Prosecutorial discretion and the death penalty: Creating a committee to decide whether to seek the death penalty

Fordham Law Review

Volumn 65, Issue 6, 1997, Pages 2571-2609

  Horowitz, John A ^a  

^a NONE

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EID: 2242428960     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (305)

1. The power of a New York Governor to supersede a district attorney is granted by statute. See N.Y. Exec. Law § 63(2) (McKinney 1993). This law states that the attorney general shall: Whenever required by the governor, attend in person, or by one of his deputies, . . . for the purpose of managing and conducting . . . criminal actions or proceedings as shall be specified in such requirement; in which case the attorney-general or his deputy so attending shall exercise all the powers and perform all the duties . . . which the district attorney would otherwise be authorized or required to exercise or perform; and . . . the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney-general or the deputy attorney-general so attending. Id.
2. In New York, a first degree murder conviction requires that the defendant be older than eighteen years of age and that: (1) the intended victim was a police officer; or (2) the intended victim was a peace officer; or (3) the intended victim was an employee of a state correctional institution; or (4) he was confined in a state correctional institution; or (5) the intended victim was a witness to a crime and killed to prevent his testimony; or (6) the defendant committed the killing pursuant to an agreement; or (7) the defendant killed the victim while committing an enumerated felony; or (8) the defendant, with intent to cause serious physical injury or death, caused the death of another person not part of the criminal transaction; or (9) the defendant has a prior conviction of murder; or (10) the defendant acted in an especially cruel and wanton manner inflicting torture upon the victim; or (11) the defendant intentionally caused the death of two or more persons within a twenty-four month period; or (12) the intended victim was a judge. N.Y. Penal Law § 125.27 (McKinney 1987 & Supp. 1997).
3. Exec. Order No. 27 (1996) (on file with the Fordham Law Review).
4. Id. Governor Pataki wrote: Whereas, a District Attorney who has instituted a blanket policy not to seek the death penalty violates his obligation to make informed, reasoned decisions on a case-by-case basis and thereby violates as well his sworn obligation to uphold the laws of this State. In addition, such a failure to exercise discretion must command my attention, for it implicates my sworn obligations to take care that the laws are faithfully executed, support the Constitution and faithfully discharge my duties as Governor. Id. at 2.
5. James Dao, Vacco Seeks Death Penalty in Police Officer's Shooting, N.Y. Times, July 10, 1996, at B3.
6. See Johnson v. Pataki, No. 1714/96, slip op. (N.Y. Sup. Ct. July 9, 1996) (on file with the Fordham Law Review).
7. Id. at 69; Johnson v. Pataki, N.Y. L.J., Mar. 24, 1997, at 1 (N.Y. App. Div. Mar. 20, 1997).
8. See infra notes 88-102 and accompanying text.
9. See Rachel L. Swarns, Governor Removes Bronx Prosecutor from Murder Case, N.Y. Times, Mar. 22, 1996, at A1 (writing that Governor Pataki recognized his use of supersedure was extraordinary).
10. See infra notes 186-90 and accompanying text.
11. Johnson, slip op. at 54-55.
12. Id. at 17-18.
13. See infra notes 15-19 and accompanying text.
14. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1523-24 (1981). Vorenberg's definition also includes the lack of judicial review over a prosecutor's discretion. Id. It was omitted in this Note because of the judiciary's inability to solve these discretionary problems. Discretion affords prosecutors the power to independently make the important decisions in every phase of the prosecutorial process. See Kenneth J. Melilli, Prosecutorial Discretion in an Adversary System, 1992 B.Y.U. L. Rev. 669, 671-72, Because this Note focuses on the decision to seek the death penalty, the discretion at issue concerns only the decision of what sentence to seek. All other discretionary decisions in the capital punishment context, such as the aggravating circumstances the government will seek to prove or whether to allow the defendant to plead guilty in return for a sentence of life without parole, should remain with prosecutors.
15. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1523-24 (1981). Vorenberg's definition also includes the lack of judicial review over a prosecutor's discretion. Id. It was omitted in this Note because of the judiciary's inability to solve these discretionary problems. Discretion affords prosecutors the power to independently make the important decisions in every phase of the prosecutorial process. See Kenneth J. Melilli, Prosecutorial Discretion in an Adversary System, 1992 B.Y.U. L. Rev. 669, 671-72, Because this Note focuses on the decision to seek the death penalty, the discretion at issue concerns only the decision of what sentence to seek. All other discretionary decisions in the capital punishment context, such as the aggravating circumstances the government will seek to prove or whether to allow the defendant to plead guilty in return for a sentence of life without parole, should remain with prosecutors.
16. See, e.g., United States v. Armstrong, 116 S. Ct. 1480, 1486 (1996) (finding prosecution generally to be within the exclusive domain of prosecutors); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (same); Confiscation Cases, 74 U.S. 454, 457 (1868) (same); Joan E. Jacoby, The American Prosecutor: A Search for Identity 3 (1980) [hereinafter Jacoby, American Prosecutor] ("The American prosecutor enjoys an independence and discretionary privileges unmatched in the world.").
17. See Jacoby, American Prosecutor, supra note 15, at 28-29. For an in-depth state-specific description regarding these provisions see Earl H. De Long & Newman F. Baker, The Prosecuting Attorney: Provisions of Law Organizing the Office, 23 J. Crim. L. & Criminology 926 (1933).
18. Jacoby, American Prosecutor, supra note 15, at 30-36; Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 730-31 (1996).
19. See Misner, supra note 17, at 731.
20. See Jacoby, American Prosecutor, supra note 15, at 28.
21. See William F. McDonald, The Prosecutor's Domain, in The Prosecutor 15, 35-36 (William F. McDonald ed., 1979).
22. See Frank W. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 159-61 (1970) (noting that in cases where prosecutors explain why less then maximum enforcement was sought, they must show that the distribution of available resources proves good faith policy of enforcement); Sarah J. Cox, Prosecutorial Discretion: An Overview, 13 Am. Crim. L. Rev. 383, 413 (1976) (recognizing that limited resources creates need for prosecutorial discretion); Joan E. Jacoby, The Charging Policies of Prosecutors, in The Prosecutor, supra note 20, at 75, 91-94 [hereinafter Jacoby, Charging Policies] (stating that funding may affect prosecutor's cause of action).
23. See Frank W. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 159-61 (1970) (noting that in cases where prosecutors explain why less then maximum enforcement was sought, they must show that the distribution of available resources proves good faith policy of enforcement); Sarah J. Cox, Prosecutorial Discretion: An Overview, 13 Am. Crim. L. Rev. 383, 413 (1976) (recognizing that limited resources creates need for prosecutorial discretion); Joan E. Jacoby, The Charging Policies of Prosecutors, in The Prosecutor, supra note 20, at 75, 91-94 [hereinafter Jacoby, Charging Policies] (stating that funding may affect prosecutor's cause of action).
24. See Frank W. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 159-61 (1970) (noting that in cases where prosecutors explain why less then maximum enforcement was sought, they must show that the distribution of available resources proves good faith policy of enforcement); Sarah J. Cox, Prosecutorial Discretion: An Overview, 13 Am. Crim. L. Rev. 383, 413 (1976) (recognizing that limited resources creates need for prosecutorial discretion); Joan E. Jacoby, The Charging Policies of Prosecutors, in The Prosecutor, supra note 20, at 75, 91-94 [hereinafter Jacoby, Charging Policies] (stating that funding may affect prosecutor's cause of action).
25. See William F. Wessel, From Cracker Barrel to Supermarket: Taking the Country out of Prosecution Management, in The Prosecutor, supra note 20, at 137, 138-39 (recommending that prosecutors in larger jurisdictions establish specific policies to deal with expanding case loads).
26. See Misner, supra note 17, at 746 ("Most states' legislatures, by creating too many policy choices, have effectively abdicated public policy-making to the prosecutor . . . .").
27. See William T. Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform, 54 Ohio St. L.J. 1325, 1338 (1993). In all but five states (Alaska, Connecticut, Delaware, New Jersey, and Rhode Island), the district attorney is popularly elected. See Jacoby, Charging Policies, supra note 21, at 95 n.2.
28. See William T. Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform, 54 Ohio St. L.J. 1325, 1338 (1993). In all but five states (Alaska, Connecticut, Delaware, New Jersey, and Rhode Island), the district attorney is popularly elected. See Jacoby, Charging Policies, supra note 21, at 95 n.2.
29. See Jacoby, Charging Policies, supra note 21, at 77; Misner, supra note 17, at 763 (asserting that prosecutors use resources efficiently or risk losing reelection).
30. See Jacoby, American Prosecutor, supra note 15, at 47 ("[T]he prosecutor is a locally elected official and, as such, must reflect the values and norms of the community if he is to attain (and retain) office."); Kathryn Abrams, Relationships of Representation in Voting Rights Act Jurisprudence, 71 Tex. L. Rev. 1409, 1423 (1993) ("The prosecutor has at least a formal obligation to hear the concerns of her constituents, and her discretion gives her an avenue through which to apply these concerns to her task."); Pizzi, supra note 24, at 1337-38.
31. See Jacoby, American Prosecutor, supra note 15, at 47 ("[T]he prosecutor is a locally elected official and, as such, must reflect the values and norms of the community if he is to attain (and retain) office."); Kathryn Abrams, Relationships of Representation in Voting Rights Act Jurisprudence, 71 Tex. L. Rev. 1409, 1423 (1993) ("The prosecutor has at least a formal obligation to hear the concerns of her constituents, and her discretion gives her an avenue through which to apply these concerns to her task."); Pizzi, supra note 24, at 1337-38.
32. See Pizzi, supra note 24, at 1343-44.
33. See Vorenberg, supra note 14, at 1558.
34. Id. at 1559. Vorenberg's solution is to have prosecutors announce rationales for their decisions. Id. This, however, fails to resolve the struggle between the governor and the district attorney or the problem of having one person decide whether to seek the death penalty. In New York, District Attorney Johnson announced why he refused to seek the death penalty, and was subsequently superseded by Governor Pataki. It can be argued, therefore, that by announcing his rationales for not seeking the death penalty, Johnson exacerbated, rather then solved, the discretionary problems.
35. See Dwight L. Greene, Abusive Prosecutors: Gender, Race & Class Discretion and the Prosecution of Drug-Addicted Mothers, 39 Buff. L. Rev. 737, 777 (1991) ("[T]he public is generally not very sophisticated about the prosecutor's role in the criminal justice system.").
36. See Charles P. Bubany & Frank F. Skillern, Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13 Am. Crim. L. Rev. 473, 473-75 (1976).
37. Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America: Direct and Judicial Access to the Grand Jury as Remedies for Victims of Police Brutality when the Prosecutor Declines to Prosecute, 53 Md. L. Rev. 271, 294 (1994) (arguing that this protection is a facade because most of the decision-making process is kept private).
38. See Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433, 450 (1995) ("The most important decisions that may determine whether the accused is sentenced to die are those made by the prosecutor.").
39. See Thomas Johnson, When Prosecutors Seek the Death Penalty, 22 Am. J. Crim. L. 280, 280 (1994) (noting the impact media portrayal of case has on prosecutors' decision to seek the death penalty); E. Michael McCann, Opposing Capital Punishment: A Prosecutor's Perspective, 79 Marq. L. Rev. 649, 669 (1996) (noting that some prosecutors may seek death penalty to gain media attention).
40. See Thomas Johnson, When Prosecutors Seek the Death Penalty, 22 Am. J. Crim. L. 280, 280 (1994) (noting the impact media portrayal of case has on prosecutors' decision to seek the death penalty); E. Michael McCann, Opposing Capital Punishment: A Prosecutor's Perspective, 79 Marq. L. Rev. 649, 669 (1996) (noting that some prosecutors may seek death penalty to gain media attention).
41. For a discussion on the Supreme Court's treatment of the death penalty generally, see David Hesseltine, Comment, The Evolution of the Capital Punishment Jurisprudence of the United States Supreme Court and the Impact of Tuilaepa v. California on that Evolution, 32 San Diego L. Rev. 593 (1995).
42. 428 U.S. 153 (1976).
43. Id. at 195. The defendant had alleged that Georgia's death penalty statute resulted in arbitrary and capricious sentences due to the sentencer's discretion. Id. at 200. The Court held that by requiring a jury to consider both the circumstances of the crime and the criminal in deciding whether to seek a sentence of death, the Georgia legislature successfully eliminated any arbitrariness in sentencing. Id. at 197-98.
44. Id. at 199. The duties of a Georgia prosecutor include "prosecut[ing] all indictable offenses." Ga. Code Ann. § 15-18-6(4) (1994 & Supp. 1996). Georgia's death penalty statute does not, however, provide criteria to direct prosecutors in determining which defendants against whom to seek the death penalty. See Ga. Code Ann. § 16-5-1 (1996). Prosecutors, therefore, have unbridled authority to select when to seek the death penalty against defendants accused of first degree murder.
45. Gregg, 428 U.S. at 199; see also Proffitt v. Florida, 428 U.S. 242, 254 (1976) (confirming Gregg that prosecutorial discretion did not invalidate state death penalty statute); Jurek v. Texas, 428 U.S. 262, 274 (1976) (same).
46. See Campbell v. Kincheloe, 829 F.2d 1453, 1465 (9th Cir. 1987) (noting that the argument that a death penalty statute is unconstitutional due to unbridled prosecutorial discretion "has been explicitly rejected by the Supreme Court" (citations omitted)), cert. denied, 488 U.S. 948 (1988).
47. See, e.g., Kenneth C. Davis, Discretionary Justice: A Preliminary Inquiry 188-91 (1969) [hereinafter Davis, Discretionary Justice] (attacking American prosecutorial discretion and its basic assumptions); Vorenberg, supra note 14, at 1554 ("The existence and exercise of prosecutorial discretion are inconsistent with the most fundamental principles of our system of justice and our basic notions of fair play and efficient criminal administration."). But see Pizzi, supra note 24, at 1329 (stating that "a defense of the American prosecutor has been long overdue").
48. The Supreme Court has repeatedly stated that the death penalty, despite its constitutionality, should receive special treatment because "death is different." See Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion) ("In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different." (citations omitted)) ; Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (plurality opinion) ("From the point of view of the defendant, [death] is different in both its severity and its finality."); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion) ("[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long."). Whether the Supreme Court still adheres to this mantra has been questioned in light of recent habeas corpus decisions. See Diane Wells, Federal Habeas Corpus and the Death Penalty: A Need for a Return to the Principles of Furman, 80 J. Crim. L. & Criminology 427, 449-65 (1989) ("Regardless of the Court's earlier assertions that death is a unique penalty, therefore entitling capital defendants greater procedural protections than noncapital defendants, the Court has recently indicated a willingness to abandon this concern.").
49. See Davis, Discretionary Justice, supra note 41, at 188; Cox, supra note 21, at 418; Vorenberg, supra note 14 at 1525.
50. See supra note 43.
51. John H. Langbein, Controlling Prosecutorial Discretion in Germany, 41 U. Chi. L. Rev. 439, 440 (1974).
52. See Miller, supra note 21, at 184 (noting that prosecutors do not enforce certain laws, such as prohibition, adultery, and fornication); Aubrey M. Cates, Jr., Can We Ignore Laws? - Discretion Not to Prosecute, 14 Ala. L. Rev. 1, 3-6 (1961) (describing laws in Alabama which society would not enforce); Greene, supra note 30, at 738 (stating that "prosecutors choose which laws to enforce, how to enforce them, and whom they should be enforced against."); Sidney I. Lezak & Maureen Leonard, The Prosecutor's Discretion: Out of the Closet - Not Out of Control, 63 Or. L. Rev. 247, 248 (1984) (labelling Sunday closing and gambling laws as examples).
53. See Miller, supra note 21, at 184 (noting that prosecutors do not enforce certain laws, such as prohibition, adultery, and fornication); Aubrey M. Cates, Jr., Can We Ignore Laws? - Discretion Not to Prosecute, 14 Ala. L. Rev. 1, 3-6 (1961) (describing laws in Alabama which society would not enforce); Greene, supra note 30, at 738 (stating that "prosecutors choose which laws to enforce, how to enforce them, and whom they should be enforced against."); Sidney I. Lezak & Maureen Leonard, The Prosecutor's Discretion: Out of the Closet - Not Out of Control, 63 Or. L. Rev. 247, 248 (1984) (labelling Sunday closing and gambling laws as examples).
54. See Langbein, supra note 45, at 451 (noting that financial pressures, due to "overcriminalization," are so great that "hardly a serious American writer on criminal law" fails to call for decriminalization of some crimes); Vorenberg, supra note 14, at 1525 (describing how increase of crimes without additional resources forces prosecutors to consider financial issues when deciding whether to charge).
55. See Miller, supra note 21, at 179-85 (citing extradition as an example where the decision whether to proceed is directly influenced by the amount of resources available to prosecutors); Langbein, supra note 45, at 451 ("Prosecutorial discretion is largely a resource question.").
56. See infra part II.C for a full discussion.
57. Stewart F. Hancock, Jr. et al., Race, Unbridled Discretion, and the State Constitutional Validity of New York's Death Penalty Statute - Two Questions, 59 Alb. L. Rev. 1545, 1563 (1996).
58. Id.; see also John S. Edwards, Professional Responsibilities of the Federal Prosecutor, 17 U. Rich. L. Rev. 511, 522 (1983) (urging prosecutors not to allow personal considerations to affect choosing who to charge); McCann, supra note 34, at 668 ("The danger arises . . . that the prosecutor will be guided not by the appropriate legal considerations of a particular case but rather by extraneous pressures . . . ."); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 58 (1991) (noting that prosecutors' discretion "creates a risk that prejudice or self-interest will govern [their] decisions").
59. Id.; see also John S. Edwards, Professional Responsibilities of the Federal Prosecutor, 17 U. Rich. L. Rev. 511, 522 (1983) (urging prosecutors not to allow personal considerations to affect choosing who to charge); McCann, supra note 34, at 668 ("The danger arises . . . that the prosecutor will be guided not by the appropriate legal considerations of a particular case but rather by extraneous pressures . . . ."); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 58 (1991) (noting that prosecutors' discretion "creates a risk that prejudice or self-interest will govern [their] decisions").
60. See supra note 51.
61. See supra notes 24-32 and accompanying text.
62. See Jacoby, American Prosecutor, supra note 15, at 275-78 (recognizing that different environments within a state affect prosecutors decisions).
63. See Pizzi, supra note 24, at 1343-44.
64. See Jacoby, American Prosecutor, supra note 15, at 276 (noting that different types of crimes are committed in urban, suburban, and rural areas and that prosecutors' actions reflect the norms of these various communities); Pizzi, supra note 24, at 1344 (stating that "it is almost guaranteed that prosecutors who are elected in highly rural counties will have quite different constituencies and will face very different criminal problems from those prosecutors elected in heavily urban counties").
65. See supra note 26 and accompanying text.
66. This importance was highlighted in the 1994 gubernatorial race where one in five voters cited the death penalty as the most important issue of the election. See Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Additionally, four out of five Pataki voters supported the death penalty. See Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6.
67. This importance was highlighted in the 1994 gubernatorial race where one in five voters cited the death penalty as the most important issue of the election. See Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Additionally, four out of five Pataki voters supported the death penalty. See Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6.
68. See infra part IV.A.
69. See Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 Fordham L. Rev. 851, 861 (1995) (stating that a prosecutor requires discretion to effectively perform duties); Melilli, supra note 14, at 674 (acknowledging consensus that prosecutorial discretion is inevitable in our criminal system); Murray R. Garnick, Note, Two Models of Prosecutorial Vindictiveness, 17 Ga. L. Rev. 467, 470 (1983) (noting that criminal justice system requires broad prosecutorial discretion).
70. See Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 Fordham L. Rev. 851, 861 (1995) (stating that a prosecutor requires discretion to effectively perform duties); Melilli, supra note 14, at 674 (acknowledging consensus that prosecutorial discretion is inevitable in our criminal system); Murray R. Garnick, Note, Two Models of Prosecutorial Vindictiveness, 17 Ga. L. Rev. 467, 470 (1983) (noting that criminal justice system requires broad prosecutorial discretion).
71. One example is Manhattan District Attorney Robert Morganthau, who while publicly announcing his opposition to the death penalty has nevertheless said there might be cases where he would apply the statute. By clearly denying a refusal to ever seek the death penalty, Morganthau has thus far successfully avoided the scrutiny that has plagued District Attorney Johnson. See Jan Hoffman, Death Penalty Raises Issue of Obligation of Prosecutor, N.Y. Times, Mar. 17, 1996, at 33, 35. In the future, public pressure may force Morganthau to seek the death penalty if faced with a particularly gruesome case.
72. See supra note 58.
73. One could argue that the decision reached in the Johnson case makes future executive orders to supersede straightforward. Even so, costs still exist in transferring the case from the district attorney's office to the attorney general. In addition, the time lost in moving the case could be significant because the state has only 120 days to decide whether to seek the death penalty. See infra note 66.
74. See supra note 2.
75. N.Y. Penal Law § 60.06 (McKinney 1987 & Supp. 1997). The statute provides in part: "When a person is convicted of murder in the first degree . . . , the court shall . . . sentence the defendant to death, to life imprisonment without parole . . . or to a term of imprisonment for a class A-1 felony other than a sentence of life imprisonment without parole . . . ." Id.
76. Although the statute makes no mention of what factors to consider in seeking the death penalty, prosecutors have only 120 days to decide to whether to seek the death penalty. N.Y. Crim. Proc. § 250.40 (McKinney Supp. 1997). The statute states in pertinent part: 2. In any prosecution in which the people seek a sentence of death, the people shall, within one hundred twenty days of the defendant's arraignment . . . serve upon the defendant and file with the court . . . a written notice of intention to seek the death penalty. 3. [W]here the people file a notice of intent to seek the death penalty . . . the defendant shall be entitled to an additional sixty days for the purpose of filing new motions or supplementing pending motions. 4. A notice of intent to seek the death penalty may be withdrawn at any time by a written notice of withdrawal filed with the court and served upon the defendant. Once withdrawn the notice of intent . . . may not be refiled. Id.
77. Press Release, Office of the District Attorney of Bronx County, Statement of Bronx District Attorney Robert T. Johnson Regarding the Death Penalty in New York (Mar. 7, 1995) (on file with the Fordham Law Review).
78. Id.
79. Jan Hoffman, Prosecutor in Bronx, Under Fire, Softens Stand Against Executions, N.Y. Times, Mar. 20, 1996, at A1, B5.
80. Ian Fisher, Molinari Loses Race for District Attorney on Staten Island, N.Y. Times, Nov. 8, 1995, at B1, B4.
81. Matthew Purdy, 5 Are Killed by Gunman in Bronx Shoe Store, N.Y. Times, Dec. 20, 1995, at A1, B6.
82. Letter from George E. Pataki, Governor of New York, to Robert T. Johnson, Bronx District Attorney (Dec. 20, 1995) (on file with the Fordham Law Review).
83. Id.
84. Letter from Robert T. Johnson, Bronx District Attorney, to George E. Pataki, Governor of New York (Dec. 20, 1995) (on file with the Fordham Law Review).
85. Response from George E. Pataki, Governor of New York, to Robert T. Johnson, Bronx District Attorney (Dec. 20, 1995) (on file with the Fordham Law Review).
86. Id.
87. See Clifford Krauss, Officer Killed and Another Hurt in Carjacking Battle in the Bronx, N.Y. Times, Mar. 15, 1996, at A1.
88. See Clifford Krauss, 3 Men Held in Killing of Officer, Bringing Calls for Death Penalty, N.Y. Times, Mar. 16, 1996, at 1, 24. Under the New York first degree murder statute, a defendant is eligible for the death penalty if "the intended victim was a police officer." N.Y. Penal Law § 125.27(1)(a)(i) (McKinney Supp. 1997).
89. Letter from George E. Pataki, Governor of New York, to Robert T. Johnson, Bronx District Attorney (Mar. 19, 1996) (on file with the Fordham Law Review). The tone of this letter was much harsher then previous letters. Pataki wrote, "As Governor, I cannot permit any District Attorney's personal opposition to a law to stand in the way of its enforcement. No one, including a District Attorney, can substitute his or her sense of right and wrong for that of the Legislature." Id.
90. See id.
91. Letter from Robert T. Johnson, Bronx District Attorney, to George E. Pataki, Governor of New York (Mar. 20, 1996) (on file with the Fordham Law Review).
92. Id.
93. Id.
94. Exec. Order No. 27 (1996). The history of supersedure in New York is well-examined in Robert M. Pitler, Superseding the District Attorneys in New York City - The Constitutionality and Legality of Executive Order No. 55, 41 Fordham L. Rev. 517 (1973). Pitler concludes that "[t]he constitutional history of New York State demonstrates that a district attorney, despite his local election in the county in which he serves, is a state executive officer performing a state function and is therefore subject to the exercise of the governor's executive power." Id. at 545. This paper does not argue that the supersedure of District Attorney Johnson was unconstitutional, but rather that it fails to solve the discretionary problem; it simply effects an intra-executive branch transfer of this discretion.
95. See supra note 66.
96. Dao, supra note 5, at B3.
97. See supra note 1.
98. See Johnson v. Pataki, No. 1714/96, slip op. at 66-67 (N.Y. Sup. Ct. July 9, 1996) (on file with the Fordham Law Review) (holding that New York Governor has power to supersede a district attorney in a criminal matter); Pitler, supra note 84, at 522-27 (providing history of use of supersedure in New York).
99. See Pitler, supra note 84, at 519.
100. Id. at 520.
101. Id. at 522-27.
102. Id. at 523, 526. Governor Flower, however, did acknowledge that there may be cases "where, by reason of personal or local complications, the interests of a thorough and impartial prosecution demand that the Attorney-General should supersede the district attorney. . . . But they are rare, and resort to this statute, therefore, ought to be equally rare." 1894 Public Papers of Governor Flower 67.
103. See Pitler, supra note 84, at 524.
104. Id. at 524-25.
105. Id.
106. See B. Turecamo v. Bennett, 21 N.Y.S.2d 270, 275 (App. Div. 1940) (holding that governor's statutory supersedure power was constitutional).
107. 396 N.Y.S.2d 929 (App. Div.), aff'd, 373 N.E.2d 369, 369 (1977).
108. Id. at 930-31.
109. Id. at 931.
110. Id. (citations omitted).
111. Id. at 932-34 (stating that governors self-imposed limitations on their supersedure power "did not reflect any statutory compulsion nor an abdication by the governors to the courts, thereby permitting the courts to impose a burden of proof . . . that they have adhered to an appropriate executive standard" (citations omitted)).
112. Mulroy v. Carey, 373 N.E.2d 369, 369 (N.Y. 1977).
113. Mandamus is: a writ . . . which issues from a court of superior jurisdiction, and is directed to . . . an executive, administrative or judicial officer, or to an inferior court, commanding the performance of a particular act . . . or directing the restoration of the complainant to rights or privileges of which he has been illegally deprived. Black's Law Dictionary 961 (6th ed. 1990). For a history of mandamus see Kathryn A. Brown & Michael H. Shaut, Note, The Use of Mandamus to Control Prosecutorial Discretion, 13 Am. Crim. L. Rev. 563 (1976).
114. Mandamus is: a writ . . . which issues from a court of superior jurisdiction, and is directed to . . . an executive, administrative or judicial officer, or to an inferior court, commanding the performance of a particular act . . . or directing the restoration of the complainant to rights or privileges of which he has been illegally deprived. Black's Law Dictionary 961 (6th ed. 1990). For a history of mandamus see Kathryn A. Brown & Michael H. Shaut, Note, The Use of Mandamus to Control Prosecutorial Discretion, 13 Am. Crim. L. Rev. 563 (1976).
115. Johnson v. Pataki, No. 1714/96, slip op. at 1-2 (N.Y. Sup. Ct. July 9, 1996) (on file with the Fordham Law Review).
116. Id. at 1.
117. Id. at 17.
118. Id. at 18.
119. Id. at 19-20.
120. Id. at 20.
121. For a thorough discussion regarding the separation of powers doctrine, see Paul R. Verkuil, Separation of Powers, The Rule of Law and the Idea of Independence, 30 Wm. & Mary L. Rev. 301 (1989).
122. Johnson, slip op. at 31.
123. Id.
124. Id. at 32-33.
125. Id. at 33.
126. Id. at 51-52.
127. N.Y. Const. art. IV, § 3.
128. Johnson, slip op. at 53-55.
129. Id. at 65.
130. Id. at 67.
131. Id. at 66.
132. Id. One must question the likelihood that Attorney General Vacco had any choice but to seek the death penalty against Angel Diaz. Governor Pataki had expended significant political capital by superseding Johnson and he certainly would not have been pleased to see his efforts go for naught.
133. Id. at 67. The court did state that, "[w]hile acknowledging that the power to supersede a district attorney rests solely with the Governor, the court does not accept the contention that the superseder authority of the Governor allows for unfettered discretion in the exercise of that power." Id. The New York Court of Appeals has refused to hold that the Governor's supersedure power is beyond review in every circumstance. Mulroy v. Carey, 373 N.E.2d 369, 369 (N.Y. 1977) (mem.).
134. Johnson, slip op. at 68.
135. Id.
136. Id. at 68-69.
137. Rachel L. Swarns, Man Held in Police Death Is Found Hanged in Jail, N.Y. Times, Sept. 6, 1996, at A2.
138. Johnson v. Pataki, N.Y. L.J., Mar. 24, 1997, at 1 (N.Y. App. Div. Mar. 20, 1997).
139. Id. at 27.
140. Id. The court noted, however, that "the door has not been closed on the possible justiciability" of a challenge to the governor's authority. Id. The court was referring to language in Mulroy v. Carey, discussed earlier in this Note, where the Court of Appeals refused to state that these types of cases are never justiciable. See supra note 102.
141. See Cal. Penal Code § 190.2 (West 1988).
142. Id. Crimes punishable by death include intentional murder for financial gain, multiple murders, murder of a peace office, and felony-murder for a specified series of crimes. Id.
143. See Cal. Gov't Code § 26500 (West 1988) ("The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.").
144. 758 P.2d 1081 (Cal. 1988) (in bank), cert. denied, 490 U.S. 1012 (1989).
145. 758 P.2d at 1097-98.
146. Id.; see People v. Ray, 914 P.2d 846, 874 (Cal.), cert. denied, 117 S. Ct. 393 (1996); People v. Visciotti, 825 P.2d 388, 433 (Cal.), cert. denied, 506 U.S. 893 (1992).
147. Keenan, 758 P.2d at 1097-98.
148. Cal. Const, art. 5, § 13. The section reads: Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. The Attorney General shall have direct supervision over every District Attorney . . . in all matters pertaining to the duties of their respective offices . . . . Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law . . . and in such cases the Attorney General shall have all the powers of the District Attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any District Attorney in the discharge of the duties of that office. Id.
149. The power is enumerated in two places. California Penal Code section 923 states: "Whenever the Attorney General considers the public interest requires, he may, with or without the concurrence of the district attorney, direct the grand jury to convene for the investigation and consideration of such matters of a criminal nature as he desires to submit to it." Cal. Penal Code § 923 (West 1985). In addition, California Government Code section 12550 states: The Attorney General has direct supervision over the district attorneys of the several counties of the State . . . . When he deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law . . . . In this respect he has all the powers of a district attorney . . . . Cal. Gov't Code § 12550 (West 1992).
150. See People v. Honig, 55 Cal. Rptr. 2d 555, 595 (Ct. App. 1996) ("[Article V, section 13 of the state constitution] confers broad discretion upon the Attorney General to determine when to step in and prosecute a criminal case. And that [section] does not suggest that the Attorney General's discretion is reviewable by the superior court at the behest of a defendant.").
151. 130 Cal. Rptr. 241 (Ct. App. 1976).
152. Id. at 243. The conflict arose because the mother of the deceased was employed as a "discovery clerk" for the Contra Costa District Attorney. Id. Additionally, the mother and the defendant were involved in a dispute over the custody of a child, and the mother would gain custody if the defendant was convicted. Id. 142. Id. at 245.
153. See People v. Superior Court, 561 P.2d 1164, 1168 (Cal. 1977).
154. See People v. Superior Court, 130 Cal. Rptr. 241, 245 (Ct. App. 1976).
155. Id. at 244.
156. People v. Superior Court, 561 P.2d at 1166.
157. Id. at 1169.
158. Id. at 1173-74 (citation omitted).
159. Id. at 1174. It must again be noted that this case involved a conflict of interest. It remains unclear how a California court would view a supersedure by the California attorney general similar to Governor Pataki's in New York.
160. See Colo. Rev. Stat. Ann. § 18-3-102 (1986 & Supp. 1996).
161. See id. § 18-1-105(1)(a)(IV) (Supp. 1996).
162. See id. § 20-1-102(3) (Supp. 1996).
163. 794 P.2d 159 (Colo. 1990) (en banc), cert. denied, 498 U.S. 1018 (1991).
164. Id. at 172.
165. See supra part II.A.
166. See Davis, 794 P.2d at 172.
167. See Colo. Rev. Stat. Ann. § 24-31-101(1)(a) (1988). The statute states that the attorney general: shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor, and he shall prosecute and defend for the state all causes in the appellate courts in which the state is a party or interested. Id.
168. Id.
169. 549 P.2d 778 (Colo. 1976) (en banc).
170. Id. at 779-80.
171. Id. at 779.
172. Id.
173. Colo. Rev. Stat. Ann. § 20-1-102 (1986).
174. 125 P. 531 (Colo. 1912).
175. Id. at 536.
176. 549 P.2d 774 (Colo. 1976) (en banc).
177. Id. at 776.
178. Id. at 775.
179. Id. at 776.
180. Id.
181. See supra note 157.
182. Tooley, 549 P.2d at 776-77.
183. See supra note 4 and accompanying text.
184. See supra part II.B.
185. Id.
186. See supra part II.B.1.
187. See Dao, supra note 5, at B3 ("In appointing Mr. Vacco, a fellow Republican and staunch supporter of the death penalty, the Governor made clear that he felt the death penalty would be appropriate . . . .").
188. See supra part II.B.2.
189. See, e.g., Hoffman, supra note 61, at A33 (writing that Johnson announced his opposition to the death penalty shortly after the law went into effect); George James, From Albany, Money for 9-Millimeter Police Pistols, N.Y. Times, June 24, 1994, at B3 (noting that politician's death penalty stance put him at odds with Governor Mario Cuomo); Maria Newman, Vacco Savors Victory as a Mandate for the Death Penalty, N.Y. Times, Nov. 10, 1994, at B16 (noting that majority of Vacco supporters stated that they believed in the death penalty).
190. See, e.g., Hoffman, supra note 61, at A33 (writing that Johnson announced his opposition to the death penalty shortly after the law went into effect); George James, From Albany, Money for 9-Millimeter Police Pistols, N.Y. Times, June 24, 1994, at B3 (noting that politician's death penalty stance put him at odds with Governor Mario Cuomo); Maria Newman, Vacco Savors Victory as a Mandate for the Death Penalty, N.Y. Times, Nov. 10, 1994, at B16 (noting that majority of Vacco supporters stated that they believed in the death penalty).
191. See Davis, Discretionary Justice, supra note 41, at 209; Miller, supra note 21, at 295. The reluctance of the judiciary was expressed in a 1949 federal district court opinion: [The prosecutor] must appraise the evidence on which an indictment may be demanded and the accused defendant tried, if he be indicted, and in that service must judge of its availability, competency and probative significance. He must on occasion consider the public impact of criminal proceedings, or, again, balance the admonitory value of invariable and inflexible punishment against the greater impulse of the "quality of mercy." . . . Into these and many others of the problems committed to his informed discretion it would be sheer impertinence for a court to intrude. And such intrusion is contrary to the settled judicial tradition. Howell v. Brown, 85 F. Supp. 537, 540 (D. Neb. 1949).
192. 342 F.2d 167 (5th Cir.), cert. denied, 381 U.S. 935 (1965).
193. Id. at 169-70.
194. Id. at 171. Additionally, if a judge is permitted to review a charging decision, a host of procedural questions are raised such as when the review would occur and whether a judge could add or subtract charges while keeping others. This would force the judge to ensure that prosecutors' charging decisions were fair, while attempting to remain neutral. See Pizzi, supra note 24, at 1354.
195. See supra note 110. This section is limited to a focus on the hesitancy of the judiciary to involve itself in limiting prosecutorial discretion; whether it should become more active in this realm will be left unaddressed. See generally Pizzi, supra note 24, at 1351-55 (analyzing practical problems of judiciary attempting to curb prosecutorial discretion).
196. See, e.g., People v. Keenan, 758 P.2d 1081, 1097-98 (Cal. 1988) (in bank) ("[P]rosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and of itself evidence an arbitrary and capricious capital punishment system . . . ."), cert. denied, 490 U.S. 1012 (1989); People v. Cole, 665 N.E.2d 1275, 1289 (Ill. 1996) ("[W]e have determined that the [death penalty] statute is not invalid for the discretion it affords the prosecutor in deciding whether to request the death penalty in a particular case." (citations omitted)); State v. Garner, 459 S.E.2d 718, 725 (N.C. 1995) ("This Court has consistently recognized that a system of capital punishment is not rendered unconstitutional simply because the prosecutor is granted broad discretion."), cert. denied, 116 S. Ct. 948 (1996); Commonwealth v. DeHart, 516 A.2d 656, 670 (Pa. 1986) ("Absent some showing that prosecutorial discretion is being abused in the selection of cases in which the death penalty will be sought, there is no basis for [defendant's] assertions."), cert. denied, 483 U.S. 1010 (1987).
197. 477 F.2d 375 (2d Cir. 1973).
198. Id. at 376. This suit arose in response to an inmate uprising at Attica Correctional Facility ("Attica"). Id. The plaintiffs consisted of former and present inmates of Attica, a mother of a slain inmate and a New York State Assemblyman. Id. The complaint alleged that the defendants, including the Governor of New York, the Commissioner of Correctional Services, and state police and correction officers had been involved in the commission of various crimes against the plaintiffs and the class they sought to represent. Id. 188. Id. at 377.
199. Id. at 382 (citations omitted).
200. Id.
201. 497 So. 2d 2 (Fla. 1986).
202. Id. at 3.
203. Id. at 3.
204. Id.
205. Id. (citing Fla. Const, art. II, § 3).
206. Id. (citing Fla. Stat. Ann. § 921.141(1) (West 1985)).
207. Id.
208. Johnson v. Pataki, No. 1714/96, slip op. (N.Y. Sup. Ct. July 9, 1996) (on file with the Fordham Law Review).
209. Id. at 66-67.
210. Id. at 65 (finding grant of power of supersedure to governor was valid grant of authority).
211. La. Const. art. IV, § 8(3). The section reads: As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority . . . (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action. Id.
212. See Charles J. Yeager & Lee Hargrave, The Power of the Attorney General to Supercede a District Attorney: Substance, Procedure & Ethics, 51 La. L. Rev. 733, 734 (1991).
213. In re Guste, 454 So. 2d 806, 806-07 (La. 1981).
214. Id. at 807.
215. In re Guste, No. 12-88-103 (E. Baton Rouge Parish Ct. 1987), in Yeager & Hargrave, supra note 202, app. at 751-52.
216. Yeager & Hargrave, supra note 202, at 738.
217. La. Rev. Stat. Ann. § 14:30 (West 1986). The statute states that "[w]hoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury." Id.
218. "Cause," in Louisiana, has been defined as "a showing that the district attorney is not adequately asserting some right or interest of the state." Plaquemines Parish Comm'n Council v. Ferez, 379 So. 2d 1373, 1377 (La. 1980).
219. In re Guste, supra note 205, at 752.
220. See supra notes 118-25 and accompanying text.
221. See supra parts II.D.1-2.
222. See supra part II.B.
223. See George Jugovic, Jr., Legislating in the Public Interest: Strict Liability for Criminal Activity Under the Pennsylvania Solid Waste Management Act, 22 Envtl. L. 1375, 1380 (1992).
224. Pa. Stat. Ann. tit. 71, §§ 732-101 to -506 (1990).
225. Id. § 732-205(a)(3)-(4).
226. Id. § 732-205(a)(3).
227. See Jugovic, supra note 213, at 1380.
228. Id. at 1381.
229. See Packel v. Mirarchi, 327 A.2d 53, 54-55 (Pa. 1974) ("Pennsylvania . . . has approved the supersession of a district attorney on the basis of common law powers."); Commonwealth v. Fudeman, 152 A.2d 428, 430 (Pa.) ("[T]he Attorney General . . . may . . . supersede or act in conjunction with a district attorney."), cert. denied, 361 U.S. 902 (1959). At approximately the same time that the Pennsylvania legislature passed the Attorneys Act, the Pennsylvania Supreme Court, reversing years of precedent, concluded that the attorney general had no common law power to supersede a district attorney. See Commonwealth v. Schab, 383 A.2d 819, 822 (Pa. 1978).
230. 555 A.2d 100 (Pa. 1989).
231. Id. at 109.
232. Id.
233. Id. at 103.
234. Id. at 109-10.
235. Pa. Stat. Ann. tit. 18 § 1102(a) (1983 & Supp. 1996). The statute states, in pertinent part: "A person who has been convicted of a murder of the first degree shall be sentenced to death or to a term of life imprisonment . . . ." Id. Murder is of the first degree "when it is committed by an intentional killing." Id. § 2502(a). Intentional killing is "[k]illing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." Id. § 2502(d).
236. See supra part III.C.1.
237. See supra note 216.
238. See supra part II.B.
239. See supra part III.A.
240. See supra part III.B.
241. See supra part II.B.
242. See supra parts II.B, III.C.
243. This is without regard to each individual state's constitutional or statutory provisions which may prohibit the use of committees to make a discretionary decision for prosecutors.
244. See Frank Elkouri & Edna A. Elkouri, How Arbitration Works 129 (4th ed. 1985); Constantine N. Katsoris, SICA: The First Twenty Years, 23 Fordham Urb. L.J. 483, 497 (1996).
245. See Frank Elkouri & Edna A. Elkouri, How Arbitration Works 129 (4th ed. 1985); Constantine N. Katsoris, SICA: The First Twenty Years, 23 Fordham Urb. L.J. 483, 497 (1996).
246. The legislature or the committee members themselves could request an outside party to provide a list of individuals interested and qualified to serve on the committee.
247. See Elkouri & Elkouri, supra note 234, at 129-30 (referring to the neutral party as "impartial").
248. Id. at 130.
249. See ABA Standards for Criminal Justice: Prosecution Function and Defense Function 47-116 (3d ed. 1993).
250. It is possible that a rogue prosecutor, to avoid ever trying a death penalty case, might never indict a defendant under a state's first degree murder statue. He would, therefore, never be bound by the committee's decision. Despite the unlikeliness of such a bold maneuver, problems such as these will be left for the individual state legislatures to resolve.
251. For example, New York prosecutors are given 120 days to decide whether to seek the death penalty. See supra note 66.
252. 2 U.S.C. § 437c (1994). For an excellent discussion regarding the legislative history of the FEC, see Charles N. Steele & Jeffrey H. Bowman, The Constitutionality of Independent Regulatory Agencies Under the Necessary and Proper Clause: The Case of the Federal Election Commission, 4 Yale J. On Reg. 363, 370-77 (1987).
253. See Steele & Bowman, supra note 241, at 375-77.
254. See Buckley v. Valeo, 424 U.S. 1, 140-41 (1976) (holding that under Appointments Clause, Congress cannot appoint members to the FEC because the FEC has responsibility for law enforcement and this power is delegated to the Executive Branch by the Constitution).
255. 2 U.S.C. § 437c(a)(1).
256. Id.
257. See, e.g., Opinion of the Justices to the Senate, 376 N.E.2d 810, 825-26 (Mass. 1978) (holding that legislature may authorize a member of the executive branch, besides the governor, to appoint members of a commission).
258. The FEC, unlike these committees, has the power to compel testimony, pay witnesses, and to initiate civil actions. 2 U.S.C. § 437d (a)(4)-(6).
259. See Ariz. Rev. Stat. Ann. § 41-1481 (1992) (describing enforcement procedures for employment discrimination); Ohio Rev. Code Ann. § 4112.04 (Anderson 1995) (granting Ohio Civil Rights Commission power to receive, investigate, and pass upon written charges subject to judicial review).
260. Colo. Rev. Stat. Ann. § 24-34-303 (1988 & Supp. 1996).
261. Id. §§ 24-34-305(1)(b), (d)(I). The commission is responsible for cases involving "unfair or discriminatory practices." Id. § 24-34-305(1)(b). These practices include: (1) discriminatory acts by entities such as employers, employment agencies, and labor unions; (2) unfair housing practices; (3) discrimination in public accommodation; and (4) discriminatory advertising. Id. §§ 24-34-402, -502, -601, -701.
262. Id. § 24-34-303.
263. Id.
264. Id.
265. 28 U.S.C. §§ 591-599 (1994).
266. Id. § 592(b)(1). The Supreme Court held that the independent counsel statute was constitutional. See Morrison v. Olson, 487 U.S. 654, 659-60 (1988).
267. See Conference, Federal Election Commission Panel Discussion: Problems and Possibilities, 8 Admin. L.J. Am. U. 223, 234-35 (1994).
268. See supra note 238 and accompanying text.
269. 348 A.2d 837 (Md. 1975).
270. Md. Code Ann., art. 10, § 33A-F (1996).
271. Id. § 33B(b). A special prosecutors could act on his own or upon the request of certain executive officials or the General Assembly. Id.
272. Murphy, 348 A.2d at 848.
273. Id.
274. Id. at 846 (citations omitted).
275. Id. at 848.
276. See Survey of Maryland Court of Appeals Decisions 1975-1976, 37 Md. L. Rev. 61, 95-96 (1977).
277. This change has proven successful as the statute creating the Office of the State Prosecutor is still valid. See supra note 259 and accompanying text.
278. See In re House of Representatives (Special Prosecutor), 575 A.2d 176, 179-80 (R.I. 1990).
279. See Jan Hoffman, Lawyers Prepare for New York's Death Penalty, N.Y. Times, Aug. 31, 1995, at A1, B4 ("Robert M. Morganthau . . . said . . . that he has set up a committee to scrutinize first-degree murder cases. . . . In Brooklyn, . . . Mr. Hynes has set up a screening panel that he says will evaluate . . . potential death penalty cases.").
280. See id. These committees differ significantly from the death penalty committees proposed in this Note. In contrast to the committees district attorneys have created, the death penalty committees would be statutorily based providing them with a more assured existence. Additionally, the decision of the death penalty committees would be binding on the prosecutor. Finally, the members of the death penalty committees would be appointed by both the governor and the district attorney rather then solely by the district attorney.
281. Brooklyn District Attorney Charles Hynes is the only district attorney in New York City to announce an intention to seek the death penalty. See Joseph F. Fried, Brooklyn Case Is City's First Seeking Death, N.Y. Times, Sept. 25, 1996, at A1 [hereinafter Fried, First Seeking Death]; Joseph P. Fried, Brooklyn Prosecutor Seeks Death Penalty in a 2d Case, N.Y. Times, Dec. 12, 1996, at B4.
282. Brooklyn District Attorney Charles Hynes is the only district attorney in New York City to announce an intention to seek the death penalty. See Joseph F. Fried, Brooklyn Case Is City's First Seeking Death, N.Y. Times, Sept. 25, 1996, at A1 [hereinafter Fried, First Seeking Death]; Joseph P. Fried, Brooklyn Prosecutor Seeks Death Penalty in a 2d Case, N.Y. Times, Dec. 12, 1996, at B4.
283. See supra note 58 and accompanying text.
284. See Kenneth Bresler, Seeking Justice, Seeking Election, and Seeking the Death Penalty: The Ethics of Prosecutorial Candidates' Campaigning on Capital Convictions, 7 Geo. J. Legal Ethics 941, 944 (1994) ("It is of course not unethical for candidates to campaign on their support for capital punishment.").
285. See Jacoby, American Prosecutor, supra note 15, at 198 ("[I]f one knows the policy of the prosecutor, one should expect a pattern of dispositions consistent with that policy.").
286. See The Federalist No. 10, at 47 (James Madison) (George W. Carey & James McClellan eds., 1990) (stating that purpose of democracy is "to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens"); John H. Ely, Democracy and Distrust: A Theory of Judicial Review 86-87 (1980) (discussing need for adequate representation of minorities in a democracy).
287. See The Federalist No. 10, at 47 (James Madison) (George W. Carey & James McClellan eds., 1990) (stating that purpose of democracy is "to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens"); John H. Ely, Democracy and Distrust: A Theory of Judicial Review 86-87 (1980) (discussing need for adequate representation of minorities in a democracy).
288. See Ely, supra note 274, at 135-79 (discussing the need for protecting the voting power of minorities).
289. See Abrams, supra note 26, at 1427 ("[A] correspondence between [prosecutors] preferences of [their] constituents will usually be achieved, and when it is not, [prosecutors] will often be at pains to justify [their] divergence from the advice proffered.").
290. Vacancies in both the FEC and the Colorado Civil Rights Commission are filled by the head of the executive branch - the same manner that the original members were chosen. See 2 U.S.C. § 437c(a)(1)(D) (1994); Colo. Rev. Stat. Ann. § 24-34-303 (West 1988 & Supp. 1996). The key difference is that although these committees are appointed by a single person in the executive branch, death penalty committees will be appointed by both the governor and local prosecutors.
291. See Steele & Bowman, supra note 241, at 375-76.
292. 2 U.S.C. § 437c(a)(1).
293. See Steele & Bowman, supra note 241, at 375-76.
294. People generally place greater trust in a group decision. Our jury system and our appellate system are both based on the theory that convincing a majority of people, rather then a single individual, carries stronger weight. The same logic would follow here. People would inherently trust a decision made by seven people in public, rather than a decision made by one person in private.
295. See supra part II.A.
296. See Jacoby, Charging Policies, supra note 21, at 76-77.
297. Brooklyn District Attorney Charles Hynes, whose mother was abused by his father, is known to be especially sensitive to this issue. See Robert Neuwirth, Reversal of Fortune, Brooklyn Bridge, Aug. 1996, at 37, 38 ("The first recollection was hearing my mother scream from her bedroom and seeing her bloody face and my father standing by her reeking of alcohol. I was five years old."). It would not be a stretch to argue that he would tend to show leniency toward defendants who share a similar past.
298. See Hancock et al., supra note 50, at 1564-65.
299. The FEC, with only six members, has received criticism. See Conference, supra note 256, at 223-26.
300. The distance between the views on capital punishment of Pataki and Johnson will not likely be as extreme in other jurisdictions. More likely, the party who opposes the death penalty will recognize that the legislature passed it into law, and although opposing the law in general, will recognize that rigid opposition results in an effective nullification of the law. Brooklyn District Attorney Charles Hynes, although publicly opposed to the death penalty, has already announced his intention to seek it and is going to try the first case himself. See Fried, First Seeking Death, supra note 270, at A1; Neuwirth, supra note 284, at 38 ("Hynes's moral position is well known: he is against capital punishment. . . . He doesn't think it is fair. But now that it is the law in New York State, Hynes is practically licking his chops at the prospect of bringing a capital case to court in Brooklyn."). Nevertheless, even if a scenario similar to the Pataki-Johnson dispute is unlikely, these committees remain necessary to resolve the dangers of having one person decide whether to seek the death penalty. See supra part II.B.
301. See, e.g., Vorenberg, supra note 14, at 1565-66 (calling for prosecutors to publish a record of the factual bases and reasons of their significant decisions).
302. See Robert W. Sweet et al., Towards a Common Law of Sentencing: Developing Judicial Precedent in Cyberspace, 65 Fordham L. Rev. 927, 940 (1996) (advocating requirement that judges provide written statements regarding factual information of the case to assist judges in later cases).
303. Vorenberg, supra note 14, at 1566. The downside of having committees publish their decisions is that it might be seen as eliminating the discretion these committees are designed to protect. Committees might feel bound to follow prior committee's decisions, thus restricting their ability to decide each case on its individual facts. This risk, however, is outweighed by the need to inform the public how and why committees are making these discretionary decisions. Voters could then use this knowledge when evaluating the politicians who appointed committee members.
304. See Bright, supra note 33, at 450-54 (highlighting that in Georgia's Chattahoochee Judicial Circuit from 1973 to 1990, African-Americans were victims of sixty-five percent of the homicides, yet these cases made up only fifteen percent of capital cases in the circuit).
305. Id. at 451-54 (stating that white prosecutors may believe certain murders to be more heinous if victims are white and often only meet with white victims' families).