On Monday September 21, 1998, Anthony Porter sat still in his prison cell in Chester, Illinois, less than 60 hours away from his execution. Porter was a poor mentally challenged African American man with an IQ of 51 (Criminal Justice Reform Education Fund). Porter was charged with murdering Jerry Hillard and Marilyn Green on August 15, 1982 in Washington Park on the south side of Chicago. Even though the police did not find any physical evidence against Porter, such as a gun, fingerprints, or matching DNA, Porter was convicted in court due to the testimony of a key witness, a man named William Taylor. When Taylor was questioned by the police at the crime scene on the night of August 15, he initially stated that he did not see the killer. However, after being subjected to another 17 hours of intensive questioning by the police, Taylor changed his initial statement and claimed that he had seen Porter shoot the two victims (Criminal Justice Reform Education Fund). During the case, Porter’s court-appointed lawyer failed to mention to the jury the fact that Taylor’s testimony contradicted his original statement on the night of the crime. This fact could have invalidated his testimony. Even more troublesome for Porter than his incompetent lawyer was the fact that one of the jurors happened to be a friend of Hillard’s mother. Prior to the beginning of the case, a fellow jurist was quoted as saying, “As far as she was concerned, they could vote guilty right then” (Abu-Jamal 2).
On the morning of September 21, in a final act of desperation, Porter’s attorney Daniel Sanders was successfully able to persuade the Illinois State Supreme Court to stay his execution due to his mental disability. During the hearing to decide whether or not Porter was mentally competent enough to be subjected to capital punishment, William Taylor filed an affidavit, declaring his previous testimony to be incorrect. Taylor wrote that during the 17 hours of questioning, the police had harassed and intimidated him into identifying Porter as the perpetrator (Chicago Tribune). Thus, the only evidence against Porter turned out to be coerced. A group of journalism students at Northwestern University led by Professor David Protess conducted a case study and discovered evidence that Porter was innocent of the two murders. Protess then conducted an interview of Margaret Simon, who was the ex-wife of murder suspect Alstory Simon. He obtained from her an affidavit declaring that Alstory had killed Hillard and Green and then forced her to leave Chicago with him, threatening to kill her if she told anyone what had actually happened (Holt 1). On February 6, 1999, five days after Alstory Simon had admitted to shooting Hillard and Green, Anthony Porter was released from prison after 16 years on death row. Without the leadership of Professor David Protess, it is unlikely that Porter would be alive to tell his story today.
It was clear to me that when it came to the death penalty system in Illinois, there was no justice. Thus, in January 2000, I announced to the citizens of Illinois that I was imposing a moratorium on executions in the state, because of grave concerns about our state's record of convicting innocent people and sentencing them to death row (Ryan 2).
Despite being known as an ardent proponent of the death penalty throughout his political career, former Republican Governor of Illinois, George Ryan, ordered a moratorium on the State’s death penalty system after numerous death row inmates, including Porter, were exonerated of their crimes. Since the reinstatement of the death penalty in Illinois after the Supreme Court’s decision in the 1977 landmark case of Gregg vs.Georgia, 18 death row prisoners in Illinois have been exonerated due to the findings of new evidence (Death Penalty Information Center). While 18 death row prisoners in Illinois were wrongfully convicted and exonerated since 1977, only 12 others have been convicted and put to death (Death Penalty Information Center). As exemplified by the exoneration of Anthony Porter only two days prior to his execution date, it is certainly possible that one or more of the 12 felons who were actually executed in Illinois could have been innocent.
In response to the arbitrary and capricious application of the death penalty in Illinois and other states, the New Jersey Legislature enacted P.L. 2005, c.321, creating the New Jersey Death Penalty Study Commission (Legislative Commissions). The Commission was charged with studying all aspects of the New Jersey death penalty. On January 2, 2007, the New Jersey Death Penalty Study Commission issued its highly anticipated multidisciplinary report about New Jersey’s system of imposing capital punishment. “The Commission recommends that the death penalty in New Jersey be abolished and replaced with life imprisonment without the possibility of parole, to be served in a maximum security facility” (New Jersey Death Penalty Study Commission Report 2). While the Commission’s decision was not unanimous, a clear majority of the Commission’s members agreed that the death penalty no longer served any tangible penological interest within New Jersey’s criminal justice system.
The Commission’s conclusion that the death penalty should be outlawed is the only solution which remains consistent with the principles of a fair and equitable criminal justice system. While capital punishment has undergone numerous reforms both within New Jersey and throughout the Nation as a whole, several flaws are still evident in the way capital punishment is administered today. Due to the fact that Anthony Porter was sentenced to death without any DNA or fingerprint evidence against him, the unfortunate truth of the matter is that the United States’ capital punishment system arbitrarily convicts and sentences the accused to death. Thus, due to the United States’ failure to develop an adequate system of imposing capital punishment over the past 220 years, the death penalty itself is in fact an arbitrary and disproportionate form of punishment. The New Jersey Legislature should heed the Commission’s advice and abolish the death penalty immediately because it is inconsistent with the theory of natural rights as articulated by John Locke in his Second Treatise of Government, is arbitrarily imposed due to its lack of a constitutional basis, and is an out-of-date concept due to the evolving standards of society.
A Philosophical Analysis of the Death Penalty
One longstanding objection to the death penalty has been whether or not it is morally permissible for the state to administer the ultimate punishment. According to some philosophers, the state, being a creation of the people who compose its various parts, should only possess those rights and powers which the people possess individually. Due to the fact that no modern Western system of jurisprudence provides one individual with the right to kill another, then how is it justifiable for the state to assume this extraordinary power?
The theory of natural rights, as originally articulated by John Locke, helps to shed light on the morality of state-sanctioned executions. This theory asserts that all people, regardless of race, sex, political ideology, or previous condition of servitude have certain inalienable rights, which cannot be completely removed from their grasp by any governmental entity (Locke 2). In his Second Treatise of Government, John Locke first lays out the fundamental framework of the nature of human rights.
The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker (Locke 4).
In the state of nature, people had unlimited freedom to do as they wished since there was no government present to restrict them. Even though the state of nature was a chaotic state, it constituted certain fundamental or natural rights upon the people. Locke asserts that no individual or government has the power to infringe upon another person’s rights to life, liberty, and property because these rights were established by the Maker of the universe (Locke 1). When this Supreme Being created human beings, He endowed them with these basic inalienable rights. According to Locke, since these rights were provided by God, only God possessed the power to remove them. However, atheists disregard this argument because they do not believe in a God, and therefore God cannot provide humans with rights. I counter this argument by saying that regardless of whether or not you believe in Locke’s concept of God-given rights, you still must acknowledge that these three fundamental rights were not given to you by any person, administration, or government. Since the natural rights to life, liberty, and property were around long before the time of governments, we can conclude that under no circumstances do governments provide these rights. In fact, people with these rights effectively created governments in order for their own protection and extension. So, since fundamental rights are not provided by the government, their most logical source would be from nature. Therefore, at the moment of birth, a person obtains certain fundamental rights directly from nature itself, simply because they are human. The right to life is the most basic of these natural rights and serves as the foundation for the realization of all other rights. According to Locke’s reasoning, since life is a natural right which is not provided by the government, then the government does not have the authority to abolish it.
“Political Power, then, I take to be a right of making laws with penalties of death” (Locke 1). Even though Locke was a pioneer of the theory of natural rights, he was also a proponent of the death penalty. By articulating his theory of natural rights while simultaneously supporting the death penalty, Locke was being hypocritical. Locke believed that in the state of nature people possessed the right to kill one another. When the people joined together to form a government, they transferred this right to the government. He effectively created a double standard: that the inalienable rights to liberty and property cannot be abolished by the government, but that the right to life can. However, Locke’s argument for the death penalty is flawed because when the right to life is removed, so are the rights to liberty and property. Since inalienable rights can only be removed by their creator, Locke’s argument for the death penalty is inconsistent with his own theory of natural rights.
While Locke supported the death penalty in theory, it is doubtful that he would still support the death penalty in practice if he could observe how it is administered today. “Locke regarded the death penalty as a legitimate option for a civil society interested in self-protection, deterrence, and a means of dispensing justice to an offender: but on an implied condition of fair and unbiased application” (Bilionis 939). Just like the New Jersey Death Penalty Study Commission, Locke recognized that the primary justification for the imposition of the death penalty was not just to incapacitate murderers (as could be done equally well through life imprisonment without parole), but was also to deter future criminals from committing heinous crimes. However, as shown in the Commission’s report, the evidence regarding the death penalty’s deterrent effect is at best indecipherable. As articulated by Professor Jeffrey Fagan, the key problem with claiming that the death penalty serves as an effective deterrent to crime is that the majority of murders are not planned out in advance, but are rather “heat of passion crimes” (New Jersey Death Penalty Study Commission Report 25). Thus, it is not a logical course of action to shape the criminal justice system around a deterrence model, when most defendants in capital cases will not respond rationally to threats of harsh punishment. “In fact, increases in a punishment’s severity have decreasing incremental deterrent effects” (Borg and Radelet 45). While increasing a punishment’s severity may initially have a deterrent effect, after a while, increases in the severity of a punishment no longer add to its deterrent benefits. To the contrary, numerous studies have surfaced a phenomenon known as the “brutalization effect,” in which the rate of violent crime actually increases in the aftermath of an execution (New Jersey Death Penalty Study Commission Report 27). As shown by these recent studies, the deterrence rationale for imposing capital punishment does not hold much weight.
Furthermore, Locke would be horrified by the plethora of inequalities which currently exist within the United States’ system of capital punishment. It is important to remember the Framers’ reasoning for insisting upon the adoption of a Bill of Rights shortly after the ratification of the U.S. Constitution: to protect the fundamental rights of minority citizens. Ironically, even though African Americans make up only 12% of the U.S. population, they account for 42% of the current death row inmates (Death Penalty Information Center). Also, since 1977 to the present, there have been nearly equal numbers of whites and blacks who have been murdered in the U.S. Shockingly, 80% of those who were sentenced to death were convicted of murdering white victims (Amnesty International)! Going by these eye-opening statistics, it seems as though the U.S. government has forgotten the original intent of the Bill of Rights. Therefore, while Locke supported the death penalty in theory, he would in all likelihood condemn the current system of capital punishment due to its endless disparities.
Is Capital Punishment in its Current Form Constitutionally Permissible?
Even though the media has uncovered and exposed to the general public the many flaws of the U.S. capital punishment system since the Court’s 1976 decision in Gregg vs. Georgia upholding the death penalty, the media has refrained from asking one of the most pertinent questions: is the death penalty itself consistent with the U.S. Constitution? The death penalty is imposed arbitrarily in the United States because it lacks a constitutional basis. In fact, the words death penalty and capital punishment are not mentioned at all in the U.S. Constitution. In this section, I will examine several clauses of the Constitution in order to determine whether or not the death penalty is consistent with any of these sections. These clauses include: the enumerated powers of the federal legislature, the Full Faith and Credit Clause, the Equal Protection Clause, the Supremacy Clause, and the 8th Amendment.
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States (Cornell Legal Information Institute).
Article I Section 8 of the U.S. Constitution lists the enumerated powers of the federal legislature. These include the power to tax, the power to regulate interstate commerce, the power to coin money, the power to create and destroy the lower federal courts, and several others. Even though this section states that Congress has the authority to decide the jurisdiction of the lower federal courts, Congress is restricted by the 5th and 14th Amendments to the U.S. Constitution from assigning to the courts the power to completely remove the fundamental rights to life, liberty, and property. Thus, since the power to impose capital punishment is not mentioned in the enumerated powers, there is no constitutional basis for Congress to enact a death penalty.
However, supports of the death penalty would combat this argument by accurately noting that a textualist interpretation of the enumerated powers of Congress has been invalidated since 1819. “There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers” (McCulloch vs. Maryland). In his landmark opinion in the case of McCulloch vs. Maryland, Justice Marshall created the precedent that the powers of Congress are not only restricted to those which are explicitly listed within Article I, Section 8. In the case at hand, Marshall asserts that while the Constitution itself does not directly provide Congress with the power to charter a national bank, this power can be reasonably implied from specific enumerated powers: the power to tax, the power to coin money, and the power to borrow money. The principle created by Marshall is as follows: Congress can only possess two types of powers, those which are specifically enumerated in the Constitution, and those which can be necessarily implied from its text. Therefore, an implied power is constitutionally permissible only if it serves as a legitimate means for Congress to exercise a specific enumerated power (Trachman 3). Applying this principle to Congress’ authorization of capital punishment, we can clearly observe that the authorization of capital punishment is not an enumerated power of Congress. Furthermore, capital punishment does not serve as a legitimate means which serves to enforce a specific enumerated power. While Congress is constitutional authorized to define felonies and offenses against the law of Nations, is it certainly a stretch to define capital punishment as a necessary means to enforce this vague provision. Due to the fact that the purpose of this provision is to ensure that Congress has the power to incapacitate criminal offenders from the rest of society, this goal can be accomplished equally as well through life imprisonment. Thus, there is no constitutionally acceptable reason for Congress to authorize capital punishment since a reversible alternative exists (life imprisonment), which is also narrowly-tailored to meet Congress’ constitutional interest in incapacitating criminal offenders.
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof” (Cornell Legal Information Institute). Article IV Section 1 states that there must be a mutual understanding between the lower federal courts in each of the 50 states. This article requires the federal and state circuit and district courts to respect and enforce each other’s decisions. The Full Faith and Credit Clause has not been adhered to by the circuit courts since in 34 of the 50 states, the death penalty is still legally imposed today (Peterson 4). By allowing the imposition of capital punishment to continue unchallenged in these 34 states, Congress has not been enforcing the legal document upon which it was founded.
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers” (Cornell Legal Information Institute). The Necessary and Proper Clause requires Congress to pass legislation in order to enforce its enumerated powers (Trachtman 5). Thus, Congress is legally obligated to enforce the Full Faith and Credit Clause uniformly throughout the country. It could do this in two ways. The first way is by passing legislation declaring a nationwide moratorium against the death penalty for the current time. The second way in which Congress could enforce this clause is by changing the jurisdictions of the lower federal courts. Since the lower federal courts are not enforcing one another’s decisions regarding the death penalty (as the Full Faith and Credit Clause requires them to do), Congress has the legal authority to remove cases involving capital punishment from the jurisdiction of the lower federal courts.
Furthermore, by not taking any action to enforce the Full Faith and Credit Clause, Congress has allowed different laws to apply to different parts of the country. The problem with this approach is that if two people commit the same crime under similar circumstances in two different states, they may receive widely different punishments. This situation, in which the death penalty is legally imposed in 34 of the 50 states, is similar to the situation in the 1950s and early 1960s during which African Americans were denied the right to vote in Southern states. By leaving the issue of voting enforcement up to the individual states, certain people were denied the right to vote. As a result, blacks in the North possessed more rights than blacks in the South. “Nor deny to any person within its jurisdiction the equal protection of the laws” (Cornell Legal Information Institute). The equal protection clause of the 14th Amendment requires that the law must apply equally to all citizens of the United States. In other words, no person can possess rights superior to those of any other person, as long as they are similarly situated. Since this situation of Southern states denying blacks the right to vote clearly violated the equal protection clause, Congress realized that it was obligated to take legislative action. In 1965, Congress passed the Civil Rights Act of 1965 prohibiting all forms of state voting obstructions (United States Department of Justice). Congress was successfully able to legally justify passing this act for two reasons. The first reason is that since the Equal Protection Clause was being violated by the states, Congress was legally bound to do whatever was necessary and proper in order to enforce the law. The second reason was the legal remedy contained within Article VI. This article of the U.S. Constitution states that federal law supersedes state law. The lesson that should have been learned by the federal government from the situation in the 1950s and early 1960s was that issues involving fundamental human rights should not be left up to the individual states.
In the current death penalty situation, the Equal Protection Clause has also been violated. Evidence for this is shown by the fact that a person can be executed in Texas but not in Massachusetts (Death Penalty Information Center). The precedent that has been set by the circuit court decisions is that the right to life can be removed in some states but not in others. Thus, the right to life is better protected for the citizens of Massachusetts than the citizens of Texas. This is unconstitutional according to the Equal Protection Clause because rights must apply equally to all citizens of the United States. Just like the passage of the Civil Rights Act of 1965, Congress can remedy this situation by referring to the Supremacy Clause. Since Congress has not yet overturned the states, it has failed to live up to its constitutional responsibilities under the Necessary and Proper Clause by failing to enforce equal protection across the nation.
Utilitarian proponents of the death penalty would combat this argument by stating that according to a recent Washington Post Poll, 65% of Americans support the death penalty (Washington Post). Due to the fact that the continued use of the death penalty increases perceived aggregate happiness and well-being, it would be an error to abolish the death penalty against the will of society.
Then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy--solemnly to blot him out from the fellowship of mankind and from the catalogue of the living--is the most appropriate as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex to it (Mill 14).
In a speech delivered before the British Parliament, John Stuart Mill defends capital punishments on the grounds that it advances the principle of the greatest happiness for the greatest number. Mill considers retribution to be a necessary punitive component of the criminal justice system (Cole 4).
| | A | B |
| Average Citizen | 7 | 10 |
| Member of Victim’s Family | 2 | 10 |
| Person Wrongfully Convicted | 8 | 0 (nonexistent) |
*Numbers here refer to level of happiness.
A: State abolishes death penalty.
B: State continues use of death penalty.
Under alternative A, while a wrongfully convicted person would never be deprived of their life, the average citizen and the member of the victim’s family would both experience anguish due to the lack of retribution expressed by the criminal justice system. Under alternative B, while a wrongfully convicted person would be put to death a small percentage of the time, the average citizen and the member of the victim’s family would feel more satisfied and safe due to the State’s use of capital punishment. In a choice similar to the one presented above, Mill would consider alternative B to be the morally obligatory option. Even though an innocent person may occasionally be executed under scenario B, this is a justifiable sacrifice due to the fact that aggregate well-being is greater under B (20) than A (17). In other words, Mill would accept a small number of wrongful executions as long as the result of the capital punishment system is to make society better off in general. Thus, Mill places an extraordinary emphasis on the communal value of aggregate well-being (Cole 4). However, is this utilitarian emphasis on the aggregate happiness of society consistent with the Framers’ intent in urging for the passage of the Bill of Rights?
“In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority” (The James Madison Center). James Madison invalidates the argument of death penalty proponents such as Mill who say that the imposition of the death penalty is justified since the majority of the population supports it. Madison articulates that the key purpose of the Bill of Rights was to protect the rights of minority citizens from infringement upon by majority factions. Thus, a majority cannot legally decide when to violate the rights of a minority. Mill’s version of utilitarianism would allow a person’s well-being level to be downgraded to that of a slave (or even lower in the case of wrongful executions) as long as other people are made happier as a result. “It is a cardinal principle of Anglo-American jurisprudence that, in Blackstone's immortal words, better ten guilty persons should go free than one innocent person be convicted” (Liang 40). Mill’s philosophy controverts this fundamental principle of American criminal law by articulating that it is acceptable for a few unfortunate innocents to be executed for the benefit of the societal majority. Due to the fact that the Bill of Rights places the principle of safeguarding fundamental rights above the communal value of aggregate happiness, Mill’s argument in favor of capital punishment can be disregarded.
Contrary to Madison’s intentions in supporting the addition of a Bill of Rights, the death penalty in the United States has been applied unequally to minorities. The imposition of the death penalty in the United States violates the Equal Protection Clause because the U.S. system of capital punishment contains a racial bias. Evidence for this is shown by a study conducted in Florida in the 1970s. The researchers discovered that an African American who killed a white person was 40 times more likely to receive the death penalty than an African American who killed another African American (Brym and Lie 164). Also, while only 12 white defendants have received the death penalty for killing an African American since 1976, 208 African American defendants have received the death penalty for killing a white person (Death Penalty Information Center). Even though over 1,000 African Americans have been killed in Kentucky since 1976, every single one of the current death row inmates has been convicted of killing a white person.
In 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. The finding held for high, medium, and low quality studies (Death Penalty Information Center).
In 1990, the Congressional General Accounting Office concluded that race did indeed influence whether or not capital punishment would be imposed. For racially motivated juries, race acted as an unmentioned aggravating factor. Thus, according to the General Accounting Office, certain people may have been condemned to death not because of what they did, but instead because of their race. Since at the current time the substantial majority of the studies conducted on this issue have reached the same conclusion, the right to life is better protected for whites than for African Americans. This practice violates the Equal Protection Clause of the U.S. Constitution, and a moratorium must be declared at least until the time at which it is determined that race no longer serves as a determining factor in capital cases.
Furthermore, the death penalty violates the 8th Amendment’s ban on cruel and unusual punishments. By far the most commonly used execution method in the 34 states which still impose capital punishment is lethal injection. Scientific studies have recently discovered that the imposition of capital punishment through lethal injection may actually inflict pain upon the victim. In the federal district court case of Cooey vs. Taft, the Court articulated that there currently exist grave concerns about whether or not a condemned inmate would be sufficiently anesthetized under Ohio’s lethal injection procedure prior to their execution (Miller 65). “Given the evidence that has begun to emerge calling this and other conclusions by Dr. Dershwitz into question, the Court is persuaded that there is an unacceptable and unnecessary risk that Plaintiff Hill will be irreparably harmed absent the injunction” (Cooey vs. Taft). Despite the fact that substantive 8th Amendment challenges to lethal injection have historically been unsuccessful, in light of this new scientific evidence federal courts have begun to reconsider the constitutionality of lethal injection. Evidence shows that the drug combination used in several states may not effectively sedate the victim before the final drug is administered in order to stop the heart. The three drugs used in lethal injection procedures in most states are sodium thiopental, which renders the victim unconscious, pancuronium bromide, which paralyzes the muscles but leaves brain functions intact, and potassium chloride, which is then used to stop the heart (Willing 1). The problem with this method of execution is that potassium chloride produces extreme pain in victims who are still conscious. According to lawyer David Barron, medical records in South Carolina indicate that nearly half of the 23 inmates who have been executed since 1995 may have been conscious during their executions (Willing 1). For those victims who are conscious at the time of their executions, this is clearly a form of cruel and unusual punishment.
A Brief History of the Use of Capital Punishment in New Jersey
Ever since the enactment of New Jersey’s first comprehensive criminal legislation in 1796, the courts have been empowered to administer the death penalty for the most egregious offenses. Initially, these offenses included burglary, treason, rape, arson, robbery, and forgery (Ziegler and Nilson 4). During the century in which this law remained in effect, the State of New Jersey executed over 300 criminal offenders (Ziegler and Nilson 4). Between 1900 and 1963 (the year in which New Jersey carried out its last execution to date) the State executed another 160 felons. While New Jersey had put to death a relatively high number of criminals up until the 1960s, the State’s killing apparatus was suddenly halted by the U.S. Supreme Court in 1972.
In the case of Furman vs. Georgia, the Court ruled that the death penalty constituted cruel and unusual punishment in violation of the 8th and 14th Amendments. “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices” (Furman vs. Georgia). In the opinion of the majority, the court noted that since the death penalty was applied unequally to different groups of people, it violated the Equal Protection Clause since the right to life was statistically shown to be better protected for certain groups than others. Thus, in its decision, the court proved that the death penalty was conducted in an arbitrary manner. As a result of the Furman decision, the death penalty statutes of 40 states, including that of New Jersey, were rendered void (Ziegler 6). The Furman decision led to a 20 year period during which New Jersey did not have an active capital punishment statute on its books.
However, in the subsequent 1976 case of Gregg vs. Georgia, Court modified its previous decision by declaring that the death penalty was not unconstitutional per se. The court agreed that if the states carefully imposed the death penalty in extreme circumstances, then it would be legally permissible and not arbitrary. The court required the states to conduct all capital cases in two separate stages. After a conviction during the trial stage, the prosecution must present at least one aggravating factor in order for capital punishment to be imposed in the sentencing stage (Gregg vs. Georgia). Thus, the court attempted to set guidelines for capital punishment in order to decrease its arbitrary nature.
While Governor Brendan Byrne twice vetoed legislation reintroducing a more narrowly-tailored system of imposing capital punishment in the late 1970s, Governor Tom Kean decided to reenact the death penalty in 1982 (Ziegler 6). “N.J.S.A.2C:11-3 provides that a defendant is eligible if the defendant: (1) Purposely or knowingly causes death, or serious bodily injury resulting in death, and (2) Commits the homicidal act by his own conduct, or contracts for the murder” (New Jersey Death Penalty Study Commission Report 6). In contrast to the State’s initial death penalty statute enacted in 1796, the 1982 law promulgated more stringent guidelines for the administration of capital punishment. The legislation provided for the imposition of the death penalty only in three extreme cases: when the defendant has personally or directly caused the death of another person, when the defendant has indirectly contributed to the death of another person through contracting the murder, or when the defendant commits murder during the commission of another felony. Furthermore, consistent with the Supreme Court’s mandate, the legislation provided for a distinct penalty phase of the trial, during which the jury weights both the aggravating and mitigating factors (New Jersey Death Penalty Study Commission Report 6). A defendant may only be sentenced to death in the State of New Jersey if the jury finds beyond a reasonable doubt that the aggravating factors outweigh all of the mitigating factors. Since its enactment in 1982, the New Jersey Legislature has amended the death penalty statute a total of 15 times. Some of these revisions include: the abolition of the juvenile death penalty, the creation of a more stringent system of proportionality review, the addition of supplemental aggravating factors to the original list, and permitting prosecutors to introduce victim impact evidence during the sentencing phase of a capital trial (New Jersey Death Penalty Study Commission 9).
The death penalty in New Jersey has been applied rarely and reluctantly by juries since the passage of the 1982 legislation. While 228 capital murder trials have been conducted since the reinstatement of the death penalty, juries have only returned death sentences in 60 of those cases (New Jersey Death Penalty Study Commission 7). Out of these 60 capital convictions, the New Jersey Supreme Court has overturned 57 of these sentences and has instead commuted them to life imprisonment (New Jersey Death Penalty Study Commission Report 7). Thus, while New Jersey may have indiscriminately applied the death penalty throughout the duration of the 18th and 19th centuries, the death penalty has effectively become extinct during the latter half of the 20th century.
The Contemporary Debate Over the Merits of Capital Punishment
As previously mentioned, the New Jersey Death Penalty Study Commission concluded that capital punishment should no longer remain sanctioned by the State of New Jersey. The Commission came to this conclusion after analyzing seven questions that frame the contemporary death penalty debate. In this section, I will attempt to scrutinize the six most pertinent questions.
Does the Death Penalty Serve a Legitimate Penological Interest?
After conducting extensive debate and listening to hours of expert testimony, the Commission decided that the New Jersey death penalty no longer served a legitimate penological interest. The Commission noted in its report that the published studies on whether or not the death penalty acts as a tangible deterrent to other murders were inconclusive as a whole (New Jersey Death Penalty Study Commission Report 24). Many experts testified both that the death penalty has never served as an adequate deterrent to potential murderers, while other equally qualified experts articulated just the opposite. The Commission was presented with more than a dozen studies which claimed to prove that the death penalty has a strong deterrent effect. These studies cumulatively showed that each execution can prevent anywhere between three and 18 murders (New Jersey Death Penalty Study Commission Report 25). However, Professor Jeffrey Fagan exposed a key flaw in these studies during his testimony before the Committee. Fagan noted that the majority of these studies grouped together all types of murder, asserting that they are all equally deterred by capital punishment. As previously noted, since the majority of capital murders are not planned in advance, this class of defendants would not rationally respond to the threat of severe punishment.
Furthermore, these studies are refuted by the fact that a defendant’s chances of receiving the death penalty are extremely low. “Less than 1 percent of those who commit murders nationwide ultimately receive the death penalty and less than one-half of that small number are executed” (New Jersey Death Penalty Study Commission Report 24). Due to the fact that convicted murderers have such a small chance of actually being put to death, it is unlikely that the death penalty effectively deters potential murderers from carrying out their calculated plans. Therefore, these studies have failed to show how the death penalty is in any way a more effective deterrent than life imprisonment without parole.
The Commission did not go far enough in merely claiming the evidence regarding the death penalty’s deterrent effect to be inconclusive: instead, it should have accurately noted that a preponderance of the evidence so far points to capital punishment not having any measurable deterrent effect. A study published by The New York Times in September 2000 discovered that states without the death penalty had lower homicide rates than states with the death penalty. During the past 20 years, the homicide rates in states which continue to impose capital punishment has been 48%-101% higher than in states which have abolished the death penalty (Donohue and Wolfers 3). This study corresponds with the testimony provided by outspoken death penalty opponent Richard Dieter. “Of the four geographic regions in the United States, the South has the highest murder rate, yet carries out 80% of the executions in the countries. By contrast, the Northeast has the lowest murder rate and carries out less than 1% of the executions” (New Jersey Death Penalty Study Commission Report 26). Dieter’s testimony proves that at least in the general sense, the death penalty does not serve as a legitimate deterrent to crime. While it is possible that the death penalty may in certain cases serve as a marginal deterrent on an individual basis, no study up until this point in time has been able to quantify this direct aspect of deterrence. Thus, we can conclude at the current time until it is proven otherwise, that capital punishment does not serve as a meaningful deterrent to potential murderers.
Is There a Significant Difference Between the Cost of the Death Penalty from Indictment to Execution and the Cost of Life Imprisonment Without Parole?
After reviewing the Office of Legislative Services’ analysis on the costs of the death penalty, the Commission concluded that while it is not possible to precisely measure these costs, they are certainly significantly higher than the costs of life imprisonment without parole.
In capital cases, both the prosecution and the defense need to spend additional sums of money for pretrial investigation and preparation; added fees for experts for penalty phase testimony; enhanced transcript fees and travel expenses; and additional post-conviction litigation (New Jersey Death Penalty Study Commission Report 33).
The Commission noted that the Office of the Public Defender, the Department of Corrections, and the Administrative Office of the Courts would cumulatively save millions of dollars each year if they did not have to process capital cases. Furthermore, the elimination of capital punishment would alleviate the backlog of cases which are still to be reviewed by New Jersey’s appellate courts. Both the Attorney General’s Office and the defendants’ attorneys expend an enormous amount of time and money going through the arduous death penalty appeals process. Death penalty proponents claim that this problem can be remedied by simply making if more difficult for capital defendants to appeal their cases multiple times. However, there is an important reason for New Jersey’s extensive appeals process in capital cases: due to the finality of imposing the death penalty, the State must take as many precautious as possible in order to ensure that an irreversible mistake is not committed. Due to the fact that the alternative of life imprisonment without parole is both less expensive and eliminates the possibility of the State committing an error of epic proportions, it is clearly a more favorable punitive measure than execution.
Is the Death Penalty Consistent With the Evolving Standards of Decency?
In the landmark 1958 Supreme Court case of Trop vs. Dulles, the Court articulated for the first time the notion of the evolving standards of decency. The Court stated that due to the fact that it is contained within a living document, the 8th Amendment must be interpreted in light of the evolving standards of decency that mark the progress of an ever-changing society (Ziegler 7). In other words, the 8th Amendment today is far different than that which was originally ratified in the Bill of Rights. A plethora of evidence exists which show that the death penalty in the U.S. is no longer consistent with our modern standards of decency. By applying the Trop principle to the death penalty, the contemporary Supreme Court has significantly curtailed the states’ authority to impose the ultimate punishment. The Commission notes two cases in which the Court has done this in its report: the 2002 decision in Atkins vs. Virginia and the 2004 decision in Roper vs. Simmons.
In the Atkins case, the Court ruled that the execution of the mentally retarded constituted cruel and unusual punishment (Atkins vs. Virginia). The majority crucially noted that the question of whether or not a punishment is excessive should not be judged by the standards that prevailed at the time of the 8th Amendment’s adoption, but rather our modern notions of fairness and justice. The Court found that since the time of the enactment of the Bill of Rights, a national consensus had formed against the execution of the mentally retarded. Even in the Southern states which perpetually practiced the death penalty in 2002, the execution of the mentally retarded was considered unusual and was rarely carried out (Varland 17). The Court agreed that in no way could the execution of the mentally retarded serve as a deterrent to future criminals. The significance of this decision is that the court significantly restricted the use of capital punishment for the first time since Furman. This decision also sets the way for the court to declare the death penalty as a whole to be an out-of-date concept.
In the 2004 Roper decision, the Court declared the execution of minors to constitute cruel and unusual punishment. This decision overturned the court’s 1989 decision in Stanford vs. Kentucky, which declared that the execution of juveniles was not unconstitutional. In 1989, only 11 states had prohibited the execution of juveniles and public opinion polls had shown that the majority of Americans supported the juvenile death penalty (Varland 20). Thus, the court ruled that there was not a clear national consensus against the juvenile death penalty at that time. However, by 2004 the court overturned its previous decision because a clear consensus against the juvenile death penalty had formed over the past 15 years. By 2004, 30 states had banned the juvenile death penalty and a May 6, 2002 Gallup Poll found that 69% of those surveyed opposed the juvenile death penalty (Polling Report). “The significance of this development, the Court asserted, was ‘not so much the number of these States’ but rather ‘the consistency of the direction of the change’” (Varland 21). In the opinion of the majority, the court stated that the standards of decency had evolved since its decision in Stanford vs. Kentucky. The court agreed that these evolving standards of decency presented the necessary justification for overturning its previous decision. In other words, just because a form of punishment does not constitute cruel and unusual punishment in one era, does not mean that it does not indefinitely.
While the Commission refrains from directly stating that a national consensus has developed against the death penalty as a whole, it articulates that much evidence suggests that the U.S. may be heading in that direction. “The ‘evolving standards of decency principle’ could be a viable method of ‘incremental abolition’ of the death penalty in the coming years and decades” (Varland 28). The Commission effectively adopts the view shared by numerous legal scholars that the Supreme Court should continue to use the evolving standards of decency principle in order to gradually chip away at the death penalty. As exemplified by the Atkins and Roper decisions, it seems as though the Court has already begun to move in that direction. Within the next few years, the Court should reexamine its reasoning in Gregg in order to determine if circumstances have substantially changed over the past 30 years. If the Court determines that they have indeed changed, then it is likely that the death penalty per se will no longer be considered as consistent with the evolving standards of decency.
In addition to noting the Atkins and Roper decisions, the Commission also provided several other sources of evidence in order to prove that the death penalty may no longer be consistent with the evolving standards of decency. All of the witnesses from the religious community who testified before the Commission unanimously urged the abolition of the death penalty (New Jersey Death Penalty Study Commission Report 36). While they may have come from ideologically disparate backgrounds, Rev. John Smith and Rabbi Gerald Zelizer strongly agreed that capital punishment was violative of their respective religious principles (New Jersey Death Penalty Study Commission Report 36). Both of these men spoke adamantly about the fact that the death penalty is an extreme punitive measure which is not necessary in order to incapacitate criminal offenders. While by no means making the community any safer, executing a guilty felon only serves to perpetuate the cycle of violence which was initiated by the felon’s heinous actions. The legality of state-sanctioned executions permits the state to lower its standards to that of a common criminal, and effectively makes the state no better-off morally than the murderer himself.
Does There Exist Unfair, Arbitrary, or Discriminatory Variability in Any Phase of the Criminal Process?
“The available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey” (New Jersey Death Penalty Study Commission Report 41). The Commission stated that it did not discover any form of direct or intentional racial discrimination during the criminal process. However, by providing this simplistic answer to a very complex question, the Commission ultimately failed to shed light on the role that race plays during the sentencing stage. The more pertinent question which the Commission should have answered is, does evidence show that race plays a role during the sentencing phase of capital trials, regardless of whether or not this discrimination was purposeful? If an unintentional racial bias exists within the New Jersey or federal capital punishment systems, then these systems are in clear conflict with the Equal Protection Clause. The Equal Protection Clause does not require intentional discrimination as a precondition for its invocation. Thus, this clause has generally been interpreted to prohibit both intentional and unintentional forms of discrimination based on suspect traits (Lazarus 3). As shown in my previous constitutional analysis, a clear majority of studies have reached the same conclusion: race undoubtedly plays a role in the sentencing phase although it is impossible to discover precisely to what extent. Furthermore, while the race of the defendant does play a role in sentencing decisions, the race of the victim serves as a more accurate indicator of bias. For example, an African American defendant charged with murdering a white victim is 15 times more likely to be put to death than a white defendant charged with murdering an African American victim (Radelet 919). As exemplified by the irrefutable evidence presented in this section and in my constitutional analysis, the Commission erred by refusing to acknowledge the significant role that the race of the victim plays during the sentencing stage. Simply because racial discrimination is not invidious or intentional does not mean that it should be allowed to continue untouched.
Is There a Significant Difference in the Crimes of Those Selected for the Punishment of Death as Opposed to Those Who Receive Life Imprisonment?
While the Commission failed to recognize the existence of a racial bias in New Jersey’s capital punishment system, it did acknowledge that sentencing was not always carried out in a proportional manner.
There is no uniformity in the way the cases are charged and prosecuted. The resulting unfairness leaves one defendant on death row while others, having committed very similar offenses, were sentenced to life in prison or were not even prosecuted capitally (New Jersey Death Penalty Study Commission Report 46).
Under New Jersey’s current death penalty system, it is impossible to differentiate between the severity of crimes for which a defendant is executed, and those for which a defendant is only sentenced to life imprisonment. Some of the most heinous murders do not result in death sentences, whereas other less heinous crimes are in some cases punished by death. For example, Robert Marshall is currently on death row in New Jersey for conspiring to murder his wife by contracting a hitman to shoot her (New Jersey Department of Corrections). On the other hand, Eugene Belton was sentenced to life imprisonment for first-degree murder, when he repeatedly stabbed a young woman with a knife. While in prison, Belton stabbed a corrections officer in the face several times with his shank (New Jersey Department of Corrections). Despite the fact that Belton’s crimes appear to be much more egregious, Marshall is the only one of the two sitting on death row today. Thus, at least at the current time, the death penalty in New Jersey is unpredictably and arbitrarily applied to a very small number of defendants. As exemplified by the comparison of the Marshall and Belton cases, the Equal Protection Clause has been violated in New Jersey by the disproportionate sentences handed out by capital juries. The notion practiced by the New Jersey criminal justice system, that it is acceptable for people who commit similar crimes under similar circumstances to be prosecuted without giving any thought to uniformity in sentencing, controverts one of the fundamental purposes of the Equal Protection Clause: to outright prohibit the disparate treatment of individuals under the law without a compelling justification for doing so. As the Commission firmly acknowledges, while it is reasonable to justify the continued use of the death penalty on the grounds that it irreversibly prevents a murderer from ever killing again, this justification is trumped by the disproportionate way in which sentences are imposed.
Is the Penological Interest in Executing Some of Those Guilty of Murder Sufficiently Compelling that the Risk of Committing an Irreversible Mistake is Acceptable?
“The execution of a person who can show that he is innocent comes perilously close to simple murder” (Colb 2). As stated by Justice Harry Blackmun in one of his numerous dissents in death penalty cases, accepting the execution of even a single innocent person controverts an essential tenet of the American system of criminal justice: that it is better for ten guilty men to be set free than for one innocent to be wrongfully put to death. Therefore, one of the most pertinent objections to the imposition of capital punishment arises due to its finality: unlike when a person is wrongfully sentenced to a prison term, once a death sentence is carried out, it is irreversible. During the hearings, the Committee heard testimony from Attorney Barry Scheck, Co-Director of the Innocence Project at Cardozo School of Law. Scheck articulated to the Commission that 182 individuals within the U.S. have been exonerated using post-conviction DNA evidence (New Jersey Death Penalty Study Commission 51). The scariest part about Scheck’s testimony is that DNA evidence is only available in approximately 10% of serious criminal cases (New Jersey Death Penalty Study Commission 51). If nearly 200 individuals were exonerated due to DNA evidence in only 10% of the serious criminal cases since 1976, then how many innocent defendants in the other 90% of serious criminal cases were failed to be freed due to a lack of DNA evidence? Scheck’s testimony serves to show that while innocents would still inevitably be convicted of serious crimes if the death penalty were abolished in the U.S., at least the abolition of the death penalty would ensure that no innocent person would ever again be executed by the government.
“But it’s time to recognize that, regardless of our views on the death penalty, any future debates must proceed with the knowledge that we have put innocent people to death” (Shaw 3). In an editorial published in The Washington Post, Director of the Legal Defense Fund, Theodore Shaw, discusses several capital cases in which he believes that an innocent person has wrongfully been put to death. Shaw identifies one of the most egregious convictions to be that of Ruben Cantu (Shaw 2). Cantu was executed in 1993 for a felony murder which he allegedly committed back when he was 17. However, in 2005 another defendant who pleaded guilty to the same crime signed an affidavit swearing that Cantu was not with him on the night of the murder. Furthermore, the only witness who provided testimony against Cantu admitted recently to The Houston Chronicle that he was pressured by the police to identify Cantu as the shooter, even though he knew Cantu was innocent of the crime (Shaw 3). Thus, it seems likely that after the conclusion of the DNA testing in this case, Ruben Cantu may become the first person to legally be proven innocent after being executed by the government.
“If the history of the last twenty years is any guide to the future, an average of three death row inmates per year will continue to be vindicated and released. How many equally innocent death row inmates will be unsuccessful in obtaining relief is impossible to know, but the number most certainly is not zero” (Radelet and Bedau 7). According to Michael Radelet and Hugo Bedau, since three death row inmates are released every year, then there must be some innocents who have been executed. Death penalty proponents have opposed this view by stating that all victims have been convicted beyond a reasonable doubt in a court of law. According to the Lectric Law Library, proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. In the Supreme Court case of Victor vs. Nebraska, the Court crucially noted that proof beyond a reasonable doubt is not an absolute certainty (Greenhouse 3). In other words, the Court agreed that a small percentage of error in criminal cases was indeed permissible. Thus, we can never be 100% certain that a person is guilty of committing a certain crime. Radelet and Bedau state that the courts have defined beyond a reasonable doubt as 90% certainty that a defendant is guilty. If this assumption is true, then the courts are willing to accept a 10% error rate in all capital cases. Therefore, if 100 defendants were convicted, each with a 90% certainty of their actual guilt, then the odds are that several of these defendants were actually innocent. Thus, it is highly unlikely that every one of the 1,000 criminals who have been executed since 1976 were actually guilty.
The International Consensus: Evolving Standards of Decency
Over the past 20 years, the use of capital punishment worldwide has declined significantly. “The United States’ closest allies in Europe and North America are unanimous in rejecting the death penalty and they do not hesitate to let their views be known” (Dieter 14). In 1998, Canada became one of the most recent U.S. allies to ban capital punishment (Amnesty International Canada). Advocates of the death penalty in Canada have argued that the death penalty acted as a deterrent to crime. However, by 2003 Canada’s crime rate had dropped to its lowest point since 1967 (Canada Online). According to this data, the Canadian death penalty clearly did not serve as a deterrent to crime.
“No one within the jurisdiction of a State Party to the present Protocol shall be executed” (Office of the United Nations High Commissioner for Human Rights). The Second Optional Protocol to the International Covenant on Civil and Political Rights has been ratified by 54 countries so far (Amnesty International USA). By ratifying this optional clause, the international community has expressed its changing view towards the death penalty. “The increasing use of the death penalty in the United States and in a number of other states is a matter of serious concern and runs counter to the international community's expressed desire for the abolition of the death penalty” (Dieter 15). As stated by Mary Robinson, the former High Commissioner for Human Rights, there is a clear international consensus against the death penalty. As of today, 120 countries have abolished the death penalty in practice, as opposed to 76 who still continue to impose the death penalty (Amnesty International USA).
We can conclude from this current consensus that the death penalty is an out-of-date concept. By refusing to conform to this revolutionary international precedent, the United States has jeopardized its reputation as one of the world’s human rights leaders. In fact, the United States was one of only 8 countries worldwide who had imposed capital punishment on children since 1990. The other countries included China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen (Amnesty International USA). It took until 2004 for the U.S. to realize that it could not remain a proponent of international human rights while simultaneously executing children. In order to retain its reputation as a forerunner of human rights, the U.S. must conform to the international consensus by banning the death penalty per se.
I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants (Feingold 1).
After tinkering with the machinery of death for over 20 years, former Supreme Court Justice Harry Blackmun realized that the death penalty itself is fundamentally flawed. According to Blackmun, even though the court’s decision in Gregg vs. Georgia attempted to make the death penalty less arbitrary, the court’s guidelines have failed. I believe that Justice Blackmun’s analysis of the current death penalty debate is right on point, and thus I offer only one simple recommendation for how to once and for all resolve this seemingly never-ending conflict of epic moral, political, and legal proportions: not only should the New Jersey legislature adopt the Commission’s draft legislation replacing the death penalty with life imprisonment without the possibility of parole, but Congress should enact a similar measure on the national level. Thus, since statistics continually show that the death penalty remains arbitrary in the U.S., the Supreme Court must amend its decision in Furman vs. Georgia to preclude the application of the death penalty per se, in order to remain consistent with the principles set forth in the 8th and 14th Amendments.
As shown by the cases of Anthony Porter and Ruben Cantu, the system of capital punishment in the United States is fundamentally flawed. Even though proponents of the death penalty would argue that these cases were exceptional occurrences, the three aforementioned reasons show that the nature of the death penalty itself is in fact arbitrary. As shown by John Locke in his Second Treatise of Government, the natural rights to life, liberty, and property are inalienable, and cannot be fully abolished by sovereign governments. Furthermore, my analysis of the U.S. Constitution shows that there is no legal foundation for the death penalty in the enumerated powers of the federal legislature, and that in its current state the death penalty is violative of the Full Faith and Credit Clause, the Equal Protection Clause, and the 8th Amendment. Also, due to the evolving national and international standards of decency, the death penalty is an out-of-date concept.
The primary goal of the U.S. criminal justice system should not be retribution, but rather the incapacitation of criminal offenders from society. As reiterated several times in the New Jersey Death Penalty Study Commission Report, the goal of incapacitation can be just as effectively accomplished through the use of life imprisonment without parole as it can through imposing the ultimate punishment of death. Any conceivably advantageous aspects of capital punishment are clearly outweighed by the risk of making an irreversible mistake. It is time for Congress and the Supreme Court to finally acknowledge that after over 220 years of expending an extraordinary amount of time and effort in attempting to decrease the arbitrariness of capital punishment, the death penalty itself is in fact an arbitrary punitive measure. Any system of capital punishment devised by Congress or the Court will inevitably have its flaws. While flaws will always exist in our criminal justice system, at least they would no longer be fatal if the death penalty were abolished once and for all.
