George Bundy Smith — judge helped void N.Y.’s death penalty
George Bundy Smith, a former civil rights activist who in 2004 wrote the benchmark decision by New York’s highest court that, in effect, voided the state’s death penalty, died on Saturday at his home in Harlem. He was 80.
His death was confirmed by his son, George Bundy Smith Jr. No cause was specified.
As the third black person appointed to the state’s highest court, the Court of Appeals, Judge Smith wrote the 4-3 ruling declaring unconstitutional a central provision of a capital punishment bill that had been championed a decade earlier by the state’s incoming Republican governor, George Pataki.
While Judge Smith was considered a liberal lion, he also repeatedly demonstrated his independence as a jurist. In 2006, he joined the majority in rejecting the argument by gay and lesbian couples that denying them the right to marry violated the state Constitution. For nearly a century, the court said, the New York Legislature intended to limit marriage to a union between a man and a woman, and had a rational basis for doing so.
In 2011, the Legislature legalized same-sex marriage, a right later upheld by the U.S. Supreme Court.
The 2004 capital punishment decision was the fourth time the Court of Appeals had overturned a death sentence since a new statute was passed in 1995 to overcome the constitutional shortcomings of earlier measures.
Judge Smith had foreshadowed his doubts about the statute’s legality in 2003, when he expressed concerns that in most states the death penalty had been imposed disproportionately on blacks.
“New York is no less deserving of a badge of shame for the role race played in capital punishment,” he wrote at the time.
The ruling written by Judge Smith directly affected four inmates on Death Row, including Stephen LaValle, a former Long Island roofer who raped and killed a schoolteacher, Cynthia Quinn, in 1997, and whose appeal was before the court.
Writing for the slim majority, Judge Smith affirmed the conviction, but said a so-called deadlock provision unique to New York had coerced jurors in the penalty phase of deliberations to vote for death. According to that provision, if a jury failed to decide between death and life without parole, the judge would have to impose a sentence that would qualify the defendant for parole after as little as 20 years.
“The deadlock instruction,” Judge Smith wrote for the majority, “gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 years will join jurors favoring death in order to avoid the deadlock sentence.”
The court concluded that “under the present statute, the death penalty may not be imposed.” The Legislature never revised the law to pass judicial muster. New York last executed an inmate in 1963.
George Bundy Smith was born on April 7, 1937, in New Orleans to the Rev. Sidney Smith Sr. and the former Beatrice Bundy, a teacher.
Raised in segregated Washington, D.C., he won a scholarship to Phillips Academy in Andover, Mass., where he was the only black student in his class. In 1959, he earned a bachelor’s degree in history from Yale, where he was one of the few black students. With his twin sister, Inez, he graduated from Yale Law School in 1962. He later received a master’s and a doctorate from New York University.
As a newly minted lawyer, he joined the NAACP Legal Defense and Education Fund and helped the civil rights lawyer Constance Baker Motley draft briefs for James Meredith’s successful challenge to the University of Mississippi’s refusal to admit black students.
He then became a law secretary to several New York judges and served as the administrator of Model Cities, a federally funded antipoverty program in New York City. He was appointed and then elected to the Civil Court in 1975; elected to the Supreme Court, where he sat from 1980 to 1986; and then appointed to the Appellate Division. Gov. Mario Cuomo appointed him to the Court of Appeals in 1992.
At the time, Guido Calabresi, the dean of Yale Law School, who had taught him torts in 1959, said: “I couldn’t tell you very much about his politics, and that’s the way it should be. George is not doctrinaire, and he is known for considering each case on its merits.”
Judge Smith and his wife, the former Alene Lohman Jackson, a retired professor at Hunter College of the City University of New York, wrote “You Decide!: Applying the Bill of Rights to Real Cases” in 1992. She and his son, a television sportscaster for WFLD in Chicago, survive him, as do his daughter, Beth Beatrice Smith, a college professor; his sister, Inez, a senior judge on the District of Columbia Court of Appeals; his brother, Dr. Sidney Smith; and two grandchildren.
Pataki, who was vexed by Judge Smith’s 2004 opinion in the deathpenalty case, did not appoint him to a second term in 2006.
After leaving the court, as a partner in the Manhattan law firm of Chadbourne & Parke, Judge Smith sued the state in 2007 on behalf of judges who argued that because they had not received a pay raise since 1999, inflation had, in effect, unconstitutionally diminished their compensation. In 2008, a state Supreme Court justice ordered the Legislature to grant the state’s 1,250 judges a raise.
It was not the first time Judge Smith had defended the independence of the judicial branch. Responding to the criticism generated by the deathpenalty decision, he acknowledged that secondguessing court decisions is a normal part of the legal process.
“It is the attacks on the judiciary itself which I think are cause for concern,” he said. “I think that judges have to do the job that they have been selected and appointed to do, and can’t fear the criticism of anyone.”