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January 4, 2007

The federal law gap in the NJ death penalty report

In this post, I lamented the lack of sophisticated analysis in the New Jersey Death Penalty Study Commission Report (basics here).  And it's dawned on me that the report fails to mention what might be the strongest argument for a state to abolish the death penalty: the modern broad applicability of the federal death penalty.

The NJ report does not even mention the federal death penalty or the fact that, as noted here and here, the Bush administration has often been willing to pursue federal capital charges in non-death-penalty states.  The NJ report could have highlighted that any particularly horrific murders in New Jersey, especially if they could be described as an act or terror or involved harms to children, likely would provide a basis for the federal government to pursue a capital charge in New Jersey's federal courts.

Some related posts:

UPDATE:  I just noticed that here Capital Defense Weekly defends the NJ report as the produce of "a consensus position between very diverse and competing interests that is, understandably, narrow."  And yet, in the span of a 10-paragraph post, Karl Keys contributes more sophisticated insights to the NJ debate than one can find in the roughly 50 pages of findings in the main portion of the NJ report. 

My chief concern is not the narrowness of the NJ recommendations, but the failure to explore complicated issues relating to how having (or not having) the death penalty on the books (or an expanded LWOP) might impact charging and plea bargaining practices throughout New Jersey's criminal justice system.  Karl notes that there have been "10,000 homicides in New Jersey since the death penalty has been restored," but even this important data point does not appear in the NJ report.  And, even more importantly, the report never explores whether and how prosecutors may have approached all these homicide prosecutions differently because the death penalty was on the books (or whether their approaches will be different with an expanded LWOP). 

January 4, 2007 at 09:45 AM | Permalink


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Doug, why do you think it's a good thing for the Federal Government to be pursuing the death penalty in cases where the state does not?

The Federal criminal justice system has become bloated in recent decades, mounting many prosecutions for crimes that are essentially local. Why would we want this trend to continue?

Posted by: Marc Shepherd | Jan 4, 2007 12:24:10 PM

Marc: I think the federal system can and should be much more efficient and effective in selecting which cases should be subject to our society's ultimate punishment. I agree that the "Federal criminal justice system has become bloated in recent decades," but that is not the result of too many capital prosecutions, but two many low-level drug prosecutions. If the feds spend more time on capital cases, perhaps they will waste less time on two-bit cases that really should be local concerns.

Posted by: Doug B. | Jan 4, 2007 12:33:19 PM

The real reason for the disjointed paper was that Commission only received a year to put together the report & then got off on a late start & then had hearings well in to October & then tried to stick to their original deadline.

Posted by: anony | Jan 4, 2007 4:50:08 PM

Worthy of considering - forbid anyone but the feds from prosecuting capital cases. I'm not sure how you establish federal jurisdiction over many awful homicides: e.g., torture murder of the little girl(s) next door. The federal system, with its excellent FPDs and more reasonable CJA rates, has done a much better job of providing adequate counsel to capital defendants. Not entirely good for defendants - eliminates the breaking-the-county's-bank argument for the prosecution to strike a deal for life, and the raw numbers for the feds show many more minorities sentenced to death than in most states.

Posted by: Tom Farrell | Jan 24, 2007 4:09:53 PM

The system need to step up and consider what cases should have the highest in scrutiny to determine if there should be a punishment or not. Something has got to be done. But what?

Posted by: Sherice | Feb 25, 2009 6:52:34 PM

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