THE NEW YORK death penalty statute should be stricken under Art. 1, ��5 and 11 of the New York Constitution because it fosters arbitrary sentencing and imposes unequal risks of execution on defendants for reasons having to do with the location of the crime and the race of the victim and/or the defendant.
Under the New York statute, capital murder defendants are exposed to a substantial risk of arbitrariness in death sentencing decisions at all stages of the process. The risk is particularly high, however, at the point where three critical decisions are made: (1) whether to charge first- or second-degree murder; (2) whether to seek the death penalty once the choice is made that a case should be charged as first-degree murder; and (3) whether to accept a plea or reject it and continue to pursue a death sentence. These decisions are made by the prosecutor alone – without guidance, review or oversight.
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