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November 9, 2007

Is NJ on the verge of repealing its (dormant) death penalty?

The news from New Jersey is that the state may be on the verge of legislatively repealing its (never used) death penalty:

The Assembly will vote next month on legislation to repeal New Jersey's never-used death penalty, Speaker Joseph Roberts (D-Camden) said today, adding he is "cautiously optimistic" the bill will pass.

At a Statehouse news conference with Sister Helen Prejean, whose ministry to death row inmates was described in her book "Dead Man Walking," Roberts said he is committed to making New Jersey "the first state to legislatively repeal the death penalty." With support for capital punishment waning nationally, such a move would make New Jersey "a beacon on the hill" that other states will follow, Prejean predicted. "I know you're known as the Garden State; it's going to be great to also be known as the life state," said Prejean, who has made a dozen trips to New Jersey to urge repeal of the death penalty.

Roberts said the Assembly will take up a bill (A-3716) by Assemblyman Wilfredo Caraballo (D-Essex) that would replace capital punishment with life imprisonment without the possibility of parole. "The bottom line of that bill is to lock murderers in jail and throw away the key," Roberts said. "The cost of having a death penalty that never gets used can no longer be tolerated."

Though I am sure abolitionist will welcome this news, anyone concerned about over-punishment should be hesitant about praising these developments.  I believe the New Jersey abolition bill may, as discussed here, expand the number of persons subject to mandatory life without parole.  Especially given the reality that no defendant has been executed in New Jersey in modern times, I believe the abolition movement in New Jersey, if successful, could actually be ushering in a harsher set of punishments in the Garden State.

Some related posts on New Jersey's capital punishment debate:

November 9, 2007 at 12:55 PM | Permalink

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Here's the bill: http://www.njleg.state.nj.us/2006/Bills/A4000/3716_I1.PDF
(The link in the article does not work).

The bill does add 11 aggravating circumstances that, if found by a jury, would require LWOP. The bill, however, does not allow LWOP to be imposed on juveniles who are charged as adults.

Posted by: DEJ | Nov 9, 2007 1:28:19 PM

Check out this article on NY's death sentence: http://www.nysun.com/article/65115. Just thought you'd be interested.

Posted by: trademark registration | Nov 9, 2007 4:25:52 PM

"With support for capital punishment waning nationally...."

Here is the most recent Gallup Poll.

"Gallup's annual October Gallup Poll Social Series update on Americans' attitudes toward crime shows no diminution in Americans' strong support for the death penalty in cases of murder."

Posted by: Kent Scheidegger | Nov 9, 2007 5:27:28 PM

Doug:

The LWOP bill isn't as much of an expansion as you might think. NJ already gives judges the option of sentencing a person convicted of ANY murder (even as a first time offender w/no aggravating factors) to LIFE do 63 years 9 months under the No Early Release Act, which, save for the exceptionally young offender, is effectively LWOP.

Kent:

Over the course of the last 20 years DP support has markedly dropped / waned -- even your poll indicates that. Support for LWOP now replaces support for death for the worst of the worst. Publicly available polling inside of New Jersey has shown an even more marked drop for death and replacing it with LWOP.

Posted by: karl | Nov 9, 2007 6:15:39 PM

"Over the course of the last 20 years DP support has markedly dropped / waned...."

Meaning support is down from its all-time high. Yes, and it is also up from its all-time low. Over the long haul, support remains at very high levels. There are few controversial issues where 2/3 of the people are on one side.

"Support for LWOP now replaces support for death for the worst of the worst."

Not true. The polls showing LWOP and death responses about equal (within the margin of error) are in response to a question implying that a single punishment is to be specified for all murders. If that were really the question, I would answer LWOP myself. But it's not.

Posted by: Kent Scheidegger | Nov 9, 2007 6:56:06 PM

Oh, the public will support the DP as much as we want them to. What they think is pretty much irrelevant, since it changes with what rhetoric is in vogue.

Posted by: S.cotus | Nov 9, 2007 9:20:32 PM

Death Penalty Polls - Support Remains Very High
Dudley Sharp, Justice Matters, contact info below
 
Death penalty support is much deeper and much wider than we are often led to believe, with significant percentages of those who say they, generally, oppose the death penalty, actually supporting it under specific circumstances.
 
General Support

76% of Americans find that we should impose the death penalty more or that we impose it about right - only 21% that it is imposed too often. (Gallup, May 2006 - 51% that we should impose it more, 25% that we impose it about right)

71%  find capital punishment morally acceptable - that was the highest percentage answer for all questions (Gallup, April 2006, moral values poll). In May, 2007, the percentage dropped to 66%, still the highest percentage answer, with 27% opposed. (Gallup, 5/29/07)

When asked the general question "do you support capital punishment for murderers?" , 67% of Americans said yes, with 28% opposed  (Gallup, 10/06).


Specific Case Support is much higher

81% of the American people supported the execution of Timothy McVeigh, with only 16% opposed. "(T)his view appears to be the consensus of all major groups in society, including men, women, whites, nonwhites, "liberals" and "conservatives."  (Gallup 5/2/01).

85% of pf the primarily liberal Connecticut respondents voiced support for serial/rapist murderer Michael Ross' "voluntary" execution. (Quinnipiac University Poll, January 12, 2005).
 
79% support the death penalty for terrorists (Survey USA News Poll #12074, Sponsor: WABC-TV   New York, 4/26/2007 New York State poll)
 
73% of Connecticut voters support the death penalty for the two parolees accused of the Cheshire (Ct) home invasion rape/murders of a mother and her two daughters. While 63% of Connecticut voters support the death penalty for murderers, in general, AT THE SAME TIME.  ("Connecticut Voters Support Death Penalty 2-1", Quinnipiac University Poll, 11/7/07). NOTE: Support is more than 3 to 1. The poll showed 73% for execution, 23% opposed, for those parolees.  It was 63-27% for the general question.
 
This, from the French daily Le Monde, December 2006 (1):

Percentage of respondents in favor of executing Saddam Hussein:  
Great Britain: 69%
France: 58%
Germany: 53%
Spain: 51%
Italy: 46% (my note: This falls within the margin of error for 50% support)USA: 82%

We are led to believe there isn't death penalty support in England or Europe. European governments won't allow executions when their populations support it: they're anti democratic. (2)


Why the large "error rate" between general and specific case support?
 
That very  wide "error rates", between general support and specific case support, is likely due to the differences in (1) the widespread media coverage of anti death penalty claims, without the balance of contradicting those false claims, producing lower general support,  (2) the absence of that influence when looking at individual cases when the public knows the crimes, the guilt of the murderer, and absent the anti death penalty bias factor, thus producing much higher specific case  support and/or (3) reluctance of some respondents to voice stronger support for the death penalty, unless  specific examples of murderers and their crimes are provided, as evidenced within (1) and (2).


Death Penalty Opposition? Look Again.

Significant percentages of those who say the oppose the death penalty do, in fact, support that sanction under specific circumstances. This provides firm evidence that death penalty support is much wider and deeper than expressed with the answer to the general death penalty polling questions.

57% of those who say they oppose the death penalty, generally, actually do support  it for McVeigh's execution (81% supported the execution of McVeigh, 16% opposed (Gallup 5/02/01), while  65% offer general support for executions, with 28% opposed (Gallup, 6/10/01).  The polls were conducted at nearly the same time.

40% who say they oppose the death penalty, generally, actually do support it for terrorists. (79% support and 18% oppose the death penalty for terrorists.  67% support and 29% oppose the death penalty for murder.) (SAME POLL - Survey USA News Poll #12074, Sponsor: WABC-TV   New York, 4/26/2007 New York State poll)

90% of those who, generally, say they oppose the death penalty, actual did support it for Michael Ross. (SAME POLL - 85% say Connecticut serial rapist/murderer Michael Ross should be allowed to waive appeals and be executed. When asked whether they favor or oppose the death penalty,  59% favor -  31% oppose (Quinnipiac University Poll, January 12, 2005).

 
Distortion: Death Penalty vs Life Without Parole Polls

When responding to this question: “If you could choose between the following two approaches, which do you think is the better penalty for murder: the death penalty (or) life imprisonment, with absolutely no possibility of parole?”, Gallup found

47% for the death penalty, 48% for life without parole, (Gallup, May 2006).

Some, including Gallup and Quinnipiac, speculate that this represents lower support for the death penalty. Such improper speculation cannot be justified and is an unethical use of pollsters opinion.

Neither respondent group is saying do away with the other sanction or that they oppose the other sanction. What is does  mean is that 95% of US citizens support the death penalty and/or life without parole for murderers. It could also mean that 85% of all respondents support both sanctions. 
 
For example, "Which do you think is better - vanilla ice cream or chocolate ice cream?" 50% prefer chocolate, 45% vanilla. However, 85% actually like both vanilla and chocolate ice cream - with a slightly lower percentage liking vanilla, marginally less.
 
Also, this Gallup question is highly prejudicial, which wrongly influence the answers. This has become commonplace.
 
First, "absolutely" no possibility of parole doesn't exist.
 
What is absolute is that the executive branch can reduce sentences and the legislature can change the laws and make them retroactive, if it benefits the criminal, thereby offering two avenues for parole in "absolute" no-parole cases.
 
Therefore, the polling question offers a false premise which, obviously, distorts the answers. Gallup has been made aware of this for some time.

 Secondly, by law it cannot be a choice of either only a death sentence or only a life sentence, as Gallup wrongly poses.  Constitutionally, the death penalty cannot be mandatory. Therefore, at least two  sentencing options must always be provided to jurors in a death penalty eligible case.

Gallup did not ask this question in 2007. I hope they did it because of theses error issues and will not resume it in the future.
 
The proper questions might be, IF you are searching for a true life vs execution choice,:
 
For (specific case) murderers, do you prefer the punishment options of
1) The death penalty or life without parole? or
2) Life without parole, only, or lesser sentences, excluding a death sentence in all cases?
 
Furthermore, this has the benefit of reflecting reality, as opposed to the distorted fiction of Gallup's (and others') current life vs death questions.  The death penalty cannot be a punishment option, without also having  life or other options and the death penalty is case specific.

 
Conclusion
 
Death penalty support is much deeper and much wider than we are often led to believe, with significant percentages of those who say they, generally, oppose the death penalty, actually supporting it under specific circumstances.
 
There is 82% death penalty support in the US, as recently as December 2006. Even the most liberal of US states, Connecticut, has shown very strong support for specific case executions - 85% (2005), 73% (2007).
 
95% of US citizens support the death penalty and/or life without parole for murderers. Therefore, we already have the most democratic approach - we give jurors the choice between those two sentences in capital eligible cases.

Dudley Sharp, Justice Matters
email sharpjfa@aol.com, phone 713-622-5491
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, FOX, NBC, NPR, PBS  and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
 
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Pro death penalty sites 

homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
joshmarquis(dot)blogspot.com/
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_contents.htm  (Sweden)


(1) The recent results of a poll conducted by Novatris/Harris for the French daily Le Monde on the death penalty shocked the editors and writers at Germany's left-leaning SPIEGEL ONLINE (Dec. 22, 2006). When asked whether they favored the death penalty for Saddam Hussein, a majority of respondents in Germany, France and Spain responded in the affirmative.

(2)An excellent article, “Death in Venice: Europe’s Death-penalty Elitism", details this anti democratic position (The New Republic,  by Joshua Micah Marshall, 7/31/2000). Another situation reflects this same mentality. "(Pres. Mandela says 'no' to reinstating the death penalty in South Africa - Nelson Mandela against death penalty though 93% of public favors it, according to poll. "(JET, 10/14/96). Pres. Mandela explained that ". . . it was necessary to inform the people about other strategies the government was using to combat crime." As if the people didn't understand. South Africa has had some of the highest crime rates in the world in the ten years, since Mandela's comments. "The number of murders committed each year in the country is as high as 47,000, according to Interpol statistics." As of 2006, 72% of South Africans want the death penalty back. ("South Africans Support Death Penalty",  5/14/2006,  Angus Reid Global Monitor : Polls & Research).

Copyright  2005-2007

Permission for distribution of this document is approved as long as it is distributed in its entirety, without changes, inclusive of this statement.

Posted by: Dudley Sharp | Nov 10, 2007 8:43:41 AM

Originally sent 5/2007

To: All Members - New Jersey Legislature

The New Jersey Death Penalty Study Commission was dead wrong with all of their conclusions.

The 7 points from the New Jersey Death Penalty Study Commission Report, January, 2007

1) There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent.

REBUTTAL:

- The reason that 81% of Americans found that Timothy McVeigh should be executed was justice - the most profound concept in criminal justice, as in many other aspects of life.

- Although the Commission and the NJ Supreme Court both attempt to discount deterrence, logically, they cannot.

First, all prospects for a negative outcome deter some. This is not, logically or historically rebutted. It cannot be. Secondly, those studies which don't find for deterrence, do not say that it doesn't exist, only that their study didn't find it. Those studies which find for deterrence did. 10 recent studies do.

- The Commission had ample opportunity and, more importantly, the responsibility to read and contact the authors of those many studies which have, recently, found for deterrence. There seems to be no evidence that they did so. On such an important factor as saving innocent lives, why didn't they? The testimony before the Commission, critical of those studies, would not withstand a review by the authors of those studies. That should be an important issue that the Commission should have investigated, but did not.

- LIFE WITHOU PAROLE: The Commission considered the risk of innocents executed and concluded that it wasn't worth the risk and that a life sentence would serve sufficiently without that risk to innocents.

Again, the Commission avoided both fact and reason. The risk to innocents is greater with a life sentence than with the death penalty.

First, we all know that living murderers, in prison, after escape or after improper release, are much more likely to harm and murder, again, than are executed murderers. This is a truism.

Secondly, no knowledgeable party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, it is logically conclusive, that actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.

- Therefore, in choosing a life without parole and calling for the end of the death penalty, the Commission has made the choice to put more innocents at risk - the opposite of their stated rationale.


2) The costs of the death penalty are greater than the costs of life in prison without parole, but it is not possible to measure these costs with any degree of precision.

Rebuttal:

- For the amount of time and resources allegedly expended by the Commission, this section of their review was unconscionable in its lack of responsibility to their directive.

- The Commission concludes that the current system in New Jersey is very expensive, without noting the obvious ways in which those issues can be addressed to lessen those costs. Why?

One example, they find that proportionality review cost $93, 000 per case. Why didn't the Commission recommend doing away with proportionality review? There is no reason, legally, to have it and it has been a disaster, cost wise, with no benefit.

Secondly, the Commission states: "Nevertheless, consistent with the Commission's findings, recent studies in states such as Tennessee, Kansas, Indiana, Florida and North Carolina have all concluded that the costs associated with death penalty cases are significantly higher than those associated with life without parole cases. These studies can be accessed through the Death Penalty Information Center." (Report, page 33).

On many topics the Death Penalty Information Center has been one of the most deceptive or one sided anti death penalty groups in the country. While it is not surprising that the Commission would give them as a reference, multiple times, it doesn't speak well of the Commission.

Did the Commission read any of the studies referenced by the DPIC? It appears doubtful, or the Commission would not have referenced them.

For example, let's look at the North Carolina (Duke University) study. That cost study compared the cost of only a twenty year "life sentence" to the death penalty. Based upon that study, a true life without parole sentence would be more costly than the death penalty. Somehow the Commission missed that rather important fact.

These types of irresponsible and misleading references by the Commission do nothing to inspire any confidence in their findings, but do reinforce the opinion that their conclusions were predetermined.

Please see "Cost Comparisons: Death Penalty Cases Vs Equivalent Life Sentence Cases", to follow.

3) There is increasing evidence that the death penalty is inconsistent with evolving standards of decency.

Rebuttal:

The Commission uses several references to prove their point. None of them succeeded.

- The first was based upon polling in New Jersey. The data showed strong support for executions in NJ, except when asking those polled to choose between a life sentence or a death sentence, for which life gets greater support. The major problem with this long standing and misleading polling question is that it has nothing to do with the legal reality of sentencing. Secondly, it shows broad support for BOTH sanctions, not a call to abandon either.

Jurors have the choice of both sentences in states with the death penalty and life without parole. Therefore, a proper polling question for NJ would be,

A) should we eliminate the death penalty and ONLY have life without parole? or
B) should we give jurors the OPTION of choosing life or death in capital murder cases?

Based upon other polls, I suspect B would be the resounding winner of this poll in NJ.

Secondly, your polling speaker avoided the most obvious and reliable polling question on this topic - asking about the punishment for a specific crime, just as jurors have to decide. For example, 81% of Americans supported the execution of Timothy McVeigh. 81% of Connecticut citizens polled supported the execution of serial rapist/murderer Michael Ross.

Thirdly, poll New Jersey citizens with the following questions. Is life without parole or the death penalty the most appropriate punishment for those who rape and murder children? Or should NJ remove the death penalty as a jury option for those who rape and murder children?

- Two religious speakers spoke against execution. Both are easily rebutted by religious scholars holding different views.

- Another alleged example of this evolving standard is based upon the fact there has been a reduction in death sentences. Such reduction is easily explained by a number of factors, other than some imagined "evolving standard of decency".

Murders have dropped some 40%, capital murders have likely dropped by even a greater number, based upon other factors. This, by itself, may explain the overwhelming percentage of the drop in death sentences.

In addition, many prosecutors, such as those in NJ, know that their courts will not allow executions, leading to prosecutorial frustration as a contributing factor in any reduction - not an evolving standard of decency, but an evolving and increasing frustration.

Please review: "Why the reduction in death sentences?", to follow.

4) The available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey.

No rebuttal necessary. The Commission must have read the series of NJ studies.

5) Abolition of the death penalty will eliminate the risk of disproportionality in capital sentencing.

Yes, Commission, the abolition of all criminal sentences will eliminate the risk of disproportionality in all sentences, as well. This is hardly a rational reason to get rid of any sentence.

6) The penological interest in executing a small number of persons guilty of murder is not sufficiently compelling to justify the risk of making an irreversible error.

Rebuttal:

- The risk to innocents is greater with life without parole than with the death penalty. See (1), above LIFE WITHOUT PAROLE.

7) The alternative of Life imprisonment in a maximum security institution without the possibility of parole would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of the families of murder victims.

Rebuttal: This Commission statement is quite simply, false.

- Life imprisonment puts more innocents at risk than does the death penalty.

- Justice, just punishment, retribution and/or saving innocent lives, among others, are all legitimate social and penological interests all served by the death penalty.

- 81% of Americans supported the execution of Timothy McVeigh. 81% of Connecticut citizens polled supported the execution of serial, rapist/murderer Michael Ross.

The overwhelming majority of those polled did not have family members murdered.

Is the Commission trying to tell us that a poll of NJ murder victim survivors would show a majority opposed to the death penalty? Of course not, that would be as absurd as the Commissions conclusions in this section.

------------------

Conclusion:

Almost without exception, The Commission accepted the standard anti death penalty position, without presenting the easily accessible rebuttal to that position.

Enough said.

Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Posted by: Dudley Sharp | Nov 10, 2007 9:02:35 AM

Kent Scheidegger wrote: "There are few controversial issues where 2/3 of the people are on one side."

Support for racial segregation before the 1950 comes to mind...

Posted by: DK | Nov 10, 2007 9:49:43 AM

I'm not so sure that's true, DK. Both major parties nominated pro-civil-rights candidates for President in 1948, and the segregationist candidate got 2.4% of the vote. Civil rights legislation would have passed but for the filibuster. Hard to believe that would be true if segregation had 2/3 support.

In any event, a single example from very long ago would not refute my point. Capital punishment has support at a level unusually high for any controversial issue.

Posted by: Kent Scheidegger | Nov 10, 2007 1:17:30 PM

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