District Attorney's Viewpoint
Death Penalty/Life Without Parole

Statement Regarding
New Death Penalty/Life Without
Parole Law in New York State
(March 7, 1995)
Letter to Governor Pataki
(March 20, 1996)
Statement on
The Impact of
The Death Penalty/Life
Without Parole Law
(March 31, 1998)

Statement (March 7, 1995)

While the law enacted today reinstates the death penalty in New York, far more significant is its feature that permits a sentence of life without parole for the first time in our state’s history. Since this law confers upon me the discretion to seek either sentence, I wish to make my policy clear regarding the exercise of that discretion.

I was raised by loving parents who instilled in me an intense respect for the value and sanctity of human life. As a result, I have devoted my life to the criminal justice system. During more than 20 years in that system, I have seen the devastation inflicted by those guilty of horrible crimes. I have felt the rage and thirst for vengeance which all but consumed the victims and their families. I understood the desire of many of them to "throw the switch" themselves. But I have also personally witnessed the devastation of those wrongfully accused. As an assistant district attorney, I convicted a defendant of intentional murder. He was released after his brother later plead guilty to committing the crime. Would even a brother come forward to save an innocent man if the consequence was death? And if he didn't, who would have been able to "throw the switch" back?

Those familiar with the criminal justice system know that the surest deterrents to crime are the probability of conviction and the certainty of punishment. However, under our system of justice the death penalty neither can nor should be mandatory. Consequently, it is highly uncertain that the penalty actually will be imposed by a jury in a given case, that its application will be fair, that the sentence will be upheld on appeal, that the defendant will be executed and that others will be deterred. Moreover, the price of this uncertainty is enormous given the cost in time and resources of trials and appeals in death penalty cases. Clearly, this money could be better spent on providing more judges and courtrooms so that more defendants could be brought to trial more quickly. The money could also be better spent on valuable and broadly-based crime-fighting and crime prevention programs, including reducing the flow of illegal guns, incarcerating more violent criminals and providing more assistance for crime victims. While these programs may not provide the visceral gratification of the death penalty, they will do a lot more to improve the quality of our lives.

For all of these reasons, while I will exercise my discretion to aggressively pursue life without parole in every appropriate case, it is my present intention not to utilize the death penalty provisions of the statute.



Letter to Governor Pataki
March 20, 1996

Hon. George E. Pataki
Executive Chamber
Albany, NY 12224

Dear Governor Pataki:

In your letter of March 19, you say "The death penalty is the law of New York," and you ask for my assurance that I do not have a policy against that penalty.

As to your statement, let’s be clear that the death penalty is no more the law of New York than is the penalty of life imprisonment without parole. The statute in no way suggests that a sentence of death is the "better" or "presumptive" choice.

As to your question, let’s be clear about what I have said about the option to seek death. I have not taken a "position in opposition to the death penalty." Rather, I have enumerated concerns highlighted by personal experiences about the use and application of this option. And, as you certainly know, my original statement -- made over a year ago, repeated many times since and still unchanged -- left the door ajar, however slightly, to exercise this option in the Bronx.

Your statements regarding the decision-making process to be utilized by the District Attorneys fail to acknowledge the reality of my concerns. The imposition of the death penalty in any case is uncertain; the process is lengthy, costly and complex; the penalty has not been shown to be a deterrent in states where it exists; its application has been subject to political pressure; its utilization has been tied to race; and of course the penalty is irreversible despite the possibility of mistake. In my view, these concerns must factor into every District Attorney’s decision in every case involving murder in the first degree. Anything less is irresponsible.

You say that "No one, including a District Attorney, can substitute his or her sense of right and wrong for that of the Legislature." Quite frankly, Governor, that is precisely what you are trying to do. You know that the United States Supreme Court has declared that the death penalty cannot and should not be mandatory. You know, having signed Chapter 1 of the Laws of 1995, that New York’s law is not mandatory and was drawn carefully to comply with the Supreme Court’s declarations. You know that by making the death penalty discretionary the Legislature was giving District Attorneys another tool, not an order to use it. You know, in fact, that the penalty of life imprisonment without parole -- now available for the first time in the history of this state -- may actually be said to have been the Legislature’s preference as against the death penalty, because the death penalty may only be imposed if a District Attorney affirmatively seeks it and notice of intent to do so may be withdrawn at any time, but in first degree murder cases the sentencing option of life imprisonment without parole can never be withdrawn from the court’s consideration. Despite knowing all of this, however, you were reportedly already "demanding" the death penalty within hours of the killing of Police Officer Kevin Gillespie, while my office was devoting all of its energies and resources to investigating the facts and circumstances of this brutal crime. So much for the legislative determination that a District Attorney has 120 days from indictment to exercise the statutory option to seek death in any given case.

The message you are sending to all District Attorneys is a form of "Don’t ask, don’t tell." Because I wanted my constituents to know my concerns about the death penalty option before they cast a vote to re-elect me, you have seen fit to impose deadlines and ultimatums on me, to make no secret of your "will" to supersede me and to ask me a question which you have apparently not asked a single other District Attorney. Even many of those who disagree with me regarding the use and application of the statute, agree with me that your heavy-handed approach to imposing your will is tantamount to the disenfranchisement of the voters of the Bronx.

Be assured, if you need to hear it, I will fully comply with the oath and obligations of my Office.

  Yours truly,
  Robert T. Johnson
  Bronx County District Attorney




Statement on
The Impact of The Death Penalty/Life Without Parole Law
(March 31, 1998)

Since September 1, 1995, New York State law has allowed a prosecutor to seek a sentence of death or life imprisonment without the possibility of parole in certain extraordinary cases of intentional murder (Murder in the first degree). In evaluating the impact of this law, I believe the people of our communities should consider the following:

  • 28 Murder 1 jury trials have gone to verdict in this state since the enactment of the law. In each of them the prosecutor sought a sentence of life imprisonment without parole.

  • Of the 28 defendants tried, 19 were found guilty of Murder 1.

  • Both Murder 1 cases in the Bronx that went to trial resulted in conviction of the defendants, and sentences of life without the possibility of parole..

  • 19 other defendants throughout the state have been sentenced to life imprisonment without parole upon conviction (by plea or verdict) of Murder 1.

  • No defendant has yet been sentenced to death and, until last month, no Murder 1 trial in which a prosecutor sought the death penalty had even commenced anywhere in New York State.

  • For the last 8 years - beginning well before the enactment of the death/life without parole law - the number of homicides in the Bronx has steadily and significantly declined: 653 (1990); 554 (1991); 547 (1992); 512 (1993); 400 (1994); 304 (1995); 249 (1996); and 196 (1997).

Since 1993, crime in general in the Bronx has declined by nearly 43%. The number of homicides has declined by 70% since 1990. While crime has decreased across the country in recent years, and the NYPD has done an excellent job in this city, I firmly believe that my office has contributed substantially - with a variety of strategies - to the decline of crime in the Bronx. Foremost among these are our plea policy, our gun policy, our prosecution of drug gangs and our sentencing policies which resulted in the highest number of felony convictions culminating in prison sentences of any prosecutor's office in New York State.

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