I

CPL § 400.27(10) sets forth the procedure to be followed at the penalty phase of a death penalty trial. The provision the majority holds unconstitutional is the fifth sentence of the section, which provides:

"The court must also instruct the jury that in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty- five years and a maximum term of life."

The majority is correct in saying that this is an unusual provision, apparently with no counterpart in the laws of other states. It is quite possible to question the wisdom of this statute, and to believe that a different provision on the subject (or no provision at all) would have been a better choice. But an act of the Legislature is not unconstitutional because it is unique or because its wisdom may be questioned. This statute is constitutional unless obedience to its command violates due process by depriving a defendant of a fair trial. In our view, it meets this test.

The statute addresses the problem of what, if anything, to tell a jury in advance about the consequences of the jury's failure to reach unanimous agreement. The usual procedure is to tell jurors nothing -- an approach for which there is much to be said. The consequences of a deadlock are no part of a jury's proper concern. A jury's job is to arrive unanimously at a verdict, if it can. If it cannot overcome its disagreements, its job is simply to report its inability to reach a verdict, let the consequences be what they may. In accordance with these principles, it is the normal procedure, both in death penalty and non-death penalty cases, to omit all reference to the consequences of a deadlock from the court's initial instructions to the jury.[23]

Thus, we think it quite clear that a legislature could properly choose not to require an "anticipatory" deadlock instruction -- and we are astonished, as we explain further in the next section of this opinion, that the majority today holds otherwise. We also believe, however, that a legislature constitutionally may, as New York's Legislature did, decide that an anticipatory deadlock instruction is desirable. The Legislature did not have to, but could, guard against the possibility that jurors left in the dark about the consequences of a deadlock will speculate, and that the speculation may distort their deliberations. If the jury at the penalty phase of a death penalty trial conjectures, mistakenly, that a deadlock will result in a new trial and the significant delay, inconvenience and expense that would entail, some jurors may, consciously or not, be inclined to forego their own views for the sake of unanimity. To avoid the possibility that a verdict may be the result of inaccurate guesswork, the Legislature may choose to assure that jurors are accurately informed about the consequences of their failure to agree.

Plainly, the majority here finds nothing wrong with the principle of giving jurors information about the consequences of a deadlock -- on the contrary, it finds an anticipatory deadlock instruction to be constitutionally required. The majority seems to recognize that the deadlock instruction required by New York's Legislature may be better for defendants, in many cases, than the traditional approach of leaving the jury in the dark. But the majority holds that the specific deadlock instruction provided in New York's statute is unconstitutional, because it might sometimes work to the defendant's disadvantage.

The majority objects to the instruction required by the statute because it tells the jury that the sentence in case of deadlock will be life imprisonment with the possibility of parole after either 20 or 25 years -- a less severe sentence than either of the two (death or life without parole) for which the jury may return a verdict. The majority suggests that, since jurors may find the possibility of parole for someone who has committed first degree murder unacceptable, jurors who are result-oriented -- who are willing to go along with a verdict they do not like, in order to avoid a less palatable alternative -- may be induced to compromise and avoid a deadlock.

This inducement to compromise can work either way. Indeed, in principle it is more likely to cause a pro-death juror to vote for life than the other way around. This is because a juror who favors the death penalty in a particular case will almost invariably prefer life without parole to a sentence that makes the defendant parole-eligible. But a juror opposed to the death penalty in a particular case may or may not be willing to accept that penalty in preference to a sentence of 20 or 25 years to life.

Admittedly, the theoretical possibility exists that, in some cases, a juror who favors a life without parole sentence will be motivated by the statutorily-required instruction to agree to a death sentence.[24] But our State Constitution has never been, and should not be, held to require the elimination from the system of every possibility of juror compromise. Jurors prone to compromise, like holdout jurors, "can affect the outcomes of jury actions in every sphere of our criminal justice system" (Majority Opinion at 48 n. 19) -- and the Constitution does not require giving preference to holdout over compromise.

Assuming that some jurors are result-oriented, any anticipatory deadlock instruction may affect their deliberations: it may provide some jurors either with an incentive to avoid a deadlock or an incentive to create one. The alternative instruction that New York's Legislature might have chosen would say that the result of a deadlock will be life without parole, the same result as a unanimous penalty-phase verdict in the defendant's favor. That instruction is an obvious invitation to a deadlock. It says to every juror who does not want to impose a death sentence: "If you hold out, you win." The Legislature could reasonably have decided that offering this kind of encouragement to a hung jury was undesirable. The purpose of a jury trial is to obtain a verdict, and when a jury disagrees the system has failed.

New York's Legislature chose to steer a middle course between telling jurors nothing about the consequences of a deadlock (thus perhaps encouraging speculation) and telling jurors that a deadlock is the equivalent of a verdict for life (thus encouraging deadlock). While most other states have chosen to pursue one of two goals -- either avoiding speculation or encouraging unanimous verdicts -- it was a reasonable legislative judgment for New York to value both goals, and try to advance them both. Neither the State nor Federal Constitution requires the Legislature to subordinate one goal to the other.

Our analysis of the case law confirms our view that the Legislature's chosen deadlock instruction is not unconstitutional. It is clear that, at least in non-capital cases, it is not forbidden to warn a jury that a deadlock may have adverse consequences. In United States v Smith (857 F2d 682 [10th Cir 1988]), for example, the court upheld an Allen charge stating: "If you fail to reach a verdict, the parties will be put to the expense of another trial and will once again have to endure the mental and emotional strain of a trial" ( id. at 684). Instructions to this effect (usually not "anticipatory," but given after a jury has indicated difficulty in reaching agreement) are not unusual ( see e.g. Freeman v State, 115 SW3d 183, 186 [Tex App 2003]; State v Vega, 789 A2d 896, 898 [RI 2002]; Wright v State, 274 Ga 305, 306-307, 553 SE2d 787, 789 [2001]; People v Cowen, 249 AD2d 560 [2d Dept 1998], lv denied , 92 NY2d 895 [1998]; State v Whitaker, 255 Kan 118, 125, 872 P2d 278, 285 [1994]; Wiggins v State, 429 So2d 666, 669 [Ala Crim App 1983]; Griffin v State, 2 ArkApp 145 148-149, 617 SW2d 21, 23 [1981]; see also Annotation, Instructions Urging Dissenting Jurors in State Criminal Case to Give Due Consideration to Opinion of Majority (Allen Charge) -- Modern Cases, 97 ALR3d 96, §§ 2[a], 3, 14[b]).

There seem to be no appellate cases considering whether it is constitutional to tell a jury, where the law so provides, that the effect of a jury deadlock will be to make a defendant eligible for parole. Courts have, however, repeatedly considered an analogous question: May a jury be told that, if it chooses a life sentence over a death sentence, the defendant may some day go free? The law is quite clear that, as long as the information given to the jury is accurate, it is not unconstitutional to make a jury aware that a defendant sentenced to life may be released.

This precise question was decided in California v Ramos (463 US 992 [1983]). At issue in that case was a California statute requiring a jury to be told that "a governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole" ( id. at 996). The Court held that this instruction did not offend the Federal Constitution. It was entirely proper, in the Court's view, to invite the jury to consider, as a factor weighing in favor of a death sentence, the undesirable possibility that the defendant might "be permitted to return to society" ( id. at 1003).

By contrast, it has repeatedly been held that it is unconstitutional to mislead a jury into believing that a defendant, if sentenced to life imprisonment, may someday be released. That was the holding in Simmons v South Carolina (512 US 154 [1994]), in which the Court held that, where the life sentence that the jury considered was, by state law, life without parole, the Constitution required that the jury be informed of that fact. Justice Blackmun's plurality opinion noted that to withhold the information from the jury could reasonably have led to a "misunderstanding" that the jury faced "a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration" ( id. at 161). Similarly, in Morris v Woodford, the court set aside a death sentence where, because of a typographical error, a jury was given the impression that a verdict of life would mean life "with the possibility of parole" (273 F3d 826, 837 [9th Cir 2001]). The majority says that Morris is "[t]he case closest in point" here (Opinion at 35), but in a crucial respect it is not in point at all, because the impression given the jury in Morris was false.

Simmons itself makes clear that, where the possibility of parole really exists, making the jury aware of it violates no constitutional right. Justice Blackmun, speaking for four members of the Simmons Court, said that "nothing in the Constitution prohibits the prosecution from arguing any truthful information relating to parole or other forms of early release" (512 US at 168). Justice O'Connor's concurring opinion for three Justices agreed ("[i]n a state in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact" [ id. at 176]), as did Justice Scalia's dissent for himself and Justice Thomas ("the Court has noted that 'the wisdom of the decision to permit juror consideration of [postsentencing contingencies] is best left to the states'" [ id. at 183, quoting Ramos, 463 US at 1014]). Thus, in Simmons, all nine Justices recognized that, where a life sentence will make a defendant eligible for parole, a jury may constitutionally be told so.

It follows logically that, where -- as under New York's statute -- a deadlocked jury will make a defendant eligible for parole, that fact too may be communicated to the jury. The defendant's interest in being free from "coercion" is no greater where the defendant is seeking a hung jury than it is where he is seeking a verdict. Indeed, his interest in an uncoerced verdict in his favor is arguably more worthy of protection, for a verdict, not a hung jury, is the desired and intended outcome of a jury trial.

The majority implicitly agrees that, in deciding what a jury may be told about the consequences of a deadlock, we may look to cases involving the jury's knowledge of the consequences of a verdict. The majority relies on Beck v Alabama (447 US 625 [1980]), in which the Court held that the death penalty could not be imposed for the offense of "robbery - intentional killing", where an Alabama statute prohibited allowing a jury to convict for the lesser included offense of felony murder. In the view of the Beck Court, the Alabama procedure created an unacceptable risk that the jury would "convict for an impermissible reason - its belief that the defendant is guilty of some serious crime and should be punished," even where the jury was not convinced that the defendant was guilty of the capital offense beyond a reasonable doubt ( id. at 642).

In substance, then, the Beck Court held the Alabama procedure unconstitutionally coercive. But it was coercive because it forced the jury to choose between conviction on the capital offense and acquittal -- not between a death sentence and a sentence of 20 or 25 years to life ( id. at 642-643). We accept the majority's premise that Beck is relevant to what may be said in an anticipatory deadlock instruction. Beck no doubt implies that an instruction would be unconstitutionally coercive if it told the jury that a deadlock would set the defendant free at once. But, by the same logic, Ramos and Simmons establish that it is not unconstitutionally coercive to tell the jury that a deadlock will produce a life sentence with the possibility of parole.

In addition to its reliance on Beck, the majority relies on the general proposition that coerced verdicts are bad - - a proposition with which, in principle, no one can disagree. It is clear that "[a]ny criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body" ( Lowenfield v Phelps, 484 US 231, 241 [1988]). Lowenfield also holds, however, that not every instruction that prods a jury to reach a verdict is "'coercive' in such a way as to deny . . . any constitutional right" ( id.). The majority opinion appears to recognize that under the Supreme Court's interpretations of the Federal Constitution in Ramos and in Jones v United States (527 US 394 [1999]) (which we discuss in Part II-B of this opinion), New York's deadlock instruction would pass muster (Opinion at 41-44). Yet the majority holds that our State Constitution requires a different result.

In search of support for this view, the majority reaches all the way back to the days when jurors were "deprived of food and rest until they reached a verdict" or kept "in a cramped room for about 85 hours without beds or cots" (Opinion at 45) -- not very compelling analogues to the present case. Turning to more modern jurisprudence, the majority relies on cases where we found that particular versions of an Allen charge went too far in encouraging a jury to reach a verdict (Opinion at 45-47). But these cases do not come close to supporting the majority's reading of a new constitutional right into our state's due process clause. We have never relied on a distinct interpretation of the State Constitution in Allen charge cases, and we regularly cite federal authority in support of our holdings ( see e.g. People v Aponte, 2 NY3d 304, 2004 NY Slip Op 03714 [May 11, 2004], citing Lowenfield, 484 US at 240, and United States v United States Gypsum Co., 438 US 422, 462 [1978]). Indeed, we generally do not invoke either the state or federal due process clause in deciding the propriety of an Allen charge. People v Antommarchi (, 80 NY2d 247, 252 [1992]) is an exception, but it relies on both the state and federal due process clauses, suggesting no distinction between the two.

The instructions involved in our Allen charge cases are distinguishable from New York's anticipatory deadlock charge in several important ways. An Allen charge is, ordinarily, a supplemental instruction given to a jury that has indicated it is having difficulty reaching agreement. It directs jurors to return to the jury room, to consult with one another and to deliberate honestly by considering the views of others without surrendering their own conscientiously held beliefs ( see CJI [NY] § 42.60). An instruction that tells a struggling jury to give deliberations another try has far more potential to be coercive than a part of the main charge, given before any problem has arisen, that informs the jury of the legal consequences of a deadlock ( see People v Ali, , 47 NY2d 920 [1979] [pointing out that Allen charges have less coercive potential when the jury's duty to listen to and consider the views of other jurors is described along with their other responsibilities]). The Legislature thus minimized the risk of coercion in capital cases by providing for an anticipatory deadlock instruction.

Despite the risk of coercion inherent in supplemental Allen charges, we have upheld them in many cases ( see e.g. People v Pagan, , 45 NY2d 725 [1978]), and where we have not upheld them it is for particular reasons -- because the court belittled the seriousness of the decision facing the jury, threatened to sequester the jury indefinitely, singled out jurors holding the minority view, or gave an unbalanced charge that demanded a verdict without cautioning jurors not to surrender conscientiously held beliefs ( see e.g., People v Riley, , 70 NY2d 523 [1987]; People v Diaz, , 66 NY2d 744 [1985]; People v Carter, , 40 NY2d 933 [1976]). The anticipatory deadlock instruction of CPL § 400.27 (10) suffers from none of these infirmities. To the extent that it may encourage a verdict, it does not depart from our Allen charge jurisprudence, which makes clear that that is an entirely permissible function of an instruction ( Aponte, 2 NY3d 304, 2004 NY Slip Op 03714 at * 3).

In short, the deadlock instruction of CPL § 10) is consistent with our Allen charge cases. But even if it were not -- even if we would disapprove this charge, had a trial court given it without statutory authority -- that would not make it unconstitutional. The Legislature has prescribed this particular instruction, and we must defer to the Legislature's wishes if there is any basis on which the enactment may be sustained ( see Atkinson v City of New York, , 96 NY2d 809, 810 [2001]; Matter of Jacob, , 86 NY2d 651, 667 [1995]; Bennett v Nassau County, , 47 NY2d 535, 540 [1979]; People v O'Brien, 111 NY 1, 57 [1888]). To hold that because, in the majority's view, the statutorily-prescribed instruction says more than we would approve in an Allen charge, that instruction violates the due process clause is a logical leap that the majority completely fails to justify. The majority has confused its own policy preferences with what the due process clause requires.

We would hold that the anticipatory deadlock instruction provided in CPL § 400.27(10)is permissible under the United States and New York Constitutions.

II

Having found the deadlock instruction required by statute to be unconstitutional, the majority might be expected to consider whether it is severable from the remainder of the death penalty statute. The majority opinion, however, does not mention the issue of severability. Rather, it concludes that "under the present statute, the death penalty may not be imposed" (Opinion at 56) -- not because the deadlock instruction and the death penalty are not severable, but because, according to the majority, some deadlock instruction is constitutionally required, and the instruction can be fashioned only by the Legislature, not the Court.

We believe that the instruction and the rest of the statute are obviously severable. We also believe that the majority's holding that a deadlock instruction is constitutionally required embodies an extreme version of the error we have already discussed -- substituting the majority's policy preferences for those of the Legislature.

A

The issue of severability is not at all difficult in this case. Addressing that issue "requires first an examination of the statute and its legislative history to determine the legislative intent and what the purposes of the new law were, and second, an evaluation of the courses of action available to the court in light of that history to decide which measure would have been enacted if partial invalidity of the statute had been foreseen" ( Matter of Westinghouse Elec. Corp. v Tully, , 63 NY2d 191, 196 [1984]). Here, "the legislative intent" and "the purposes of the new law" are not in doubt. The primary legislative purpose in enacting chapter 1 of the laws of 1995 was "[t]o allow for the imposition of the death penalty upon a defendant's conviction for certain types of intentional murder" ( see L 1995, ch 1, Bill Jacket at 20 [Mem of Assembly Codes Comm]; see e.g. id. at 5 [Gov Approval Mem]; at 13 [Gov Program Bill]; at 44 [AG Mem]). Nor is there any doubt of what the Legislature would have done "if partial invalidity of the statute had been foreseen." The Legislature expressly said that "[i]f any section, part or provision of this act shall be declared unconstitutional . . . such declaration shall be limited to the section, part or provision directly involved in the controversy in which such declaration was made and shall not affect any other section, part of provision thereof" (L 1995, ch 1, §37).

Nor is there any mechanical obstacle to severance here. The offending provision of the statute consists of one sentence from CPL § 400.27(10), which is quoted at page 2 of this opinion. No other part of the death penalty statute refers to, or logically depends on, this provision, and to excise it is as simple as taking out a pencil and drawing a line.

We thus conclude that the portion of the death penalty statute found unconstitutional here is severable from the remainder of the statute. The majority does not indicate that it disagrees.

B

The majority, however, concludes that the statute without the fifth sentence of CPL § 400.27(10) is unenforceable absent legislative action. The flaw in the statute shorn of the deadlock instruction, according to the majority, is that it does not affirmatively reassure jurors that a deadlock is a safe option. According to the majority, any jury instruction that is silent on the subject of the consequences of failure to agree is constitutionally forbidden because the court's silence may lead jurors to engage in "rank speculation about a defendant's eventual release into society" (Opinion at 52), and their speculation may in turn lead them to acquiesce in a verdict they would otherwise resist. The majority therefore holds that the State Constitution requires that a deadlock instruction be given.

We find this, as we have said, an astonishing holding - - much more so than the holding, with which we disagree, that the deadlock instruction chosen by the Legislature is unconstitutional. In invalidating that instruction, the Court strikes down a very unusual, indeed unique, statute. But in holding that the Constitution affirmatively requires a different instruction and forbids a jury charge that is silent on the subject of deadlock, the Court invalidates a procedure that always has been and still is followed almost everywhere -- a procedure not only tested by time, but supported by weighty policy considerations. The majority's holding contradicts the view of the United States Supreme Court, and is supported by no precedent in this or any other jurisdiction. We perceive no basis for it except the majority's refusal to countenance any procedure in a capital case other than the procedure thought least likely to produce a death sentence.

The practice of giving no anticipatory instruction on the consequences of a deadlock -- the practice the majority holds unconstitutional -- is the norm in this country. Outside the death penalty area, it is not unknown for the court's initial charge to mention that a hung jury will result in a retrial ( e.g. People v Casner, 20 Ill App 3 107, 312 NE2d 709 1974]), but silence on this subject is the general rule. In death penalty cases, some states follow the majority's preferred procedure of telling the jury that a deadlock on sentencing will have the same result as a verdict for a life sentence, but most do not. Of the 37 states besides New York that have capital punishment, we are aware of only eight that employ an anticipatory instruction about the result of a deadlock. In none of these states has it been held that the instruction was necessary as a matter of due process. Five states have statutes requiring such a deadlock instruction,[26] and courts in three states have adopted it in the exercise of their supervisory powers.[27] Courts in eleven other states, however, have declined to hold that a deadlock instruction should be given.[28]

The states that refuse to tell capital sentencing juries that a deadlock is the equivalent of a life verdict have valid reasons for their choice. We have already mentioned those reasons, but they bear repeating. To say that a deadlock has the same result as a verdict of life is to invite a deadlock -- to tell every juror that he or she may, if so inclined, achieve a life sentence merely by ignoring the views of eleven other jurors. While hung juries are sometimes inevitable, it should not be the purpose or effect of a jury instruction to encourage them. Remaining silent about the consequences of deadlock encourages jurors to focus on their proper task -- agreeing, if possible, on a verdict satisfactory to all -- and not on the possible advantages of achieving a breakdown in the system.

This line of reasoning was given significant weight by the United States Supreme Court in Jones v United States (527 US 373 [1999]), where the Court squarely rejected the argument the majority accepts today. Jones arose under the Federal Death Penalty Act of 1994 (18 USC § 3591 et seq), which, as interpreted by the Court, provided that if the jury could not agree on a sentence the court would impose a sentence of "life imprisonment without possibility of release." The statute did not, however, say that the jury must be told the consequences of a deadlock in advance, and the Court declined to impose such a requirement, either as a matter of constitutional law or in the exercise of its supervisory power over federal courts. The Court rejected the petitioner's constitutional argument in the following language:

"The truth of the matter is that the proposed [anticipatory deadlock] instruction has no bearing on the jury's role in the sentencing process. Rather, it speaks to what happens in the event that the jury is unable to fulfill its role -- when deliberations break down and the jury is unable to produce a unanimous sentence recommendation. Petitioner's argument, although less than clear, appears to be that a death sentence is arbitrary within the meaning of the Eighth Amendment if the jury is not given any bit of information that might possibly influence an individual juror's voting behavior. That contention has no merit. We have never suggested, for example, that the Eighth Amendment requires a jury be instructed as to the consequences of a breakdown in the deliberative process. On the contrary, we have long been of the view that '[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.' Allen v United States, 164 US 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). We further have recognized that in a capital sentencing proceeding, the Government has 'a strong interest in having the jury express the conscience of the community on the ultimate question of life or death.' Lowenfield v Phelps, 484 US 231, 238, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (citation and internal question marks omitted). We are of the view that a charge to the jury of the sort proposed by petitioner might well have the effect of undermining this strong governmental interest"

>(527 US at 382). [29]

The Court in Jones also declined to require an anticipatory instruction on the consequences of deadlock in the exercise of its supervisory power over federal courts. It noted that the New Jersey Supreme Court had exercised its supervisory power to require such an instruction in State v Ramseur (106 NJ 123, 304-315, 524 A2d 188, 280-286 [1987]), but found the views of the state courts that had decided otherwise more persuasive. The Court in Jones quoted with approval the comment of the Virginia Supreme Court in Justus v Commonwealth (220 Va 971 979, 266 SE2d 87, 92 [1980]), which noted that telling a jury that disagreement guaranteed a life sentence "would have been an open invitation for the jury to avoid its responsibility and to disagree."

Jones was a 5-4 decision. The dissenters in Jones, however, did not say they disagreed with the majority on the issue that is relevant here -- whether the Constitution requires an anticipatory deadlock instruction to the effect that a hung jury guarantees life without parole. The dissent expressly refrained from taking issue with the majority on the question: Justice Ginsberg said, "I . . . see no cause to dispute that 'the Eighth Amendment does not require that the jury be instructed as to the consequences of their failure to agree'" (527 US at 418, n 20). The Jones dissenters did not even express disagreement with the refusal of the Jones majority to require an anticipatory deadlock instruction as a matter of policy. (The basis for the dissent in Jones, insofar as it related to the deadlock issue, was that the instructions given in that case had misled the jury.) In short, the practice that the majority here finds to be mandatory under our State Constitution failed in Jones to gain the endorsement of any Justice.

Nor does the majority's interpretation of the State's due process clause find the slightest support in New York history or precedent. The jury's role in New York capital sentencing goes back to 1933 -- not long before our present Constitution was adopted. Beginning in that year, juries in some capital cases were given the option of recommending leniency (L 1933, ch 773, § 1, amending Penal Law § 1250 [allowing juries to make non-binding recommendation of prison sentence in kidnaping capital cases]; see Acker, New York's Proposed Death Penalty Legislation: Constitutional and Policy Perspectives, 54 Alb L Rev 515, 520 [1990]). Later statutes expanded the jury's role (L 1937, ch 67, § 2, adding Penal Law § 1045-a [allowing juries to make non- binding recommendation of life sentence in depraved mind and felony murder cases]; L 1963, ch 994, §§ 1,2, amending Penal Law §§ 1045, 1045-a [authorizing juries to make binding sentencing decisions in all types of first degree murder cases]; see Acker, supra, 54 Alb L Rev at 520, 523). None of these statutes, and no case decided under them, required that a capital jury be told that a deadlock would lead to life imprisonment. Nothing in New York law, before today, even hints that such a requirement might exist.

There is in short no basis in precedent for the constitutional requirement the majority creates today. The majority's decision is based on nothing but its own policy judgment. It speculates about juror speculation, opining that the absence of a deadlock instruction might lead jurors to fear a defendant "on the streets" (Opinion at 52). This is, in our view, quite implausible. Why would a juror who is told nothing about the consequences of deadlock assume that, if the jury is unable to agree between the two choices of death or life without parole, the result will be defendant's return to society? The majority makes no attempt to answer this question. Yet the majority's fear of that possibility is the sole basis on which it holds a statute enacted by the Legislature to be unenforceable.[30]

The majority declines to "craft" a new deadlock instruction, saying that "to do so would usurp legislative prerogative" (Opinion at 56). This deference to the Legislature is not just in sharp contrast to the approach taken in the rest of the majority opinion; it is probably illusory, for the majority's opinion seems to leave only one possible deadlock instruction for the Legislature to "craft." Logically, the only instruction that can eliminate the danger the majority is concerned about -- a juror's fear of the possibility of a defendant's release -- is one that tells the jury that no such possibility exists. Thus, it seems that the only deadlock instruction the majority would uphold is one that tells the jury that a deadlock would result in life without parole -- and that the majority is, in effect, telling the Legislature that the death penalty statute cannot be enforced until such an instruction is enacted.[31]

Of course, a policy argument can be made for that instruction. Telling a jury that a deadlock will result in a life without parole sentence will indeed eliminate the possibility that the fear of a defendant's parole will motivate a recalcitrant juror to accept a death sentence. But by the same token, it will offer an incentive for juror recalcitrance. It tells each juror, in effect, that he or she may sit as a jury of one, and achieve a life without parole sentence by refusing to deliberate. In short, the Court's preferred instruction has both advantages and disadvantages, and it should be the Legislature's preference, not this Court's, which prevails.

The majority would certainly not set the Legislature's wishes aside so readily in a non-capital case. The majority's premise is that, because of the unique severity and finality of a sentence of death, a defendant must be given every possible opportunity to escape from it. We do not criticize the majority's obvious discomfort with the death penalty -- indeed, we may share that discomfort. It is true that the death penalty is uniquely severe, and irreversible once carried out, and we recognize that its application is subject to many established constitutional limitations. But all these limitations, we believe, were scrupulously observed in the enactment of New York's death penalty statute. By devising a novel limitation -- a new constitutionally-required way of weighting the balance in the defendant's favor -- the majority has gone much further than anything in death penalty jurisprudence, or the principles underlying it, can justify. Today's decision, in our view, elevates judicial distaste for the death penalty over the legislative will.

III

Accordingly, we dissent from the conclusions of the majority that the provision of CPL § 400.27 (10) for an anticipatory deadlock instruction is unconstitutional and that New York's death penalty statute is unenforceable pending further legislative action.