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Innocence |Fairness and Equality |Cost |Deterrence |Secondary Trauma of Executions


"It is time for the members of this Court to accept that there is simply no meaningful way to distinguish between one grotesque murder and another for the purpose of determining why one defendant has been granted a life sentence and another is awaiting execution. The very exercise of individual proportionality review stands on a fundamentally unstable pediment. It should thus be scrapped and a moratorium declared on the death penalty until a meaningful process is developed."


Honorable Virginia A. Long, Associate Justice, New Jersey Supreme Court


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THE DEATH PENALTY:

Questions and Answers

Q. What is the current status of New Jersey’s death penalty?

Despite national and state trends away from capital punishment, New Jersey is approaching its first execution since 1963.

Ten individuals reside on New Jersey’s death row and three of those inmates have exhausted state level appeals and are currently at various stages of their federal appeals. In December 2004, the United States Supreme Court denied one inmate’s petition for certification. That inmate could exhaust his remaining post-conviction relief appeals in early 2006.

In December 2003, the New Jersey State Legislature overwhelmingly passed a bipartisan death penalty study bill. Governor James E. McGreevey vetoed the measure.

In February 2004, a unanimous New Jersey Appellate Court panel ruled that an execution cannot be carried out under the current lethal injection regulations, which they described as “arbitrary and unreasonable.” The court-ordered moratorium is still in effect.

On December 15, 2005, the New Jersey Senate, with a vote of 30-6, passed bipartisan legislation (S-709) that would impose a moratorium on executions while a study is conducted. On January 9, 2006, the New Jersey General Assembly passed a bipartisan companion to S-709 by a 55-21 vote.

On January 12, 2006, Governor Richard Codey signed S-709 into law. The new law calls for a study to be completed by November 15, 2006 and for a moratorium on executions to be in place until January 15, 2007.

New Jersey's moratorium on executions is the nation's first legislatively imposed moratorium.

Q. If the death penalty is so infrequently used in New Jersey, why is there a pressing need to replace it?

As long as the death penalty is an option, there is a real and unacceptable risk of executing an innocent person.

New Jersey’s death penalty law must be replaced because the existing justifications – and our existing procedures – for imposing capital punishment are neither reliable nor sound.

The money and resources the State is spending on our broken death penalty system can be better spent on winning convictions and punishing the guilty by sentencing them to life in prison without parole and helping victims’ families and more effectively supporting law enforcement.

The death penalty system is arbitrary, error-prone, unfair, and plagued by seemingly endless appeals that greatly extend the suffering of murder victims’ families.

The sentence of life without parole is a stronger, fairer, and more reliable punishment.

Q. Shouldn’t we keep the death penalty for terrorists?

Federal law provides broad authority to seek and impose the death penalty for murder resulting from terrorist acts in the United States and abroad. No state law is needed to pursue the death penalty for terrorists.

Because the decision to seek the death penalty in terrorism cases involves a careful balance of complex legal, foreign policy and national security interests, capital prosecutions for terrorism are best left to the federal government.

No terrorist will avoid the death penalty solely because the State of New Jersey replaces its capital punishment system with the harsh penalty of life without the possibility of parole. That is simply not a credible reason to maintain New Jersey’s failed death penalty system.

Q. What is the current status of the legal challenge to the state’s death penalty regulations?

In February 2004, the Appellate Division unanimously ordered the New Jersey Department of Corrections (“DOC”) to suspend executions and ordered the DOC to clarify its positions on two broad issues – the issue of “reversibility” of the lethal drugs, and “media and public access” because those regulations “appear to be arbitrary and unreasonable.”

In September 2004, the DOC proposed new draft regulations in an attempt to lift the court-ordered moratorium.

The timing of the release of the ongoing moratorium is difficult to predict as the New Jersey Department of Corrections and the judiciary most directly control the pace of the litigation at this point.

Q. Have there been any death row exonerations in New Jersey?

While no one has been freed directly from New Jersey’s death row, in recent years at least 16 innocent men have been wrongfully convicted of serious crimes, such as murder and rape, in New Jersey.

The problems that lead to wrongful death penalty convictions – erroneous eyewitness testimony, false confessions, forensics errors, etc. – exist in New Jersey just as they do in other states.

One serious red flag is New Jersey’s reversal rate. Death sentences in New Jersey are reversed at an extraordinary and alarming rate. More than 70% of death sentences are reversed for serious error on appeal. While these reversals do not always reflect the guilt or innocence of the offender, they do call into question the viability of the sentence of death itself.

Q. What happens to the people on death row in New Jersey if A-3569 is enacted?

A-3569 would amend the murder statute to provide that “[a]n inmate sentenced to death prior to the date of the passage of this bill, upon motion to the sentencing court and waiver of any further appeals related to sentencing, shall be re-sentenced to a term of life imprisonment during which the defendant shall not be eligible for parole.”

While A-3569 provides for retroactive punishment in that it provides a punishment for crimes committed prior to its passage, the bill does not implicate ex post facto prohibition. This is because the bill requires a voluntary waiver of the constitutional guarantee to be free from ex post facto punishments, and because it requires that inmates under a sentence of death be re-sentenced to a punishment that, in the eyes of the law, is considered to be a less severe punishment than death.

With regard to the constitutionality of the re-sentencing provision in A-3569, the recent State Supreme Court decision in State v. Fortin provides firm support for the proposition that defendants who have been sentenced to death can accept life without parole as an alternative sentence for the purpose of avoiding an execution if they do so knowingly, intelligently, and voluntarily. State v. Fortin, 178 N.J. 540, 604-12 (2004).

Q. Don’t prosecutors need the death penalty to secure plea bargains?

Using death as a billy-club to secure plea bargains is not only unnecessary, it’s dangerous. The vast majority of murders are resolved by plea bargains – whether or not the death penalty is on the table. States without the death penalty rank among the highest in the country for securing life without parole sentences.

Further, the threat of death increases the risk of executing the innocent. There are documented cases of innocent people confessing to crimes they did not commit simply to avoid a death sentence. They often spent years in prison before the truth was uncovered.

Maintaining a death penalty simply to force a plea bargain has serious ethical questions. Life and death are too important to be used as a bargaining chip – and the evidence suggests that plea deals are frequent even without such coercion.

Q. Doesn’t the penalty of life without parole already exist for murderers? Why do we need this new law?

Life without parole (LWOP) is now the mandatory sentence for first-degree murder if the victim is:
  1. a law enforcement officer murdered while performing his official duties or because of his status as a law enforcement officer; or
  1. a child less than age 14 if the murder is committed in the course of a sexual assault.
A-3569 does not in any way change this provision of the murder statute. LWOP is also the alternative to the death penalty in capital cases.

In all other cases of first-degree murder, the maximum sentence is life with parole eligibility.

A-3569 would give the court the flexibility to impose a sentence of up to life without parole if one of 12 aggravating factors is found to exist by a jury – the same factors that are currently used now to determine death eligibility.

Notably, passage of A-3569 would allow prosecutors to seek the tough and reliable punishment of life without parole for qualifying cases without incurring the extra costs of a capital trial.

Q. We often hear about offenders who are released from jail and commit more crime. Does life without parole really exist?

Yes. This bill keeps the criminal behind bars for the rest of his or her life, without any chance of getting out. Unlike “life” sentences, which offer parole, no one serving a life without parole sentence can be paroled.

That is why under New Jersey’s relatively new life without parole law, no one has ever been paroled. In California, where life without parole has been on the books for twenty-five years, no one under such as sentence has ever been paroled.

With regard to those currently on death row, the legislation states, “[a]n inmate sentenced to death prior to the date of the passage of this bill, upon motion to the sentencing court and waiver of any further appeals related to sentencing, shall be re-sentenced to a term of life imprisonment during which the defendant shall not be eligible for parole.” Nobody on death row today would ever be released solely because of passage of this bill.

Q. You say that life in prison without parole actually provides a more swift and certain penalty for murder. Isn’t death the most certain there is?

When someone is sentenced to life in prison without parole, that’s the end of the story. They fade from the front pages and into irrelevance. For surviving loved ones, the forced tie to the murderer is over and the struggle for healing can begin. That’s not the case with the death penalty – a killer gets in the newspaper for the trial, and again for the punishment, and again for the automatic appeal, and more often again and again because of the stunningly high reversal rate for death sentences.

And what’s worse, we are no longer certain that those sentenced to death are guilty. As of January 2006, 122 people have been exonerated from death row – about one person is exonerated for every nine who are executed.

Every time there is another mistake and another trial, public confidence in the criminal justice system becomes a little less certain, and a little less justice is done.

Q. Why should the taxpayers have to bear the cost of incarcerating someone for the rest of their life? Isn’t it cheaper just to put someone to death?

Not at all. In fact, taxpayers are getting stuck with a much greater tab to pay for a death penalty system that is irreparably broken.
Study after study has found that death sentences cost up to 10 times as much as just locking someone up for life and throwing away the key.

For example, over the past ten years the State of New York has spent in the neighborhood of $200 million on a system that hasn’t executed anyone.

A study in Tennessee found death penalty trials cost an average of 48% more than the average cost of trials in which prosecutors seek life imprisonment.

In its review of death penalty expenses, the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases.

The most comprehensive death penalty cost study in the country found that the death penalty costs North Carolina $2.16 million more per execution than a non-death penalty murder case with a sentence of life imprisonment.

The experience in New Jersey has been similar. A 2005 report by New Jersey Policy Perspective revealed that New Jersey has spent $253 million on a death penalty system that has executed no one. Read the report here.

Q. Aren’t appeals the real cause of the high cost of the death penalty? Wouldn’t it be cheaper to just shorten the appeals process?

No. Much of the extra costs are incurred during the initial trial stage and these costs are incurred even in cases where the death penalty is sought but not imposed.

Death penalty trials are among the most complicated and time-consuming cases a court faces. There are actually two trials, one to determine guilt or innocence and a second to determine the punishment. There are many more lawyers on both sides involved in death penalty trials than other trials. There are also more witnesses, more experts, more precautions, and an automatic appeal. In a state like New Jersey, where a large percentage of the population opposes capital punishment, it can take weeks to seat a death penalty jury because jurors must be willing to impose a sentence of death.

And, because most cases are badly flawed and serious mistakes are made, many death sentences are reversed on appeal, prompting another trial.

Yet, even with all these safeguards, as of June 2005, 119 people have been exonerated from death rows around America – that’s about one for every nine executed. In many of those cases, evidence of innocence was discovered in the final stages of appeals.

Q. You say the death penalty in New Jersey has failed because so many convictions are being overturned. But don’t the reversals mean the system is working?

A system that overturns more than seven out of every 10 sentences due to serious error can hardly been described as “working.” A high reversal rate means higher costs for the state and painful delays for victims’ families. It is also a red flag that something is terribly wrong with the system. A 2000 Columbia Law School study titled "A Broken System: Error Rates in Capital Cases," found that federal proceedings reversed 40% of capital cases that weren't overturned during state court review. These late stage reversals suggest that some errors go undetected.

Q. If someone supported reinstatement of the death penalty in New Jersey in 1982, how can that person vote now to replace it? What has changed to support this reversal in position?

The death penalty landscape has changed dramatically in the past 23 years, and evidence now available strongly supports a change in position to support for the alternative punishment of life without parole.

First, no executions have occurred in our State under the current death penalty statute, despite tens of millions spent on death penalty cases.

Second, since the 1982 reinstatement of capital punishment, our courts and juries have become less and less supportive of New Jersey’s death penalty: Third, and perhaps most important, there now exists the new science of DNA, which has exposed the many reasons why wrongful convictions occur. However, DNA evidence is only available in a small percentage of murder cases. Even when DNA evidence is available, the system ultimately must rely on human beings to conduct tests and make judgments. Recent scandals involving crime labs in Texas and Oklahoma are stark reminders of the fallibility of the system even in cases where the evidence appears overwhelming.

Experience has shown that any human system will be fallible, and once an execution has occurred it is irrevocable.

Q. Isn’t it true that there is no evidence that an innocent person has been executed in modern times?

We simply do not know how many innocent people have been executed in the United States. Death penalty lawyers are paid to work on cases of live clients. Few are willing to spend time and resources trying to prove the innocence of an executed inmate when there are so many people with strong claims of innocence still living on death row.

Here is what we do know: 119 people have been exonerated from death rows around the country. In many of those cases, evidence of innocence was discovered in the final stages of appeals. One Illinois man came within forty-eight hours of his scheduled execution.
As U.S. Supreme Court Justice Sandra Day O’Connor, a death penalty supporter who was appointed by President Reagan, said “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.

In 2005, prosecutors in Texas and Missouri acknowledged that they may have executed two innocent men. In Missouri, prosecutors reopened their investigation of a murder for which Larry Griffin was executed in 1985 after evidence came forward that Griffen did not commit the crime. In Texas, Former San Antonio District Attorney Sam Millsap, a lifelong supporter of the death penalty, became a death penalty opponent after learning of new evidence that reveals that Ruben Cantu was innocent of the crime for which he was executed. (1)

Q. You say the death penalty has been proven to be “arbitrary.” What evidence actually supports this claim?

The U.S. Supreme Court has said that if the death penalty is applied arbitrarily, it cannot be applied at all. Yet, a great deal of evidence supports the proposition that who actually gets the death penalty is influenced by many factors other than the crime itself, or the culpability of the accused. These factors include geography, race, gender, and access to adequate counsel.

Here is just some of the evidence:

A report released by the New Jersey Supreme Court found that, "There is unsettling statistical evidence indicating that cases involving killers of white victims are more likely to progress to a penalty phase than cases involving killers of African-American victims." (Asbury Park Press, Aug. 13, 2001).

New Jersey’s race-of-victim disparity has been blamed on “county variability” – or differences in sentencing rates from county to county. That itself is evidence of arbitrary sentencing.

According to the findings of a Governor-commissioned death penalty study conducted by researchers at the University of Maryland, defendants in Maryland are much more likely to be sentenced to death if they have killed a white person (Prof. Raymond Paternoster et. al., January 2003).

Variability in attorney competence and experience also contributes to arbitrariness in death sentencing. In New Jersey, several death sentences have been reversed by higher courts for ineffective assistance of counsel at trial.

Q. Death penalty opponents often say that capital punishment isn’t a deterrent to crime while proponents say it is. Which is it?

States without the death penalty actually have lower murder rates than those with the death penalty.

During the last 20 years, the homicide rate in states with the death penalty has been 48% – a full 101% higher than in states without the death penalty.(2)
and from 1992-2002, the murder rate in non-death penalty states has remained consistently lower than the rate in states with the death penalty (footnot this(The Wall Street Journal, 6/21/02).

According to preliminary FBI Uniform Crime Report figures released in June 2005, the nation's murder rate dropped 3.6% in 2004. The number of executions also declined in 2004. The largest drop in murder was attributed to Chicago, which saw its lowest murder tally since 1965 – even though Illinois had commuted all its death sentences to life without parole and has a several-year-old death penalty moratorium in place.

In 2003, the South had the highest murder rate in the country, and that appeared to continue in 2004 even as the South carried out 85% of the nation's executions. The Northeast, which had no executions in 2004, had the lowest murder rate in 2003 and that position appeared to remain the same in 2004.

The American people have come to understand that the death penalty is not an effective deterrent to murder. In May 2004, 62% of those polled said the death penalty did not deter murder (Gallup, May 2004).

U.S. Attorney General Janet Reno said that she has yet to find any evidence that the death penalty deters crime. “I have inquired for most of my adult life about studies that might show that the death penalty is a deterrent. And I have not seen any research that would substantiate that point.”(3)
The overwhelming conclusion of more than a century of research is that the death penalty does not deter crime any more or less than other punishments like life in prison without parole.

Q. Don’t we owe it to murder victims and their families to execute the person who took their loved one away? Isn’t it true that most murder victims’ families support capital punishment?

It is simply inaccurate to say that most murder victims’ families support the death penalty. In fact, many do not.

The founder of New Jerseyans for Alternatives to the Death Penalty, its Executive Director and many members of the organization have lost a loved one to murder. We owe it to families of murder victims to have in place a system of punishment that is swift, sure and just. The death penalty has proven time and again to fall far short of those standards.

In a December 2005 article calling for an end to capital punishment, Richard Pompelio, the founder of the New Jersey Crime Victims Law Center, who lost his son to murder, wrote:
"Many people mistakenly beleive capital punishment is a strong victims rights iissue. It is not .... What victims need most from those working in the justice system is to have the right to fairness, compassion, respect and dignity recognized and respected. They do not need - nor do they want - the vengeance of death. "

2 New York Times, 9/22/00
3 Reuters, 1/21/00

Friday, October 24, 2014 at 21:23:35 (1500/2000)