Overriding the Jury in Capital Cases - NYTimes.com

Alabama death chamber

Hanging judges - you've got them in Alabama, according to this new report from the Equal Justice Initiative. As Adam Liptak explains, 20% of those on death row in Alabama are there because a judge overrode the jury's rejection of the death penalty.

One point of privilege: few trial judges have seen "many, many" capital cases. If you want accumulated  experience you should support the rigorous proportionality review for which the New Jersey Supreme Court set the gold standard, as demonstrated in the proceedings of the 2008 symposium Legislation, Litigation, Reflection & Repeal, the Legislative Repeal of the Death Penalty in New Jersey.

Overriding the Jury in Capital Cases - NYTimes.com: 

"WASHINGTON — Alabama allows judges to reject sentencing decisions from capital juries, which sounds like a sensible idea. You might want a mature and dispassionate jurist standing between a wounded community’s impulse toward vengeance and a defendant at risk of execution.
“If you didn’t have something like that,” said Judge Ferrill D. McRae, who spent 40 years on the bench in Mobile before he retired in 2006, “a jury with no experience in other cases would be making the ultimate decision, based on nothing. The judge has seen many, many cases, not just one.”

Death Penalty, Still Racist and Arbitrary - NYTimes.com

deathDeath Penalty, Still Racist and Arbitrary - NYTimes.com: by David Dow

"LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.

Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks."

David C. Baldus, 75 dies - studied race and the law - NY Times

David C. Baldus   NY Times photo

David Baldus was a great man. His analyses of how arbitrary was the death penalty: which fell particularly harshly on African American citizens.

The New Jersey Supreme Court appointed him a special master to conduct a "proportionality review".  Ultimately New Jersey repealed the death penalty in 2007. 


Reflecting on proportionality review - the effort to assure that like cases are treated alike - retired Chief Justice Deborah Poritz (who oversaw the effort)  acknowledged at a conference at Seton Hall Law School  that it proved" impossible" to eliminate the arbitrariness in the imposition of the death penalty.  As Associate Justice Barry Albin observed - the killers languishing on death row could not be meaningfully distinguished from those serving terms of 25 years to life in prison.  - GWC

David C. Baldus dies at 75 - studied race and the law - NY Times:

"David C. Baldus, whose pioneering research on race and the death penalty came within a vote of persuading the Supreme Court to make fundamental changes in the capital justice system, died on Monday at his home in Iowa City. He was 75.
The cause was complications of colon cancer, his wife, Joyce C. Carman, said."

China laws limiting death penalty take effect

Amendments to Chinese criminal law which reduce by thirteen the number of capital offenses have taken effect. Actual impact is expected to be minor because the offenses are rarely tried as capital cases. Offenses include include non-violent and economic crimes such as tax fraud; financial fraud; smuggling of precious metals, cultural relics and rare animals; teaching of crime-committing methods and robbing ancient cultural ruins.

JURIST - Paper Chase: China laws limiting death penalty take effect

Philippine government warns citizens after China executes two men, one woman for drug transportation

Despite appeals for mercy by the Philippine government at the highest levels to Chinese authorities in Fujian three Filipinos convicted of heroin transport in excess of 30 grams -Ramon Credo, Elizabeth Batain and Sally Villanueva- were all executed by lethal injection on March 30. Capital punishment is not used in the Philippines.

PIA daily news in English, Tagalog, Cebuano, Hiligaynon, Ilocano, Waray, Pangalatok from around the Philippines

China's stay of execution of Filipinos welcomed| The Philippine Star >> News >> Headlines

Appeals by Philippines leaders, including President Aquino's call to Chinese leader Hu Jintao have resulted in a stay of execution pending review - a rare move in response to international pressure.

China move unusual, says DFA | The Philippine Star >> News >> Headlines

Illinois poised to abolish death penalty | Campaign to End the Death Penalty

Gov. Pat Quinn (D-IL)

So New Jersey really was the Herald of Change, it appears.  The stars lined up for repeal again in Illinois as the Democratic majority in the state Assembly and Senate passed the repeal and sent it to Gov. Pat Quinn, a Democrat who squeaked by in a Republican year.

Two swallows does make a spring, doesn't it?

Illinois poised to abolish death penalty | Campaign to End the Death Penalty

HERE is the link to the historical materials we gathered for the conference at Seton Hall on the 2007 repeal of the death penalty in New Jersey.

China: Legislature mulls reduction of capital offenses

Wu Bangguo opens session of Standing Committee of National Peoples Congress

Indications are that the National Peoples congress will eliminate 13 capital offenses that rarely actually result in execution, such as smuggling relics and falsely making out specialized value-added-tax receipts. A major challenge will be whether official corruption remains a capital offense. According to recent reports there may be a dollar threshhold, like 10,000 RMB in bribes.

China Daily: China mulls to cut down executions

Inventor's Angst over "painless execution"

Yang Hui was traumatized when as a boy he witnessed a public execution.  The man was shot in the head struggled to rise and shot again.  Years later he designed a lethal injection pump.  It does not meet the goal of death within 30 seconds.  He yearns for an end to the death penalty.  As the National Peoples Congress meets he is profiled by China Daily.
Angst over painless execution

Wood v. Allen - another ineffectiveness case

In the current term of the United States Supreme Court Holly Wood is the fifth capital defendant to challenge his death sentence on the ground that he had  the ineffective assistance of counsel.  Only one succeeded - George Porter, a multiple murderer whom the Justices spared because he had the misfortune (30 years before he killed), as an already deeply disturbed young man, to be engaged in heavy combat during the Korean War.  


Holly Wood, a murderer who exhibits "significantly subaverage general intellectual functioning", failed in his claim.  In the  Wood v. Allen majority opinion authored by Sonia Sotomayor [over the dissent of Justice John Paul Stevens (Kennedy joining)] the Court declared that

Reviewing all of the evidence, we agree with the State [of Alabama] that even if it is debatable, it is not unreasonable to conclude that, after reviewing the Kirkland report, counsel made a strategic decision not to inquire further into the information contained in the report about Wood’s mental deficiencies and not to present to the jury such information as counsel already possessed about these deficiencies.

Like the other three aggravated murderers whom the Supreme Court did not spare this term Wood was represented by a lawyer whose skills and judgment left much to be desired.  But since the court found the representation met the constitutional minimum the death sentences stand.  


Justice Stevens, however, concluded

"There is a world of difference between a decision not to introduce evidence at the guilt phase of a trial and a failure to investigate mitigating evidence that might be admissible at the penalty phase… the only reasonable factual conclusion I can draw from this record is that counsel’s decision to do so was the result of inattention and neglect."

I cannot but note the contrast between these defendants and those in New Jersey who were represented by the statewide Office of the Public Defender, none of whose clients was executed, in the twenty five years between the 1982 restoration of capital punishment and its 2007 legislative repeal.  


The Public Defender's efforts were matched by the New Jersey Supreme Court, which believed death is different and afforded capital defendants what Associate Justice Alan Handler called "super due process".  I asked in my introductory essay to the symposium which examined the repeal if New Jersey would be a Herald of Change.  Thus far the United States Supreme Court has not heard the trumpet's call.

The complete file on the Wood case on Scotus Wiki can be found HERE.

Ineffectiveness of Counsel: 4 Capital Cases - Coherence or Incoherence?

Four capital cases - each a gruesome crime - presenting ineffective assistance of counsel claims - have been decided (three without without argument)  by the U.S. Supreme Court. In two the death penalty is reinstated - in the third it is vacated.


Looking at the cases through the narrow lens it set in the landmark case Strickland v. Washington, 466 U.S. 668 (1984) the Court uses the harmless error approach.  The Court asks not whether the sentence is just - but whether the defense lawyers did enough to meet the constitutional minimum required by its understanding of the 6th Amendment.  It then asks whether an "error by counsel, even if professionally unreasonable" had an "effect on the judgment", that is the defendant must "affirmatively prove prejudice".  

In a larger frame questions arise:

What principle, if any, unites the three decisions?

Or do they reflect the biases, passions, and prejudices of the nine?
Is the Court improperly denying the right to a fair trial with a competent defense lawyer, interposing its own judgment for that of a jury?

Are the practice guidelines of the American Bar Association entitled to any particular weight - or do they reflect the views of an excessively protective minority as Justice Alito's concurrence in Van Hook seems to suggest?

Does service in combat really warrant decisive consideration as a mitigating factor when 40 years later a gruesome crime is committed, as the Court's opinion in Porter says it does?

In the first, Van Hook, the killer was the alcoholic child of abusive parents, who had been expelled from the military. The Court reversed the 6th Circuit Court of Appeals and reinstated the death penalty.

Is the court right to disregard the ABA's much more stringent practice guidelines developed after Van Hook's conviction? Is Van Hook's waiver of a jury trial irrelevant here?

In Wong v. Belmontes the killer experienced a religious conversion after the offense and made positive contributions to a youth rehabilitation program - but at the time of trial only evidence that mitigated the severity of the crime could be considered by the jury under California law. The Court reversed the 9th Circuit and reinstated the death sentence.

Is Justice Stevens right that since the evidence was inadmissible at the time in California there was no prejudice?

In Porter v. McCollum the court was moved to vacate the 11th Circuit decision which upheld the death sentence because George Porter, who shot his ex-girlfriend and her boyfriend,

is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

Is the fact that Porter's "horrible" family life - which led him to join the Army at 17 - was compounded by the ordeal of combat so important that it should be given decisive weight in mitigation of a crime that occurred 35 years later - as the Supreme Court does?

Are there really any consistent standards at work here?


Smith, Warden v. Spisak
Decided January 12, 2009
Merits Briefs


The Supreme Court unanimously reversed the 6th Circuit and reinstated the death sentence of Frank G. Spisak, Jr. (who has been in jail over a quarter century for three murders committed at Cleveland State University).  Spisak's attorney had argued at closing, according to Justice Stevens's concurring opinion:

“Sympathy, of course, is not part of your consideration. And even if it was, certainly, don’t look to himfor sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at Frank Spisak, don’t look for good deeds, because he has done none. Don’t look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different.

And then the strategy really broke down: At no point did counsel endeavor to direct his negative statementsabout his client toward an express appeal for leniency. On the contrary, counsel concluded by telling the jury that “whatever you do, we are going to be proud of you,” which I take to mean that, in counsel’s view, “either outcome, death or life, would be a valid conclusion”.

Leading trial lawyers and teachers of trial advocacy (including Steven Lubet, Michael Tigar, and Herbert J. Stern) wrote as amicus curiae:

Amici are unsurprised that the Sixth Circuit commented that the same argument, if made by a prosecutor, “would likely have been grounds for a successful prosecutorial misconduct claim.” Spisak v. Mitchell, 465 F.3d 684, 706 (6th Cir. 2006)... See generally JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT §§ 9.14-9.15, 9.19, 9.21 (3d ed. 2003) (typical prosecutorial abuses in a closing argument include “appeals to the * * * prejudices of the jury,” “[a]ttacking the defendant—name calling,” and “express[ing] his personal opinion as to the * * * guilt of the defendant”).

If a fair trial requires the effective assistance of counsel, which includes zealous advocacy for one's client, not being a "friend of the court" and Spisak didn't get such a defense, wasn't the 6th Circuit right - and the Supreme Court wrong - that the courts have failed in their constitutional duty to assure a fair trial?

China: Jerome Cohen on Akmal Shaikh execution

NYU law professor Jerome Cohen, in an opinion piece in the South China Morning Post, laments China's courts' refusal to allow psychiatric evaluation of the defendant in the drug smuggling prosecution of a British citizen, Akmal Shaikh, who is to be executed tomorrow. China's obstinacy in the face of an appeal by British Prime Minister Gordon Brown on behalf of the UK citizen has drawn much criticism.

Cohen observes:

in some recent highly publicised capital cases, in which mentally disturbed defendants were charged with heinous offences such as multiple murders, the Supreme People's Court failed to insist on psychological evaluations in accordance with fair procedures. Last year's execution of police-killer Yang Jia is only the most notorious illustration.

Yet, Chinese courts have sometimes met the challenge. Several years ago in Beijing, for example, an American, ultimately diagnosed as a paranoid-schizophrenic, killed his Chinese wife because of the delusion that she was poisoning him. The trial court called for a thorough examination by experts at a local mental hospital.

Sadly, it is now too late for a similar evaluation in Shaikh's case, although British clemency pleas may yet succeed. In any event, the National People's Congress should enact legislation that will confirm detailed procedural protections to guarantee a fair and accurate mental assessment whenever the defence reasonably requests.

China's leaders continue to affirm their commitment to advancing the rule of law, so I welcome the passage of the tort law which I translated, and welcome the recent vigorous legislative discussion of the State Compensation Law - a means of redress for governmental misconduct.

But China's leaders are equally committed to disappointing those of us who want to see adherence to the norms that we have come to consider elementary. The other day Lu Xiaobo, author of a liberal manifesto, was sentenced to 11 years in prison for incitement of subversion under Art. 105 (2) of the Criminal Code. The judgment was by a court of the first instance and is subject to second instance trial and appeal.

But there is little reason for optimism that liberal advocacy such as Lu's will be tolerated, given the breadth of the statute's prohibitions. Banned are efforts to subvert the socialist system by "publishing, printing, reproducing, disseminating or airing publications", according to an Interpretation by the Supreme Peoples Court. ( 最高人民法院关于审理非法出版物刑事案件具体应用法律若干问题 的解释)."

Similar advocacy was criminalized in America 60 years ago in the Smith Act under which the leaders of the Communist Party were tried and convicted in U.S. v. Dennis. This law was determinedly beaten back by the Communists, their sympathizers, but more consequentially by civil liberties advocates, and, ultimately, the members of the United States Supreme Court who in the Yates case, 354 U.S. 298 (1957) limited prosecution to speech which presented a clear and present danger. Finally, in Brandenburg v. Ohio (1968) the United States Supreme Court limited criminal prosecution to speech "likely" to produce "imminent" lawless action.

The prospects for successful push back against anti-libertarian measures in China is markedly poorer than it was in the United States. The Chinese constitution's rights measures are not guaranteed by a court system that has neither a tradition of autonomy nor of using the Constitution to provide protections not afforded by legislation. That a legislative majority can amend the Constitution of China deprives the courts of a foundation for independent interpretive judgment.

Nor does China have the tradition of the trial as contest that is embedded in the 6th Amendment to our Constitution. The right to counsel, to confrontation of witnesses, to compel favorable testimony are not similarly embedded in Chinese criminal law or practice. It is the lack of the tradition of the trial that perhaps most dramatically divides our criminal justice system from China's. The things that flow from that - autonomous bar organizations and a bar committed to preserving the right and duty of vigorous advocacy - are absent in China. Disappointment is likely our fate - but for us, as observers, it matters little. For citizens of China the consequences are great.

Images: Akmal Shaikh, Gordon Brown, Jerome Cohen

5 more death sentences in Xinjiang riot killings

5 more death sentences have been announced bringing to 22 the number of people sentenced to death in the ethnic street violence early this year in Xinjiang between Uighurs and Han. It appears that the violence was initiated principally by Uighurs and that the bulk of the victims were ethnic Han who are the overwhelming majority of China's citizens. Nearly 200 died in the strife. This group of condemned is reported to be Uighur.

The Times account is HERE

8 more death sentences in Xinjiang

Three more death sentences were announced today in the July 5, 2009 Urumqi riots. Two have Muslim names and one a Han name, according to China Daily's account today. Earlier this week five death sentences were announced but the press account (like today's) does not specify if any were with a two year reprieve - which usually converts to life in prison. On November 10 nine were executed, after Supreme People's Court review, for their part in the riots which left nearly 200 dead, says China Daily.

China Daily reports that on November 5 internet service was restored in Xinjiang.

Image: China Daily - President Hu Jintao visiting the region in August 2009

China: Executions in Contaminated milk cases

A year ago I was about to leave for China - to bring word of New Jersey's repeal of the death penalty (the stars had lined up for Jon Corzine and pro-repeal legislative leaders in December 2007). I was eager to spread the gospel of New Jersey as a Herald of Change.

Student audiences, academics, and prosecutors generally embraced a gradualist approach. They were encouraged by the Supreme People's Court's 2005 statement of policy "kill fewer, kill carefully", and the commitment of the SPC to review all death sentences. Reductions had already been accomplished the government reported - 30% by one estimate (though the PRC's secrecy is such that we don't know 30% of what number).

The people, we were told, demand the the death penalty. Probably true. You could get a pro-death penalty vote in New Jersey if you asked about the planners of 9/11. The mass killings of 197 in riots in Xinjiang - mostly Uighur against Han, it appears, have led to a dozen death sentences - carefully balanced to include wrongdoers on both sides of the ethnic divide. Here and Here - verdicts with which China Daily declared no one could argue.

Now comes news of two executions in the SanLu contaminated milk scandal. In that scandalous episode 6 children died and 300,000 were sickened by defective products of a major infant formula company. According to the NY Times account:

"The authorities described the two men who were executed, Zhang Yujun and Geng Jinping, as among the biggest culprits of the scandal. Mr. Zhang was found guilty of selling more than 1.3 million pounds of tainted milk powder from July 2007 to August 2008, and Mr. Geng was convicted of selling more than 1.9 million pounds of contaminated product.

Nineteen others were tried and sentenced in January for their roles in the scheme. Fifteen of them were imprisoned for terms of 2 to 15 years. One received a suspended death sentence, and three received life sentences."

The Chinese courts seem to be using rules of thumb: the most egregious offenders get the most severe punishment, and the scale slides down. This has a surface appearance of fairness. Defense attorneys in capital cases will doubtless recognize the futility of a direct assault and will have to focus on the arbitrariness of the imposition of death sentences. For example - in the SanLu cases "substantial certainty" that someone will die sufficed. In the Xinjiang cases some killers were executed and others spared.

The guidelines issued by the Supreme People's Court in drug cases make distinctions based on quantity, whether children were involved, etc. But looking across the range a coherent pattern does not emerge: some who personally killed are spared; others who risked grave or fatal harm to others are not. Such divisions may be ground which Chinese capital defense lawyers can till. - GWC

Chief Chinese Prosecutors set to issue rules barring coerced testimony in death penalty trials

The Supreme Procuratorate in China - the nation's chief prosecutorial office - is set to release regulations putting teeth in the statutory ban on evidence procured through unlawful methods, particularly in death penalty cases according to an account in the South China Morning Post.

An editorial in ND Daily, the apparent the source of the SCMP report, is HERE. The editorial says that despite the criminal law's ban, and Supreme Peoples Court interpretations, unlawfully obtained testimony is still used.

The SCMP piece follows:

Anti-torture measures in works, paper says
Ng Tze-wei
Aug 11, 2009

The mainland will soon release a judicial document that will for the first time spell out that confessions obtained through torture will not be admissible evidence in court, according to The Southern Metropolis News.

Even though the mainland criminal code has long banned torture during the questioning of suspects, and even made it a criminal offence, forced confessions still overshadow the judicial system.

The Renmin University School of Law recently researched 137 wrongful convictions imposed in the 1980s and determined that 164 men and women had been wrongfully deprived of a total of 720 years of freedom, one had
been executed, and another had died in prison. Half of the wrongful convictions involved murder charges.

The Southern Metropolis News, which is based in Guangzhou, quoted Renmin University professor Liu Pinxin as saying that the reason wrongful convictions tended to concentrate on felonies was that police were under pressure to solve the cases within a time limit, and there was little social sympathy for people suspected of serious crimes.

As the mainland reviews its Criminal Procedure Law, debate has been rekindled over whether criminal law should follow the principle of "protecting individual rights" or "protecting the masses through heavy punishment". The way evidence is obtained is one of the issues at the forefront.

Using the death penalty as a starting point, the Supreme Procuratorate will soon introduce a new regulation on death-penalty trials and the use of evidence, which will specify the inadmissibility of confessions obtained through torture.

China University of Political Science and Law professor Wang Shunan hailed the pending regulation as "an extremely important step". He said it would also force the country's police and procuratorates to shift from an emphasis on confession and testimony to collecting solid circumstantial and documentary evidence.

"In the past it was endorsed only in theory; now it will be given as a procedure," Professor Wang said. "So if torture is used now, there will be clearly stated legal repercussions."

Under the new regulation, the procuratorate must also investigate and bring charges if it becomes aware of torture or any form of tampering with evidence. It will also specify six scenarios in which evidence will be considered to have been gathered illegally and cannot be used in court.

Criminal lawyer Xia Lin said he would reserve judgment about the changes until he saw the details.

"The key is who will have the liability to prove that the confession was obtained through torture. Right now unless a defendant dies or suffers serious injuries, it is very difficult for the defendant to prove that he has been tortured," Mr Xia said.

"The police should bear the burden of proof that they have not used torture."

Other measures such as filming whole interrogations, allowing the presence of lawyers during interrogation and separating interrogation facilities from detention facilities are also aimed at stopping torture.

Thanks to Otto Malmgren for the tip.

China will reduce executions, says Justice of Supreme People's Court

Supreme Peoples Court Vice president Zhang Jun says that China will continue to reduce executions. It is an encouraging affirmation. The Xinjiang ethnic riot prosecutions will be an important test of China's ability to administer justice even-handedly in difficult circumstances. The Times reports that he has given several interviews. So far I have located only the China Daily online report. - GWC

BEIJING, July 29 (Xinhua) -- Legislation will be improved to control the number of death sentences and the Supreme People's Court (SPC) will tighten restrictions on the use of capital punishment, SPC Vice President Zhang Jun, was quoted by Wednesday’s Chia Daily as saying.

The number of criminal executions will be reduced in China, and courts will more often hand out the sentence of death penalty with reprieve, which can be commuted to life in prison and later reduced to 20 years and even lessened further for good behavior, according to Zhang.

The country will retain death sentence, but it should be applied only to "an extremely small number" of offenders who have committed extremely serious or heinous crimes that lead to grave social consequences, he said.

Zhang said the highest court exercises extreme caution in handing down the death sentence to those guilty of killing family members or neighbors over disputes.

"Judicial departments should use the least number of death sentences as possible, and death penalties should not be given to those having a reason for not being executed," Zhang said.

People who plead guilty, compensate family members of the victims, or are pardoned by the latter are generally given more lenient punishments.

In January 2007, the SPC reserved the right to review all death penalty decisions made by lower courts after provincial high courts drew fire amid reports of miscarriage of justice.

With the SPC given the sole power to review and ratify all death sentences, the country is applying fewer death sentences. An average of 15 percent of sentences were overturned in 2007 and 10 percent were overturned in 2008, insiders told China Daily

Death penalty call in Xinjiang riots

“To those who haChinese President Hu Jintao hurried back home from the G8 meeting in Rome in response to the ethnic clashes in Urumqi, Xinjiang that claimed 160 lives. He called for severe punishment - including the death penalty against the perpetrators. “To those who have committed crimes with cruel means, we will execute them,” Li Zhi, the top Communist Party official in Urumqi, said July 8.

197 are now reported dead, according to China Daily, July 19, 2009. Many arrests are sure to follow.

The moment poses a severe challenge to the Chinese judicial system, long the object of western criticism.

The death penalty itself has been the object of much debate. A move away from the death penalty has been promoted under the leadership of Supreme People's Court chief Xiao Yang. The policy maxim "kill fewer, kill carefully" - though infelicitous - captures the leadership's view.

According to a 2008 China Daily report the SPC has rejected about 15 percent death penalties since it removed provincial courts' final review power on Jan 1 2007. "Death sentences have been decreasing gradually, which means better human rights protection."

Xiao says it's "too early and unrealistic for China to abolish the death penalty because of the country's long history of capital punishment". Even for non-violent and financial crimes, deserve death "if their actions are extremely harmful to society" in his view.

"We need to keep the death penalty and use it as an effective deterrent, even though we can't exaggerate this factor. We must be extremely careful while handing down a death sentence. We should have human rights in mind."

"Extremely careful" may be a challenge when carnage as great as last week's has occurred. But looking back at the last major event in Xinjiang provides cause to believe that the rsponse will in fact be reasonably restrained. In April 2009 4000 local Xinjiang officials gathered in an arena to hear the announcement of the execution of two Uighur men who had driven an explosive-laden truck into a crowd of 70 border policemen, killing 17.

The attack, in Kashgar, Xinjiang, took place four days before the start of the Beijing Olympics in early August 2008. Trial and Supreme Court review were completed in four months. Although the procedural steps and barriers that we have do not exist there, the system - from a deterrent point of view, and retributive point of view appears to have functioned in an exemplary way. The punishment fit the crime, and justice was swift.

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.

Symposium proceedings: Legislative Repeal of the Death Penalty in New Jersey

SETON HALL LEGISLATIVE JOURNAL

SYMPOSIUM ISSUE

VOLUME 33, No. 1 (2008)

Constance Desena, Editor In Chief

download at SSRN

LEGISLATION, LITIGATION, REFLECTION & REPEAL:

THE LEGISLATIVE REPEAL OF THE DEATH PENALTY IN NEW JERSEY

April 14, 2008 symposium website

Herald of Change? New Jersey’s Repeal of the Death Penalty ... George W. Conk

Proceedings

Call to Order & Welcome

Patrick E. Hobbs, Dean, Seton Hall Law School

George W. Conk, Stein Center for Law & Ethics, Fordham Law School, Symposium Co-Chairman

Keynote Address... James R. Zazzali, Chief Justice, Supreme Court of New Jersey (Ret.)

Symposium Chairman

Panel I: The Struggle in the Courtroom

Moderator: Hon. W. Michael Murphy

Dale Jones, Assistant Public Defender; William A. Zarling, First Deputy Assistant Prosecutor (Ret.); David A. Ruhnke, Esq.

Panel II: The Death Penalty on Appeal

Moderator: Hon. James R. Zazzali, Chief Justice, Supreme Court of New Jersey (Ret.)

Hon. Deborah T. Poritz, Chief Justice, Supreme Court of New Jersey (Ret.)

James K. Smith, Assistant Public Defender

Hon. Alan B. Handler, Associate Justice, Supreme Court of New Jersey (Ret.)

Hon. Peter G. Verniero, Associate Justice, Supreme Court of New Jersey (Ret.)

Lawrence S. Lustberg, Esq., Gibbons P.C.

Address: Hon. Jon S. Corzine, Governor, State of New Jersey

Legislative Resolution presented to Celeste Fitzgerald, New Jerseyans for Alternatives to the Death Penalty, by Senator Raymond J. Lesniak

Panel III: Legislative Moratorium and the Death Penalty Study Commission

Moderator: Prof. R. Erik Lillquist, Gibbons Institute, Associate Dean, Seton Hall Law School

Celeste Fitzgerald, Director, New Jerseyans for Alternatives to the Death Penalty

Kevin D. Walsh, Esq., New Jerseyans for Alternatives to the Death Penalty

Hon. James H. Coleman, Associate Justice, Supreme Court of New Jersey (Ret.)

Miles S. Winder, III, NJ State Bar Association Member of NJ Death Penalty Study Commission

Panel IV: The Final Act - Repeal - Marshaling the Votes

Moderator: Kathy Barrett Carter, Editorial Board member, The Star Ledger

Hon. Robert Martin, Sponsor - NJ State Senate; Professor, Seton Hall Law School, Co-chairman

Hon. Wilfredo Caraballo, N.J. Assembly Sponsor; Professor, Seton Hall Law School

Senator Raymond J. Lesniak, Majority Leader

Hon. Christopher “Kip” Bateman, N.J. Assembly Sponsor

Conference chairs:

Hon. James R. Zazzali, Chairman

Co-chairs:

George Conk - Stein Center for Law & Ethics, Fordham Law School

Robert Martin - Seton Hall Law School

Lynne Newsome - New Jersey State Bar Association

Stephen Greenwald - Capital Punishment committee, New York City Bar Association