Death Penalty Turnaround

New York is poised to make history today, becoming the first state to effectively do away with the death penalty since capital punishment returned to the criminal justice system in the mid-1970s.

The reasons for this shift in attitude are myriad. A spate of revelations of wrongful convictions, including the exoneration of 13 death row inmates in Illinois, has focused on the impossibility of drafting a law so airtight that it would never catch an innocent person in its clutches. Growing majorities of New Yorkers have told pollsters that they prefer life without parole as the maximum sentence for those convicted of the most heinous crimes.

I was always opposed to the death penalty, but it unexpectedly became intensely personal for me in 1995 when my wife, Linda, first suspected that the man known as the Unabomber could be my brother, Ted. I knew Ted was mentally ill, but I never saw him as violent. Yet when newspapers across the country published his manifesto, it was clear to us that Ted was most likely the Unabomber.

I was faced with a dilemma that even in retrospect seems overwhelming. If I turned my brother in, I knew there was the possibility he would face execution. If I did nothing, I knew there was a likelihood that another innocent person would die as a result of his actions.

The only promise I received from the federal agents I worked with to capture my brother in his Montana cabin was that they would keep our family’s involvement secret, a promise that was not kept.

But even as we successfully fought to keep Ted from getting the death penalty, I learned of many other cases of families who couldn’t keep loved ones off death row, loved ones who committed murders but also suffered from mental illness and didn’t have access to the lawyers and attention that Ted’s case drew.

Those cases included Californian Bill Babbitt, whose brother, Manny, a decorated Vietnam War veteran who wrestled with demons similar to my brother’s, was convicted of killing an elderly woman in Sacramento. Bill, who has become my close friend, had to undergo the trauma of watching his brother executed at San Quentin prison.

Here in New York, the death penalty was reinstated in 1995 in a law that was meant to meet the U.S. Supreme Court’s requirement that states create statutes that it would not be “cruel and unusual.” At that time, Gov. George Pataki took office after unseating Mario Cuomo in a campaign in large part aimed at Cuomo’s annual veto of pro-death penalty legislation. Pataki and the legislature quickly enacted the new death penalty law.

Then last June, the state’s highest court declared a portion of that law unconstitutional. The state Senate quickly passed a fix proposed by Pataki. However, the Assembly, where 75 of the 150 members were not present in 1995, launched hearings, and it is expected that a committee will vote today against the proposed fix -- leaving New York without a death penalty.

Many of the same legislators who wanted the death penalty in the past are likely to vote against it now. It is a measure of how much has changed in the intervening years that few of them appear to fear retribution from voters.

The hearings were remarkable for the passion and clarity of the arguments. In addition to anti-death penalty activists and religious leaders, witnesses included exonerated death row inmates, murder victims’ families and district attorneys -- even some who personally favor a death penalty but called it unworkable and too expensive.

Particularly compelling was the revelation that, in the last 10 years, New York state has spent an estimated $200 million on capital-crime prosecutions -- on a special defenders’ office, prosecutors’ training, the building and staffing of a death row and other costs. Only seven death sentences were handed down; no one has been executed.

New York is not alone in having second thoughts on the death penalty. As monitored by Equal Justice USA -- an advocacy group aligned with the anti-death penalty Quixote Center -- New Mexico, Connecticut, Illinois and Kansas are all reexamining their death penalty laws. In California, the state Senate has stepped up to establish a commission that, once funded, will begin the process there.

What is significant is that as in New York, the debate over the unfairness, unworkability and high cost of the death penalty is taking place with little evidence that politicians fear retribution from their constituents.

We in New York have learned that we can live without the death penalty. We hope that the rest of the country learns what we have learned.