Death rides again in New York

New York State, home of the liberal-minded, has voted to reintroduce capital punishment. David Usborne discovers why

In a small park at the base of the Albany Capitol - an imposing, turreted structure of grey stone and slate - lay the debris of a day's agitation. It was an unusually morbid assortment: several mock coffins, some papier mch death-masks, as well as a 10ft cardboard syringe, all starkly outlined against the snow.

The demonstrators came mostly to protest against cuts in education spending, but within their ranks was an angry minority who waved their coffins and death masks. They came to Albany to voice their outrage at an imminent transformation in the traditionally liberal-minded state of New York: the reintroduction of capital punishment.

This week has been dubbed "Death Week" in Albany, the seat of New York State government, 180 miles north of Manhattan. A few hours after the demonstrators dispersed, members of the state Senate voted heavily in favour of a bill to reintroduce capital punishment for murder, the 38th state to do so since the US Supreme Court re-endorsed the constitutionality of the death penalty in 1976. The legislature's other chamber, the Assembly, is expected to pass its own version of the law as early as today. Within a few days a consensus bill is likely to be worked out by the two bodies and will then be sent to the Governor, George Pataki.

For Mr Pataki, that will be a thrilling moment. With a stroke of his pen this week or next, the Governor will bring a state that for most of this century has symbolised all that is most generous and tolerant in American society into the company of others with no such liberal tradition. "Don't Make the Empire State the Vampire State" read one of the protestors' banners, but too late.

The return of the executioner to New York seems sudden - Pataki has been in office for only two months - but support for capital punishment is deeply ingrained in the state. New York abolished the death penalty in 1972 and last executed a criminal in 1963, but the Albany legislature is well-practised at debating and approving death penalty bills; it has done so in every one of the past 18 years. Each time, however, they were instantly vetoed by the governors - Mario Cuomo for the past 12 years, and before him Hugh Carey. Cuomo and Carey, both Democrats, were opposed to capital punishment as a matter of conscience. Indeed, in his final months in office Mr Cuomo was the last figure on America's national political stage willing to take the risk of speaking out publicly against the death penalty.

Not so Mr Pataki, who made reintroduction of capital punishment a principal plank of his election campaign against Mr Cuomo last year. Mr Pataki, a Republican in the mould of Newt Gingrich, the Speaker of the House, tapped a seam of voter discontent when he promised dramatic cuts in taxes and a tough stance on crime. His support for the death penalty paid dividends for him, precisely because he, not the veteran Mr Cuomo, was on the right side of popular sentiment on the issue. Polls in New York state have shown that about 80 per cent of citizens favour the death penalty.

The support reflects an unassailable verity: that Americans are frustrated and frightened by the collapse of law and order and the high incidence of violent crime. Mr Pataki believes in deterrence and has promised that the death penalty "will save lives. Somebody who otherwise might pull the trigger on a merchant or a police officer will say, `I shouldn't do this'."

The power of the argument is acknowledged by Norman Siegel, director of the New York Civil Liberties Union. People believe what the Governor is saying, he admits, even when close scrutiny of capital punishment in other states not only casts doubt on its effectiveness as a deterrent, but also raises troubling questions about the cost, both to the taxpayer and in terms of racial and social discrimination.

"In some way vengeance has come out of the woodwork," Mr Siegel says. "People may even agree it doesn't deter crime, but more and more they are saying to me, `You're right, but it doesn't matter'. Clearly it's about revenge and retribution. I never thought it would happen in this state."

Mr Siegel leads the opposition to the death penalty, but admits that it is too late to try to stop the bills from passing. He plans to dedicate himself and his organisation to giving people the other side of the story.

Both camps can muster statistics to support their cases. Even so, there is no clear evidence that where the death penalty has been reintroduced in America any reduction in violent crime has followed. Rather, the states with the highest homicide rates tend also to be those where the death penalty is available to courts.

Rates of murder and violent crime have been dropping steeply in New York state where capital punishment has not been available, a point emphasised by the Manhattan District Attorney, Robert Morgenthau. Noting that the number of homicides in New York City fell from 648 in 1975, when he became DA, to 330 last year, he said: "Prosecutors must reveal the dirty little secret they too often share only among themselves: the death penalty actually hinders the fight against crime."

While Mr Pataki has suggested that executing criminals, rather than keeping them for years on death row, will save the state money, most studies suggest that the opposite will be true. This is principally because of the high cost of the appeals procedure before execution and, as is usually the case, providing the inmates with public defenders. Researchers at Duke University in North Carolina recently concluded that for each capital case that ended in execution, the bill to the taxpayers was at least $2m more than for cases where life imprisonment was imposed.

"To many people, the notion that the death penalty costs money is counter- intuitive," the researchers wrote. "Common sense says that it's cheaper to supply a few jolts of electricity than to shell out the equivalent of tuition at Harvard for incarceration for the next 20 years. But when all the costs are weighed, just the opposite is true."

Evidence continues to accumulate, meanwhile, that in imposing the death penalty American courts are swayed by racial discrimination. Most startling are findings that what matters in particular is the race not of the defendant, but of the victim. The overwhelming majority of people executed in the US in the past 18 years - 85 per cent - were convicted of murdering white people. Only 11 per cent had killed a black person. A 1990 review of 28 studies on race and the death penalty compiled by an office of Congress said: "In 82 per cent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty." It said that the trend was "remarkably consistent".

Most potent, however, in the minds of those opposed to capital punishment is the danger that the state might execute someone who is innocent. A recent Stanford Law Review study suggests that this century in the US there have been 350 cases of wrongful convictions in capital cases, of which 23 led to execution; of those, eight were in New York.

The state's electric chairs, collectively tagged "Old Sparky", will not be brought out of mothballs when the new legislation is signed. Mr Pataki, who is reportedly considering selling them at auction to raise money for the state, has proposed instead that lethal injections be used, on the grounds that these are more humane. Already the state corrections department has sought advice from Missouri on the best procedures for administering death intravenously. While the method appears to be less grisly than electrocution, hanging, the gas chamber or the firing squad - all of which have been used in the US - New York officials are aware that even with injections things can can go awry. A curtain had to be drawn around the prone body of John Wayne Gacy during his execution by lethal injection in Illinois last year when one of the drips clogged and stopped flowing. Doctors later blamed prison wardens for failing to follow proper procedures.

New York prisons should take their time learning the new technique. Mr Siegel and other anti-death penalty groups plan to challenge the law in the courts. The move is unlikely to work. However, in California, which reinstated the death penalty 18 years ago, it was 15 years before anyone was executed because cases took so long to get through the exhaustive appeals procedure.

By the time anyone is fatally injected in this state, Mr Pataki may no longer be in office. But for now he will be happy. Barely has he stepped inside the door of the Governor's mansion and his election death wish is about to come true.