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Testimony by Marsha Weissman

Executive Director, Center for Community Alternatives (CCA)
Before the New York State
Assembly Standing Committee on Codes,
Assembly Standing Committee on Judiciary and
Assembly Standing Committee on Correction

February 8, 2005

Good morning to the Chairs and the committee members here today. Before I begin, I would like to thank you for holding these hearings on the death penalty in New York State and your willingness to carefully and thoughtfully consider the issue of the reinstatement of the death penalty. I appreciate the opportunity to appear before the you. I am speaking on behalf of the Center for Community Alternatives, also known as CCA.

CCA is a private not-for-profit agency that has worked for more than 20 years to reduce reliance on incarceration. Through programs and research we promote community-based solutions to crime. Part of our work involves death penalty mitigation, and since New York State revised its death penalty law in 1995, CCA has been appointed as the mitigator in more than 50 cases.

Our position in opposition to the reinstatement of the death penalty grows out of this work as mitigation specialists.

Mitigation work involves the telling of the life stories of people who are facing the death penalties. Most of the stories that we have chronicled are those of tragedy and cruelty that began when our clients were children. These circumstances do not excuse murder but do help to explain circumstances that contribute to capital crimes.

Best intentions notwithstanding, New York State’s death penalty statute does not and could never ensure that this ultimate penalty is imposed with absolute fairness or accuracy. Despite New York’s efforts to craft a “just” death penalty statute, the implementation of the law in our state looks a lot like other places in the country and reflects racial disparities and disparities based upon geography. Our analysis of cases brought in New York State through 2003 shows that geography plays a significant role in the application death penalty in New York State. Of the 44 cases in New York where defendants faced the death penalty, 26 came from upstate New York. Thus , while Upstate accounts for only 19 percent of the state’s homicides, it represents 61 percent of cases facing the death penalty. Three counties account - Brooklyn (7), Monroe (5) and Suffolk (3) account for 35 percent of death penalty cases and half of the people sentenced to death are from Suffolk County. With respect to the race of defendants, 59 percent initially charged with death penalty crimes in New York were African American, 21 percent Latino and 20 percent white. Fifty six percent of cases with death notices filed were African American or Latino and 42 percent of people on death row are African American or Latino.

These sorts of inequities, and the number of people sentenced to death across the country who were subsequently found to be innocent, have contributed to a change in public opinion about the efficacy of the death penalty. There is no longer a clamor for the death penalty in New York State — public opinion polls show greater support for non capital punishments such as life without parole. There is growing awareness that the death penalty does not deter crime - a study done in 2000 by the New York Times shows that states with the death penalty experience 50 to 100 percent higher murder rates than states without the death penalty.

The cost of the death penalty, particularly at a time of state budget crises, also erodes support for the death penalty. We have already spent more than $ 170 million dollars on the death penalty in New York State. Because of work in death penalty mitigation, CCA has received some of these funds. Yet I can assure you that the expert services fees we have earned as mitigators would be better spent on other services such as education, prevention, family support – services that do more to prevent crime than capital punishment, than on prosecuting and defending death penalty cases.

There are a myriad of reasons to do away with the death penalty in New York State. As I have just noted, it is imposed unevenly – in some jurisdictions and not others, it is costly, it is not a deterrent to crime, and it is subject to human error and therefore can and does result in the conviction and/or execution of innocent people.

In addition to these reasons, it is our work as mitigators, as those who are expected to learn, understand and tell the life stories of the accused, that forms the core of our opposition to the death penalty. It is not to disrespect or discount the loss suffered by the victims of murder, but death penalty work unveils the pain and suffering of families on both sides. Our mitigation work has brought us into the secrets of American life— the families with histories of unspeakable trauma, untreated mental illness, physical and sexual abuse, abject poverty and desperation – conditions that were neglected or ignored until murder forced us to pay attention. Capital punishment in many ways is a means to sidestep what we previously ignored.

Capital punishment perpetuates what Craig Haney, Stanford University law professor and psychologist, has called the “myth of demonic agency”, allowing us to deny the humanity of people who commit heinous crimes. Capital defendants become “non people” – without context, life connections, social relationships, basic human needs, wants or hardships. Yet our work as mitigators belies this effort. Capital defendants are indeed people, and tragically we as a state, community, people, have helped to shape their horrific, but all too human, behavior.

There are certainly enough pragmatic concerns to argue against the reinstatement of the death penalty in New York — the cost, the disparity and the eventuality that New York too will make a mistake and condemn an innocent person to death. We at CCA also believe that moral issues should also be considered as well. New York State should not engage in the immoral act of taking a life. We should not be complicit in perpetuating the myth of demonic agency.

Thank you for holding this hearing on this important topic.