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The League of Women Voters a nonprofit,
nonpartisan organization whose purpose is to
promote political responsibility |
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Facts and Issues about the Death Penalty
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| League of Women Voters
of New Jersey 204 West State Street Trenton, New Jersey 08608 Phone: 609-394-3303 Fax: 609-599-3993 www.lwvnj.org |
Introduction
New Jersey’s Capital Punishment Law
History of the Death Penalty in New Jersey
Public Opinion
Demographics
Costs
Deterrence
Victim’s and Survivor’s Perspectives
Right to Adequate Counsel
Reliability of Evidence
Mental Illness and Mental Retardation
Alternatives
Reforms to the Death Penalty
Conclusion
As the League of Women Voters in Texas noted in their study of capital punishment, “Both proponents and opponents of the death penalty cite the value of human life to bolster their positions. Opponents argue that because all human life is valuable, no one should be put to death. Proponents contend that those who take a human life must pay their debt to society.”
In addition to the moral questions concerning the death penalty, there are pragmatic questions. These pragmatic questions include:
In short, debate on these pragmatic questions contributes to the wide disagreement about whether the death penalty is in the best interest of the state.
Crimes that qualify for the death penalty in New Jersey are (1) first degree murder, (2) indictment for having been a leader of a narcotics trafficking network that ordered that someone be killed, and (3) murder committed through the commission of a terrorist act. A person charged with any of these crimes must be over the age of eighteen to be eligible for the death penalty.
The state’s definition of first-degree murder is “the actor purposely causes death or serious bodily injury resulting in death.” In addition, it must also be determined that the person actually committed the killing or hired someone to commit the murder. Typically this means the person facing the death penalty actually pulled the trigger or was in some way the cause of the murder. If it is determined that a murder fits the state’s criteria, the county prosecutor from the county in which the crime took place has a choice to seek the death penalty or an alternative sentence.
A trial jury must first determine whether the defendant is guilty of first-degree murder and in a separate proceeding, the penalty phase, whether the death penalty should be imposed. The same jury that determined guilt must sit in judgment regarding the appropriate sentence. In order to be able to serve on a capital jury, a potential juror must express a willingness to impose death upon a defendant, if convicted, within the parameters of the law.
In the penalty phase of the trial, the jury weighs the aggravating and
mitigating circumstances, both of which are specified in the law, to determine
whether the defendant can be sentenced to death. The aggravating
circumstances are those that typically weigh in favor of imposing the
death penalty and the mitigating factors are those that weigh against
imposing the death penalty. The jury is required to determine: (1)
unanimously and beyond a reasonable doubt whether and what aggravating
factors existed; (2) unanimously and beyond a reasonable doubt whether
the aggravating factors outweigh all of the mitigating factors such that
the death penalty is warranted; and (3) whether any mitigating factors
existed.
Aggravating factors can include whether the defendant : has previous murder
convictions, created a grave risk of serious injury or death to someone
other than the victim, tortured the victim, or paid for or committed the
murder for money. In addition whether the murder was of a police
officer or some other public official, and whether the victim was 14 years
of age or younger would also be aggravating factors.
To counterbalance the aggravating factors, the defendant is allowed to
present mitigating factors which could including the following: whether
the defendant is mentally or emotionally disturbed; the defendant's age
at the time of the commission of the crime; any significant prior criminal
history; whether the victim was seeking the defendant’s help in the
commission of suicide and any other relevant factor to the defendant's
character, record or circumstances of the crime. The jury is not required
to unanimously find that a mitigating factor existed beyond a reasonable
doubt in order to consider it in determining whether the death penalty
should be imposed.
If the jury determines that the aggravating factors outweigh the mitigating
factors, then the defendant shall be sentenced to death. The decision
must be unanimous. If the jury determines that aggravating factors
exist but do not outweigh the mitigating factors, then the defendant shall
be sentenced to life in prison without the possibility of parole. If
the jury is unable to reach a determination on aggravating factors, then
the defendant shall be sentenced pursuant to statute and such sentence
shall be subject to the particular circumstances of the crime.
All death sentences are appealed directly to the New Jersey Supreme Court
as a matter of right. The Supreme Court determines among the other
legal issues presented on appeal whether the imposition of the death sentence
in that particular case is proportional to others that have been imposed
in the state.
Early colonists to America brought English penal codes with them, including the death penalty (Michigan State University). In New Jersey, the first comprehensive criminal legislation was signed into law in 1796. The legislation included the death penalty as a punishment for burglary, treason, rape, arson, robbery, and forgery (Reggio, in Randa, 1997). Over the course of the eighteenth and nineteenth centuries, New Jersey executed more than 300 people by hanging in prison yards and county squares, or by firing squad. Slaves who killed a white person or committed arson were burned alive. By the end of the nineteenth century, the death penalty in New Jersey was reserved for willful, deliberate and premeditated murder. In 1907, the electric chair came to New Jersey, and all executions were then held in Trenton, where another 160 people were executed. The last execution was in 1963 (New Jersey Department of Corrections).
Nationally, landmark United States Supreme Court decisions have guided the use of punishment within the framework of the United States Constitution. In 1958, in Trop v Dulles, the Supreme Court decided the Eighth Amendment against cruel and unusual punishment must be interpreted against “an evolving standard of decency that marked the progress of a maturing society.” That logic would later be extended to capital punishment (Bohm, 1999). In 1972, in Furman v Georgia, the Court struck down the death penalty in many states by declaring violations of the Eighth Amendment in three cases. With the Furman decision the Supreme Court set the standard that a punishment would be "cruel and unusual" if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty. Because of this decision, forty death penalty statutes were voided, commuting 629 death sentences around the country (Death Penalty Information Center). Meanwhile, in New Jersey, the state Supreme Court had already recognized six months earlier that New Jersey’s death penalty statute was unconstitutional under federal law.
In 1976, the United States Supreme Court reversed again, holding in Gregg v Georgia that capital punishment is constitutional under the federal constitution in limited circumstances. New Jersey did not immediately reinstate the death penalty and in fact, Governor Brendan Byrne twice vetoed legislation that would have reinstated the death penalty. In 1982, under Governor Thomas Kean, New Jersey reenacted the death penalty. The law did not exclude the mentally ill or retarded, but it did reserve the punishment for those over the age of 18. Lethal injection was chosen as the execution method. Initially, the judiciary did not seem enthusiastic about the death penalty. The Court reversed 27 death sentences before confirming one in 1991. Overall, New Jersey juries have been reluctant to impose the death penalty. Since 1982, there have been 400 capital charges, 181 trials, and 59 death verdicts on 51 defendants (New Jerseyans for a Death Penalty Moratorium). Currently, 14 defendants are on death row awaiting exhaustion of their appeals (New Jersey Department of Corrections).
With the entrance of the United States into World War I, there were economic, political and social clashes, resulting in an increase in the use of capital punishment (Bedau, 1997, Bohm, 1999). But, by the end of World War II, attitudes toward criminal penalties had shifted again (Friedman). In the United States, the Civil Rights Movement was forcing Americans to reexamine core beliefs (Bedau, 1997). The United States armed forces had included people of all races and nationalities and disparities in the area of civil rights and the criminal justice system became apparent. In this period, execution numbers dropped and limitations on the death penalty were established. By 1966, support for the death penalty had reached an all time low in the United States.
That trend reversed as the 1980’s brought a public and political backlash against rising crime that resulted in tougher criminal penalties across the nation. During this period, New Jersey legislators enacted the current death penalty law, citing public safety concerns. But in the late 1990’s, support for the death penalty again began to decline as a renewed focus on the death penalty due to death row exonerations and racial studies exposed flaws in the capital punishment system. In 1997 Time Magazine and Newsweek polls found:
In recent years, the number of new death sentences has declined, and that decline is expected to continue in 2004 (Death Penalty Information Center). Public opinion may be reflected in the declining numbers, as well as in our nation’s overall experience with the death penalty. Most executions are concentrated in certain areas of the country with nearly nine out of ten executions in 2003 carried out in the South and one in 10 in the Midwest. No executions were carried out in the West or Northeast (UPI, 2003).
Some see the decline in death sentences as evidence of evolving standards of decency. In August 2003, Federal Judge Mark L. Wolf commented on the decline in federal sentences, “if juries continue to reject the death penalty in the most egregious of federal cases, the courts will have significant objective evidence that the ultimate sanction is not compatible with contemporary standards of decency”. He added that an increase in death row exonerations may generate legislation and jury verdicts indicating a public consensus that the death penalty offends contemporary standards of decency, therefore making capital punishment unconstitutional (New York Times, 8/11/03). However, death penalty proponents argue the low number of executions reflect caution on the part of juries and the system – not public opinion.
The death penalty debate intensified with the freeing of 112 men from death row, eleven of whom were freed as a result of DNA testing. No one on New Jersey’s death row has been exonerated, but the strong feelings and increased public discussion triggered by the exonerations seems to have had an effect on public opinion in New Jersey. In May of 2002, a Rutgers-Eagleton poll, “New Jerseyans Opinions On A Death Penalty Moratorium” was conducted to assess the opinions of New Jerseyans on the issue at the request of the New Jersey Association on Corrections and New Jerseyans for a Death Penalty Moratorium. The statewide poll showed a decrease in support for the death penalty since a previous Rutgers-Eagleton poll conducted in 1999:
In 2003, the New Jersey State Legislature, responding to increasing calls for a top to bottom examination of capital punishment in New Jersey, introduced a bipartisan death penalty study bill. In a compromise with some pro-death penalty legislators, a provision for a suspension of executions was deleted, but the comprehensive scope of the study was left unchanged. A-1913 charges the commission with examining issues of fairness, deterrence, cost, risk of wrongful execution, and effects on family members of murder victims. Importantly, it also asks whether capital punishment is “consistent with evolving standards of decency.” In the end, 104 legislators agreed, that with New Jersey’s first execution in 41 years nearing, a thorough study is needed. However, on January 12, 2004, Governor McGreevey vetoed the Bill A-1913. Since January 12 was the last day of the legislative term, there was no opportunity for the legislature to override the bill. The bill must now be reintroduced and proceed through the legislative process in order to be enacted.
Few disagree that standards of fairness and consistency in the application of the death penalty should be as high as possible, yet the process for deciding who should live and who should die is very complex. The state and federal constitutions require that the death penalty not be applied in an arbitrary or unfair manner, in other words, that sentences be proportional. In the context of the death penalty, proportionality refers to the concept that imposition of the death penalty is equally likely regardless of the defendant’s gender, race/ethnicity, religion, and/or county of residence.
To help safeguard against bias and insure proportionality in death sentencing, the New Jersey Supreme Court mandates annual statistical reviews of death sentencing in New Jersey. The goal of these proportionality reviews is to prevent discrimination in the capital decision making process and ensure that the death penalty is administered in a rational, non-arbitrary, even handed manner with checks on broad prosecutorial discretion. The reviews compare all death eligible cases to determine what factors may influence death sentences.
Years of proportionality reviews have shown statistical evidence that geography is a factor in death penalty decisions in New Jersey. Death is sought more often in some counties than in others. New Jersey proportionality reviews have also found that death is sought more often when the victim is white. The last two proportionality reviews have faulted "county variability" for this racial disparity, and in 2001, then-Attorney General John Farmer ordered a study of county variability. That study was never carried out due to a change of administration. The state has yet to address this problem.
Over the years, court appointed "Special Masters" have used different statistical models to conduct proportionality review. In 1997, according to the New Jersey Law Journal, an Administrative Office of the Courts (AOC) proportionality report found that jurors in New Jersey are ten times more likely to sentence a black man to death than a white murderer. However, subsequent reports suggested the statistical model used in that analysis was flawed. The most recent Special Master, Appellate Division Judge David Baime, made a number of significant changes, including expanding the available pool of cases for proportionality review to include all death eligible cases. This new model has been favorably received, however, it is unclear whether the number of death eligible cases is large enough to draw firm conclusions. Notably, Judge Baime’s 2001 report called the death penalty system in New Jersey “color-blind” despite having expressed concern just two years earlier whether any model could effectively detect patterns of discrimination (New Jersey Law Journal, 1999).
At Assembly hearings on the death penalty study bill in January of 2003, Lawrence Lustberg, a partner at the Newark law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione,chairman of the Criminal Defense Group, and Director of the John J. Gibbons Fellowship in Public Interest and Constitutional Law, submitted written testimony on why a study of capital punishment is needed. His testimony included strong words regarding racial bias in New Jersey’s capital punishment system:
“But one thing has been consistent, no matter what statistical methodology has been used, and however many cases are considered: as Judge Baime made clear, the evidence that the race of the victim affects prosecutorial decision making, to a statistically significant degree, has persisted, in study after study. Thus, we simply cannot say that race does not infect our system of capital punishment -- it does.”
Whether or not studies can confirm the impact of race on death penalty decisions, there is a dangerous societal perception that race impacts the capital punishment system, especially when the combination is a black defendant and a white victim. Dr. Matthew B. Johnson of John Jay College of Criminal Justice of the City University of New York and the New Jersey Chapter of the Association of Black Psychologists commented on racial bias in death sentencing in a paper written in 2002, “That the death penalty has been applied in a racially discriminatory manner has been common knowledge in the African-American community for generations. In fact for many in the African American community, today's opposition to the death penalty is a continuation of the anti-lynching campaign championed by Ida B. Wells, W.E.B. Dubois and others (Allen, 2000). More recently, apparent racial discrimination in the death penalty was illustrated vividly in the 1987 McClesky v. Kemp case (see Wrightsman, 2001). Experts for the African-American defendant demonstrated that both the racial group of the victim, as well as the racial group of the defendant, contributed to the likelihood of a death sentence in Georgia (even when controlling for mitigating and aggravating factors). The combination of these two racial factors resulted in the predictable finding that there was the greatest chance of a death sentence when there was a black defendant and white victim. However, the United States Supreme Court, in a 5-4 vote, rejected the equal protection argument raised by counsel for McClesky. The majority opinion noted that McClesky had not proven that there was 'intent' to discriminate. A similar pattern of racial discrimination in the application of the death penalty has been documented in other states as well as Georgia (Baldus, Woodworth, & Pulaski, 1990).”
Other states throughout the country are grappling with the issue of race and the death penalty. Researchers at the University of Maryland found that Maryland’s death penalty system is plagued by racial bias, and that geography plays a significant role in decisions to seek the death penalty. The study, commissioned by Governor Parris Glendening, is one of the nation's most comprehensive studies of race and the death penalty. It concluded that defendants are much more likely to be sentenced to death if they have killed a white person. (University of Maryland, released January 7, 2003). In March of 2003, the Pennsylvania Supreme Court's Committee on Racial and Gender Bias in the Justice System released a 550-page report calling for an immediate moratorium on executions, citing "strong indications that Pennsylvania's capital justice system does not operate in an even-handed manner."
In addition to bias concerns, there is serious concern among death penalty opponents that arbitrariness affects the capital punishment system. Mr. Lustberg addressed this problem in the context of his appellate work on New Jersey death penalty cases:
“…I have had the opportunity to read narrative summaries of the hundreds of cases which either were or could have been brought as death penalty cases in New Jersey, and I have concluded, as, I believe, would anyone reading this litany of horror, that there is no meaningful distinction -- as the Legislature intended -- between those horrible cases that were prosecuted as death penalty cases and those that were not, and even less of a distinction between those in which a death verdict was returned and those in which it was not. In other words, the death penalty is imposed in an arbitrary fashion, on very few who are not distinguished from other potential recipients by either the heinousness of their acts or the immorality of their character.”
Mr. Lustberg cited two reasons for the state’s arbitrary application of capital punishment in his testimony on the death penalty study bill before the New Jersey Assembly – the law’s necessary requirement of full consideration of the circumstances and the difficulties that requirement presents; and differences in quality of counsel.
New York Law School Professor Robert Blecker agrees that arbitrariness infects the capital punishment system in the United States. However, in a paper distributed at the League of Women Voters of New Jersey (LWVNJ) forum on the death penalty on November 24, 2003, Professor Blecker argued there are ways to eliminate arbitrariness from the system while preserving the penalty for the “worst of the worst.” Professor Blecker advocated for reducing the number of aggravating factors as a way to address the problem of arbitrariness:
“In short, if we want to respond to the high court's call for a
"reasoned moral response" to murder, we should revise death
penalty statutes to include the aggravating circumstances "killing
an unresisting victim," "killing from a pecuniary motive"
and "killing to eliminate an innocent witness." Then we could
and should drop the grossly overbroad "capital robbery murder"
aggravator altogether. The worst of the worst could still get the death
penalty; the lesser killers would be sentenced to life in prison.
As an added bonus, we would largely cleanse the death penalty process
of racism: Capital punishment studies have consistently demonstrated that
racial bias operates almost exclusively in these "mid-range"
murder cases--such as the common murder in the course of a robbery. Refining
the aggravating circumstances in those cases would undoubtedly make sentencing
less arbitrary, and less prone to bias.”
At the LWVNJ conference, Professor Blecker explained the reason that he supports the death penalty for the worst murderers – retribution, which he states in his paper should be “limited, proportional, deserved.” Here are excerpts from one of Professor Blecker’s talks:
“Eleven year old Barbara Joe Brown walked to a convenience store to make a phone call. Two men forced her to a riverbank, where they repeatedly raped and tortured her. They slashed her with broken bottles and drove pointed sticks through her vagina to her abdomen. Bobby fought back as best she could; and when she begged for her life, they smashed her face with a brick, and repeatedly stabbed her. An hour later the child died. Those who tortured her deserve to die. We know it. We feel it.”
“Better and worse, good and evil are not entirely subjective and arbitrary. The core - extreme predatory cruelty is real clear. We can point to hundreds on death row who deserve to die. Unfortunately, we can also point to thousands who do not. And not because they are innocent. Almost all of them did commit murder. But they are not the worst of the worst.”
Professor Blecker believes this problem of arbitrariness is not serious enough to justify a suspension of executions because society has a duty to the victims of the most atrocious crimes:
“The worst of the worst deserve to die and the People have an obligation to execute them. But we are also obliged to prevent those who deserve a life in prison but not to die, from being haphazardly executed. As we await wholesale legislative redefinitions and particular executive clemency, should we pause? No! We must not extend life with its pleasures to those who should never again play, listen to music, or enjoy getting lost in a good book. A moratorium would be morally perverse.
What then? "Worst First!" Prosecutors should re-evaluate cases, and awaiting legislative redefinition, leave in prison those who killed where the robbery went bad, those whose victim was a co-felon who became a snitch or a drug runner who ran off with the package. These common murders are hardly the worst of the worst.
But, at the same time, we must remember little Bobby [a murder victim]; we must not let our anger cool, our memory fade, or anguished deliberation diminish our felt need for justice - to execute as quickly as possible those who most deserve to die.”
Whether Professor Blecker’s idea of a fair system can be achieved is the subject of wide disagreement in this nation. Many views are surely influenced by moral and ethical opinions. But, just as certainly, public concern over bias in the capital punishment system should not be ignored lest it impact the public’s faith in the state’s criminal justice system.
Elimination of the death penalty would result in a net savings to the state of at least several tens of millions of dollars annually, and a net savings to local governments in the millions to tens of millions of dollars on a statewide basis.
-Joint Legislative Budget Committee of the California Legislature, (9/9/99)
The decision to maintain the death penalty as a punishment, like any other public policy decision, is a complicated one in which costs and benefits are weighed – both social and fiscal. States such as Washington and New York are taking another look at the financial impact of the death penalty as they struggle to find dollars for social services and other needs. In the state of Washington, Pierce County Prosecutor Gerry Horne has cut back the number of times his office seeks death. While acknowledging that the influence of cost on death decisions “frustrates the law,” Horne is concerned about the expense of capital trials and the strain on his office’s resources (Tacoma News Tribune, July 7, 2003). In New York, which reinstated the death penalty in 1995, Monroe County District Attorney Howard R. Relin estimated that costs triple for capital murder cases vs. non-capital murder cases (New York Law Journal, April, 2002).
In a dissenting opinion in a capital case, Honorable Alan B. Handler, former Associate Justice of the New Jersey Supreme Court, argued, “millions of dollars spent on the death penalty could be spent to prevent crime, to compensate victims, or other criminal justice costs. In these times of scarce governmental resources, million dollar expenditures on capital punishment can hardly be justified.” Justice Handler cited many reasons why the death penalty system costs more than a system in which life without parole is the most severe punishment, including the extra costs associated with the dual trials that are unique to a capital system. A 1982 Illinois study examined the costs associated with New Jersey’s system and estimated those costs as averaging $22 million above a system of life without parole (New Jerseyans for a Death Penalty Moratorium). However, the state has never conducted its own comprehensive cost study of capital punishment, so it is unclear just how much the death penalty costs New Jersey today. One thing is known – that expenses begin to add up as soon as a decision is made to seek death – and the end result in New Jersey after more than 400 capital charges since 1982 is 14 defendants on death row, still in the appeal process.
Although some New Jersey lawmakers have questioned its price tag in these fiscally tight times, retributionists such as Professor Blecker argue that issues of cost are irrelevant because the moral rationale for retribution outweighs all fiscal considerations. New Jersey Senator Robert Martin called New Jersey’s capital process “cumbersome and expensive” and suggested that life without parole might be a better alternative (New York Times, December 14, 2003). Assemblyman Alfred E. Steele, prime sponsor of A-1913, the death penalty study bill, cited the “significant expenditures of time and money” when he called for a moratorium on executions pending a comprehensive study (Assembly Democrats press release, January 2003). Meanwhile, death penalty supporters argue that societal costs of crime are paramount to monetary concerns.
According to the Death Penalty Information Center in Washington DC, retribution has eclipsed deterrence as the primary reason given by American death penalty supporters to explain their position. However, deterrence is still important for many death penalty proponents. During the 2000 Presidential debates, George W. Bush and Al Gore both cited deterrence as the primary justification for capital punishment. Then candidate Bush even went so far as to state “that’s the only reason to be for it.”
Recent deterrence studies by researchers at Emory and Clemson Universities claim that murder rates are lowered as executions increase. Other national and state studies, including one that examined the effect of capital punishment on murder rates in Texas, have concluded that there is no deterrent effect to capital punishment. The differences appear to be due to analysis methods and quality of data. While deterrence studies differ, the vast majority of research suggests that capital punishment has little or no deterrent effect on potential criminals. At best, the evidence appears to be inconclusive.
Comparisons of states with and without the death penalty offer some insight into whether the death penalty is an effective tool to fight crime. A 1998 survey by the New York Times found that states without the death penalty have lower homicide rates that states with the death penalty. Indeed, ten of the twelve states without the death penalty have homicide rates below the national average. Comparisons of neighboring death penalty and non-death penalty states back up the Times’ survey. When Illinois (a death penalty state) was compared with Michigan (no death penalty), a state with similar demographics, the homicide rate was lower in Michigan. Similar comparisons have been made between Iowa/Missouri; Massachusetts/Connecticut; West Virginia/Virginia (Death Penalty Information Center).
According to statistics from a 1998 FBI Uniform Crime Report, regions of the country that use the death penalty the least are the safest for police officers. Police are most in danger in the south, which accounts for 80% of all executions. During the ten years covered by the report, 125 officers were feloniously killed in the south; 125 in the west; 121 in the Midwest; and 80 in the northeast, the region with the fewest executions – less that 1%.
In January of 1995, Peter D. Hart Research Associates conducted a national opinion poll of randomly selected police chiefs in the United States. It showed that many police chiefs support the death penalty, however, when asked to rank its effectiveness against such anti-crime measures as curbing drug abuse, more police officers on the streets, and longer sentences, the death penalty ranked last. Over 80% of the respondents said they believe that murderers do not think about the range of possible punishments before committing homicide. Studies by sociologists support this theory. These studies show that poor, uneducated young men who don’t believe they will be caught commit most murders (Cooter and Ulen, Law and Economics).
Opponents of the death penalty also cite the arbitrariness and infrequency with which the death penalty is imposed, and the inevitable delays in its imposition as reasons why the death penalty does not deter. They say the death penalty ultimately harms crime fighting efforts because the extra stress placed on the state’s criminal justice system by capital prosecutions is so great that resources that otherwise would be used to lower violent crime rates are reduced.
Supporters of the death penalty see it differently. They insist that if the probability of execution were to become more real, potential murderers would fear it more and thus be deterred. Clemson University’s 2003 study argues for speedier executions. Researchers there found that “capital punishment deters murders previously believed to be undeterrable: crimes of passion and murders by intimates. Moreover, murders of both black and white victims decrease after executions. This suggests that, even if the application of capital punishment is racist, the benefits of capital punishment are not. However, longer waits on death row before execution lessen the deterrence. Specifically, one less murder is committed for every 2.75-years reduction in death row waits. Thus, recent legislation to shorten the wait on death row should strengthen capital punishment’s deterrent effect.”
Those favoring the death penalty for reasons of deterrence also cite a recent Emory University study, released in 2003. That study concludes that “capital punishment has a strong deterrent effect; each execution results, on average, in 18 fewer murders—with a margin of error of plus or minus 10.”In addition, supporters of capital punishment often remind us of the obvious - that once a killer is dead, he cannot kill again – a sure deterrent to violent crime.
In the textbook Law and Economics, authors Cooter and Ulen question whether any firm conclusions can be made regarding the deterrent effect of the death penalty, “Perhaps we will not ever obtain compelling statistical conclusions. Separating the effect of executions from other variables requires good data on a large number of cases, data that may be very difficult to collect. Moreover, states restrict executions to such a small group of killers that statisticians have little data to analyze.”
Trends suggest that state restrictions on death sentencing will not be eased anytime soon. Death sentencing rates have been declining for years and the projected rate of sentencing for 2003, 0.048 per 100,000 people, is the lowest rate since the reinstatement of the death penalty in 1976 (Death Penalty Information Center).
Two death penalty experts on different sides of the issue recently weighed in on the death penalty debate in an op-ed in the Houston Chronicle. Deterrence was one of a few areas where they found common ground. They agreed, “since society can incapacitate without killing . . . future dangerousness and deterrence alone are never sufficient reasons to punish someone with death”. (Professor Robert Blecker and Professor James S. Liebman, 5/24/03)
Whatever their beliefs about the death penalty, survivors of homicide victims know a common grief and powerlessness. As they struggle to respond to the shock of the murder and the loss of their family member, families try to make meaning out of incomprehensibility and figure out how they will go on with their lives. – Renny Cushing, who lost his father to murder in 1988.
One of the most controversial and emotional issues involved in the use of the death penalty is that of heeding the desires of close family members of the victims. Quite often, legislators and prosecutors offer these feelings as justification for capital punishment. The argument has always been that killing the killer will bring “closure” to the victim’s family. In reality, family members react in many different ways when the issue is what is the most appropriate penalty for a killer of their loved one
Some family members want to see the killer receive the same fate as their loved one. They cry out for justice through capital punishment. On the other end of the spectrum, some family members feel an execution only adds to their pain. They do not want to see any additional killing; some even working to abolish the death penalty. Most family members fit into neither category. They simply seek justice from the system and rely on the advice and counsel of local prosecutors and crime victim advocates.
Overall, there is a growing awareness of the detrimental effects of the long process on surviving family members. Indeed, in a September 21, 2003 New York Times article, Queens District Attorney Richard A. Brown acknowledged the terrible toll the process takes on survivors (Prosecutors Seek Fewer Executions, Signaling New Wariness).
In New Jersey, where no execution has been carried out since capital punishment was reinstated in 1982, there are some victims family members who, in principal, are in favor of the death penalty. However, they recognize that the process for implementing the death penalty, including the years of appeals with the constant reminders of the tragedy, renders a true life sentence preferable from the survivor’s standpoint. Death sentences in New Jersey are frequently reversed, leading to new, lengthy capital trials. Many years after the original trial, the sentence may be changed to life without parole.
Most families are unacquainted with the criminal justice system and do not understand the process. They feel let down, and experience additional suffering when the killer is sentenced to less than the punishment sought by prosecutors or when the system fails to carry out the sentence imposed at the original trial. Many family members would prefer to change the system so that the process is faster and less painful for survivors. Others, acknowledging the potential for wrongful convictions, fear a faster process could lead to the execution of an innocent person.
Some prosecutors treat family members who oppose the death penalty differently than those who support it according to Murder Victims Families for Reconciliation (MVFR), a national anti-death penalty organization with members in New Jersey. In Dignity Denied- The Experience of Murder Victims’ Families Who Oppose the Death Penalty, MVFR members share their experiences dealing with prosecutors and the criminal justice system. They speak of being silenced, marginalized, even abandoned – by the people charged with helping them – because they oppose the death penalty for the killer of their loved one. Although MVFR applauds advances such as victims assistance programs and victim’s rights laws, they also point out that there are no protocols in any prosecutor’s office in the nation for dealing with family members of victims who oppose the death penalty.
Even when a family’s wishes are considered, the death penalty can add a layer of stress to an already horrific experience. Bill Piper, a New Jersey resident who lost his mother to murder in Pennsylvania, testified in favor of a study of the death penalty before the New Jersey Assembly in 2003. He shared how the Pennsylvania District Attorney assigned to the case sought out the family’s opinion before deciding whether to seek the death penalty. That unusual decision to seek input from the family led to a rift, since some wanted the death penalty and others didn’t. At the Assembly hearing, Piper described the effect on his family’s healing process - “Political divisiveness in a family is not a healthy way to approach grief. When we first learned of my mother’s death, the family pulled together, and it began to unravel over the stress put on us through the death penalty decision.”
A very real concern for surviving family members on both sides of the death penalty debate is how they will feel if or when the killer of their loved one is released. Some fear for their safety, others for the inevitable reopening of wounds. While it is impossible to predict how someone will feel after the loss of a family member, one thing is certain – victims of violent crime and their families need, and should be given, tremendous support. For example, Piper described the aftermath of his mother’s murder at the Assembly hearing:
”As the close family member of a murder victim, one is called on to provide evidence, hear about arrests, see the perpetrator, hear details of the loved one’s death over and over again, hear about rape long after the fact of murder settled in, give opinions as to legal courses of action, review evidence, attend pre-trial hearings, attend trials, prepare victim’s impact statements, suffer through delays and appeals while bringing it all to court, etc. These stages in the motion toward legal conclusions happen without warning. You no sooner move toward acceptance after the last wave of misery and detail, than another wave comes along to throw you back to the beginning. For my family, it took over three years to bring it all to legal conclusion.”
In New Jersey, the Crime Victims Compensation Board and non-profit resource centers are attempting to meet the needs of family members of homicide victims and other survivors of violent crime.
The theory behind American jurisprudence is that in a vigorous presentation of the facts by each side to an impartial fact finder, a judge or jury, the truth will emerge. However, this theory requires that the two sides presenting the facts be reasonably equivalent in skills, intelligence, and other resources, and reasonably committed to their task.
New Jersey has an extensive public defender system with a special capital defenders section that works very hard representing capital defendants. While New Jersey’s system does not have glaring problems with quality of counsel issues, all attorneys, even the most well meaning and qualified, can make mistakes. There have been some cases of wrongful convictions in New Jersey that appear to be due, at least in part, to bad lawyering. (New Jerseyans for a Death Penalty Moratorium and Centurian Ministries).
Of the four men on death row who have exhausted their state level appeals, two, Anthony Di Frisco and Robert Marshall have claims of ineffective assistance of counsel. Two attorneys who had never worked on a capital case and who each had only two years of criminal law experience represented Anthony DiFrisco in the penalty phase of his trial. Additionally, the expert that worked on mitigating evidence at the trial had no experience in that field and failed to present evidence of DiFrisco’s remorse, which can be a powerful mitigating factor. Robert Marshall was represented by a defense attorney who did not offer any mitigating evidence.
In other states, problems in quality of defense counsel have been more severe. At a Pew Forum Conference in February of 2002, Beth Wilkinson, who successfully prosecuted Timothy McVeigh for the Oklahoma City bombing, addressed the issue, “Most of the problems that we see in the system come from inappropriate representation of the defendant -- the limitations in states like Alabama and Texas on the amounts of money that counsel can receive. No one with my education and training and working at a private law firm would be able to take on such a case, unless it were pro bono, because the fees are so extraordinarily small.” In New Jersey, the Office of the Public Defender in New Jersey sets no upper limit on attorney’s fee. However, if the assignment of an outside pool attorney is required, that attorney is paid $50 per hour. This is well below the New Jersey average of about $175-300 per hour, and below the national average in capital cases, which is $75 per hour.
U.S. Supreme Court Justice Ruth Bader Ginsberg addressed the seriousness of the problem of ineffective legal representation in an April 2001 AP story where she stated, “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty,” Ginsberg said.
The evidence upon which a person is convicted and sentenced to death can be inadequate, erroneous, confusing, misinterpreted, or false, thus leading to a wrongful conviction. Ultimately this scenario could result in the execution of an innocent person. Nationally, since the death penalty was reinstated in 1976, 112 persons have been released from death row after evidence of their innocence was uncovered (Death Penalty Information Center). There have been no death row exonerations in New Jersey, but in the last twenty-five years, at least 16 innocent New Jerseyans were convicted of serious crimes ranging from rape to murder (New Jerseyans for a Death Penalty Moratorium). Indeed, despite efforts to avoid tragic mistakes, New Jersey remains vulnerable to wrongful convictions due to unreliable evidence.
Eyewitness Testimony
The most common cause of wrongful conviction is eyewitness testimony, which may be perjured or offered in good faith. Witness perjury is a more common cause of error in capital crimes than in lesser crimes, simply because there is more at stake. One review of DNA exonerations revealed that 76% of the wrongful convictions exposed by DNA testing were based in whole or in part on eyewitness testimony (Actual Innocence, Scheck, Neufeld, Dwyer). Other studies have shown, on average, less than 50% of participants can correctly identify a perpetrator from photos or in a line-up, and 25% specifically identified the wrong person.
New Jersey recently implemented new procedures designed to reduce the problem of eyewitness misidentification, including a new sequential lineup procedure that has been hailed by criminal justice experts. In addition, eyewitnesses are now told explicitly that the suspected perpetrator might not be in the lineup or photo spread, and therefore they should not feel they must make an identification. However, the state fails to require that eyewitnesses be told they should not assume that the person administering the lineup or photo spread knows which person is the suspect in the case – one of 85 recommendations by the Illinois Capital Punishment Commission after a thorough review of the capital punishment system in that state. Moreover, according to Equal Justice USA/The Quixote Center, a national organization that opposes the death penalty, New Jersey law fails to meet the majority of the Illinois recommendations.
Perjured Testimony
Another cause of wrongful convictions is the use of "jailhouse snitches." These witnesses often fabricate a story of how the particular defendant confessed his crime in hopes of getting a reduced sentenced. In cases involving co-defendants, one may lie to avoid their own conviction.
False Confessions
Confessions have always been considered strong evidence of guilt. However, DNA testing has exposed the prevalence of false confessions. Mentally ill or mentally retarded individuals may confess to a crime they did not commit because of delusions or out of a desire to please authorities. People confess under duress and to crimes they did not commit in order to avoid a harsher fate, especially if the death penalty is threatened. In Chicago, some of the men who "confessed to murder" had been tortured until they agreed to confess. Their confessions were then videotaped but not the events that led up to it. Some of those men remained on death row in Illinois until Gov. George Ryan pardoned them.
Incorrect or Fraudulent Scientific Testimony
There is also cause for considerable concern about the reliability of scientific testimony. In many cases, simple errors in performing tests may have occurred, or someone may have failed to report pertinent findings. Even worse is the intentional falsification of reports. In Oklahoma, authorities are reviewing thousands of cases involving a chemist with the Oklahoma City Police Department, Joyce Gilchrist. An FBI report said Gilchrist “went beyond the acceptable limits of forensic science” in her testimony in those cases, three of which resulted in conviction and execution. Alltogether, Gilchrist was involved in eleven cases that resulted in execution and twelve where the defendant was sentenced to death but is still on death row (May 2001 in Washington Post and Time.com, When the Evidence Lies)
In 2001, James L. Andros III of Trenton, a 12-year veteran of the Atlantic City police force, was charged with murdering his wife, Ellen. The murder charge was based on the Cape May and Cumberland County Medical Examiner’s report which ruled the death a homicide due to suffocation. A year and a half later, that report was found to be erroneous by two independent forensic experts hired by the defense, as well as one hired by the County Prosecutor. The Medical Examiner, Dr. Eliot M. Gross, later agreed with their findings that Ellen Andros died of natural causes (New York Times, Dec 5, 2002). Dr. Gross worked for the state from 1995 until earlier this year, when he retired after the state criticized the remedial work he was ordered to undergo as a result of this mistake (Philadelphia Inquirer, Aug.13, 2003).
Technological advances have led to greater examination of the reliability of evidence. In some cases, these advances have directly cleared wrongly convicted individuals. However, DNA is not the final answer that will eliminate the possibility of mistake. DNA evidence is available in less than 20% of murder cases. Of the 112 death row inmates released nationally, only 12 were exonerated as a result of DNA evidence. The other 100 men and women were freed as a result of investigative work by students, journalists and other concerned individuals.
Death Penalty advocates make a distinction between legal innocence and factual innocence and challenge many of the 112 exonerations reported by the Death Penalty Information Center (DPIC). They say the actual number of factually innocent people is much lower because some of the 112 were released as a result of legal errors, not innocence. DPIC defends its list of 112 exonerations and cites the strict criteria that must be met to be included on the list. A description of each of the 112 cases can be found on the DPIC web site.
It is important to understand that both sides agree that legal errors are made, regardless of the defendant’s guilt or innocence. A Columbia University study released in 2002 reported a high rate at which capital sentences are reversed for serious error. Nationally, that reversal rate, or "error" rate is 68% for capital cases. In New Jersey, the error rate is 70%, though reversals have declined in recent years. In non-capital cases, the error rate is closer to 20%. (Judge John J. Gibbons, LWVNJ Penalty Conference, November 24, 2003, Rutgers University.) It is important to understand that when a sentence is reversed, it does not necessarily mean that the defendant's guilt conviction is in question. Rather, it means that a legal error was made that was serious enough for the courts to reverse or overturn the sentence
There are, of course, two sides to the reversal rate issue. Death penalty supporters say many of these reversals are due to "due process" errors that are little more than legal technicalities, and claim that there is no evidence of an innocent person being executed. (Wall Street Journal, June 16, 2000). Anti-death penalty groups point to high reversal rates as one more way in which the capital punishment system is flawed. They see a link between the intense pressure and stress of capital punishment trials and the frequency of legal errors. There is one fact that can’t be disputed – when an error is so serious that it leads to a wrongful conviction, it means the real offender is free to murder or rape again.
Persons with mental illness or mental retardation are also treated differently
in important ways. Those who do not have a minimal understanding
of the nature of court proceedings cannot be subject to trial for a criminal
offense. Persons with a mental illness can raise their ‘state
of mind’ at the time of the offense as a defense argument to a capital
or other criminal charge and seek “acquittal by reason of insanity.”Additionally,
in the penalty phase of a capital trial both “extreme mental or emotional
distress” and significant impairment of the defendant’s “capacity
to appreciate the wrongfulness of his conduct or conform his conduct to
the requirements of the law" are considered mitigating factors which
may, on balance with aggravating factors, avoid a sentence of death.
There is widespread confusion about the differences between mental illness and mental retardation and difficulty in applying these different legal standards. Discussion of the degree to which society is willing to make special rules for persons with mental illness or mental retardation who are charged with criminal offenses is confounded by these issues. But, the necessity of public discussion was highlighted in Atkins v. Virginia, decided, in June 2002. In that case, the U.S. Supreme Court held that the Eighth Amendment bars execution of persons with mental retardation, based on an analysis of “evolving standards of decency.” Judges look to public actions outside of the courtroom to ascertain the content of these standards, so public debate of the issues discussed below, while difficult, should not be avoided or bypassed.
The decision to ban the execution of mentally retarded persons could
someday be extended to bar the execution of minors or persons with mental
illness on constitutional grounds. Pending any such developments,
and with the Atkins decision currently protecting persons with
mental retardation and New Jersey statutes protecting minors, the
following brief summary focuses on areas of concern regarding the capital
prosecution of persons with mental illness.
Theories of mental illness and deficiencies in the mental health
system (overcrowded hospitals, waiting lists at community agencies,
medication problems, etc.) provide alternative explanations for the
fact that many people with mental illness do not seek treatment; that
many who do want help cannot get treatment voluntarily; and that others
cannot be treated involuntarily until they are imminently dangerous
or have already caused serious harm to themselves or others.
Some states have laws authorizing early intervention before people
with mental illness become dangerous. New Jersey does not.
In this context, we as a society must consider whether it is acceptable
social policy to execute people whom the state would not treat and
whose deadly conduct likely occurred while their illness was untreated.
The third problem is that, tragically, there is still tremendous stigma in society and in the minds of people in the courtroom about people with mental illness. Hence, for example, research (American Bar Association: Mental Illness and the Death Penalty) indicates that jurors view mental illness as an aggravating factor, despite the fact that the law explicitly makes it a mitigating factor in sentencing. Stigma against persons with mental illness can also play out in the media and political arenas, particularly under the spotlight of high profile death penalty cases.
These issues need to be publicly addressed in any discussion of capital punishment.
In New Jersey, the harshest punishment available for murder is the death penalty, which requires a unanimous jury verdict. In capital cases where the jury is not unanimous, the automatic sentence is life without parole. Jury directions and understanding must be comprehensive and explicit, including alternative options in cases of less than unanimity. Juries often fear the prospect of a convicted murderer returning to society within a few years, so these instructions are critical. However, there is always the possibility of commutation or pardon by the governor in these cases, usually constitutionally mandated.
Most polls show that more people in this
country prefer alternative sentences that guarantee both protection and
punishment over the death penalty. The decline in death sentences
over the last four years supports this argument. What are the alternatives
for the type of criminals who are currently sentenced to death?
Do they adequately protect society?
Alternatives include life sentences, life sentences without parole, and
life sentences without parole with restitution.
I.
Life Sentence
A life sentence is not automatically for a lifespan, but rather a sentence
with the possibility of parole after a specific period of time. The
perception of those sentenced to life returning to society after a few
years is erroneous. In New Jersey, a life sentence means the offender
must serve a minimum of 30 years before parole eligibility.
II.
Life Sentence Without Parole
Death penalty opponents argue that life without parole, often the sentence
of choice when offered to juries, serves to satisfy the goals of retribution,
incapacitation and deterrence. Appeals in these cases are less often
sought than in capital cases. It promises a shorter resolution and
less incidence of reversal than the death penalty, although, like death,
it is subject to executive pardon and commutation. Thirty-three
states (plus the District of Columbia and the federal government) employ
a sentence of life without parole in some form.
III.
Life Without Parole With Restitution
Requiring those who have committed murder to make some monetary restitution
to the family of the victim is strongly supported by those choosing alternatives
to the death penalty. However, this sanction has not yet been widely
employed by states. Inmates generally receive little in the way
of remuneration for work performed in prison, usually barely enough for
cigarettes or candy. A requirement of restitution might mean raising
the pay for prison work. Nevertheless, various opinion polls show
that a requirement of restitution is one of the most consistent demands
by those preferring alternatives to the death penalty. The concept
is extremely important to many people and could be incorporated further
into the correctional system. In Arkansas, California, Wisconsin,
Idaho, and Oregon, restitution to the victim's family can already be required
of the offender in homicide cases. In cases where restitution is
mandated, $150,000 is the average sum, approximately the prison hourly
wage for twenty-five years.
Most states without the death penalty now
utilize a sentence of life without parole for their worst offenders.
Michigan, for example, has had a mandatory life without parole law for
first-degree murder since 1931. It also bears the distinction of
being the first English-speaking jurisdiction to permanently abolish the
death penalty. For the past decade, the governor has averaged only
one commutation per year of those sentenced to life for first-degree murder.
The time served for those few who were commuted between 1983 and 1990
averaged 27 years.
Inside prison, a number of wardens report that those serving life sentences
are the best-behaved prisoners in their entire system. Leo Lalonde
of the Michigan Department of Corrections says of those serving life without
parole sentences: "After a few years, lifers become your better prisoners.
They tend to adjust and just do their time. They tend to be a calming
influence on the younger kids, and we have more problems with people serving
short terms."
The subject of reforms is a complicated one. The Constitution Project housed at Georgetown University in Washington DC, seeks to develop bipartisan solutions to issues through scholarship and public education. That committee endorsed a number of recommendations regarding effective counsel, categories of defendants and homicides, alternative punishments, racial fairness, proportionality review, and the role of prosecutors, judges, and juries. The Illinois Capital Punishment Commission recommended 85 reforms to adequately protect that state against wrongful executions. One example is a ban on the use of jailhouse informants in capital cases. According to New Jerseyans for a Death Penalty Moratorium, a group that seeks a suspension of executions pending completion of a comprehensive study of New Jersey’s death penalty system, New Jersey fails to meet more than 70% of the 85 reform measures recommended by the Illinois Commission. Many of those reforms were passed by the Illinois state Legislature and signed into law in 2003. The American Bar Association has also issued guidelines for capital punishment systems.
A thorough examination of New Jersey’s death penalty would go a long way toward helping governmental leaders and the general public make informed decisions about capital punishment, including whether potential reforms are needed.
Opponents of the death penalty often use pragmatic arguments about the fairness of our judicial system to justify abolition. For example, they often cite racial and other kinds of biases as well as flaws in court procedures when the defendant is indigent. It is important to acknowledge, however, that death penalty advocates also recognize that our judicial system needs reform; in fact, many death penalty advocates support limiting the kinds of crimes justifying capital punishment and improving procedures for the admissibility of evidence. In their view, these reforms would address the pragmatic concerns raised by abolitionists. From this pragmatic viewpoint, the question becomes then, can the death penalty be imposed fairly and accurately?
The second question is more difficult because it poses a profound moral dilemma. Does society have the right to take the life of a person whose guilt in a truly heinous crime is clearly demonstrated? Or is human life so sacred that no society is ever justified in taking an individual’s life? Opponents of the death penalty argue that there are viable alternatives to satisfy society’s needs for justice, while death penalty advocates maintain that the “worst of the worst” deserve to die.
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