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December 15, 2008

"A year later, state assesses justice without death penalty"

The title of this post is the title of this intriguing article in today's Newark Star-Ledger.  Here is an excerpt:

A year later, prosecutors and defense lawyers agree the demise of the death penalty has had no discernible impact on the way would-be capital cases are prosecuted in New Jersey. And while the philosophical debate over the death penalty has not changed, some say a new law that has prison without parole as the most severe penalty is better than a capital punishment law with what seemed like an unending appeals process. Since the state reinstated capital punishment in 1982, there were no executions, even though 60 defendants had been sentenced to death.

"I don't think it's made much of a difference at all other than that some of the cases that were languishing out there are now getting tried," said Richard Pompelio, executive director of the New Jersey Crime Victims Law Center. "The important thing for crime victims is that the process have an end, and with the death penalty there never was an end."

During the debate over repeal, there was concern that removing the threat of the death penalty would impede prosecutors' ability to negotiate pleas, but that has not materialized, according to prosecutors. Three of 23 capital punishment cases pending at the time of repeal have resulted in guilty pleas.

"We have not viewed it as an impediment in the disposition of murder cases," said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that two years ago recommended repealing the death penalty. "As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases."

Essex County Prosecutor Paula Dow, head of the state association of county prosecutors, said eliminating the death penalty has not hindered prosecutors in pursuing tough sentences for the most violent offenders. "We are still seeing very aggressive sentences," Dow said, citing instances in which judges have imposed life sentences for murder. A life sentence is 75 years in prison, 85 percent of which must be served without parole. "That's almost the penultimate penalty," she said.

Dow said repealing the death penalty also freed prosecutors from the burden of pursuing death penalty cases in lengthy, expensive trials and prolonged appeals. "It was a very big drain on the limited resources of law enforcement," she said. "There were long delays in the resolution of the cases, multiple appeals and very high costs associated with the handling of the litigation."

This article shows, yet again, how resistent complicated sentencing systems can be to dramatic legal changes.  Functionally, it seems, criminal justice systems develop complicated ecologies that can only evolve slowly and will thus mute the impact of even very consequential changes in formal legal rules.  This has been the basic practical story in the wake of the Supreme Court's work in Apprendi, Blakely and Booker, and it is interesting to see the same basic story playing out in the state capital punishment arena in New Jersey.

December 15, 2008 at 10:34 AM | Permalink


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I get the impression Ms. Dow does not know what penultimate means.

Posted by: Kristin | Dec 15, 2008 12:49:25 PM

Giving Ms. Dow the benefit of the doubt, she might be referring to life without any possibility of release as the penultimate penalty (death being the "ultimate" penalty), and implying that 75 years, where you can't get parole until you have served 85 percent of that term (or about 63 years), is practically the same thing, thus "almost the penultimate penalty".

Actuarially, I am assuming that not too many people will be around to apply for parole on the 63rd anniversary of their conviction. (This is particularly true given my additional assumption that the average life span is not as long in prison as on the outside.)

Posted by: Observer | Dec 16, 2008 10:24:51 AM

I actually had trouble understanding Doug's comments. I am not sure what the ecologies are that are evolved so slowly. Is he talking about the culture of plea bargaining? Was he assuming more murder cases would go to trial with death off the table, and is that assumption not bearing immediate fruit?

Did he think that murder cases would be settled with hugs after capital punishment was repealed? (Joking; I don't mean to mock. I'd actually really like to understand what Doug is getting at, because I am sure he has a smart point, I just don't see it based on those quick three sentences.)

Posted by: Observer | Dec 16, 2008 10:36:15 AM

Observer: I think you got my opaque drift. I am surprised to hear that the culture of charging and plea bargaining has not changed despite death now being formally off the table in NJ.

That surprise perhaps involves my failure to appreciate how NJ prosecutors and defense attorney apparently realized that a death sentence was not a serious threat even when it was a legal punishment in NJ. (That's what I draw from the 1st paragraph here).

In other words, the NJ ecology was a functionally inconsequential threat of death and has now changed to a formally unavailble threat of death. Thus, a major legal change has had a very minor practical effect.

Posted by: Douglas A. Berman | Dec 18, 2008 9:51:31 AM

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