New Jersey Prosecutors Find No Problem with Abolition of Death PenaltyDecember 23, 2008
Posted on DPIC - (Death Penalty Information Center - find at deathpenaltyinfo dot org - find specific urls (links) related to this story and more at end of this post.)
In December 2007, New Jersey became the first state to legislatively abolish the death penalty in 40 years. In commenting on the absence of capital punishment for one year, a number of state prosecutors found no problems with the new system. "We have not viewed it as an impediment in the disposition of murder cases," said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that reviewed the death penalty. "As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases."
Essex County Prosecutor Paula Dow, head of the state association of county prosecutors, said eliminating the death penalty has not hindered prosecutors in pursuing tough sentences for the most violent offenders.
"We are still seeing very aggressive sentences," Dow said, citing instances in which judges have imposed life sentences for murder. Even when the sentence is life instead of life without parole, society is being protected. Dow noted that a life sentence is 75 years in prison, 85 percent of which must be served without parole. "That's almost the penultimate penalty," she said.
Under the old system, some prosecutors felt pressured to seek the death penalty, despite the lengthy, expensive trials and prolonged appeals. "It was a very big drain on the limited resources of law enforcement," Dow said. "There were long delays in the resolution of the cases, multiple appeals and very high costs associated with the handling of the litigation."
Victims representative Richard Pompelio agreed, "I don't think it's made much of a difference at all other than that some of the cases that were languishing out there are now getting tried," he said. Pompelio is the executive director of the New Jersey Crime Victims Law Center. "The important thing for crime victims is that the process have an end, and with the death penalty there never was an end," he noted.
According to the New Jersey Star-Ledger, of the 23 capital punishment cases pending when the death penalty was repealed, seven have thus far resulted in sentences of life without parole. Four other defendants, including three who pleaded guilty, received sentences such as 50 years, 30 years with no parole, and four consecutive life sentences. Twelve cases are pending.
(R. Larini, "A year later, state assesses justice without death penalty," N.J. Star-Ledger,December 15, 2008).
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Well, there was one problem:
DEAD WRONG: NJ Death Penalty Study Commission
by Dudley Sharp, Justice Matters, contact info below
5/2007
from http://www.hallnj.org/cm/listing.jsp?cId=3
Summary
The New Jersey Death Penalty Commission made significant errors within their findings. The evidence, contrary to the Commissions findings, was so easy to obtain that it appears either willful ignorance or deception guided their report.
A brief review.
FORMAT: Below, are the 7 points made within the New Jersey Death Penalty Study Commission Report, January, 2007. The RUBUTTAL presents the obvious points avoided by the Commission and discussed by this author, a death penalty expert.
I was invited to be a presenter, before the NJDPSC, but my time didn't fit their schedule.
1) There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent.
REBUTTAL:
- The reason that 81% of Americans found that Timothy McVeigh should be executed was justice - the most profound concept in criminal justice, as in many other aspects of life. It is the same reason that New Jersey citizens, 12 jurors, put all those on death row.
- Although the Commission and the NJ Supreme Court both attempt to discount deterrence, logically, they cannot.
First, all prospects for a negative outcome deter some. This is not, logically or historically rebutted. It cannot be. Secondly, those studies which don't find for deterrence, do not say that it doesn't exist, only that their study didn't find it. Those studies which find for deterrence did. 16 recent studies do.
- The Commission had ample opportunity and, more importantly, the responsibility to read and contact the authors of those many studies which have, recently, found for deterrence. There seems to be no evidence that they did so. On such an important factor as saving innocent lives, why didn't they? The testimony before the Commission, critical of those studies, would not withstand a review by the authors of those studies. That should be an important issue that the Commission should have investigated, but did not.
- LIFE WITHOU PAROLE: The Commission considered the risk of innocents executed and concluded that it wasn't worth the risk and that a life sentence would serve sufficiently without that risk to innocents.
Again, the Commission avoided both fact and reason. The risk to innocents is greater with a life sentence than with the death penalty.
First, we all know that living murderers, in prison, after escape or after improper release, are much more likely to harm and murder, again, than are executed murderers - an obvious truism ignored by the Commission.
Secondly, no knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, it is logically conclusive, that actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
Thirdly, there has been a recent explosion of studies finding for death penalty deterrence. The criticism of those studies has, itself, been rebutted.
- Therefore, in choosing a life without parole and calling for the end of the death penalty, the Commission has made the choice to put more innocents at risk - the opposite of their stated rationale.
2) The costs of the death penalty are greater than the costs of life in prison without parole, but it is not possible to measure these costs with any degree of precision.
REBUTTAL:
- The NJ legislature's own cost review found that the cost differential was indeterminate. However, based upon their exclusions, LWOP may very well be more expensive.
- For the amount of time and resources allegedly expended by the Commission, this section of their review was unconscionable in its lack of responsibility to the Commission's directive.
- The Commission concludes that the current system in New Jersey is very expensive, without noting the obvious ways in which those issues can be addressed to lessen those costs. Why?
One example, they find that proportionality review cost $93, 000 per case. Why didn't the Commission recommend doing away with proportionality review? There is no reason, legally, to have it and it has been a disaster, cost wise, with no benefit.
Secondly, the Commission states: "Nevertheless, consistent with the Commission's findings, recent studies in states such as Tennessee, Kansas, Indiana, Florida and North Carolina have all concluded that the costs associated with death penalty cases are significantly higher than those associated with life without parole cases. These studies can be accessed through the Death Penalty Information Center." (Report, page 33).
On many topics the Death Penalty Information Center has been one of the most deceptive or one sided anti death penalty groups in the country. While it is not surprising that the Commission would give them as a reference, multiple times, it doesn't speak well of the Commission.
Did the Commission read any of the studies referenced by the DPIC? It appears doubtful, or the Commission would not have referenced them.
For example, let's look at the North Carolina (Duke University) study. That cost study compared the cost of only a twenty year "life sentence" to the death penalty. Based upon that study, a true life without parole sentence would be more costly than the death penalty. Somehow the Commission missed that rather important fact.
These types of irresponsible and misleading references by the Commission do nothing to inspire any confidence in their findings, but do reinforce the opinion that their conclusions were predetermined.
Please see "Cost Comparisons: Death Penalty Cases Vs Equivalent Life Sentence Cases", to follow.
3) There is increasing evidence that the death penalty is inconsistent with evolving standards of decency.
REBUTTAL:
The Commission uses several references to prove their point. None of them succeeded.
- The first was based upon polling in New Jersey. The data showed strong support (78%) for executions in NJ, except when asking those polled to choose between a life sentence or a death sentence, for which life gets greater support. The major problem with this long standing and misleading polling question is that it has nothing to do with the legal reality of sentencing. Secondly, that poll shows broad support for BOTH sanctions, not a call to abandon either. The Commission, somehow, overlooked that obvious point.
Jurors have the choice of both sentences in states with the death penalty and life without parole. Therefore, a proper polling question for NJ would be,
A) should we eliminate the death penalty and ONLY have life without parole? or
B) should we give jurors the OPTION of choosing life or death in capital murder cases?
Based upon other polls, I suspect B would be the resounding winner of this poll in NJ.
We know support is 78% in NJ, for crimes similar to those on NJ death row.
Secondly, the Commissions polling speaker avoided the most obvious and reliable polling question on this topic - asking about the punishment for a specific crime, just as jurors have to decide.
NOTE: 78% of NJ citizens support the death penalty for crimes such as those on NJ's death row. (Dec., 2007)
81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial rapist/murderer Michael Ross.
Thirdly, poll New Jersey citizens with the following questions. Is life without parole or the death penalty the most appropriate punishment for those who rape and murder children? Or should NJ remove the death penalty as a jury option for those who rape and murder children?
- Two religious speakers spoke against execution. Both are easily rebutted by religious scholars holding different views.
- Another alleged example of this evolving standard is based upon the fact there has been a reduction in death sentences. Such reduction is easily explained by a number of factors, other than some imagined "evolving standard of decency".
Murders have dropped some 40%, capital murders have likely dropped by even a greater number, based upon other factors. This, by itself, explains the overwhelming percentage of the drop in death sentences.
In addition, many prosecutors, such as those in NJ, know that their courts will not allow executions, leading to prosecutorial frustration as a contributing factor in any reduction - not an evolving standard of decency, but an evolving and increasing frustration.
Please review: "Why the reduction in death sentences?", to follow.
4) The available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey.
CLARIFICATION:
In fact, there is no data to support any racial bias, invidious or otherwise. The Commission must have read the series of NJ studies.
5) Abolition of the death penalty will eliminate the risk of disproportionality in capital sentencing.
REBUTTAL:
Yes, Commission, and the abolition of all criminal sentences will eliminate the risk of disproportionality in all sentences, as well. This is hardly a rational reason to get rid of any sentence. Get rid of the expensive and unnecessary proportionality review.
6) The penological interest in executing a small number of persons guilty of murder is not sufficiently compelling to justify the risk of making an irreversible error.
REBUTTAL:
- The risk to innocents is greater with life without parole than with the death penalty. See (1), above LIFE WITHOUT PAROLE.
7) The alternative of Life imprisonment in a maximum security institution without the possibility of parole would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of the families of murder victims.
REBUTTAL:
This Commission statement is quite simply, false.
- Life imprisonment puts more innocents at risk than does the death penalty.
- Justice, just punishment, retribution and/or saving innocent lives, among others, are all legitimate social and penological interests all served by the death penalty.
- 81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial, rapist/murderer Michael Ross.
The overwhelming majority of those polled did not have family members murdered.
Is the Commission trying to tell us that a poll of NJ murder victim survivors would show a majority opposed to the death penalty? Of course not, that would be as absurd as the Commissions conclusions in this section.
Conclusion:
Almost without exception, The Commission accepted the standard anti death penalty position, without presenting the easily accessible rebuttal to that position.
Enough said.
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NJ Death Penalty Study Commission
It is alleged that the Commission had fair hearings, with both sides adequately presented.
Alleged fair hearings mean nothing, if decisions are predetermined, as this one was.
11 of the 13 committee members were either known or leaning anti death penalty. The contempt for and discounting of pro death penalty positions in both the hearings and final report confirm that.
All the prosecutors on the Commission were up for reappointment - by the staunchly anti death penalty Governor. Would any of them sacrifice their livelihood to fight for the death penalty? Of course not and they did not.
One committee member - one - was confirmable as pro death penalty.
Most, if not all, of Committee Chairman Rev. Howard's previous affiliations were anti death penalty.
Rev. Howard's fairness is best shown by the Commission's final report, which was laughable in its exclusion of pro death penalty positions, positions which would have either overwhelmed or neutralized the anti death penalty, predetermined conclusions of the panel, had those pro death penalty positions been given a fair showing in that report - which they weren't.
The Commission hearings and final report were, as all show trials, a farce.
copyright 2007-2008 Dudley Sharp
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites
homicidesurvivors.com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx
www.dpinfo.com
www.cjlf.org/deathpenalty/DPinformation.htm www.clarkprosecutor.org/html/links/dplinks.htm
www.coastda.com/archives.html
www.lexingtonprosecutor.com/death_penalty_debate.htm www.prodeathpenalty.com
http://yesdeathpenalty.googlepages.com/home2 (Sweden) www.wesleylowe.com/cp.html
If you are interested in this topic, be sure to take a good look as well at http://www.thejourneyofhope.blogspot.com and the links provided on that weblog in the bottom right of the home page...
The Death Penalty in the US: A Review
Dudley Sharp, Justice Matters, contact info below
NOTE: Detailed review of any of the below topics, or others, is available upon request
In this brief format, the reality of the death penalty in the United States, is presented, with the hope that the media, public policy makers and others will make an effort to present a balanced view on this sanction.
Innocence Issues
Death Penalty opponents have proclaimed that 130 inmates have been "released from death row with evidence of their innocence", in the US, since the modern death penalty era began, post Furman v Georgia (1972).
The number is a fraud.
Those opponents have intentionally included both the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers. This is easily confirmed by fact checking.
Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent -- an 83% error rate in for the claims of death penalty opponents. Other studies show their error rate to be about 70%. The totality of reviews points to an 80% error/fraud rate in these claims, or about 26 cases - a 0.3% actual guilt error rate for the nearly 8000 sentenced to death since 1973.
The actual innocents were all freed.
It is often claimed that 23 innocents have been executed in the US since 1900. Nonsense. Even the authors of that "23 innocents executed" study proclaimed "We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had." While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.
No one disputes that innocents are found guilty, within all countries. However, when scrutinizing death penalty opponents claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be one of the most accurate criminal justice sanctions in the world.
Under real world scenarios, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.
Deterrence Issues
16 recent US studies, inclusive of their defenses, find a deterrent effect of the death penalty.
All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some. The studies finding for deterrence state such. Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence. It cannot.
Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some. Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.
Racial issues
White murderers are twice as likely to be executed in the US as are black murderers and are executed, on average, 12 months more quickly than are black death row inmates.
It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases. Although blacks and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than black victim murders. This, so the logic goes, is proof that the US only cares about white victims.
Hardly. Only capital murders, not all murders, are subject to a capital indictment. Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, carjacking, rape, and additional murders, such as police murders, serial and multiple murders. White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.
Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.
Class issues
No one disputes that wealthier defendants can hire better lawyers and, therefore, should have a legal advantage over their poorer counterparts. The US has executed about 0.15% of all murderers since new death penalty statutes were enacted in 1973. Is there evidence that wealthier capital murderers are less likely to be executed than their poorer ilk, based upon the proportion of capital murders committed by different those different economic groups? Not to my knowledge.
Arbitrary and capricious
About 10% of all murders within the US might qualify for a death penalty eligible trial. That would be about 64,000 murders since 1973. We have sentenced 8000 murderers to death since then, or 13% of those eligible. I doubt that there is any other crime which receives a higher percentage of maximum sentences, when mandatory sentences are not available. Based upon that, as well as pre trial, trial, appellate and clemency/commutation realities, the US death penalty is likely the least arbitrary and capricious criminal sanctions in the US.
Christianity and the death penalty
The two most authoritative New Testament scholars, Saints Augustine and Aquinas, provide substantial biblical and theological support for the death penalty. Even the most well known anti death penalty personality in the US, Sister Helen Prejean, author of Dead Man Walking, states that "It is abundantly clear that the Bible depicts murder as a capital crime for which death is considered the appropriate punishment, and one is hard pressed to find a biblical 'proof text' in either the Hebrew Testament or the New Testament which unequivocally refutes this. Even Jesus' admonition 'Let him without sin cast the first stone,' when He was asked the appropriate punishment for an adulteress (John 8:7) -- the Mosaic Law prescribed death -- should be read in its proper context. This passage is an 'entrapment' story, which sought to show Jesus' wisdom in besting His adversaries. It is not an ethical pronouncement about capital punishment." A thorough review of Pope John Paul II's position, reflects a reasoning that should be recommending more executions.
Cost Issues
All studies finding the death penalty to be more expensive than life without parole exclude important factors, such as (1) geriatric care costs, recently found to be $69,0000/yr/inmate, (2) the death penalty cost benefit of providing for plea bargains to a maximum life sentence, a huge cost savings to the state, (3) the death penalty cost benefit of both enhanced deterrence and enhanced incapacitation, at $5 million per innocent life spared, and, furthermore, (4) many of the alleged cost comparison studies are highly deceptive.
Polling data
76% of Americans find that we should impose the death penalty more or that we impose it about right (Gallup, May 2006 - 51% that we should impose it more, 25% that we impose it about right)
71% find capital punishment morally acceptable - that was the highest percentage answer for all questions (Gallup, April 2006, moral values poll). In May, 2007, the percentage dropped to 66%, still the highest percentage answer, with 27% opposed. (Gallup, 5/29/07)
81% of the American people supported the execution of Timothy McVeigh, with only 16% opposed. "(T)his view appears to be the consensus of all major groups in society, including men, women, whites, nonwhites, "liberals" and "conservatives." (Gallup 5/2/01).
81% of Connecticut citizens supported the execution of serial rapist/murderer Michael Ross (Jan 2005).
While 81% gave specific case support for Timothy McVeigh's execution, Gallup also showed a 65% support AT THE SAME TIME when asked a general "do you support capital punishment for murderers?" question. (Gallup, 6/10/01).
22% of those supporting McVeigh's execution are, generally, against the death penalty (Gallup 5/02/01). That means that about half of those who say they oppose the death penalty, with the general question, actually support the death penalty under specific circumstances, just as it is imposed, judicially.
Further supporting the higher rates for specific cases, is this, from the French daily Le Monde December 2006 (1): Percentage of respondents in favor of executing Saddam Hussein:USA: 82%; Great Britain: 69%; France: 58%; Germany: 53%; Spain: 51%; Italy: 46%
Death penalty support is much deeper and much wider than we are often led to believe, with 50% of those who say they, generally, oppose the death penalty actually supporting it under specific circumstances, resulting in 80% death penalty support in the US, as recently as December 2006.
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Whatever your feelings are toward the death penalty, a fair accounting of how it is applied should be demanded.
copyright 1998-2009 Dudley Sharp
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
Dudley Sharp, Justice Matters
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