Sunday, December 16, 2007

Some Thoughts On Abolition

Kent Scheidegger over at Crime and Consequences is pretty exercised over the impending abolition of New Jersey's death penalty, which was reinstated in 1982 after an eleven-year hiatus. My own view is that since the punishment was never remotely close to being actually meted out, and since now only eight defendants (all stunningly heinous in their own respects and all clearly guilty, to be sure) actually inhabit the death row at New Jersey State Prison, the event really has far less significance than many in the media (including the editors of the New York Times) are according it. Moreover, with a moratorium still in effect, lawyers with the Attorney General's Office and the Office of the Public Offender are currently wasting enormous energy and resources on litigating appeals that all involved know perfectly well are entirely pointless. If this isn't the legal equivalent of the ninth circle of hell, I don't know what is. Strictly from a practical perspective (and speaking as one of those "select" lawyers who, while in the AG's Appellate Section, routinely handled death penalty appeals before the New Jersey Supreme Court), something simply had to give. And it will. This week.

The far more interesting question is how New Jersey, a majority of whose citizens actually oppose outright repeal, arrived at this juncture. When Professor James Liebman issued his study of purported error in death penalty appeals, my then-boss in the AG's Office directed me to prepare a study of New Jersey's error-rate in capital appeals (Liebman did not include NJ in his study) for possible use in forthcoming litigation. To my surprise, the 2000 report found its way to Web and can still be accessed here. I can tell you that when I drafted the report, the New Jersey Supreme Court -- whose unyielding philosophical antipathy toward capital punishment is beyond refute -- was actually inclined to affirm death penalty verdicts during a brief window, when the "moderate" justices briefly held sway. But times change, and so did the composition of the Court. And here we are.

I suppose this will sound very much like sour grapes, given my affiliation with the now-defunct NJ Sentencing Commission, but I'm hoping that all of those who rejoice at the reprieve to be bestowed upon New Jersey's eight death row denizens can spare a thought (and perhaps some redirected effort) on behalf of the thousands of non-violent drug offenders currently being senselessly warehoused in prisons throughout the Garden State.

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