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January 4, 2007

The big LWOP problem with the NJ death penalty report

Karl Keys in this post spotlighted that the New Jersey Death Penalty Commission forged a political compromise by coupling its call to abolish the death penalty with an expansion of life without parole (LWOP).  An informed reader from New Jersey sent along this comment about the practicalities — or should I say impracticalities — of the proposed LWOP expansion:

Prosecutors, criminal defense attorneys, and, presumably, overworked criminal trial judges alike must be shaking their heads over the New Jersey Death Penalty Commission's proposal to substitute New Jersey's death penalty with LWOP.  The proposal would require LWOP in all cases where a defendant is convicted of first-degree murder.  As the law currently stands, the punishment for that crime is between 30 years to life except in three circumstances: 1) where a statutory aggravating factor or factors served upon the defendant is proven at a penalty trial, resulting in the imposition of death; 2) where the defendant murders a law enforcement officer, resulting in life without parole; and 3) where the defendant murders a victim less than 14 years old, resulting in life without parole.

Under New Jersey's No Early Release Act, as amended in 2001, the sentencing court must set a minimum parole ineligibility term of 85% of the term set or 30 years, whichever is longer.  The minimum parole ineligibility term applicable to a life sentence for murder is 63¾ years.  Thus, in all but the most aggravated homicides, defendants now face anywhere — in actual time served — anywhere from 30 years to 63+ years.  Obviously, 33+ years is a pretty expansive range by any measure.  In a state where 98% of all criminal dispositions are the result of plea bargains, it doesn't take a rocket scientist to contemplate the likely impact of LWOP.  No light at the end of the tunnel equates, in practical terms, to very few guilty pleas in murder prosecutions.  In addition, the Commission's LWOP proposal does not exempt juveniles (ages 15 to 17) in cases where jurisdiction has been automatically transferred from juvenile to adult court.

A more nuanced and practical scheme might entail a grading of murder based on the degree of culpability.  For example, prosecutors could, in a Blakely compliant manner, serve defendants with a notice of aggravating factors or factors and then submit an interrogatory to a jury at the conclusion of a murder trial.  A finding of one or more factors would necessitate the imposition of LWOP. In all other cases, a defendant would be subject to range of punishment currently authorized, and which allows trial judges a modicum of discretion to impose a sentence tailored to the individualized circumstances of the offense and offender.

Prior posts on the NJ report (here and here) have spotlighted its lack of sophisticated analysis, and thus I am not surprised to hear that the proposed LWOP expansion may have practical problems.  Perhaps the terrific New Jersey Commission to Review Criminal Sentencing, which apparently was not involved at all in the DP report, will spotlight some of these important practical issues for the New Jersey legislature when the debate gets going there.

January 4, 2007 at 04:47 PM | Permalink


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Given that the New Jersey Supreme Court has already made very clear that it will not allow anyone to be executed under any circumstances, replacing the current law with an expanded LWOP would be a net increase in sentencing for New Jersey murderers.

Posted by: Kent Scheidegger | Jan 4, 2007 5:55:45 PM

I gather Kent Scheidegger thinks that a net increase in sentencing for NJ murderers would be a good thing. Is there any evidence that New Jersey is under-punishing murder? Or are we just blithely assuming that all punishments short of death are too little?

I mean, if typical murder sentences today are in the range of 30-65 years, most murderers are serving the functional equivalent of life anyway, and it gives the prosecutor something to bargain with in a plea deal.

Posted by: Marc Shepherd | Jan 5, 2007 8:47:49 AM

Just noting the irony, Marc.

Posted by: Kent Scheidegger | Jan 5, 2007 1:18:57 PM

Our 7 offices and 140+ associates services the entire state of New Jersey!!

Posted by: Charles Blumenkehl | Jan 14, 2007 12:01:01 PM

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