Edition: U.S. / Global

Law Professors Give State Court A Novel Theory On Executions

Published: May 6, 2002


The brief, signed by 19 law professors who oppose the death penalty, asserts that new research about events in the 1840's shows that the State Constitution's ban on cruel and unusual punishment was intended to give the state's top judges special authority to limit capital punishment. The law professors made the argument in the death penalty case that reaches the state's Court of Appeals on Monday.

Legal experts say the professors' argument is a novel way of framing the court battle over New York's current death penalty, which was enacted in 1995.

''It is planting a seed that these are arguments that have to be considered in a very serious way,'' said James R. Acker, a death penalty expert at the University at Albany who is not part of the law professors' group.

The professors' claims are drawing strong opposition from lawyers working to sustain the death penalty. If it is accepted, the professors' interpretation would effectively free the judges to make their own judgments about the acceptability of capital punishment, even though it was approved by the Legislature.

The case to be argued Monday is an appeal by Darrel K. Harris, a convicted multiple murderer.

It is the first appeal of a death sentence since the court struck down New York's last death penalty law in 1984, and is expected to be the first of many capital punishment appeals.

Other legal experts say there are few definitive records about why the ban on cruel and unusual punishments was added to the State Constitution in 1846. As a result, the growing battle over its meaning is being fought through differing interpretations of history.

Lawyers for the state attorney general and the Brooklyn district attorney say there is no evidence to support the professors' interpretation.

Jonathan L. Frank, the lead appellate lawyer for the prosecution in the Harris case, said that the Constitution itself undermines the professors' argument because it refers to capital punishment in several places.

A brief filed by the attorney general, Eliot Spitzer, notes that New York had capital punishment long before and after the 1846 provision was adopted.

But the law professors say the political atmosphere surrounding the 1846 constitutional convention shows the state's ban on cruel and unusual punishment was intended specifically to take battles over the death penalty ''out of the theater of political judgment.''

In the decade before the convention, the law professors say, the public was angered by what a new penny press portrayed as unfair death sentences and commutations based on favoritism.

The year after the convention, a State Assembly committee condemned the ''odious inequalities'' of capital punishment.

Rather than ban capital punishment, the professors said, the constitutional convention adopted the provision, to permit the Court of Appeals to review the acceptability of the death penalty measured against the shifting values of the times. The court was established in its present form at the same time.

The law professors' argument, raised in a supplemental brief, is an effort by opponents of execution to overcome a major legal hurdle. The United States Supreme Court has rejected arguments that capital punishment is inherently cruel and unusual under the United States Constitution. Many judges and lawyers have assumed that the provision barring cruel and unusual punishment in the New York Constitution had the same meaning as the federal provision.

Even if the court avoids the issue raised by the professors in Mr. Harris's appeal by deciding the case on other grounds, death penalty lawyers say the claim about the 1846 provision has become part of the long-term strategy of opponents of capital punishment in the state.

Though the brief was prepared for the Harris case, lawyers say it has already been filed in at least half a dozen other cases around the state.

The law professors' brief is attracting attention partly because its primary author, Anthony G. Amsterdam, has been known as one of the leading anti-death-penalty legal strategists from coast to coast since the 1970's.

''The fact that the most famous and respected death penalty advocate in the last 30 years has done this is extremely important,'' said Norman L. Greene, the chairman of the committee on capital punishment of the City Bar Association.

Among the prominent law professors who signed the brief are James S. Liebman and Jack Greenberg of Columbia Law School, Bryan A. Stevenson of N.Y.U. Law School and Ursula Bentele of Brooklyn Law School.

Mr. Amsterdam is a former winner of a MacArthur Foundation genius award and a nationally known law professor at N.Y.U. He argued the landmark 1972 case in which the Supreme Court struck down the generation of death penalty laws then in effect. That decision, Furman v. Georgia, set the stage for a new generation of death penalty laws across the country that divide capital cases into two phases. The first determines guilt or innocence. The second phase involves whether to impose a death sentence according to certain legal criteria.

Mr. Amsterdam, who is now 66, has been a leading architect of strategies against the death penalty in courts from coast to coast ever since Furman was decided.

At his Manhattan office last week, Mr. Amsterdam said the research for the brief took more than two years and involved professors from several law schools and about 30 law students.

Besides traditional legal sources, he said, the professors had the students do research in New York City and Albany about the political and legal atmosphere surrounding the 1846 convention.

What they uncovered, he said, was a surprising history of public dismay about execution and the criminal justice system in the 1840's. They found legislative reports urging abolition of the death penalty and extensive news accounts about death sentences that caught the public imagination.

One involved a man who had drawn public sympathy with claims of self-defense in an 1841 murder case and shot himself with a smuggled pistol on the eve of his execution. Another involved two rent protesters who had been in a mob when a sheriff was shot in 1845 and were sentenced to death even though prosecutors essentially conceded they could not be sure who had fired the fatal shot, according to the law professors' account.

As they pieced the information together, Mr. Amsterdam said, he and several other law professors concluded that the context of the times explained why the 1846 constitutional convention adopted the cruel and unusual punishments provision. A similar convention 25 years earlier found adoption of such a provision unnecessary in New York.

''It suddenly struck us,'' Mr. Amsterdam said, ''that the unique set of circumstances in New York in the 1840's had created a debate about the death penalty that was 150 years ahead of its time.''

Eventually, he said, the law students produced cartons of photocopies of materials from the 1840's.

Lawyers who have read the brief say it could give the Court of Appeals judges an unconventional lesson in constitutional history. But Aaron Edward Carlos, a lawyer who helped research 160-year-old news clippings when he was a law student, said he learned a different lesson from working with Mr. Amsterdam on the brief.

''One thing I learned from Tony,'' he said, ''is you do what you need to do to make a case.''