A "Commonsense" Theory of Deterrence and the "Ideology" of Science: The New York State Death Penalty Debate

By Galliher, James M.; Galliher, John F. | Journal of Criminal Law and Criminology, Fall 2001 | Go to article overview

A "Commonsense" Theory of Deterrence and the "Ideology" of Science: The New York State Death Penalty Debate


Galliher, James M., Galliher, John F., Journal of Criminal Law and Criminology


Capital punishment is one of the most contentious public policy debates in the United States. While surviving since colonial times, (1) the debate has become especially heated since the U.S. Supreme Court decision in Furman v. Georgia in 1972. (2) In that decision, the Supreme Court outlawed executions as then practiced due to the arbitrary and capricious manner in which they had been administered. (3) Most states rushed to reinstate capital punishment statutes they hoped would pass constitutional review. In the equally historic decision of Gregg v. Georgia in 1976. (4) the Supreme Court cleared the way for the resumption of legal executions by approving death penalty statutes containing "guided discretion" provisions. Actual executions began again on January 17, 1977 after a ten-year hiatus with the execution of Gary Gilmore in Utah. (5)

The states that led the movement to restore capital punishment typically had long traditions of executions, especially those states of the former Confederacy. (6) Zimring and Hawkins argued that:

   [A] history of frequent executions ... serves as a kind of precedent,
   reassuring political actors that their own participation is neither
   inhumane nor immoral ... on the grounds that, historically, executions do
   not violate local community morality. (7)

And, based on local experience, it wasn't only southern states that rushed to enact new death penalty laws. New York is a case in point. According to the Espy file on executions. (8) New York ranked second among American states in the number of legal executions prior to Furman with 1,130 executed between 1630 and 1963. Correspondingly, polls of New York state legislators in the 1980s and 1990s indicated that a majority supported capital punishment. (9) We will demonstrate in this Article that the New York State Senate and Assembly debated death penalty bills for nineteen consecutive years beginning in 1977.

Kansas is another American state having had a protracted death penalty debate. In the Kansas State Legislature, the death penalty was annually debated between 1975 and 1993. Capital punishment bills typically only passed both houses of the legislature when a death penalty opponent was governor who promised to veto all death penalty bills. (10) Some legislators apparently felt they could support death penalty initiatives only when sure of a gubernatorial veto. (11) In 1994 the legislature passed a death penalty bill during the term of a capital punishment opponent who, contrary to precedent, allowed the bill to become law without her signature. (12)

In New York from 1977 to 1995, we will show that during each of these nineteen legislative sessions, the New York Assembly and Senate debated death penalty bills and passed them, by large margins, only to have the bills vetoed by Democratic governors (Hugh Carey, 1975-1983 and Mario Cuomo, 1983-1994). During some sessions, the Senate was successful in overriding the governor's veto while the assembly's efforts always fell short by only a few votes. George Pataki, elected Governor in 1994, fulfilled a campaign promise when he signed a death penalty bill into law on March 7, 1995, (13) making New York the thirty-eighth and most recent state to do so.

I. STATEMENT OF THE PROBLEM

This research will consider the principal claims and counterclaims made by death penalty supporters and opponents, as well as document the manner in which these claims were advanced or refuted. The nineteen-year debate provides a natural laboratory that can assist our understanding of why the United States is the only Western industrialized democracy to retain capital punishment. As Zimring has observed: "The ongoing debate in New York was the most visible and sustained at any level of government in the United States since 1980." (14) With a population of approximately eighteen million, New York is among the most populous of American states and its cities have the problems of urban decay, poverty, and crime found in other states. …

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