The big LWOP problem with the NJ death penalty report

The big LWOP problem with the NJ death penalty report

Karl Keys in this post spotlighted that the New Jersey Death Penalty Commission forged a political compromise by coupling its call to abolish the death penalty with an expansion of life without parole (LWOP). An informed reader from New Jersey sent along this comment about the practicalities — or should I say impracticalities — of the proposed LWOP expansion:

Prosecutors, criminal defense attorneys, and, presumably, overworked criminal trial judges alike must be shaking their heads over the New Jersey Death Penalty Commission's proposal to substitute New Jersey's death penalty with LWOP. The proposal would require LWOP in all cases where a defendant is convicted of first-degree murder. As the law currently stands, the punishment for that crime is between 30 years to life except in three circumstances: 1) where a statutory aggravating factor or factors served upon the defendant is proven at a penalty trial, resulting in the imposition of death; 2) where the defendant murders a law enforcement officer, resulting in life without parole; and 3) where the defendant murders a victim less than 14 years old, resulting in life without parole.

Under New Jersey's No Early Release Act, as amended in 2001, the sentencing court must set a minimum parole ineligibility term of 85% of the term set or 30 years, whichever is longer. The minimum parole ineligibility term applicable to a life sentence for murder is 63¾ years. Thus, in all but the most aggravated homicides, defendants now face anywhere — in actual time served — anywhere from 30 years to 63+ years. Obviously, 33+ years is a pretty expansive range by any measure. In a state where 98% of all criminal dispositions are the result of plea bargains, it doesn't take a rocket scientist to contemplate the likely impact of LWOP. No light at the end of the tunnel equates, in practical terms, to very few guilty pleas in murder prosecutions. In addition, the Commission's LWOP proposal does not exempt juveniles (ages 15 to 17) in cases where jurisdiction has been automatically transferred from juvenile to adult court.

A more nuanced and practical scheme might entail a grading of murder based on the degree of culpability. For example, prosecutors could, in a Blakely compliant manner, serve defendants with a notice of aggravating factors or factors and then submit an interrogatory to a jury at the conclusion of a murder trial. A finding of one or more factors would necessitate the imposition of LWOP. In all other cases, a defendant would be subject to range of punishment currently authorized, and which allows trial judges a modicum of discretion to impose a sentence tailored to the individualized circumstances of the offense and offender.

Prior posts on the NJ report (here and here) have spotlighted its lack of sophisticated analysis, and thus I am not surprised to hear that the proposed LWOP expansion may have practical problems. Perhaps the terrific New Jersey Commission to Review Criminal Sentencing, which apparently was not involved at all in the DP report, will spotlight some of these important practical issues for the New Jersey legislature when the debate gets going there.