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May 7, 2007

Judicial obsession with death in New Jersey

Continuing the New Jersey sentencing news, the NJ Supreme Court today released a massive opinion upholding a death sentence in New Jersey v. Wakefield, No. A-37-2004 (NJ May 7, 2007) (available here).  The majority opinion in Wakefield runs 176 pages(!), and there is an interesting concurrence and two dissents adding another 60 pages of Garden State capital sentencing insights.

I suppose I should commend the Justices of the NJ Supreme Court for their commitment to careful justice.  But I cannot help but notice that it took the state Justices more than 18 months to churn out Wakefield, and I suspect plenty of other cases (both criminal and civil) would have benefited from some of time the Justices devoted to considering the claims of doubler murderer Brian Wakefield.  But then again, I also know that plenty of other projects would have benefited from the quarter of a billion dollars(!) that New Jersey has spent on its death penalty system without having actually executed anyone over the last 25 years.

May 7, 2007 at 10:44 AM | Permalink


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I'm again surprised to see such impatience and intemperance with the time courts take to establish the constitutionality of the state's request to kill a person -- yes, even a "double murderer". It's particularly amazing to see such mockery by someone whose government salary allows him the luxury to ponder and pontificate the fearsome power of government to seize liberty and, most awesome of all powers, the extinguishing of a person's very life. Is criminal justice better served by a more-Texas style of justice, with "plentiful executions as fast as we can get 'em to you"?

It seems you cast capital proceedings as a sporting contest of two teams, the vindication of a tragically murdered victim and their horror-stricken survivors, versus the easy-to-villify perpetrators, whose loved one's pain we don't have to incorporate because they should simply blame their guilty relative.

I haven't read the decision yet, but the length of time the judges took seems more obviously to reflect integrity and impartiality of judges conscientiously guarding the constitution -- a sworn obligation that may seem more solemn to judges who actually hold a fellow human being's life, and the constitution,in their hands, than it is to those pumped up adrenalin on state college campuses and hungry to vanquish an opposing team.

Posted by: anon | May 7, 2007 11:25:08 AM

Anon: my concern is a relative one, not absolute. And relatively speaking, precious little time is spent on the millions of imprisoned persons who have not committed a crime that, under applicable law, makes them eligible for the sentence of death.

I am very, very impatient for courts to give these millions of imprisoned the "integrity and impartiality of judges conscientiously guarding the constitution." Once those millions get the attention they deserve, then I won't be as troubled by all the time and money and energy devoted to triple-checking the constitutionality of the rare death sentence.

Unfortunately, right now courts and lawyers spend an extraordinary amount of time checking and re-checking the procedures afforded the handful of persons who have committed the most horrible of crimes. Meanwhile, precious little time is given to the many, many, many others who have done far less harm to society and yet get far less respect from "the system." I am so impatient because we seem to have our priorities so backward.

Posted by: Doug B. | May 7, 2007 11:47:21 AM

Jeez, anon, could you lay it on a little more thick . . . . this squeamishness masquerading as morality is unbelievable. The government's power to execute murderers (given that a jury needs to be involved) is not even close to its most awesome power. How about the ability of the government to take your property? How about the ability of the government to take your kids? Executing murderers is something society has done since time immemorial. It is nothing special. Yes, we need to have safeguards in place to make sure that innocent people don't get the "big jab", but at the end of the day, to the extent judicial resources are wasted due to a squeamish feeling about the death penalty, other litigants may suffer, and I don't know about you, but I'd much rather see coherent and well thought out constitutional jurisprudence relating to issues arising out of guilt/innocence determinations, rather than death/no-death determinations.

At the end of the day, and I defy anyone in here to disagree, a wrongful conviction (other than the most trivial of convictions) is far far more an injustice than the execution of a guilty murderer who wasn't technically eligible for death.

And anon, there's a reason that perps are easy to villify--they killed someone, they deserve vilification, and your overblown rhetoric about a "fellow human being" obscures that fact. Yeah, these people are human--but they're also horrible horrible people. Willing to take human life to suit their selfish ends.

Executing murderers is simply no big deal. That may sound bloodthirsty or whatever. I don't really care. I have 7,000 years of human history on my side. You have squeamishness masquerading as morality.

Posted by: federalist | May 7, 2007 11:53:39 AM

Doug, I second your motion.

Posted by: federalist | May 7, 2007 11:58:07 AM

"Yeah, these people are human--but they're also horrible horrible people. Willing to take human life to suit their selfish ends."

Your confidence in your own point of view is amazing.

Posted by: | May 7, 2007 12:51:35 PM

Isn't it almost axiomatic that murderers are selfish people who decided that their desires were more important than human life?

Perhaps you can try dealing with the points I raise, rather than insulting me.

Posted by: federalist | May 7, 2007 1:20:24 PM

"Isn't it almost axiomatic that murderers are...willing to take human life to suit their selfish ends...selfish people who decided that their desires were more important than human life?"

So what's your desire, federalist? What's your end?

Posted by: rothmatisseko | May 7, 2007 2:39:11 PM

Justice and deterrence.

Posted by: federalist | May 7, 2007 2:40:22 PM

federalist, many people, like me, think we too often get neither justice nor deterrence. While I agree with Professor Berman that many of the over 2 million prisoners in the U.S. are for all intents and purposes ignored, the reason a 25-life sentence for cheating on a driver's test is not an outrage is because it is not the death sentence. It it not a slap on the wrist and it is not an execution, it is, as Goldilocks would say, "Just right."

Posted by: George | May 7, 2007 11:46:26 PM

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