Monday, December 17, 2007

Good-Bye to Ole Sparkie in New Jersey.

Gov. Jon S. Corzine signed into law a measure repealing New Jersey’s death penalty on 17 December 2007, making NewJersey the first state in a generation to abolish capital punishment and ending what he called “state-endorsed killing,” and said that New Jersey could serve as a model for other states.
He also issued an order commuting the sentences of the eight men on New Jersey’ death row to life in prison with no possibility of parole, ensuring that they will stay behind bars for the rest of their lives.
He said. “I believe society first must determine if its endorsement of violence begets violence, and if violence undermines our commitment to the sanctity of life.”
In 1982, six years after the United States Supreme Court allowed states to start executing prisoners again, New Jersey re-established its death penalty. It switched its method of execution to lethal injection and built a new execution chamber at the New Jersey State Prison here, where death row is housed.
While juries have sentenced more than four dozen people to death since then, the vast majority of those sentences were overturned on appeal. And even if the state had wanted to follow through with an execution, it would not have been able to.
A state appeals court ruled in 2004 that New Jersey’s procedures for administering the death penalty were unconstitutional. The state rewrote the procedures but never finalized them, and they expired in 2005.
The process of abolishing the death penalty moved forward at an unusually fast pace. A bill replacing capital punishment with life in prison with no chance of parole first passed a Senate committee in May, but did not advance any further until this month. Leaders of both chambers in state Legislature made the bill a top priority of the current legislative session, and vowed after the November elections to vote on the issue before the end of the year.
No criminal has been executed in New Jersey since 1963, so the fact that Gov. Jon Corzine has just signed a bill abolishing the state's death penalty might seem symbolic. But in a country where capital punishment exists mainly as a symbol, that's precisely the point.
Critics of capital punishment hope that New Jersey's step — becoming the first state in modern times to repeal its death penalty — is a sign of things to come. Until Monday's signing, the Garden State was one of five states where capital punishment remained on the books but has been unused for decades. Another five states have each executed only one prisoner during the past 40 years.
Early this year, a commission appointed by the New Jersey legislature concluded that capital punishment — which requires a more elaborate process at trial and in appeals — costs too much, financially and emotionally, to maintain it as an empty gesture. One study considered by the commission estimated that New Jersey communities and courts had spent a quarter of a billion dollars above and beyond the cost of non-capital murder trials to try to satisfy the exacting standards for death penalty cases established by U.S. Supreme Court and interpreted by skeptical lower courts. A more conservative estimate put the excess cost at $1 million per inmate. A life sentence without possibility of parole can accomplish as much, the commission decided, but without the added burdens.
One member of the panel, James Abbott, chief of police in West Orange, N.J., said the emptiness of a penalty that is so rarely imposed persuaded him to go along with the group's finding that New Jersey's death penalty served no purpose. Of the 60 death sentences recommended by New Jersey juries under the current law, 57 have been reversed on appeal. "If I were ever to be killed in the line of duty, I would never, ever want my wife and three daughters to suffer the way these families suffer with this arduous and never-ending court process," Abbott said.
In states like Maryland, New Mexico and South Dakota, legislative efforts to repeal the death penalty — once considered hopeless — now appear to be within a few votes of success. Blue-ribbon committees similar to the one in New Jersey have been appointed in places like Illinois, Tennessee, Maryland and Florida.
All this comes against a backdrop of declining use of the death penalty nationwide. The number of death sentences and the number of executions have both fallen dramatically since the turn of the century — though America's courts continue to pronounce doom in far more cases than doom is delivered. Fewer than 3% of death row prisoners are executed in any given year.
The long-range hope of death penalty opponents — and the reason why death penalty supporters were lobbying to save New Jersey's unused death penalty right up to the final vote — is that a trend toward abolition in the states might build into a Supreme Court ban on all capital punishment. No one believes such a step is imminent, but in recent years the high court has cited changes in state laws to justify bans on capital punishment for juveniles and mentally retarded prisoners. In those cases, the justices looked to state legislatures as harbingers of society's "evolving standards of decency," and leveraged the actions of a relatively small number of states into rulings that bind the entire country.

For the first time in the modern history of the death penalty, in 2007 more than 60 percent of all American executions took place in Texas. Some have attributed that fact to the female judges that were appointed by President George Bush when he was governor of Texas. They tend to be more hardline, and try to be tougher on crime than their male counter-parts.

Over the past three decades, the proportion of executions nationwide performed in Texas has held relatively steady, averaging 37 percent. Only once before, in 1986, has the state accounted for even a slight majority of the executions, and that was in a year with 18 executions nationwide.

But in 2007, enthusiasm for executions outside of Texas dropped sharply. Of the 42 executions this year, 26 were in Texas. The remaining 16 were spread across nine other states, none of which executed more than three people. Many legal experts say the trend will probably continue.

David Dow, a law professor at the University of Houston who has represented death-row inmates, said the day was not far off when essentially all executions in the United States would take place in Texas.
"The reason that Texas will end up monopolizing executions," he said, "is because every other state will eliminate it de jure, as New Jersey did, or de facto, as other states have."

Charles Rosenthal Jr., the district attorney of Harris County, Texas, which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system was working properly.

The pace of executions in Texas, he said, "has to do with how many people are in the pipeline when certain rulings come down."

The rate at which Texas sentences people to death is not especially high given its murder rate. But once a death sentence is issued there, prosecutors, state and U.S. courts, the pardon board and the governor are united in moving the process along, said Richard Dieter, the executive director of the Death Penalty Information Center.

"There's almost an aggressiveness about carrying out executions," said Dieter, whose organization opposes capital punishment.

Outside Texas, even supporters of the death penalty say they detect a change in public attitudes about executions in light of the time and expense of capital litigation, the possibility of wrongful convictions and the remote chance that someone sent to death row will actually be executed.

"Any sane prosecutor who is involved in capital litigation will really be ambivalent about it," said Joshua Marquis, the district attorney in Clatsop County, Oregon, and a vice president of the National District Attorneys Association. He said the families of murder victims suffer needless anguish during what can be decades of litigation and multiple retrials.

"We're seeing fewer executions," Marquis added. "We're seeing fewer people sentenced to death. People really do question capital punishment. The whole idea of exoneration has really penetrated popular culture."

As a consequence, Dieter said, "we're simply not regularly using the death penalty as a country."


Overview of the Commission and its Work
The New Jersey Death Penalty Study Commission was created in 2006 by the New Jersey Legislature (P.L.2005, c.321)
The commission is charged with studying all aspects of the death penalty as currently administered in the State of New Jersey, including but not limited to the following issues:
(1) whether the death penalty rationally serves a legitimate penological intent such as deterrence;
(2) whether there is a significant difference between the cost of the death penalty from indictment to execution and the cost of life in prison without parole; in considering the overall cost of the death penalty in New Jersey, the cost of all the capital trials that result in life sentences as well as the death sentences that are reversed on appeal must be factored into the equation;
(3) whether the death penalty is consistent with evolving standards of decency;
(4) whether the selection of defendants in New Jersey for capital trials is arbitrary, unfair, or discriminatory in any way and there is unfair, arbitrary, or discriminatory variability in the sentencing phase or at any stage of the process;
(5) whether there is a significant difference in the crimes of those selected for the punishment of death as opposed to those who receive life in prison;
(6) whether the penological interest in executing some of those guilty of murder is sufficiently compelling that the risk of an irreversible mistake is acceptable; and
(7) whether alternatives to the death penalty exist that would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of families of victims.
The commission must report its findings and recommendations to the Governor and the Legislature, along with any legislation it desires to recommend for adoption by the Legislature, no later than November 15, 2006.

Moratorium on Executions
Beginning on January 12, 2006 (the effective date of P.L.2005, c.321), if a defendant has been sentenced to death that sentence will not be carried out prior to 60 days after the issuance of the commission's report and recommendations.
Commission Members
The Commission consists of thirteen members. Currently the members are:

Reverend M. William Howard, Jr., Chairman
(Appointed by the Governor)
James P. Abbott
Chief of Police, West Orange
(Appointed by the President of the Senate)
Hon. James H. Coleman, Jr.
Former Justice of the New Jersey Supreme Court
(Appointed by the Governor)
Edward J. DeFazio
Hudson County Prosecutor
(County Prosecutors Association of New Jersey)
Hon. Stuart Rabner
Attorney General of the State of New Jersey
Kathleen M. Garcia
New Jersey Crime Victims’ Law Center Representative
(Appointed by the Governor)
Kevin Haverty
(Appointed by the Speaker of the General Assembly)
Eddie Hicks
Murder Victims’ Families for Reconciliation Representative
(Appointed by the Governor)
Thomas F. Kelaher
Ocean County Prosecutor
(Appointed by the Speaker of the General Assembly)
Hon. John F. Russo
(Appointed by the President of the Senate)
Rabbi Robert Scheinberg
(Appointed by the Governor)
Yvonne Smith Segars
New Jersey Public Defender
Miles S. Winder III
New Jersey State Bar Association Representative
New Jersey Death Penalty Study Commission Report - January 2007

When in Gregg v. Georgia the Supreme Court gave its seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered with fairness and justice. Instead, the promise has become a cruel and empty mockery. If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue. -Justice Thurgood Marshall, 1990

The Philadelphia Story

More than half of the death sentences rendered in Pennsylvania are cases from Philadelphia, a city with only 14% of the state's population. Philadelphia's District Attorney, Lynne Abraham, has been called "The Deadliest D.A." in a 1995 New York Times article. Eighty-three percent of those on death row from Philadelphia are African-American. But raw numbers of racial disproportion do not tell the whole story. In order to determine for certain whether race is a decisive factor, researchers must examine the outcomes in cases of similar severity with defendants of similar criminal backgrounds.

This examination requires a statistical analysis which takes into account such factors as multiple victims, the deliberate infliction of pain, and the background of the accused. The ultimate question is: "Among similar cases, is race a factor in whether death sentences are imposed against Black defendants?"

Such a study was recently conducted in Philadelphia. The results are dramatic, particularly for a state outside of the deep south, a region where racial disparities in the criminal justice system have a long history. The researchers examined a large sample of the murders which were eligible for the death penalty in the state between 1983 and 1993. The researchers found that, even after controlling for case differences, Blacks in Philadelphia were substantially more likely to get the death penalty than other defendants who committed similar murders. Black defendants faced odds of receiving a death sentence that were 3.9 times higher than other similarly situated defendants.

The researchers used a variety of analytical tools to compare and validate their findings. They consistently found substantial race-of-defendant disparities. The results of this bias against Black defendants in Philadelphia is estimated to be an excess of 38% in death sentences for Black defendants compared to all other defendants for similar crimes.

The results of two new studies underscore the continuing injustice of racism in the application of the death penalty. A new study documents the infectious presence of racism in the death penalty, and demonstrates that this problem has not slackened with time, nor is it restricted to a single region of the country. Another study identifies one of the potential causes for this continuing crisis: those who are making the critical death penalty decisions in this country are almost exclusively white.

From the days of slavery in which Black people were considered property, through the years of lynchings and Jim Crow laws, capital punishment has always been deeply affected by race. Unfortunately, the days of racial bias in the death penalty are not a remnant of the past.

Two of the country's foremost researchers on race and capital punishment, law professor David Baldus and statistician George Woodworth, along with colleagues in Philadelphia, have conducted a careful analysis of race and the death penalty in Philadelphia which reveals that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is Black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant. The data were subjected to various forms of analysis, but the conclusion was clear: Blacks were being sentenced to death far in excess of other defendants for similar crimes.

A second study by Professor Jeffrey Pokorak and researchers at St. Mary's University Law School in Texas provides part of the explanation for why the application of the death penalty remains racially skewed. Their study found that the key decision makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.

These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years. Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. The gravity of the close connection between race and the death penalty is shown when compared to studies in other fields. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. The latter evidence has produced enormous changes in law and societal practice, while racism in the death penalty has been largely ignored.

Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief on the grounds that patterns of racial disparities are insufficient to prove racial bias in individual cases. With the single exception of Kentucky which recently passed a version of the Racial Justice Act, legislatures have turned their back on corrective measures. Despite the prior example of legislation in response to similar discrimination in such areas as employment and housing, legislatures on both the federal and state level have failed to pass civil rights laws regarding the death penalty for fear of stopping capital punishment entirely. And so, the sore festers even as executions accelerate and appeals are curtailed.

The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and in the devoting of more resources to white victims of homicide at the expense of Black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks. Such a system of injustice is not merely unfair and unconstitutional--it tears at the very principles to which this country struggles to adhere.

The Sounds of Racism

Blatant racism is seen and heard too often in courtrooms around the country. In death penalty cases, the use of derogatory slurs kindles the flames of prejudice and allows the jury to judge harshly those they wish to scapegoat for the problem of crime. A few examples illustrate the intensity of this racism:

¥ "One of you two is gonna hang for this. Since you're the "N-word", you're elected." These words were spoken by a Texas police officer to Clarence Brandley, who was charged with the murder of a white high school girl. Brandley was later exonerated in 1990 after ten years on death row.

¥ In preparing for the penalty phase of an African-American defendant's trial, a white judge in Florida said in open court: "Since the "N-word" mom and dad are here anyway, why don't we go ahead and do the penalty phase today instead of having to subpoena them back at cost to the state."Anthony Peek was sentenced to death and the sentence was upheld by the Florida Supreme Court in 1986 reviewing his claim of racial bias.

¥ A prosecutor in Alabama gave as his reason for striking several potential jurors the fact that they were affiliated with Alabama State University -- a predominantly Black institution. This pretext was considered race neutral by the reviewing court.

¥ During the 1997 election campaign for Philadelphia's District Attorney, it was revealed that one of the candidates had produced, as an Assistant D.A., a training video for new prosecutors in which he instructed them about whom to exclude from the jury, noting that "young Black women are very bad" on the jury for a prosecutor, and that "Blacks from low-income areas are less likely to convict." The training tape also instructed the new recruits on how to hide the racial motivation for their jury strikes.

¥ In Missouri, Judge Earl Blackwell issued a signed press release about his judicial election announcing his new affiliation with the Republican Party while presiding over a death penalty case against an unemployed African-American defendant. The press release stated, in part: "[T]he Democrat party places far too much emphasis on representing minorities . . . people who dont' (sic) want to work, and people with a skin that's any color but white . . . ." The judge denied a motion to recuse himself from the trial. The defendant, Brian Kinder, was convicted and sentenced to death, and Missouri's Supreme Court affirmed in 1996.8

These examples are symbolic of a more systemic racism, and they provide a sense of how damaging racial prejudice and insensitivity can be when someone is facing execution. Empirical studies which provide the national evidence of racism in capital punishment are critical to understanding that this problem goes far beyond individual examples of prejudice.


ichbinalj said...

The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides
by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center
Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. -Justice William Brennan, 198766

The influence of race on the death penalty is pervasive and corrosive. In other areas of the law, protections have been built in to limit the effects of systemic racism when the evidence of its impact is clear. With the death penalty, however, such corrective measures have been blocked by those who claim that capital punishment would bog down if racial fairness was required. And so, the sore festers.

ichbinalj said...

These new studies add to an overwhelming body of evidence that race plays a decisive role in the question of who lives and dies by execution in this country. Race influences which cases are chosen for capital prosecution and which prosecutors are allowed to make those decisions. Likewise, race affects the makeup of the juries which determine the sentence. Racial effects have been shown not just in isolated instances, but in virtually every state for which disparities have been estimated and over an extensive period of time.

Those who die because of this racism are not the kind of people who usually evoke the public's sympathy. Many have committed horrendous crimes. But crimes no less horrendous are committed by white offenders or against Black victims, and yet the killers in those cases are generally spared death. The death penalty today is a system which vents society's anger over the problem of crime on a select few. The existing data clearly suggest that many of the death sentences are a product of racial discrimination. There is no way to maintain our avowed adherence to equal justice under the law, while ignoring such racial injustice in the state's taking of life.

ichbinalj said...

By reserving the penalty of death for Black defendants, or for the poor, or for those convicted of killing white persons, we perpetrate the ugly legacy of slavery-- teaching our children that some lives are inherently less precious than others. -Rev. Joseph E. Lowery, former President, Southern Christian Leadership Conference, 1989

After the Civil War and the emancipation of the slaves, lynchings of Black people were common in the U. S. From the late 1800s, at least 4,743 people were killed by lynch mobs, with 90% of the lynchings occurring in the South, and most of the victims being Black people. Lynchings were praised as necessary and just, and even some governors deferred to the public demand for vengeance.

Revulsion at the spectacle and gross injustices of the lynching era eventually led to the formation of the National Association for the Advancement of Colored People (NAACP) and then to the demise of lynching. But the disparities evident in today's death penalty indicate that prejudice and racism remain a potent force infecting our system of justice.

ichbinalj said...

Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die. -Justice Harry Blackmun, 1994

Prosecutors not only decide who should be charged with a particular level of offense, they also have a significant impact on the way the trial is conducted. When a prosecutor refers to an Hispanic defendant as "a chili-eating bastard," as happened in a Colorado death penalty case, it sets a tone of acceptance of racial prejudice for the entire trial. Similarly, the selection of juries is an essential part of this process, and some prosecutors have made a practice of eliminating Blacks from their prospective juries, thereby increasing the likelihood of a race-based decision.