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January 2, 2007

NJ commission urges abandoning the death penalty

It didn't take long for the new year to produce some capital punishment headlines.  As detailed in this AP report, a special commission in New Jersey has sent a report to Gov. Jon Corzine and legislators saying the state "should abolish its death penalty and replace it with life imprisonment without the possibility of parole."  Here are more details from the AP story:

The report ... found no compelling evidence that New Jersey's death penalty, which has not been used in more than four decades, serves any purpose.  It also found the death penalty costs taxpayers more than paying for prisoners to serve life terms without parole. "There is increasing evidence that the death penalty is inconsistent with evolving standards of decency," the report states.

The findings, authored by a 13-member commission created in late 2005 by the Legislature, found abolishing the death penalty would eliminate the danger of executing an innocent person and the risk of the punishment being unfairly implemented. "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," the report found.

I will post a link to the report when available.  It should be linked here at some point.

UPDATE:  Here is the link to the 133-page New Jersey Death Penalty Study Commission Report.  Here is its central recommendations:

The Commission recommends that the death penalty in New Jersey be abolished and replaced with life imprisonment without the possibility of parole, to be served in a maximum security facility. The Commission also recommends that any cost savings resulting from the abolition of the death penalty be used for benefits and services for survivors of victims of homicide.

January 2, 2007 at 12:45 PM | Permalink


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» NJ Commission Issues Report from StandDown Texas Project
As Karl Keys predicted, the New Jersey Death Penalty Commission has issued its report, calling for replacing the state's death penalty with the sentence of life without parole. Doug Berman has commentary at Sentencing Law and Policy:It didn't take long [Read More]

Tracked on Jan 2, 2007 1:34:25 PM


"But I believe that the fundamental problem is not the statute, but rather liberal judges and other individuals who have consistently disregarded the legislative will and refused to enforce the law as written," Russo wrote in his dissent.

I would be interested to see which decisions of which “liberal” judges he found to be in error? Are his problems with trial judges, the New Jersey courts or the U.S. Supreme Court. Perhaps he could advocate for changes to the U.S. constitution instead.

I wonder how many people per year he thinks is an optimal amount for a state the size of New Jersey (home of the Sopranos) to execute, and what an acceptable erroneous conviction rate might be ?

Posted by: S.cotus | Jan 2, 2007 12:55:10 PM

Has there been much study on the moral and public policy justification for "life without parole?" Even in the few states that permit parole for murderers, it is very rarely granted. For convicted first-degree murderers, the practical difference between the availability of parole, and life without parole, is almost negligible.

The conventional justification for LWOP is the assurance that the defendant will not, under any circumstances, ever have the chance to kill again outside of prison. When was the last time a first-degree murderer was paroled, and then killed again? With parole in those cases being so rare to begin with, it probably hasn't happened in decades.

I would therefore argue that, from a purely practical standpoint, there would be no harm in allowing the possibility of parole in those cases. Most murderers would stand no chance of being paroled anyway, and it would at least permit parole in those few cases where it might be justified.

Most likely the reason for LWOP is entirely psychological, and not really based in reason. It's a way of persuading those who are on the fence that the punishment is the next best thing to a death sentence.

Posted by: Marc Shepherd | Jan 2, 2007 2:50:19 PM

Mr. Shepherd, I think this is what Professor Berman has been trying to get people to understand: people are putting too much effort into the capital debate, and, in doing so, have converted LWOP into a rhetoric device to convince people that there are alternatives to capital punishment. There are still major moral problems with LWOP and prison conditions in general, but the anti-DP crowd figures that by shifting the debate it can achieve one goal.

Posted by: S.cotus | Jan 2, 2007 3:05:06 PM

S.cotus, the rhetorical device of LWOP (the purpose of which I totally understand) long predates Pref. Berman's blog.

Posted by: Marc Shepherd | Jan 2, 2007 3:40:41 PM

"The conventional justification for LWOP is the assurance that the defendant will not, under any circumstances, ever have the chance to kill again outside of prison. When was the last time a first-degree murderer was paroled, and then killed again?"

Defendants with connections sometimes kill again outside prison even though they remain incarcerated, e.g., Clarence Ray Allen to name just one.

I don't know when the last time a first-degree murderer was paroled and killed again, but there are such cases among the people removed from death row in 1972. It happens. Does it happen a significant number of times? One is significant, IMHO.

Posted by: Kent Scheidegger | Jan 2, 2007 6:32:57 PM

Mr. Scheidegger, Would you argue that the possibility of erroneously acquitting someone that later kills is just as bad, and a reason to determine as a matter of constitutional law, that the jury trial is outdated. Would you have a problem with preventative detention of the "types" of people that might kill in the future, but have not yet. After all, if we can save one live, shouldn't we put these people in jail (or give them the death penalty.) Or, would you argue that only FUTURE double-murderers should be put in jail for life (or given the death penalty) because although we have compromised one life, we have saved two?

Mr. Shepherd, I was referring to Prof. Berman as the first prominent person to call it a rhetorical device, because he thinks more attention should be paid to people who are serving very miserable indefinite sentences.

Posted by: S.cotus | Jan 2, 2007 9:03:03 PM

All people need to do is to look at the case of Kenneth Mcduff to see why certain people should either be executed or never ever ever ever be let go.

I prefer execution, as there is no doubt that person will never walk the streets once the punishment is carried out.

Posted by: federalist | Jan 2, 2007 11:17:16 PM

Clarence Ray Allen and Kenneth Mcduff are both powerful examples and no one can argue they should have been released. Hindsight is always 20/20.

But the Bureau of Justice Statistics finds in NCJ-193427 "1.2% of those who had served time for homicide were arrested for a new homicide."

That means that about 99% of those convicted of homicide are not a Clarence Ray Allen or a Kenneth Mcduff, and putting them to death based on this comparison would be 99% wrong.

Posted by: George | Jan 3, 2007 1:35:34 AM

Kent Scheidegger's mention of Clarence Ray Allen was non-responsive, because I asked about the difference between the possibility of parole and LWOP, not the difference between life and death.

I do agree with Kent that if even one murderer is released, and s/he later kills again, it is significant. But if someone is executed who was actually innocent, that's significant too. From isolated cases, you can make a reasonable argument for just about any policy you want.

Indeed, as s.cotus pointed out, I'm sure the number of guilty murderers wrongly acquitted far exceeds the number of convicted murderers wrongly released on parole.

Posted by: Marc Shepherd | Jan 3, 2007 8:34:47 AM

"Would you argue that the possibility of erroneously acquitting someone that later kills is just as bad, and a reason to determine as a matter of constitutional law, that the jury trial is outdated."

Nope, not remotely. You have to balance the consequences of error on each side. Conviction of an innocent person is vastly worse then the execution of any person who is in fact guilty of murder. We accept risks to avoid a greater danger that we need not accept to avoid a lesser danger.

The last clause of the sentence quoted above, BTW, seems to imply that courts can legitimately strike provisions from the Constitution that they find to be outdated. If a requirement is actually in the Constitution, it is there until an amendment removes it, no matter how outdated it is. The Seventh Amendment requirement for jury trials in civil cases over $20 is badly outdated, but it's still there.

I brought up Clarence Allen because most of the people pushing LWOP contend that it has an incapacitative effect equal to the death penalty. It does not.

Posted by: Kent Scheidegger | Jan 3, 2007 2:54:06 PM

Kent, A lot of people have argued, in substance that the jury trial is outdated and inadequate for dealing with some criminals. This was, in substance, the argument made by the government in Padilla. Many people adopted the idea that jurors would be hoodwinked by “lawyers” (an idea which other lawyers broadcast), and that a trial would lack the discipline of fact-finding that the government was able to instill via its secret methods. This was what I was referring to.

In fact, as matter of constitutional law, at the moment, we don’t balance the consequences of error for future crimes what bit. (The government has made some arguments about preventative detention, but not since the internment of Japanese has this issue been raised seriously.) Quite frankly, in some zipcodes, there is a better than 50% chance that a given male will be supervised by the criminal justice system at some point in their lives. Assuming that there is no such thing as a “victimless” crime, the fact that we wait for these people to offend means that we are accepting of a large amount of error, because, as a constitutional matter, people need to commit crimes before they can be punished. However, a more accurate balance would be to simply detain people BEFORE they commit the crime (on a basis of race, veteran status, political viewpoint, earned income), and assure ourselves that detained a minimal amount of future criminals.

Posted by: S.cotus | Jan 4, 2007 11:39:07 AM

January 5, 2007, NY Times editorial on this matter:
New Jersey could take the lead among states in abolishing the death penalty if it follows the recommendation that a legislative commission made this week. It is the right thing to do, and not just because capital punishment is barbaric and a poor deterrent. It has become increasingly clear as the use of DNA evidence has grown that there is simply too great a risk of making an irreversible mistake.

While we would have used stronger language, we applaud the 13-member panel for having the courage to recommend that New Jersey become the first state to abolish the death penalty since states began reinstating it 35 years ago. The commission included two prosecutors, a police chief, members of the clergy and a man whose daughter was murdered in 2000. Only one member, a former state senator who wrote the death penalty law, dissented.

Although it has nine people on death row, New Jersey has had a moratorium on executions since 2005 and has not put anyone to death since 1963. Nevertheless, the panel's recommendation that the death penalty be replaced with life imprisonment without parole is likely to have significant influence both inside and outside the state. It comes as about 10 of the 38 states with death penalties, including New York, have suspended executions and as recent developments, like DNA exonerations and a botched lethal injection in Florida last month, have created a growing unease about executions.

With Gov. Jon Corzine opposed to the death penalty, and substantial numbers of capital punishment opponents in both houses of the Legislature, there is a reasonable chance the commission's recommendations will become law. That would make New Jersey's criminal justice system more civilized and fair. It could also prod other states to abandon their own use of what Justice Harry Blackmun called the "machinery of death."

Posted by: Bernie Kleinman | Jan 5, 2007 10:55:16 AM

I think the death penalty is awesome...

Posted by: billy keitz | Apr 5, 2007 1:22:10 PM

Most civilized nations reject the death penalty but a remarkable number of Americans still cling to it.

It's remarkable that New Jersey and states like Illinois have decided to step up and show leadership on such an emotional issue.

Posted by: Illinois State! | Apr 12, 2008 9:00:58 PM

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