Establishes the intentional killing of a child as murder in the first degree, may be cited as "Nixzmary Brown's Law"

BILL NUMBER:S2659

Title of bill

An act to amend the penal law, in relation to enacting Nixzmary's law

Purpose

This bill establishes the intentional killing of a child as murder in the first degree, may be cited as "Nixzmary's Brown's Law."

Summary of provisions

Section 1 establishes that the act shall be known and may be cited as "Nixzmary's Law."

Section 2 Subparagraph (x) of paragraph (a) of section 125.27 of the penal law is amended to eliminate "depraved" from the definition of torture.

Section 3 Subparagraph (b) of subparagraph (xiii) of paragraph (a) of subdivision 1 of section 125.27 of the penal law is amended to include a new subparagraph (1-a) that adds that a person over the age of eighteen years who acts with the intent to cause physical harm to a child twelve years or less (a) acts in an especially cruel and wanton manner (b) inflicts harm upon the child and (c) such harm causes or leads to the death of the child should be included under the rubric of murder in the first degree.

Existing law

Current state law reserves first-degree murder charges - which carry life in jail without parole - for those who kill police officers, judges and correctional officers, as well as homicides with multiple victims and murderers who prosecutors can prove acted in a "depraved" manner. According to the current statute, the charge of first-degree murder would be used if "the defendant relished the infliction of extreme physical pain..or... evidenced a sense of pleasure in the infliction of extreme physical pain." Under this definition, prosecutors are faced with an unreasonable burden of proof in demonstrating that a defendant tortured his or her victim. In addition, current law states that when an adult is convicted of murdering a child, life without parole is not mandatory unless he or she is also convicted of rape, criminal sexual act, sexual abuse, aggravated sexual abuse or incest toward that child. A defendant who abuses a child to the point of death, as in the recent case in Brooklyn involving the stepfather of seven-year-old Nixzmary Brown, could only be charged with second-degree murder, which carries a maximum penalty of 25 years in prison.

Justification

The murder of a child not only robs the victim of a future, but also tears away at the very fabric of a community, causing pain and

anguish to families and all decent people. It is unconscionable that any defendant who murders a child could someday be released from prison. This bill makes killing and torturing a child an additional criterion for a first degree murder charge, allowing murderers of children to receive the top penalty of life without the possibility of parole, and also eliminates the need for prosecutors to demonstrate the defendant's "sense of pleasure" in committing the act. Proving a particular emotion is extremely difficult to do and should play no part in mitigating this heinous crime. It should therefore be possible to bring charges of torture against a defendant without having to prove that he or she enjoyed inflicting physical pain on the victim. Amending the criteria for a first-degree murder charge to include murderers of children will address the pervasive problem of child abuse in our society and recognizes the murder of a child as a crime worthy of the most severe penalty available under New York State law. This bill will also serve as a deterrent and prevent future tragedies from occurring at the expense of innocent children.

Fiscal implications

None.

Effective date

This act shall take effect immediately.