The Hearings in Albany

by Katy Chevigny

Beth Davenport, the Deadline Outreach Coordinator, and I headed to Albany this past Monday night, June 24th, to watch the hearings on capital punishment in the state capital and to present Deadline in a public screening at the Albany Public Library. We had already attended one of the New York City hearings and were interested to see what the hearings might be like in another part of the state.

Many of the witnesses at the hearings mentioned that this is the first time that the public has been given opportunity in an open forum to give their two cents to the legislature on this issue. In 1995, when the death penalty was reinstated in New York, there were no public hearings, and many of the witnesses complained on Tuesday of that fact. So in light of the historic nature of the hearings, it is great that they’ve been so well-attended. I wish there was more coverage of them --- so far the New York Times has only covered the first day of hearings in NYC to my knowledge.

The hearing room in Albany was packed. Many people had come from far and wide in the state, and several others had come from across the country to testify. Bill Kurtis, A&E’s American Justice host and author of “Death Penalty On Trial”, flew all the way from L.A. to testify that after decades of supporting the death penalty, he had been forced to change his mind as a result of living in Illinois during the last several years as the evidence of the flaws in the system have come to light. Kathryn Kase, one of four lawyers working for the Texas Defender Association, traveled 1800 miles from Houston to warn the New York State Assembly not to make the same mistakes Texas had and to take this opportunity to get rid of the death penalty once and for all. As in New York City, the bulk of the people who testified at the hearings in Albany did not support the death penalty in any form.

Some testimony highlights included David Kaczynski, Executive Director of New Yorkers Against The Death Penalty, who spent a great deal of time telling his very moving and unusual story. He described how in the mid-nineties he and his wife began to wonder with dread if it was possible that the Unabomber could be his brother, Ted. He had to choose between endangering his brother’s life, by alerting the FBI to his concerns, knowing that should be his brother be convicted he might well face the death penalty, or possibly endangering other innocent people who might be the victims of future bombings should he not intervene. He eventually did call the FBI, Ted was captured and convicted, and David and his family were relieved that a plea bargain spared him the death penalty, giving him a sentence of life without parole. David testified that if he and his family had had to see Ted executed, he’s not sure his family would have emotionally survived the ordeal of Ted’s conviction. He also added that law enforcement officers violated the confidentiality they had promised David and his family, causing the media to expose a number of details that David and his mother had shared with the FBI. In addition, a psychiatrist who was later discredited was brought to the witness stand by the prosecution to testify that mental illness did not cause Ted’s acts. In response to a question from the Assembly members, David stated very cogently that the state should ask itself how much money should be spent on an experiment? – that experiment being the ongoing effort to create a truly fair capital punishment system. Don’t we want to spend resources on other things in New York State?

Witness after witness argued that there was no way to fully protect the state from executing the innocent. Governor Ryan’s decision to question the system was referred to dozens of times throughout the day. Clearly, the number of exonerations in recent years have caused more than just Bill Kurtis and Scott Turow to change their tune. Humans have turned out to be more fallible than almost anyone thought possible. Also interestingly, many witnesses mentioned the problem of overambitious prosecutors overstepping their bounds in order to seek the death sentence in cases. One Assemblyman, David Townsend, asked Gerald Kogan, a retired justice from the Florida Supreme Court, whether or not he thought that the apparent infallibility of DNA could help create a new system in which only the guilty were sentenced to death. Kogan responded that DNA only applied in a very small number of cases and wouldn’t protect against problems in the bulk of convictions. Kaczynski added that there have been mounting scandals at crime labs around the country, from Oklahoma to Houston to the FBI’s crime lab. Again, the DNA may not lie, but humans sure can. They keep doing it and there’s no reason to think they’ll stop.

Dick Dieter, the master statistician from the Death Penalty Information Center, chose an unusual tack for his remarks, focusing them almost exclusively on the costs associated with the death penalty. He made a very logical argument, that was also clearly intentional in its nonpartisan nature, that went as follows: capital punishment is intended to promote justice and to make the community safer. Having capital punishment in your state means sacrificing money that could be spent on other public safety programs. The only way to have a capital punishment system that is fair and/or constitutional is to spend money to make it work: on capital defenders services, separate trials for guilt and for sentencing, etc. He referred to the 85 recommendations made by the Illinois Commission on Capital Punishment. All of these reforms have costs associated with them. He quoted a very recent study in North Carolina which found that it costs the state $2.16 million extra per death penalty case. So he essentially recommended that the Assembly not be naïve about the budgetary concerns that are part and parcel of the question. And by the way, in terms of cost, more than one witness testified on the latest numbers from Florida on relative costs – this is from Bishop Jack McKelvey in Rochester: Life imprisonment costs $516,000 and it costs $3.2 million to bring someone to execution.

Michael Green, the DA from Monroe County, was one of the few witnesses who came out to support the death penalty. Even he, however, reserved his most passionate remarks to appeal to the Assembly to do something, and do it soon. He said that for prosecutors and defenders alike, having the state’s statute in limbo was making it harder for them to proceed with due process. In particular, not knowing whether or not there will be a death penalty law on the books in the coming months makes it harder for prosecutors to prepare their cases (capital trial preparations are much more complex and require different staffing) and that victims’ families were also confused about how the case might move forward. He also argued that in New York prosecutors show restraint in seeking the death penalty, and that it is only reserved for that favorite group, “the worst of the worst”.

I could go on and on. I think one of the most salient points that Dieter and others mentioned, which I think we can’t ignore forever is this: states without the death penalty by and large have lower homicide rates that those that don’t. And what’s even more interesting: the difference in homicide rates between the two types of states is growing. Looks like two sides of the same coin to me.
My impression of the Assembly is that they are seriously considering introducing a new statute to bring capital punishment back, but they want guidance on how to do it better than before. By “better” I think they may just be looking for a statute which is more narrowly defined.

After the hearings, David Kaczynski and I held a question and answer session after the Deadline screening at the Albany Public Library. The great thing about some public libraries, like this one, is the link the library sets up between the community, the library staff and the resources of the building and its contents. In this case, John Cirrin from the Library introduced the film by referring to the Albany Public Library’s strong commitment to freedom of speech and how their large auditorium was dedicated to use by the community for a wide range of purposes. Dennis Mosley runs The Albany Independent Film Forum at the Library, which has a loyal group of regulars. Venues like this are some of the most vital forums for public discussion in the country. The audience stayed after the film for almost an hour – until the library closed at 9:00 (how great that it stays open so late!) – and David and I answered dozens of thoughtful questions about policy and background on the issue. I gotta tell ya --- from my perspective, this is when you’re glad you did so much research on the issue for all those years before the film was finished! There are so many times when I think about how many articles and books I read about Furman, the death penalty today, crime and punishment --- and related topics like Kathleen Cleaver’s book about the Black Panthers – and so little of that information gets into the final film! I will admit I have my moments, wondering, did I really need to read all that stuff? Wasn’t that kind of a waste of time? But when you get a very inquisitive, detail-oriented audience interested in public policy like we had in Albany, it makes me glad I can talk for hours about all kinds of other issues related to capital punishment. One audience member asked why we thought it was that the European countries had taken such a strong stance against the death penalty but that Americans still seemed to really be attached to it. I love that question (with the right audience) because I get to mention that book I loved, Franklin Zimring’s “The Contradictions of American Capital Punishment”. I gave the over-simplified version, of course, of his very complex answer, which I will further simplify here to say that Zimring argues that Americans have a cultural attachment to vigilantism as a way of dealing with violent offenders on the local level and that this attachment doesn’t have a cultural parallel in Europe. In addition, Zimring includes fascinating charts of careful analysis of the states and localities that recorded the highest numbers of lynchings from the late nineteenth century through the 1920’s. He found an uncanny statistical connection between the numbers of executions today and the high incidence of lynching 100 years ago. Again, this is a tradition that is, as some might say, peculiar to the United States. The bloodthirsty outraged community is not so far back in our past.

Many people in the audience were interested in what was going on in New York State and wanted to get more involved. David let them know that many of the Assemblymen are very unsure what New Yorkers want and that it would be a good use of their time to let their legislators know their thoughts.

Posted by Angela at 12:19 PM

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