NEW VOICES: Former N. J. Supreme Court Justice Urges State to Face Reality on the Death Penalty

In an opinion piece in the New York Times, former New Jersey Supreme Court Justice Peter G. Verniero (pictured) said that the state should replace its flawed death penalty with the sentence of life without parole. Verniero is a former supporter of the death penalty, but now believes that the current statute is “ineffective,” “consumes enormous energy and resources,” and the state “lacks the collective will to carry out capital punishment.” He wrote:

A recent report by the New Jersey Death Penalty Study Commission has recommended that the state abolish the death penalty and replace it with a life sentence in a maximum security prison, with no possibility of parole. Although I might not agree with all of the commission’s reasoning — I don’t, for example, interpret public sentiments as leaning against capital punishment to the extent that the commission does — I concur in its recommendation.

That was not always my view. As state attorney general, I supported the death penalty and worked to enforce it. Later, as a member of the New Jersey Supreme Court, I voted to affirm and overturn death sentences when legal standards required either result.

But from a policy perspective, I now believe that the current capital punishment system, which has spawned elaborate litigation that includes several layers of appeal, is ineffective.

Because death is an irreversible penalty, the state Supreme Court has construed the judicial role in capital cases as requiring heightened and exact scrutiny. The legal process has grown into a complex, lengthy undertaking that consumes enormous energy and resources.

For instance, each death penalty case typically entails not one but several hearings before lower and appellate courts. And it’s not only state courts; federal courts also evaluate the cases. Given that trial judges, jurors, prosecutors and defense lawyers are, like everyone else, prone to error, some have wondered whether any capital case ultimately can survive such unstinting review.

But the judiciary has not been alone in its caution. Two of the last six elected governors — Brendan Byrne, who is also a former prosecutor and judge, and Jon Corzine, the current governor — have opposed the death penalty. Moreover, while the death penalty study commission was conducting its review, the Legislature imposed a moratorium on capital punishment apparently because of policy concerns, including the possibility of mistakes. Although the chance of executing an innocent person under our judicial process is minuscule, the role of DNA in overturning convictions has increased doubts.

The result is that New Jersey has not carried out any executions since it reinstated capital punishment in 1982. The last execution here was in 1963. And no death sentence is likely to be carried out in the near future.

Other states, like New York, are in a similar position. New York’s highest court found a constitutional defect in the state’s death penalty system in 2004, and legislators in Albany have so far not corrected it.

Why not fix the flaws that have prevented the use of capital punishment rather than eliminate it altogether? Here’s the problem. Narrowing the scope of the death penalty statute or tightening its provisions, as some have proposed, would invite a fresh wave of litigation and open new avenues for legal challenge. In a decent society where death should be imposed only after careful judicial examination, those appeals would continue for years. Even renewed attempts at limiting the review process itself would spur additional lawsuits.

For instance, when New Jersey lawmakers sought in 1992 to curb the manner in which the judiciary conducts reviews to ensure that juries do not apply death sentences arbitrarily, the state Supreme Court eventually decided that it should not be so restricted.

If similar reforms were tried once more, it’s likely that another two decades would pass with no executions, and we would be having the same debate as we are today. Indeed, since 1985, the Legislature has amended the death penalty statute 15 times. Tellingly, rather than expedite the process, some of those amendments have echoed judicial or constitutional concerns by strengthening legal safeguards, underscoring how all three branches have proceeded carefully in this field.

Instead of revising the system yet again, we should accept the conclusion that New Jersey simply lacks the collective will to carry out capital punishment. Whether it’s fear of an erroneous execution, as DNA evidence has shown is possible in other states, or a combination of other factors, the elected branches appear ready to alter course. In that context, substituting a sentence of life without parole for the death penalty makes sense. In the absence of executions, such sentences essentially already exist.

I cannot fathom the pain felt by the families of murder victims. I can only assume that their grief and sense of loss are perpetual. Understandably for some, a feeling of justice will result only from the execution of the persons responsible for such unspeakable crimes.

Still, as a practical matter, New Jersey’s death penalty exists merely on paper. Despite the law on the books, this state has never really embraced capital punishment. We should acknowledge that reality and replace the death penalty with a punishment that is real.

(New York Times, January 14, 2007) See New Voices and Life Without Parole.Read the New Jersey Death Penalty Study Commission’s report.