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.

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