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November 25, 2016

New talk in New Jersey of bringing back capital punishment a decade after state abolition

Download (23)The stark pro-capital punishment election results in a number of states, especially in deep blue California, has been a chief reason I now believe that any reports on the death of the death penalty are obviously premature.  Another sign of these capital punishment times comes from this new local article headlined "Two N.J. lawmakers call for return of the death penalty."  Here are the highlights:

Two New Jersey senators want to bring back the death penalty for what they call the "most heinous acts of murder," including terrorism and attacks on police officers. "These are extreme circumstances that are involved," said Sen. Jeff Van Drew (D., Cape May), who, along with Sen. Steve Oroho (R., Sussex), introduced legislation Monday to revive the death penalty.  "But I do believe it's an option that should be there, however seldom used."

The death penalty was abolished in New Jersey in 2007. A state study commission concluded then that it cost more to sentence someone to death than life without parole, that advances in DNA testing had raised doubt about some convictions, and that the death penalty rarely was used. The last execution in New Jersey happened in 1963....  Voters in California, Nebraska, and Oklahoma favored keeping the death penalty when it was put on the ballot this month.

In New Jersey, in addition to fatalities caused by terrorism and the targeting of police officers, Oroho and Van Drew want to make the death penalty an option when a child is killed during a sex crime, multiple people are slain, or an individual already has a previous conviction for murder.

Oroho said he believes the death penalty could dissuade people such as Ahmad Khan Rahami, who is accused of setting off bombs in September in New York City, injuring 29 people, and in Seaside Park, N.J., along the course of a 5K run benefiting injured Marines. A delay in the race start prevented injuries there.  The death penalty could not apply the Rahami case because no one was killed, but Oroho said the attacks illustrated the need for capital punishment. "Many people could have lost their lives," he said.

Former Gov. Jon S. Corzine ended capital punishment in 2007 after the New Jersey Death Penalty Study Commission — composed of judges, prosecutors, and others whom the Legislature asked to study the issue — advocated a ban, citing factors such as high costs.  Keeping an inmate in New Jersey State Prison's capital-sentence unit cost at least $72,000 per year — $32,000 more than keeping an inmate in the prison's general population, the commission said in its report.  The state Office of the Public Defender also estimated in the report that eliminating the death penalty would save $1.4 million annually.  The office based that figure on 19 death-penalty cases that existed in 2006, and the costs of pretrial preparation and jury selection.

Thomas F. Kelaher, who was part of the commission and Ocean County's prosecutor at the time, had his office try the death penalty on two Bronx men accused of tying up a mother and her adult son, slitting the mother's throat, and shooting both in the back of the head in a Barnegat home in 2000. Kelaher said more than 200 jurors were interviewed — mostly about whether they supported the death penalty — before 14 were selected.  "It took us a long, long time to get to the conclusion of the case, and they never got the death penalty anyway," said Kelaher, who is now mayor of Toms River.  Gregory "Shaft" Buttler and Dwayne Gillispie received life sentences instead.

Had they received the death penalty, Kelaher said, appeals likely would have followed and taken up more time and resources. Kelaher called the process "a waste of time." "It never ends," he said.

West Orange Police Chief James P. Abbott, who also was on the death-penalty commission, said that it could take years for someone to be executed, and that trials and appeals cause families to relive the pain of losing a loved one. "To me," Abbott said, the death penalty is "where it belongs — in our past." The justice system, he said, also is subject to human error, which can put the wrong people behind bars.

Van Drew said concrete evidence would be crucial if the death penalty were to return in New Jersey. "DNA proof would be absolutely necessary in some way," he said. "We have to be absolutely sure that this person is guilty."

Because New Jersey has not executed anyone in over 50 years, I do not think formally making the death penalty legal again in the Garden State would actually increase the chances of an execution by any tangible amount. But I do think, for reasons partially explained in this recent post about new non-capital sentencing reforms passed in California and Oklahoma, that sophisticated and shrewd New Jersey advocates for various criminal justice reforms might consider embracing this symbolic call to bring back the death penalty in order to have a strategic "pace car" for other needed New Jersey reforms.  Specifically, as the article here suggests, the New Jersey lawmakers advocating bringing back the death penalty might be uniquely willing to have DNA access and/or protections against wrongful convictions included in any bill to bring back capital punishment.  Relatedly, this FAQ page about New Jersey corrections suggests as many as 1000 folks are serving life with parole sentences in the state.  Perhaps a death penalty bill that specifies the "worst of the worst" killers who will be subject to capital punishment could also include provisions to make the not-so-worst killers more likely to earn parole.

November 25, 2016 at 09:21 AM | Permalink


"sophisticated and shrewd New Jersey advocates for various criminal justice reforms might consider embracing this symbolic call to bring back the death penalty in order to have a strategic "pace car" for other needed New Jersey reforms."

In other words, you are suggesting that these "sophisticated and shrewd" advocates will promote an unnecessary and expensive, blunt edge policy of death, in order finesse other reforms? God help America.

Posted by: peter | Nov 25, 2016 10:35:06 AM

For a purely symbolic exercise, these people would be willing to give up those things?

"29 Once when Jacob was cooking some stew, Esau came in from the open country, famished. 30 He said to Jacob, “Quick, let me have some of that red stew! I’m famished!” (That is why he was also called Edom.[d])

31 Jacob replied, “First sell me your birthright.”

32 “Look, I am about to die,” Esau said. “What good is the birthright to me?”

33 But Jacob said, “Swear to me first.” So he swore an oath to him, selling his birthright to Jacob.

34 Then Jacob gave Esau some bread and some lentil stew. He ate and drank, and then got up and left.

So Esau despised his birthright."

I assume there is a non-trivial chance the provision in CA will result in one or more people to be executed who otherwise might not be. I reckon the calculus here, like some sort of lottery, that it would be seen as worth it on a utilitarian basis. For some.

I see "might" in there btw. And "perhaps." Perhaps not. I get the usual unsavory compromises that must be made in legislation. Execution and all that it entails is something I personally would take off the table. Likewise, the chance it might not be used doesn't make me want to open up waterboarding even if Trump will okay some further safeguards in return for having the option.

Posted by: Joe | Nov 25, 2016 10:50:33 AM

A post-repeal symposium I organized in early 2008 featured leading figures on the capital punishment issue in New Jersey, including Gov Corzine, the legislative reformers, former justices of the state supreme court, public defenders,and prosecutors. The proceedings, etc. can be found at: http://blackstonetoday.blogspot.com/2009/04/symposium-proceedings-legislative.html
- George Conk, Stein Center for Law & Ethics, Fordham Law School

Posted by: George Conk | Nov 25, 2016 8:55:10 PM

peter, politics in the US is the art of the possible. Is that a surprise to you? Even if you find this reality unpleasant and wish it were not so, people who live in a reality-based world can and should conduct themselves accordingly. And a huge part of 2016 reality for sentencing reformers is that the death penalty remains very politically popular.

Posted by: Doug B | Nov 26, 2016 4:19:00 AM

There is an interesting philosophical argument here:
of which this is a taster:
In his 1922 book, “Public Opinion”, Lippmann argued that people do not know the world directly, but only as a “picture in their heads”; consequently, they responded to a “pseudo-environment” in their political judgments. To know the world, people need maps of the world, but Lippmann asks: how can people be sure that the maps on which they rely have not been drawn by special interests? Most maps are of that kind. How can there be democratic government that does not fall into irrationality as a result of power struggles between self-interested factions?
Among the factors that lead to perceptual distortions (on the part of the average person) of the real world were: censorship, limitations of social contact, insufficient time to study public affairs, the necessity for communicators to express complex events in very short messages, and fear of threatening facts, as well as preconceptions, prejudices, and stereotypes. How was it possible to overcome these limitations in a democracy so that people can come to a rational, objectively based understanding of the world, and a common will?
Traditional democratic theory has no proper answer to the question as to how it is possible, in these circumstances, for people to arrive at a “common will” that can be called “public opinion”. In reality, public opinion does not arise from the people, but it is created, in a process that was supposed to have died out with the advent of democracy, namely, the “manufacture of consent”. This process has become even more sophisticated because it is now based on analysis, drawing on psychological research, and coupled with the power of communication. It works by the creation of symbols onto which each citizen can project his or her own needs and desires."
There are many examples where I believe deference to or exploitation of "public opinion" is dangerous and should be curbed by responsible and informed politicians and others, eg. the expansion of settlements by Israel into Palestinian territory (widely condemned internationally), or the reopening of coalmines at the expense of global warming as proposed by Trump recently. The "common good" is not always well served by direct democracy which is so easily manipulated, and so genuine democracy is achieved only if elected officials exercise leadership based on full knowledge, understanding and consideration of moral and ethical consequences for the common good, and act accordingly to inform and educate the public. Of course, different politicians may come to a different view, but that process and its basis must be transparent.

Posted by: peter | Nov 26, 2016 5:46:11 AM

forgot the link: infoamerica.org/teoria_articulos/lippmann_dewey.htm

Posted by: peter | Nov 26, 2016 5:47:10 AM

Torture (or code words that amount to something similar) was quite "popular" in recent years, including for certain people. Somewhat less so now.

It's unpleasant and all, but we should allow it -- don't worry it probably won't be used, or might a few times -- since it "might" make it more likely for those who do it to toss in some further protections.

Posted by: Joe | Nov 26, 2016 2:44:57 PM

peter, your account of a "genuine democracy" sounds a lot more like a dictatorship or modern communist regime when you call for "elected officials [to] exercise leadership based on full knowledge, understanding and consideration of moral and ethical consequences for the common good, and act accordingly to inform and educate the public." I am sure Putin really thinks he does this kind of governing in Russia, and I am sure the Castro regime past and present in Cuba would also claim to be involved in lawmaking through "consideration of moral and ethical consequences for the common good, [after which they] act accordingly to inform and educate the public."

Indeed, I suspect Hitler and plenty of elected fascists would lay claim to your accounting of a good system of government.

Posted by: Doug B. | Nov 27, 2016 11:01:25 PM

Doug. What an extraordinary response/interpretation. Clearly you have forgotten exactly who Lippmann was (he died in 1974), but as a celebrated US journalist and informal advisor to several presidents, he was certainly a critical observer of the development of democracy in the US, seeing journalism as an essential medium to ensure the public were as well informed of political issues as possible:
see bio here https://en.wikipedia.org/wiki/Walter_Lippmann
If elected officials are not to "exercise leadership based on full knowledge, understanding and consideration of moral and ethical consequences for the common good, and act accordingly to inform and educate the public, then what are they there for? I would dispute that is what Putin or any dictator does. They rather determine policy from a particular ideology and utilize propaganda to impose their will, sometimes contrary to the common good. There are times when direct democracy has the same effect because elected "leaders" abdicate their responsibilities to inform and educate. It's rather like asking a jury to determine a sentence without a competent trial first taking place.

Posted by: peter | Nov 28, 2016 7:52:24 AM

Best article, I am glad that you shared such informative article and I want to appreciate you as being a law student this kind of articles really helps me out and increases my knowledge. I hope you keep on updating and sharing about new things as well :)

Posted by: Ethan Garofalo | Mar 4, 2017 12:38:14 AM

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