The New Jersey Death Penalty Study Commission has issued its report, and to the surprise of almost no one, they recommend that the Legislature do officially what the New Jersey Supreme Court has done unofficially, abolish capital punishment in New Jersey.
New Jersey has not executed a single murderer in the modern (post-Gregg) era. When the commission asked me to testify, I took my first real look at that state's capital cases. Although I have become somewhat jaded by many years of working in this area, I was truly surprised at the brazenness of the NJSC's obstruction of capital punishment. What I found is worse than the California Supreme Court under the notorious Rose Bird. Yes, it is even worse than the Ninth Circuit. Here is an excerpt from my testimony:
So why doesn't New Jersey have an effective death penalty? Thirty years of experience in 38 states has demonstrated one truth beyond question. You cannot have an effective death penalty in a state if your court of last resort is determined to block it and willing to twist the law to do so. Regrettably, that appears to be the case in New Jersey.
To see this, one need only look at the decision last July in the case of Anthony DiFrisco. DiFrisco was a hired killer, a hit man, who committed murder in 1986. In 1994, the New Jersey Supreme Court reviewed all his claims of procedural error and decided by a majority vote that no reversible error had occurred in his case. The next year, the court reviewed his claim that his sentence was disproportionate and decided 5-2 that it was not. Eleven years after that second decision and 20 years after the crime, the New Jersey Supreme Court went back, counted noses in its two previous decisions, decided it could put together a majority for reversal in those two decisions, and on that basis alone overturned the death sentence. Not only was the decision on the merits an outrage, but to reopen this eleven-year-old case, the court had to brush aside and effectively nullify a rule of court placing a five-year limit on collateral review of final judgments. After 20 years of litigating these matters, I thought I had seen it all. But this is beyond belief. This is not law in any meaningful sense of the word. This is pure obstruction of the enforcement of the law simply because a majority of the judges disagree with it, and they are willing to make up new rules without limit to impose their preference on the state.
A system that imposes death sentences but never carries them out is pointless. It does not deter; it does not provide justice; it does not incapacitate. (Yes, murderers do sometimes murder again, even from within prison.) New Jersey cannot achieve an effective death penalty unless it has the political will to fix its disgrace of a high court. It apparently does not. Even Senator Russo, the lone dissenter from today's report, didn't like my suggestion that New Jersey adopt California-style retention elections. I don't see any other way.
The report overall is a disappointing rehash of all the usual arguments. Finding number 1, for example, is "There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent." [Intent? Did they mean interest?] I agree that it presently does not. The question should have been whether it would if they fixed it. Of the eleven thousand New Jerseyans murdered between 1977 and 2004, how many would have lived if the state had had an effective death penalty? Of the New Jerseyans who are going to be murdered in the next thirty years whether the state maintains its de facto abolition or makes it official, how many would have been saved if this commission and the New Jersey Legislature had been genuinely interested in saving some of them by establishing an effective death penalty? The commission doesn't seem to have much interest in these questions.