Will New Jersey Ban Capital Punishment? Understanding the Death Penalty Study Commission Report

Vol. 34 No. 2

By

Eddie Hicks, a retired Atlantic City fire­fighter, was a member of the New Jersey Death Penalty Study Commission.

In January 2006, then New Jersey Governor Richard J. Codey signed into law a bill with broad bipartisan support that imposed a moratorium on executions and created the thirteen-member Death Penalty Study Commission to examine all aspects of New Jersey’s death penalty. The commission included a police chief, two prosecutors, several family members who lost loved ones to murder, and others who through their experiences were qualified to advise the legislature on this issue.

Those of us on the commission came from different places in our lives and professions, yet all but one of us who voted agreed that the death penalty should be ended in New Jersey and that it should be replaced by life without parole as the most severe penalty for persons who commit murder.

Near unanimity is not something anyone would have expected. We were charged with considering all of the thorny issues that form the national dialogue on whether the death penalty should be abolished. Innocence, cost, deterrence, arbitrariness, and the question of whether the death penalty is consistent with evolving standards of decency were the subject of lengthy witness testimony and debate by commission members. Despite our different perspectives, we formed a consensus that may well result in the passage of the nation’s first law in recent decades ending the death penalty.

The question of innocence figured prominently in our report. No one has been released from New Jersey’s death row because of a claim of innocence, but we heard testimony from exonerees who served disturbingly long sentences in New Jersey prisons for crimes they did not commit, including one man who was tried capitally and released shortly before the commission was formed. Their testimony, and our appreciation of what has happened nationally, as more than 115 innocent inmates have been released from death row, led us to conclude that the penological interest in executing a small number of persons guilty of murder does not justify the risk of making an irreversible mistake.

We were also persuaded that there is, to quote our report, increasing evidence that the death penalty is inconsistent with evolving standards of decency.” We heard from numerous religious leaders, including a Catholic bishop who spoke about the Catholic church’s firm stance against the death penalty when there are alternatives to execution, such as life without parole. Polls we reviewed showed that 60 percent of New Jerseyans preferred life without parole over the death penalty when given a choice, a sea change from when the death penalty was reinstituted in 1983.

In two important respects, our deliberations led us to reject common wisdom that appears essential to society’s support for the death penalty. First, the hearing we conducted and the report we issued belied the widespread belief that the law enforcement community unanimously supports the death penalty. Not a single representative of law enforcement testified in favor of the death penalty. A police chief and two prosecutors, including one who represented the association of county prosecutors, and both of whom pursued capital trials, joined in our recommendations. The state attorney general abstained from the final vote, but stated that he “would offer no objection were the Legislature to replace the current capital punishment scheme with a law that substitutes a sentence of life imprisonment without the possibility of parole for a capital sentence.” This was not a commission that was “soft on crime” but one that could distinguish between effective and ineffective law enforcement strategies.

Perhaps our most important, and hopefully enduring, contribution as a commission was our rejection of the common wisdom that surviving family members of murder victims overwhelmingly support the death penalty. We certainly listened closely to family members who support the death penalty for the death row inmates who murdered their loved ones. Although we respect their views and sympathize with them, we were more persuaded by the testimony of family members and law enforcement members that the death penalty disserves those who grieve the loss of loved ones who were murdered and divides family members who have divergent views of capital punishment. We cited the testimony of a father, Lorry Post, who, like me, lost his daughter to murder. Post testified that the death penalty “drains resources and creates a false sense of justice.” The attorney general, who in court has defended our state’s administration of the death penalty, stated that “we would not be honest with victims or the general public if we ignored the practical realities of our capital sentencing scheme” by, among other things, subjecting “the families of homicide victims to protracted emotional grief and frustration” and “forcing them to endure decades of litigation in pursuit of a sanction not likely to occur.” Importantly, many of the surviving family members supported the death penalty in concept, but recognized that it failed to help victims in practice.

Our report was released in January 2007. In May, a state senate committee released a bill that would implement our recommendations. Both houses of the legislature have indicated that they will consider legislation before the expiration of this term in January 2008. And Governor Jon Corzine, a long-time opponent of the death penalty, has indicated that he will sign the bill.

We were charged with providing advice on all aspects of New Jersey’s administration of capital punishment. The result was far from preordained. Rather, we heard from all witnesses who cared to offer their views and came to a strong consensus that New Jersey would be better off with a more responsible punishment than the death penalty. If our recommendations become law, New Jersey will become the first state in modern times to abolish the death penalty legislatively, an accomplishment that is sure to affect other states seeking a fair and sensible criminal justice system.

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