Herald of Change: New Jersey's Repeal of the Death Penalty
George W. Conk
Fordham Law School
April 21, 2009
Seton Hall Legislative Journal, Vol. 33, No. 1, 2008
Fordham Law Legal Studies Research Paper No. 1392853
In 2007, the New Jersey legislature repealed the death penalty, twenty five years after it had reinstated capital punishment. The U.S. Supreme Court suspended all executions in 1972 in Furman v. Georgia. The New Jersey Legislature restored the measure in 1982 - relying on specified aggravating and mitigating factors to cure the arbitrariness that the Supreme Court had declared made execution as random as being struck by lightning.
Of 228 death penalty trials 60 were sentenced to death, 57 death sentences were reversed on appeal. 9 condemned men remained on death row when the Legislature’s Study commission recommended repeal in 2007. No one was executed from reinstatement to the day the Legislature repealed capital punishment in December 2007, replacing execution with life imprisonment without parole.
The New Jersey courts took their mandate to avoid arbitrariness with utmost earnestness and approached their task with scientific rigor. The Office of the Public Defender, in its mission to "save lives" used advanced statistical methods to examine death penalty outcomes across a spectrum of circumstances. The Supreme Court appointed a Special Master to determine if racial or other impermissible disparity tainted the death sentences. The Supreme Court itself used what Justice Alan Handler (a death penalty opponent) called "super due process" and Justice John Wallace labeled "exacting review"-- a fusion of the lessons of the 5th, 6th, 8th, and 14th amendments. It was this process, not, as some detractors would argue, obstruction, that led to the lack of executions.
Justice Virginia Long felt that the "proportionality review" process used by the courts to be "futile" and wanted to outlaw the death penalty based on "evolving standards of decency". The majority was unpersuaded. Justice Barry Albin agreed with her assessment but believed the court must defer to the voting public, which had affirmed in a 1992 amendment that execution was supported by common sentiment. Indeed, this was the ultimate outcome - the elected Legislature acted.
New Jersey, with its urban and diverse population, has long been a bellwether state on social issues such as fair employment practices, and civil union. The death penalty is no exception. 15 months after repeal one state (New Mexico) has already followed New Jersey’s lead and has abolished the death penalty.
This article is part of the symposium held at Seton Hall in 2008 to discuss the death penalty in New Jersey. The symposium can be found in its entirety on SSRN under "Legislation, Litigation, Reflection and Repeal: The Legislative Abolition of he Death Penalty in New Jersey", paper no. 1392846. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392846.
Number of Pages in PDF File: 28
Keywords: death penalty, capital punishment, due process, repeal, abolition, legislative repeal, moratoriumAccepted Paper Series
Date posted: April 23, 2009 ; Last revised: May 7, 2009
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