I vote no. 18 THE PRESIDENT: Continue the roll 19 call. 20 THE SECRETARY: Senator 21 Nozzolio. 22 SENATOR NOZZOLIO: Aye. 23 THE SECRETARY: Senator Onorato. 1496 1 SENATOR ONORATO: Explain my 2 vote. 3 Mr. President, even though I'm a 4 co-sponsor of the bill, I -- I do feel that 5 there's an injustice being done here today. 6 We've never been limited in prior years to a 7 two-hour debate and, if the Majority Leader does 8 insist in the future on limiting these two-hour 9 debates, then I believe we have to change the 10 rules to give each of the 60 members of this 11 house an equal opportunity of perhaps having 12 four minutes apiece so that we can all have an 13 equal opportunity to speak, whereas some 14 individuals may hog up the entire two hours 15 leaving the rest of us out in the cold. 16 So under those circumstances, I 17 would like the Majority Leader to reconsider his 18 position today and reserve it for future 19 debates. 20 I vote no. 21 THE SECRETARY: Senator 22 Oppenheimer. 23 SENATOR OPPENHEIMER: On the 1497 1 vote, I have already -- I have already cast my 2 vote because of the budget hearing on 3 transportation, but from what I gather now, I 4 would have supported precisely and I was about 5 to say what Senator Onorato said, which is we 6 have to give everybody in this body an opportun 7 ity to be heard. It's sort of outrageous to cut 8 off people who want to speak who are legislators 9 and try to represent their opinion and their 10 districts. 11 The idea of limiting so that each 12 person gets an equal opportunity to speak seems 13 to me the only way to go if you are going to cut 14 this off at the two-hour limit. So I would 15 strongly support what Senator Onorato has just 16 said and would urge that Senator Bruno at this 17 juncture, say, permit the five people to speak 18 each for three, four minutes and it could be 19 accomplished quickly, and nobody would feel any 20 deprivation. 21 So I will vote no on the 22 resolution and hope that the extra few minutes 23 can be granted to the people who wish to speak. 1498 1 THE SECRETARY: Senator Padavan. 2 SENATOR PADAVAN: Yes. 3 THE SECRETARY: Senator 4 Paterson. 5 SENATOR PATERSON: Mr. President, 6 to explain my vote. 7 There were a number of amendments 8 that were offered by some members today -- by 9 Senator Gold, Senator Abate, Senator Waldon, 10 Senator Nanula and Senator Dollinger. I was 11 going to introduce the first amendment and at 12 that point I yielded my time and the time of all 13 those members, who I would like to apologize to, 14 because there were other individuals who wanted 15 to speak on the bill. 16 We yielded our time as a matter 17 of civility that Senator Leichter was talking 18 about because this is an issue that's on 19 people's minds pro and con. The amendments to 20 the bill are supported by people who are for and 21 against the death penalty. 22 This is the most significant 23 issue that we are debating because this is the 1499 1 issue that the Governor said he wanted to enact 2 first, not because I agree with the Governor, 3 but because this issue has risen to a very great 4 point in our society where people feel a need to 5 discuss it and the fact that these measures, 6 such as the one that Senator Dollinger was going 7 to talk about, about having a five-year sunset 8 to take a look at the statistical data, the cost 9 factor that Senator Nanula was going to discuss, 10 the issue that Senator Waldon was going to 11 discuss on racial justice in the death penalty, 12 the issues involving constitutionality that 13 Senator Gold was going to discuss where the jury 14 is only allowed two electives, death or life 15 without parole and only in the case of the 16 deadlock would there be the regular life 17 sentence meaning that a person could be 18 sentenced to something the jury never arrived 19 at, really infiltrating on the precious right 20 that juries have to make a free and open 21 decision; the issue of the constitutionality of 22 the pre-trial examination of the defendant by 23 the prosecutor's psychiatrist because the 1500 1 defendant is mandated under our new law to give 2 it notice of psychiatric mental state as being a 3 mitigating circumstance, and finally, the 4 Governor purports to exempt mental retardation 5 from the bill and yet that exemption only comes 6 after a finding of guilty by the jury meaning 7 that there can be no discussion of the mental 8 retardation of the defendant until after the 9 trial. 10 Eight states and the federal 11 government have gone away from that and don't 12 allow mental retardation as a -- those who are 13 mentally retarded to be executed at this 14 particular point. These are some of the issues 15 we would have discussed. 16 Our desire to let our other 17 colleagues speak is all we're asking of the 18 Majority Leader, to make sure that all the 19 issues are heard. There is no conflict this 20 evening with any other governmental procedure 21 that I know of unless some of the procedures 22 that will go on after this debate are considered 23 to be governmental. And so the debate which 1501 1 started at 4:10 had to be precluded and these 2 issues were never heard. 3 By the way, by my clock it was 4 4:12, and I operate with -- under the U. S. 5 Naval Observatory Master Clock, and so we should 6 have had an extra two minutes that we were 7 denied. 8 THE PRESIDENT: Continue the slow 9 roll call. 10 THE SECRETARY: Senator Present. 11 SENATOR PRESENT: Aye. 12 THE SECRETARY: Senator Rath. 13 SENATOR RATH: Aye. 14 THE SECRETARY: Senator Saland. 15 SENATOR SALAND: Aye. 16 THE SECRETARY: Senator 17 Santiago. 18 SENATOR SANTIAGO: No. 19 THE SECRETARY: Senator Sears. 20 SENATOR SEARS: Yes. 21 THE SECRETARY: Senator Seward. 22 SENATOR SEWARD: Aye. 23 THE SECRETARY: Senator Skelos. 1502 1 SENATOR SKELOS: Yes. 2 THE SECRETARY: Senator Smith. 3 SENATOR SMITH: Madam President. 4 THE PRESIDENT: Yes. 5 SENATOR SMITH: To explain my 6 vote. 7 I'm really dismayed that, after 8 seven years, that for the first time people will 9 not be given the opportunity to be heard. All 10 of a sudden the rules of the chamber are being 11 invoked. However, at the beginning of session, 12 there was someone taking pictures with a flash 13 and I believe that the rules of the chamber 14 state that no one can use a flash in the 15 chambers. However, I was told the permission 16 was granted for that, something of lesser 17 importance that can take precedence over an 18 important issue such as life and death. 19 We've really come to a parting of 20 the ways between what we have to be limited in 21 what we can say about the life of someone. Life 22 is still very precious to many of us and, 23 therefore, I vote no on this amendment. 1503 1 THE PRESIDENT: Continue the roll 2 call, please. 3 THE SECRETARY: Senator Solomon. 4 (There was no response. ) 5 Senator Spano. 6 SENATOR SPANO: Aye. 7 THE SECRETARY: Senator 8 Stachowski. 9 SENATOR STACHOWSKI: No. 10 THE SECRETARY: Senator 11 Stafford. Senator Stafford. 12 SENATOR STAFFORD: Yes. 13 THE SECRETARY: Senator Stavisky 14 excused. 15 Senator Trunzo. 16 SENATOR TRUNZO: Aye. 17 THE SECRETARY: Senator Tully. 18 SENATOR TULLY: Aye. 19 THE SECRETARY: Senator Velella. 20 (There was no response. ) 21 Senator Volker. 22 SENATOR VOLKER: Yes. 23 THE SECRETARY: Senator Waldon. 1504 1 SENATOR WALDON: To explain my 2 vote. 3 In the year 1619 at a place that 4 is now known as Jamestown, Virginia, a ship 5 docked. There were 20 indentured blacks on that 6 ship and America's folly with racism began and, 7 despite the contributions of people who are - 8 of my people from Africa in the wars, in 9 education, in science and entertainment, we have 10 not been treated equally in this country, and I 11 believe that the place that we have been treated 12 most disparately is in terms of justice, in 13 terms of justice, and this is an example of 14 gravity, so much so that Senator Bruno said 15 earlier when he was explaining his vote, quote, 16 when we agree that an issue is major then we can 17 extend debate to three, four hours, close 18 quote. 19 What issue is more important, 20 more grave, more meaningful to people, than life 21 and death? And yet we cavalierly slough it 22 off. I believe that we've blown a tremendous 23 opportunity, and I'm going to take this to a 1505 1 higher level. 2 I'm a junior Senator in a 3 relative sense. My budget is diminished because 4 I am in the minority. My member items are 5 diminished because I am in the minority, but I 6 always felt that I had the right to speak on 7 this floor. So despite the fact that I have 8 been treated disparately in terms of my ability 9 under the one man-one vote rule to deliver 10 services to my 300,000 constituents because the 11 Majority has guarded all the money and kept it 12 for your own use, today I'm even denied the 13 right to speak -- to speak in a free society on 14 an important issue. 15 Mr. Bruno, I think that you blew 16 it. I think this chamber blew it. I think the 17 people of New York State have blown it, and I 18 will be heard. We will have a press conference 19 following this, outside, if the press wants to 20 hear what I want and have to say, please come, 21 on my hostile amendments and I invite anybody 22 and everybody who wants to speak to join me in 23 that exercise. 1506 1 I vote no. 2 THE PRESIDENT: Continue the slow 3 roll call, please. 4 THE SECRETARY: Senator Wright. 5 SENATOR WRIGHT: Aye. 6 THE PRESIDENT: Absentees. 7 THE SECRETARY: Senator Farley. 8 (There was no response.) 9 Senator Galiber. 10 (There was no response.) 11 Senator Gold. 12 (There was no response. ) 13 Senator Larkin. 14 (There was no response. ) 15 Senator Mendez. 16 (There was no response. ) 17 THE PRESIDENT: The results, 18 please. 19 THE SECRETARY: Ayes 32, nays 20 19. 21 THE PRESIDENT: Senator Bruno's 22 motion to close the debate on Calendar Number 23 106 is agreed to. 1507 1 The clerk will read the last 2 section of the bill, please. 3 SENATOR PATERSON: Slow roll 4 call. 5 THE SECRETARY: Section 38. This 6 act shall take effect on the 1st day of 7 September next succeeding date on which it shall 8 have become a law. 9 THE PRESIDENT: A slow roll call 10 is requested. The clerk will call the roll, 11 please. 12 THE SECRETARY: Senator Abate. 13 SENATOR ABATE: No. 14 THE SECRETARY: Senator Babbush 15 excused. 16 Senator Bruno. 17 SENATOR BRUNO: Yes. 18 THE SECRETARY: Senator Connor. 19 SENATOR CONNOR: No. 20 THE SECRETARY: Senator Cook. 21 SENATOR COOK: Yes. 22 THE SECRETARY: Senator 23 DeFrancisco. 1508 1 SENATOR DeFRANCISCO: No. 2 THE SECRETARY: Senator DiCarlo. 3 SENATOR DiCARLO: Yes. 4 THE SECRETARY: Senator 5 Dollinger. 6 SENATOR DOLLINGER: To explain my 7 vote, Mr. President. 8 The -- I wish I'd had an 9 opportunity to talk during the course of the 10 debate. I was -- that opportunity has been 11 taken away by the Majority, but it's unfortun 12 ate, I guess, when I look at this bill which 13 seems to have so many large defects still a part 14 of it, things that could be improved upon. 15 Since when did we in the state of 16 New York turn our backs on things that could 17 improve a bill? But more importantly, I guess I 18 just have to respond to the one thing that 19 Senator Maltese said. He says we have to do the 20 best thing we can for the people of this state. 21 Well, to the people of this 22 state, I say very simply, it may be one of the 23 cheapest things we can do because we're not 1509 1 spending any money. It has no appropriation 2 attached to it. I agree with my colleague, 3 Senator Nanula, that this is a large unfunded 4 mandate. We'll talk about that outside when I 5 join Senator Waldon in his press conference and 6 it probably is the most punitive thing we could 7 do. 8 Sure, we can take away lives. 9 But is this -- this bill, this hastily put 10 together bill that has all kinds of questions - 11 I went through just the back half of it, those 12 procedural steps that I hadn't had before, I've 13 got question marks all over it -- is this the 14 best we can do for the people of this state? 15 It's the best we can do in two 16 hours with our debate cut off, our opportunity 17 for amendments cut off because the Majority 18 wants to meet its political agenda. But don't 19 anyone kid themselves. This is not the best 20 that the Senate can do for the people of the 21 state of New York. 22 I vote no. 23 THE PRESIDENT: Continue the slow 1510 1 roll call, please. 2 THE SECRETARY: Senator Espada. 3 SENATOR ESPADA: No. 4 THE SECRETARY: Senator Farley 5 voting in the affirmative earlier today. 6 Senator Galiber voting in the 7 negative earlier today. 8 Senator Gold voting in the 9 negative earlier today. 10 Senator Gonzalez. 11 (There was no response. ) 12 Senator Goodman. 13 SENATOR GOODMAN: Yes. 14 THE SECRETARY: Senator Hannon. 15 SENATOR HANNON: Yes. 16 THE SECRETARY: Senator Hoblock. 17 SENATOR HOBLOCK: Yes. 18 THE SECRETARY: Senator 19 Hoffmann. 20 SENATOR HOFFMANN: Yes. 21 THE SECRETARY: Senator Holland. 22 SENATOR HOLLAND: Yes. 23 THE SECRETARY: Senator Johnson. 1511 1 SENATOR JOHNSON: Yes. 2 THE SECRETARY: Senator Jones. 3 SENATOR JONES: No. 4 THE SECRETARY: Senator Kruger. 5 SENATOR KRUGER: Yes. 6 THE SECRETARY: Senator Kuhl. 7 SENATOR KUHL: Yes. 8 THE SECRETARY: Senator Lack. 9 SENATOR LACK: Aye. 10 THE SECRETARY: Senator Larkin 11 voting in the affirmative earlier today. 12 Senator LaValle. 13 SENATOR LAVALLE: Yes. 14 THE SECRETARY: Senator Leibell. 15 SENATOR LEIBELL: Yes. 16 THE SECRETARY: Senator 17 Leichter. 18 SENATOR LEICHTER: No. 19 THE SECRETARY: Senator Levy. 20 SENATOR LEVY: Aye. 21 THE SECRETARY: Senator Libous. 22 (There was no response. ) 23 Senator Maltese. 1512 1 SENATOR MALTESE: Aye. 2 THE SECRETARY: Senator Marchi. 3 SENATOR MARCHI: No. 4 THE SECRETARY: Senator 5 Markowitz. 6 SENATOR MARKOWITZ: Ever so 7 briefly. I know that we'll debate this issue 8 again in the very, very near future. This issue 9 each year, sometimes twice a year, is like a 10 kidneystone. It's like a gall bladder attack. 11 It's like a root canal that we don't want. 12 In a perfect world, we wouldn't 13 have to face this issue. If Christ, Moses and 14 Mohammed would appear on earth, I pray to the 15 Lord that that would happen and cleanse all of 16 us and save all of us human beings, that would 17 be the best -- the best that can possibly 18 happen. 19 There's no amount of refinement 20 on this bill that can possibly cure for those 21 that are against the death penalty. There is no 22 bill that can be presented, in my opinion, to 23 those of my colleagues, Republicans and 1513 1 Democrats, that are vehemently opposed to the 2 state's right to take a life, and so I respect 3 your desire to make an imperfect bill as perfect 4 as an imperfect bill can be, meaning that none 5 -- none -- no bill can be presented that can 6 dissuade you from your particular opinion. 7 I wish this wasn't an issue, but 8 the fact of the matter is we live in this kind 9 of society in which there are human beings born 10 and raised, not necessarily because of their 11 home life. Maybe it's something in the air, I 12 don't know, that somehow causes someone to begin 13 a life of anti-social behavior that, quite 14 frankly, my colleagues, exhibits a complete 15 disrespect for life. 16 There is such crimes that I 17 believe call out for our society's right to 18 impose the maximum sentence, and I recognize 19 that there are few arguments that I could 20 present that can possibly change the mind of 21 those that are opposed to this death penalty. 22 Suffice it to say this, that I 23 believe and the only reason why I support this, 1514 1 Senator Montgomery, and some other of my 2 colleagues, is that the great majority of crime 3 in our state is caused by people in the 4 minorities on fellow minorities. There's no 5 question that every statistic reluctantly bears 6 that out; and so I look upon the imposition of 7 the death penalty not only to bring justice, 8 justice to African-American families in our 9 society that are -- that the end result is that 10 are receiving the greatest amount of crime on 11 themselves, their families and their 12 communities, not only for that reason but also 13 as I hope in a way to save -- to save the lives 14 of African-Americans, Latinos and others in our 15 society, to save their lives once and for all, 16 to say to that one person that black life is 17 equal to white life. Black life is worth no 18 less than white life. We are equal. The days 19 of slavery are over. The days of discrimination 20 are over. 21 Yes, there is some racism; there 22 is no question there is some racism in our 23 society. I'm not going to deny that. There is 1515 1 also anti-Semitism in our society, anti-Asian 2 feeling in our society. I can go on and on, but 3 I believe that, as a society, we have to make a 4 statement and the statement is to save lives. 5 If the imposition of the death 6 penalty can be implemented in our state, if we 7 can get the message across to young people 8 regardless of their ethnic and racial 9 backgrounds, regardless, to value life, to value 10 life, to know that, if they commit the ultimate 11 sentence, the ultimate crime, that they have to 12 be prepared to give up their own, perhaps then 13 we will slowly begin to see a restoration of 14 respect for life of the value of life. 15 Perhaps I'm wrong, perhaps I'm 16 right. This is an issue. I've read every 17 statistic there is, Senator Leichter, every 18 statistic there is. We can make statistics go 19 this way or that way to prove that it is a 20 deterrent or not a deterrence. 21 I wish this wasn't an issue. I 22 wish we didn't have to vote on it. I wish that 23 violent crime did not happen in our society. I 1516 1 hope and pray that in my lifetime and in yours 2 that this issue will become a non-issue, that in 3 fact there will be elimination of death and a 4 restoration of value of life. 5 I vote yes. 6 THE PRESIDENT: Continue the slow 7 roll call. 8 THE SECRETARY: Senator Mendez 9 voting in the negative earlier today. 10 Senator Montgomery. 11 SENATOR MONTGOMERY: To explain 12 my vote, Mr. President. 13 Just briefly, I certainly can 14 agree with Senator Markowitz that my community 15 is plagued with crime and my constituents are 16 victimized far more than many other communities 17 across this state, but I don't believe for one 18 minute that this death penalty addresses the 19 crime in my district, and I do not believe for 20 one minute that this -- this death penalty is 21 going to stem the tide in the kind of crime that 22 takes place on constituents in my district by 23 other constituents in my district. 1517 1 So, while I certainly agree with 2 Senator Markowitz, I wish that Jesus and 3 Mohammed and Moses would come, but until that 4 happens, I don't believe that we should put 5 ourselves in a position to be judge, and I 6 certainly agree with Senator Marchi about his 7 quote from the Bible that I believe in as well, 8 that God is the judge of all of us. 9 So I vote no, Mr. President. 10 THE PRESIDENT: Continue the slow 11 roll call, please. 12 THE SECRETARY: Senator Nanula. 13 SENATOR NANULA: No. 14 THE SECRETARY: Senator 15 Nozzolio. 16 SENATOR NOZZOLIO: Aye. 17 THE SECRETARY: Senator Onorato. 18 SENATOR ONORATO: Aye. 19 THE SECRETARY: Senator 20 Oppenheimer voting in the negative earlier 21 today. 22 Senator Padavan. 23 SENATOR PADAVAN: Yes. 1518 1 THE SECRETARY: Senator 2 Paterson. 3 SENATOR PATERSON: On January 4 25th of this year, there was an execution that 5 was rather significant. It was an execution of 6 a white American for the murder of a black 7 American, and in the 258 executions that had 8 preceded it since 1963 there had only been one 9 such case, and that involved a contract 10 killing. 11 In the history of the United 12 States, there has never been an execution of a 13 white American for the death of a Latino 14 American. 15 Now, the reason I cite these 16 statistics is because, although African 17 Americans are 40 percent of the deaths in 18 murders in this country, they are only 13 19 percent of the murders where the murderer 20 received an execution. So the price of the life 21 is not only that related to the individual who 22 is executed, some of the racial discrimination 23 involves the price of the life that is lost and 1519 1 the vigorousness with which it is prosecuted. 2 Senator Montgomery said earlier 3 that in North Carolina prosecutors sought the 4 death penalty 78 percent of the time when the 5 victim is white and only 39 percent of the time 6 when the victim is black. As long as we have 7 this kind of polarization in the administration 8 of justice, I feel that the death penalty is not 9 accurate. And I finally would close -- I mean 10 that the death penalty is really not relevant. 11 And I would just close by saying 12 that when Governor Pataki signed the declaration 13 allowing Mr. Grasso to go to Oklahoma, he 14 fulfilled his fantasy because Mr. Grasso wants 15 to die. He considers the life without parole to 16 be a torture. 17 There have been a number of 18 heinous crimes described by advocates for the 19 death penalty today. I'm sure if you talked to 20 the perpetrators, the life without parole would 21 be the torture that we would all admit that they 22 deserve. 23 Thank you, Mr. President. 1520 1 THE PRESIDENT: Continue the roll 2 call, please. 3 THE SECRETARY: Senator Present. 4 SENATOR PRESENT: Aye. 5 THE SECRETARY: Senator Rath. 6 SENATOR RATH: Aye. 7 THE SECRETARY: Senator Saland. 8 SENATOR SALAND: Aye. 9 THE SECRETARY: Senator 10 Santiago. 11 SENATOR SANTIAGO: No. 12 THE SECRETARY: Senator Sears. 13 SENATOR SEARS: Aye. 14 THE SECRETARY: Senator Seward. 15 SENATOR SEWARD: Yes. 16 THE SECRETARY: Senator Skelos. 17 SENATOR SKELOS: Yes. 18 THE SECRETARY: Senator Smith. 19 SENATOR SMITH: Madam president, 20 I'm pleased to join with the New York State 21 Criminal Justice Alliance, the New Yorkers 22 Against the Death Penalty, the New York State 23 Bar Association Criminal Justice Section, the 1521 1 Women's Bar Association of the State of New 2 York, the New York State Catholic Conference, 3 the New York Civil Liberties Union, the 4 Association of the Bar of the City of New York, 5 the Committee on Civil Rights, the New York 6 State Council of churches and the Interfaith 7 Impact in opposing this bill. 8 THE PRESIDENT: Continue the roll 9 call, please. 10 THE SECRETARY: Senator Solomon 11 voting in the affirmative earlier today. 12 Senator Spano. 13 SENATOR SPANO: Aye. 14 THE SECRETARY: Senator 15 Stachowski. 16 SENATOR STACHOWSKI: Yes. 17 THE SECRETARY: Senator Stafford 18 voting in the affirmative earlier today. 19 Senator Stavisky excused. 20 Senator Trunzo. 21 SENATOR TRUNZO: Yes. 22 THE SECRETARY: Senator Tully 23 voting in the affirmative earlier today. 1522 1 Senator Velella. 2 (There was no audible response. ) 3 Senator Volker. 4 SENATOR VOLKER: Yes. 5 THE SECRETARY: Senator Waldon. 6 (Negative indication. ) 7 THE SECRETARY: Senator Wright. 8 SENATOR WRIGHT: Aye. 9 THE PRESIDENT: Absentees. 10 THE SECRETARY: Senator 11 Gonzalez. 12 SENATOR GONZALEZ: No. 13 THE SECRETARY: Senator Libous. 14 SENATOR LIBOUS: Aye. 15 THE PRESIDENT: The results, 16 please. The results, please. 17 THE SECRETARY: Ayes 39, nays 18 18. 19 THE PRESIDENT: This death 20 penalty bill is passed. 21 SENATOR LEICHTER: Mr. 22 President. 23 THE PRESIDENT: Senator Bruno. 1523 1 SENATOR LEICHTER: Madam 2 President, may I have unanimous consent to be 3 recorded in the negative on Calendar Number 62 4 which passed earlier today. 5 THE PRESIDENT: Without 6 objection. 7 Senator Levy has a motion. 8 SENATOR LEVY: Yes. Madam 9 President, on page 6, I offer the following 10 amendments to Calendar Number 77, Senate Print 11 328, and ask that it retain its place on the 12 Third Reading Calendar. 13 THE PRESIDENT: Amendments 14 received. 15 Senator Bruno. 16 SENATOR BRUNO: Madam President, 17 there being no further business to come before 18 the Senate, I move we stand adjourned until 19 tomorrow at 3:00 p.m. sharp. 20 THE PRESIDENT: Without 21 objection, the Senate stands adjourned. 22 (Whereupon at 7:02 p.m., the 23 Senate adjourned.)