Herald of Change? New Jersey's Repeal of the Death Penalty

My essay - which introduces the Proceedings of last year's symposium at Seton Hall on the repeal of the death penalty -has now been published by the Seton Hall Legislative Journal at 33 Seton Hall Leg. J. 21 (2008).

It is available on SSRN here. Abstract below.

The complete proceedings are available on SSRN here and via the post just below this one.

The symposium did what we sought - built the historical record and demonstrated how the change came to America. It was a powerful message, which I delivered several times in China in December 2008. I had the good fortune to be invited by NYU Law Prof. Jerome Cohen to join him, his staff Yu Ping and Margaret Lewis, along with judges Jed Rakoff (Southern District NY) and John M. Walker (2d Circuit). We spoke to judges, prosecutors, and students at universities in Guangzhou and Beijing. I went on to Wuhan to Huazhong University of Science & Technology. (More on that in a future post.)

Abstract

Herald of Change

In 2007, the New Jersey Legislature repealed the death penalty, twenty five years after it had reinstated capital punishment.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. New Jersey 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 Legislature acted 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 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 and repealed the death penalty on December 17, 2008.

The next day the United Nations General Assembly called for a moratorium on executions. In Italy the Colosseum, ancient site of executions, was bathed n light in tribue

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 followed New Jersey’s lead and has abolished the death penalty.