The Dynamic Interaction between Courts, Legislature, and Public Opinion

Posted: 7 May 2009

Date Written: April 14, 2008


Keynote address:

The modern era in capital punishment began with Furman v. Georgia in 1972 when the U.S. Supreme Court declared in Justice Potter Stewart’s famous words that being executed for a crime is as predictable as being struck by lightning. States were instructed that measures must be taken to cure the problem of the penalty’s seeming randomness. But the randomness Stewart observed was skewed: African Americans were much more likely than others to suffer the ultimate punishment.

For two terms Gov. Brendan Byrne blocked the way to restoration. When the measure returned in 1982 the struggle for fair implementation began. The New Jersey Supreme Court upheld the measure as constitutional but in 25 years of exacting review measured the results by the tests of randomness and racial blindness. 228 times prosecutors sought death. 60 times juries agreed, 57 cases were reversed at some point. 8 remained on death row at the time of repeal. None was executed.

The public supported the death penalty in the abstract but in practice careful scrutiny was the norm - for them and for judges. At times the public mood was harsh - and directed at the Supreme Court’s decisions. As when a 1992 referendum amended Art. 1, ¶ 12 of the 1947 state constitution to declare permissible a sentence of death even for one who intended only serious injury, not death. At other times - as in dealing with killers of limited mental capacity - the death penalty was rarely imposed by juries.

The Court’s exacting scrutiny was its defining feature. The effort to impose death predictably and fairly its defining mission.

Many attribute the shift in legislative sentiment and in public sentiment to the difficulty in implementing the death penalty. I suspect it was also due to the great work on the part of groups like The Innocence Project, who demonstrated, not in this state, but elsewhere, how the death penalty could be mistakenly imposed on an innocent. And an essential factor in New Jersey was the competence and diligence of the leaders and staff of the statewide Office of the Public Defender who conducted or substantially participated in every death penalty case in New Jersey during its last 25 years.

When the end came with Gov. Jon S. Corzine’s signature in December 2007, the Legislature’s vote to repeal reflected a broad swath of public opinion in New Jersey - that there was little if anything to gain by retaining execution as part of our criminal justice system.

Suggested Citation

Zazzali, James R., The Dynamic Interaction between Courts, Legislature, and Public Opinion (April 14, 2008). Seton Hall Legislative Journal, Vol. 33, No. 1, 2008, Available at SSRN:

James R. Zazzali (Contact Author)

Gibbons, PC ( email )

United States

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