New Jersey Could Kill the Death Penalty

New Jersey Could Kill the Death Penalty

Patrick Mulvaney

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Patrick Mulvaney

Patrick Mulvaney is a freelance journalist and a law student at the University of Pennsylvania. He has written recently for The Nation, Mother Jones and the Village Voice.

From the lethal injection disaster in Florida to the hanging of Saddam Hussein in US-occupied Iraq, the death penalty's public image in America suffered a series of setbacks in the closing weeks of 2006. None of those setbacks, however, bolstered the national abolition movement as substantially as the recommendation by a New Jersey legislative panel, made public Tuesday, that the Garden State should eliminate capital punishment.

Twelve of the thirteen members of the bipartisan panel, officially known as the New Jersey Death Penalty Study Commission, concurred in the abolition recommendation. Moreover, the twelve-member majority offered a thoughtful nod to the exorbitant cost of capital punishment, suggesting that New Jersey should direct any financial savings resulting from abolition toward benefits and services for victims' family members. Given that the panel's lone dissenter sponsored the state's existing death penalty statute decades ago, the recommendations are likely to carry significant weight in Trenton. Governor Jon Corzine, a longtime opponent of the death penalty, expressed support for the recommendations immediately, and State Senate President Richard Codey told Newark's Star-Ledger that passage of an abolition bill is now "more than likely."

New Jersey, which reinstated the death penalty in 1982 but has not carried out a single execution since, appears set to reverse a national trend dating back to 1972. That year--in response to the US Supreme Court's June ruling in Furman v. Georgia, which invalidated all existing death penalty statutes throughout the nation--states began crafting new, refined statutes, effectively launching the modern era of capital punishment. When the Court approved the return of the death penalty in 1976, the three-Justice plurality noted that thirty-five states had passed new capital punishment statutes in the four years following Furman, thereby demonstrating "society's endorsement of the death penalty."

Since then, the Court has relied heavily on the states' statutes when determining whether a particular punishment violates the nation's "evolving standards of decency," and thus the Eighth Amendment's ban on cruel and unusual punishment. The result has been a gradual narrowing of the pool of death-eligible offenders. In cases ranging from 1977 to 2005, the Court has applied state-counting analysis in abolishing the death penalty for offenders convicted of raping adult women, insane offenders, mentally retarded offenders and juvenile offenders. In the two most recent cases of this kind, thirty states had banned the death penalty for the category of offenders in question before the Court intervened.

The "evolving standards of decency" rationale in those death penalty contexts suggests that the road to total abolition runs through the state legislatures across the nation. Today, twelve states prohibit the death penalty, but none of them ever established a capital punishment system after Furman. As such, New Jersey would not only be lucky thirteen in the overall count but also the first state to abolish the death penalty after having established it in the modern era. Assuming no reinstatement efforts succeed in abolitionist states in the years ahead, abolition in New Jersey would mark the beginning of a national shift away from the high-water mark of thirty-eight death-penalty states that has existed for more than a decade.

"If New Jersey's law is passed, it would be a huge step toward getting rid of the death penalty in the United States," says Richard Dieter, executive director of the Death Penalty Information Center, a DC-based research group. This is because New Jersey, aside from changing the state count on its own, has the potential to catalyze developments beyond its borders. As Dieter says, noting capital punishment's stalled status in New York and controversial standing elsewhere, New Jersey is "not alone in its re-evaluation of the death penalty."

Trenton, at least for the moment, has become the center of gravity in the long-term debate over the constitutionality of capital punishment. This is not to imply that the lethal injection battles and other application-based disputes are unimportant in the fight for total abolition, but simply that they influence the core issue in ambiguous ways. Tuesday's news from New Jersey, by contrast, represents a direct hit: A death-penalty state, for the first time since Furman, is preparing to come full circle. Indeed, the news from New Jersey forecasts the reversal of the one trend that matters most in the fight for total abolition.