Monday, March 6, 1995

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