A political shift on death penalty

A political shift on death penalty

BY GEORGE AMICK

Monday, January 08, 2007

Last week's recommendation by a legislative commission that New Jersey replace its long-unused death penalty with life imprisonment without hope of parole reflects a major shift in the state's political winds.
Eight years ago, another study panel called for just the opposite. It proposed more than a dozen ways to streamline the judicial process so some death row resident, at long last, might keep his appointment with lethal injection.

Capital punishment still was politically equated with toughness in those days. Jim Florio, running for the Democratic nomination for U.S. Senate in 2000, supported the death penalty, admitting that he did so to inoculate himself and his party against Republican accusations that they were soft on crime

Even then, however, state government -- with a Republican governor, Christie Whitman, and a Republican Legislature -- turned out to have no stomach for the commission's plans to speed up capital trials and the appeals process. The report was largely ignored, and today nearly a quarter of a century has gone by without an execution since New Jersey enacted its death penalty law.

But a lot has happened elsewhere.

There has been widespread publicity about people who have served long prison terms, some on death row, only to be freed after DNA evidence revealed they had been wrongfully convicted. Stories have come out about defendants who were victimized by slipshod work, or worse, by police, prosecutors and defense counsel.

And public opinion has changed. A 1999 poll showed that New Jerseyans favored the death penalty over life in prison without parole 44 percent to 37 percent. Only three years later, those numbers had flipped to 36 percent for the death penalty and 48 percent for life without parole.
Recent accounts of a botched execution in Florida, and a federal court finding that California's lethal injection procedures were unconstitutionally cruel and unusual, no doubt will accelerate that trend. The grotesque circumstances surrounding the hanging of Saddam Hussein in Baghdad are unlikely to create many new fans for capital punishment.

The new state study was authorized by a law sponsored by Sen. Shirley Turner, D-Lawrence, and signed by Gov. Jon Corzine, whose outspoken opposition to the death penalty has turned out not to be the political handicap that Jim Florio feared.

A commission was appointed that included clerics, a police chief, two county prosecutors, a public defender, a representative of victims' rights groups, and ex-Sen. John Russo, D-Ocean, who sponsored the 1972 law restoring the death penalty in the state. The commissioners held hearings throughout the summer and fall and produced a report to which former Sen. Russo was the only dissenter.

Among its findings were that the New Jersey death penalty serves no legitimate penological purpose, such as deterrence, that couldn't be served by locking up convicted killers for life in maximum-security institutions.

This alternative course would "sufficiently ensure public safety" and address other legitimate interests, such as the interests of the murder victims' families. It would end the risk of putting to death an innocent person, the epitome of the irreversible mistake. And by eliminating the extraordinary procedures that the courts and the Legislature have loaded onto the death penalty in a vain effort to make it foolproof, such as two-phase trials, multiple appeals and proportionality reviews, abolition would save millions of taxpayer dollars.

(The exact same point, incidentally, was made by Superior Court Judge Bill Mathesius in a written opinion in 2002. He made it in more colorful and provocative language -- he called the court-constructed appeals process "a noirish Rube Goldberg contraption" -- which was one of the reasons the Supreme Court ordered the judge to serve a month's suspension without pay.)

There's grounds for hope that the reasonableness, good sense (and political cover) provided by the commission, combined with the change in public sentiment, will persuade the Legislature to remove capital punishment from the statute books. The fact that abolition has the backing of Gov. Corzine and state government's two other top leaders, Senate President Dick Codey and Assembly Speaker Joe Roberts, improves the odds.

But the old tough-on-crime issue still resonates, as shown by the complaint of Assembly Minority Leader Alex DeCroce, R-Morris, that the report "sends the wrong message to lawbreakers in this state." Another Republican who doesn't like the idea of repeal is former U.S. Rep. Dick Zimmer, who chaired the 1998-99 commission that urged a speedup in the execution process.

"The fact that innocent people may have been sentenced to death in other states is no reason to abolish the death penalty in New Jersey," Zimmer told me. "Those developments, which are based largely on incompetent counsel, are irrelevant here. I challenge the members of the commission to name one of the nine men on death row -- or anyone who has ever been on death row in New Jersey -- who was innocent of the underlying crime."

To argue that the death penalty is costlier than the alternative is "disingenuous," Zimmer said, "because the opponents of the death penalty are the ones who have extended the process interminably in a way that increases the cost. I don't begrudge the public paying for excellent (defense) counsel, because the stakes are so high. But the extra steps, including proportionality review, which is virtually unique to New Jersey, extend the process and the expense."

Indeed, the atmosphere has changed. But repeal isn't necessarily going to be an easy sell at the State House.

Contact George Amick at gamick@njtimes.com

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