In Re Proportionality Review Project

— U.S. — ,— [Neder States, v. United —, 119 S.Ct. 1827, 1844-48, 144 - 35,— - — (1999) (Scalia, dissenting).] L.Ed.2d J., I therefore dissent. join

Justices HANDLER and POLLOCK this dissent. For reversal —Chief Justice PORITZ and Justices GARIBALDI, STEIN and COLEMAN —4. HANDLER,

For POLLOCK and affirmance —Justices O’HERN —3.

735 A.2d 528 IN RE PROPORTIONALITY REVIEW PROJECT.

Argued August June 1999 Decided 1999.

75 Wyk, Deputy Claudia Van Public Defender and Mordecai D. Garelick, Defender, Deputy argued Assistant Public the cause on (Ivelisse Torres, behalf the Office of the Public Defender Public Defender, attorney). Heinzel, General, H. Deputy Attorney argued

Paul the cause on (John Attorney Jersey Farmer, behalf of the General New J. Jr., General, Attorney attorney). Lustberg,

Lawrence S. argued the cause on behalf of amici Lawyers curiae Association of Jersey Criminal Defense of New Jersey (Gibbons, and New Conference of NAACP Branches State Deo, Dolan, Vecchione, Griffinger attorneys). Del & opinion of the Court was delivered O’HERN, J.

When the Supreme United States Court restored the constitutionality penalty, imposed of the death it a concomitant obligation provide on safeguard meaning states “the further every ful appellate Gregg Georgia, review” of death v. sentence. 153, 2909, (1976). 859, U.S. S.Ct. 49 L.Ed.2d

This matter arises out of our exercise of that function and specifically system our concerns review of By any legal death sentences. that we mean not the review of but, rather, in the imposition error the sentence the review of 76 seek the sen- “[w]hether

the sentence itself. We to determine disproportionate penalty is excessive or tence death cases, considering and the imposed in both the crime similar 2922, 167, 49 at at 96 at L.Ed.2d 871. defendant.” Id. S.Ct. penalty is Proportionality review seeks “to ensure the death rational, non-arbitrary, being a and evenhanded administered manner, consistency.” v. Mar- fairly and with reasonable State 131, (1992), denied, shall, 109, 613 507 130 A.2d 1059 cert. N.J. II). (Marshall 929, 1306, (1993) 122 694 U.S. 113 S.Ct. L.Ed.2d through That as “a means which to monitor review serves thereby prevent any imper- imposition of death sentences and imposing penalty.” the death v. missible discrimination State 327, Ramseur, 123, (1987), 106 N.J. 524 A.2d 188 denial habeas (3d nom., corpus Beyer, v. 1215 sub Ramseur 983 F.2d aff'd. Cir.1992), denied, 947, 2433, 508 113 S.Ct. 124 L.Ed.2d cert. U.S. (1993). only “Proportionality 653 review seeks to determine aberrational, it particular whether death sentence is not whether compares perfectly Bey, with other v. 137 N.J. sentences.” State (1994) IV), 1164, 334, 352, denied, (Bey 645 A.2d 685 cert. 513 U.S. (1995) II, 1131, 130 (citing supra, 115 S.Ct. L.Ed.2d 1093 Marshall 1059). 131, goal at A.2d is to death prevent 130 N.J. Our being imposed man- penalty “capriciously from or in a freakish 195, Gregg, supra, ner.” 428 U.S. at 49 L.Ed.2d at S.Ct. dissenting argues at 887. Our that we insist that member should “generally imposed” death sentences be similar cases for a 105-06, proportional. found sentence death to be to be Post at 735A.2d at 547-48. jurors sparing Because have in their of the death New been Jersey imposition “generally it the case would be or sentence, will never be that death received” juries “received in a defined of cases.” death Because preponderance impose recognized general we have that “death need not be normal or to be

infrequently, licit sentence.” II) (1999) (Loftin (quoting [State v. 157 N.J. 724 A.2d 129 253, 322, Loftin, 1059).] Marshall 130 N.J. asks dissenting Our member for more. He have us find “would can that death is the normal sentence similar when that [for cases] never be so.” Ibid. II, supra, 279, 129, 157 N.J. at

In 724A we .2d considered Loftin existing system our proportionality of review and the effect of 2C:11-3e, N.J.S.A. proportionality limited which review “to a comparison of in similar eases which a of death sentence has been imposed.” system The our details of of review are fully in opinion repeated described that and need not be here in any give summary. detail. We this brief system parts. part frequency consists of two is The first analysis, a frequency statistical measure of the numerical with similar in which cases have resulted sentences of death. The review, part precedent-seeking judicial is way second a traditional comparing in similar of the files cases to determine whether a is defendant’s death sentence freakish or aberrational or the result impermissible of influences. recently,

Until cases for purposes similar were identified of (for (1) frequency analysis by: their example, salient factors cases (2) involving prior assault); a sexual murders or raw numbers statutory and aggravating mitigating (aggravating of factors fac- death-eligible, tors are those that make a murder such as the public murder of a or murder in of committing official the course a felony, mitigating may weighed and are by factors those that be a jury death, in determining impose a of whether sentence such (3) disturbance); outcomes, extreme as mental and an index of composite statutory incorporating statistical test and non- various (such statutory factors motive or premeditation) as extent of that sought presence to rank cases or absence of factors that prosecutorial jury decision-making. appear influence applied These three statistical methods were to those cases that clearly death-eligible, including were cases which State had sought the or penalty not death defendants had obtained non- capital pleas. We refer to this as the of similar universe cases for purposes comparison. The Administrative Office of the Courts (AOC) Thus, organizes collects and the data. each prior through frequency review involves an examination cases II, supra, analysis precedent-seeking In review. we Loftin numbers to account for the that because the raw failed found factors, the aggravating mitigating nature nu- qualitative preponderance test had not contributed to Court’s merical could light of its inherent flaws not proportionality reviews and N.J. at 724 A.2d 129. expected to do in the future. be so Ibid. be determined that test should abandoned. We II expressed the statistical In we also concern Loftin proba- predict used in methods the index-of-outcomes test receiving may lack bility any sentence sufficient defendant 295-96, Id. at 129. reliability. also examined the We “impermissible support that there data a contention had been penalty.” in imposing the death discrimination Loftin Ramseur, supra, 157 N.J. N.J. (quoting 724 A.2d 129 188). inquiry A.2d to an at 524 We referred this as into opposed propor- systemic proportionality review as to individual appointed tionality inquiry, review. In connection with that we Appellate to conduct retired Division Richard S. Cohen a findings concerning and and review make recommendations possibly whether a defendant’s race or the race of the victim seek, prosecutorial jury to affected decisions and decisions to impose, penalty. Following receipt Special the death the report supplemental report, Cohen’s and we concluded Master imposition did racial in disparity that the data not demonstrate the Nevertheless, many penalty. questions the death because had Cohen, by Special by parties, raised and been Master the AOC, present systemic systems our of both and about individual review, to proportionality we decided remand the contested issues testimony Special appointed to hear and to Master and take to report efficacy system. of the to Court on the considered, decide, II we

Finally, but did not whether Loftin N.J.S.A. 2C:ll-3e would impermissibly infringe exercise on our up system appellate review. summed our review of the We proportionality review as follows: methodologies us that we Our teaches use experience proportionality shortcomings accordingly, not without warrant careful and,

are substantial recon- goal those elements of that sideration. Our is to retain the present system provide useful information, to refine and that which we if improve retain, and appropriate, reject methods that have We seek a proved unhelpful. practical approach rigorous ensures defendant before us a every review of his or her complete sentence of death. Our reconsideration extends to four discrete areas concern: the size of the universe of cases; issues in comparison particular of individual respect proportion- relating ality review; to the statistical questions models used in both individual and systemic proportionality review, the status of review as a proportionality proceeding in death separate penalty Because these with appeals____ issues, one appointing cannot be on exception, resolved the record before us, we are a Special fact-finding Master to conduct additional and make recommendations to the Court. On our of his we will receipt be report, determine whether position limitation on the meaningful statutory review universe proportionality prevents review. appellate (footnote omitted).] [157N.J. at 286-87, A.2d 129 1, 1999, February On this appointed Court Superior Court Baime, Judge David S. a Presiding Judge in Appellate Divi- sion, Special as Master evaluate the Court’s review methodology, which was modeled after a proposal by the Master, see Special Baldus, first Penalty Death Propor- David C. tionality Project: Review Report Final Jersey to the New Su- preme Court 24,1991), (Sept. supra. and first used Marshall II, supra, See 453-57, N.J. at Generally, 129. Loftin Special assigned review, Master was to conduct a perform analyses, findings and make relating recommendations to the discrete areas of 454-55, concern that we had identified. Id. 724 A.2d 129. Specifically, the following: Court ordered the

(1) fact-finding concerning Master shall Special conduct additional the proper review universe. The scope Master shall make Special an evaluation of the deathworthiness of a independent of cases sample previous- (AOC) classified the Administrative of ly by Office the Courts as either death- eligible death-ineligible. or The of the selected cases and the “provability” aggravating mitigating or absence of presence and factors shall be considered data-coding and the results to the compared decisions made the If AOC. by data-coding there is a variance between the results and survey the AOC along decisions, causes of the variance shall possible be identified with recom- data-coding mendations for The improved Master shall procedures. Special judge consider whether a should be filled out the in each questionnaire by ease data-coding and used to both the data-collection and improve Alterna- process. if the Master tively, determines that the Special intrinsic difficulties and ambiguities data-coding death-eligible cases cannot be the overcome, Special coding on the AOC errors of anticipated shall consider impact

Master models; (2) data-coding generally make recommenda- and Master shall review The Special if tions for improvements appropriate; projections (3) about the on determine, to based Master shall attempt The Special long it how considerations, other relevant over time and size of the database of statistical can attain a level review results will take before frequency reliability; strengths (4) of both the shall undertake a review The Master Special whether test and make recommendations of the index-of-outcomes weaknesses index-of- or whether the can be modified and improved statistical models eliminated; should be outcomes test (5) select a methods which to representative Master shall consider The Special group cases for consideration within the of similar number of cases test and case in the salient-factors precedent to the defendant’s comparison sorting case seeking shall examine alternate The Master review. Special mitigating shall The Master for factors. Special that account approaches classifications is in the number of case possible some reduction assess whether compromising that similar cases be compared; only without principle (6) statistical models shall to develop parsimonious The Master attempt Special regression whether the effect and shall consider studies of race more reliable purging, of race from removal of the indirect effects ie., process useful; that are to results race, to be unrelated produces variables appear (7) recommendation, Master Cohen’s Master shall consider Special The Special that the a II], Court appoint panel in State v. Loftin, supra [Loftin submitted along with judges outcomes, assessments of penalty-trial periodic perform judicial an as indepen- and mandate of such independent panel, the composition ratings models; derived from the verification of the culpability dent concerning (8) findings issue shall a factual record and Master develop Special proceeding maintaining review as separate desirability conducting review in connection with capital or, alternatively, defendant’s direct appeal____ 129.] 724A.2d

[Id. 455-56, order, Judge personnel all Baime interviewed Pursuant to that cases, gathered all screening responsible for of the AOC Baime, procedures. See David S. pertaining to AOC protocols Proportionality Re- Jersey Supreme Court: Report to the New (Baime 28,1999) Report). He conducted (Apr. Project at 18 view death-eligibility and screening files for independent AOC an Appellate Division Charles Villanueva retired enlisted Attorney ibid. He asked an additional 105 files. See screen Jersey County Prosecutors’ Association and the New General present concerning evidence the extent to prosecutors which de- cided not to seek penalty, specifically sought the death and prosecutors regarding information from capi- cases that were not tally prosecuted Judge “clearly but that found be death- eligible.” See ibid. respect coding, Judge

With to data Baime directed two law process clerks to simulate the protocols accordance AOC with twenty-four case compare files each and to their results with Jr., the AOC’s. McCarthy, See id. at 42. With the aid of John P. Esq., Services, Director of the Office of Trial Joseph Court J. Barraco, Esq., Practice, Assistant Judge Director Criminal death-eligible Baime considered all attempt homicides in an meaningful discern case characteristics mitigating and the effect of Further, factors on deathworthiness. See id. at 52-53.

Baime retained Dr. Joseph statisticians David Dr. Weisburd and study Naus as performance consultants to of the index-of- outeomes test. See id. at 4. Special report Master’s following: recommended the

(1) death-eligible retention of the universe of cases for dearly following methodology; review with the in the AOC’s improvements (a) judge Standing of a retired to serve as Master to appointment supervise screening, collecting data-coding AOC data functions, and to over preside hearings pertaining subjects; to these (b) mandating hearings of a or rule adoption protocol that all before the Standing divulged Master be confidential, that all information kept during proceedings counsel such not be used for other than may any purpose and that all proportionality review, and records of such transcripts proceed- ings be sealed; (c) requiring managers rule, of a or adoption that all criminal division protocol data-coding forward to the AOC additional sources of information for screening, including judgment of conviction, notice of presentenee report, factor(s), aggravating resulting order from a motion to any dismiss, decisions pertaining to indictment or evidentiary questions, requisite form, plea all defendant accusation, statements all witness provided state- discovery, investigative ments all provided from law enforce- discovery, reports any agency, mitigating ment defense notice of factors, and medical autopsy psychological examiner evaluations and reports, psychiatric reports; (d) program requiring of a on an or adoption protocol basis experimental pilot judges death-eligible trial in all homi- complete questionnaires potentially cases; cide

(e) typology that of AOC’s evidence to evidence modification of the require “overwhelming” as a for elements must be prerequisite murder capital death-eligible universe; inclusion of in the a case (2) coding” editing requiring of a and individual “double adoption protocol respecting of all rules staff, members of memorialization interpretive the AOC changes updating in of the data base to reflect data- variables, and key periodic coding rules; (3) mitigation that of a salient factors test accounts for and modified adoption categories; fewer contains (4) multiple-regression logistic and of the index-of-outcomes test abandonment review because of the of instability individual analysis proportionality projected and the limited increase New Jersey’s current models relatively base; data (5) creation of statistical model for continued toward the a reliable experimentation review; of systemic proportionality purpose (6) charge reminding jurors of a of their to consider each case model duty adoption gender; regal'd religion, origin to or and without national and race, fairly (7) proceedings continuation of bifurcated until the proportionality process can consolidation. is streamlined and the Court assess feasibility supra, Report, [Baime at 6-7.] 18, 1999, General, May Attorney the Public Defender On curiae, amici Lawyers of the Association of Criminal Defense and (ACDL) Jersey Jersey and New the New State Conference (NAACP), expressing NAACP Branches submitted briefs their (To Report. distinguish report Baime on the this from views I, Report to the Baime or Baime prior reports we refer part.) anticipation parties of its second Each also filed a 26, May Judge response brief on 1999. We have now reviewed Report concerning the statistical models used individu- Baime’s noted, yet al review. As we have not. received concerning Baime’s models report the statistical used systemic Although the examine review. size of the universe, 2C:11-3e, the effect N.J.S.A. “cannot be consid- questions[,]” other apart ered from those Loftin 285, 129, N.J. at await half of the 724 A.2d rather than the second Report, proceed step-by-step on a to determine we basis present system provide elements that useful informa- “those retain, tion, if improve appropriate, refine that which we 286, Id. reject proved unhelpful.” methods have Specifically, A.2d 129. “practical we will determine whether the analysis difficulties attendant to data collection and of noncapital cases,” 129, id. at would counsel that we accord comity expressed preference to the Legislature of the and the Attorney General for a consisting smaller universe of either the group or, alternative, of death-sentenced cases in the cases in penalty which a trial prosecutor has occurred or a has served capital aggravating notice of Ultimately, factors. we must decide whether the statute impermissibly infringe would on the exercise function, judicial which exclusively is reserved to the Court. now, Id. at 724 A.2d 129. discharge For in the of that function we shall larger continue to use the universe to conduct proportionality review. do anticipate We not that the revisions of system now or in the question future will call into any previously-conducted proportionality reviews. convenience,

For generally we will follow Judge format of report. Baime’s It is our in opinion intention this express to our conceptual disposition major topics in covered Baime I. It intention, is not our nor it capacity, perform is within our computer actual programming necessary that is to store and sort always the data. We have believed that proportionality review mysterious need not be a computer exercise. The is used to sort, compile, electronically and store a list of case characteristics generation as we would ago legal have done a on a pad or on index sorted, cards. Once the cases hope are we to see how often death penalty is similarly-sorted practical eases. ‘We seek a approach every that ensures defendant rigorous before us a complete review of his or her sentence of death.” Id. at A .2d 129. proportionality initial report

The review submitted to the Court and, in largely Marshall II was in including narrative form its cases, descriptions comparable brief eighty did not exceed pages: forty pages frequency analysis forty dedicated to pages time, precedent-seeking dedicated to propor- review. Over tionality reports style vexing review have taken on an arcane analysis. in lawyers untrained statistical

judges and form, in contains Report, largely tabular Chew/Harvey/Cooper ta- consisting proportionality pages approximately 800 appendices. bles and a appointment is the Baime’s recommendations Judge

ofOne Standing judge as a Master to to serve Superior retired Court judge, expect that such a in review. We assist matters, to assist us would be able experienced criminal ensuring rigorous and approach, while a achieving practical opinion provides If insuffi- each sentence. this complete review of system proportionality guidance implement the revised cient meantime, review, Judge Baime inquiry. In the we invite further phase. He during this transitional assist the Court further will developing Special Master while continue as the Court’s will Standing system by used Master implementing the that will be at a future date. appointed the Court who will be

I THE OF CASES UNIVERSE logic, agree we with As a matter of abstract death-penalty limited to cases which the sen that a universe support a coherent imposed has cannot tence been “[wjithout knowledge of the life- system. This is so because cases, be unable to determine whether [a court] sentenced would ‘meaningful distinguishing for the death sentences there is a basis’ ‘many in which lesser sentences are it reviews from the eases’ (citation omitted). imposed.” Report, supra, at 10 logic. us are the limits of Judge Baime has identified for What validity death-eligible of the inclusion of He has observed that the depends substantially “questions on cases the universe satisfied, Baime, Judge that feasibility.” at 16. are as was Id. We with the assistance of retired the studies that he conducted staff, Villanueva, law clerks and AOC screening that and accurate decisions can be indicate consistent clearly reasonably judgments made of conviction. Indeed, based upon presentenee reports mechanical____ can as Of the 2104 decisions be characterized many fairly these beginning cases have been screened since the death-eligible, 433 homicides have been classified as clearly process, only approxi- mately twenty-one percent. [Id. 28.] constant, practice thirty thirty- past approximately If remains to year. five cases have to be classified for determination each would Nonetheless, recognized Judge Baime that the database is because in, only good goes as as the data that he recommended a series of classifying steps improve methodology to the AOC’s cases. (l)(a), (b), (c), specifically approve We of recommendations (d), calling respectively appointment for: of a retired judge Standing screening, as a supervise Master to AOC’s function, collecting, coding preside data and data and to over hearings pertaining subjects; requirement these a confidential to Managers additional that Criminal Case forward to the AOC information; pilot program which available sources of and a under judges complete questionnaires potentially death- trial would eligible homicide cases. primary objective

A this of those recommendations is assist review, conducting precedent-seeking particularly with Court respect to those homicide defendants whose ultimate sentences imposed guilty plea following were a result of a or a conviction as Cooper, non-penalty phase a trial. As we observed in State v. (1999): 55, 97, 731 A.2d 1000 N.J. precedent-seeking The inherent in the review is exacerbated difficulty process cases of other

when the Court defendant’s ease to the attempts compare guilty as a result of a or a defendants whose ultimate sentences were imposed plea following conviction trial. In some the AOC’s cases, summary non-penalty phase inference what consider- is detailed to the Court to deduce sufficiently permit forego In other cases, ations have trial. may prosecutor penalty persuaded forego a are less the reasons elected to why capital prosecution prosecutor lack of a reliable contemporaneous summary by prosecu- apparent. forego arriving factors that were considered in at the decision to tors the various diminishes the effectiveness and of our reliability precedent- capital prosecution seeking review. certain, hereafter, We are with the reservations noted judicial measure, questionnaires provide will at reliable least to a observer, judicial may detached of the considerations that have led non-capital disposition charges to of murder that were on their (as, death-eligible example, face in the case of murder in the assault). course sexual

Concerning judicial questionnaires, they we ask that be re- Judges’ Capital viewed the Trial Committee on Causes to potential determine both their usefulness and their to encroach on judicial autonomy Although judges and resources. both and the Standing power compel Master would have the the State and a supply defendant to helpful process discoverable materials to the classifying cases, coding require we judges will not trial or parties express personal their weight views about the involved, judges evidence nor will require prosecu- we ask trial attorneys tors or acknowledge defense to do so. We that cases at a trial level are far from attorneys over. Prosecutors and defense justifiably subjective would be hesitant to furnish evaluations weight reliability the evidence or the of witnesses for either disclosed, side. Once that information part could become of future proceedings. reasonably Given the existing reliable results of the coding process, we believe that provision with the additional of all questionnaire discoverable materials and a suitable from trial judges, Standing Master remaining will be able to resolve disputes clearly death-eligible. over which cases are There is no need to revisit ease prepared summaries existing proto- under the Specific cols. ease challenged by parties summaries have been from product time to time and the net sufficiently is reliable to move forward. (l)(e), adopt

We do not recommendation which would re quire, prerequisite as a for inclusion of death-eligible a case universe, that capital-murder evidence of elements be overwhelm rubric, ing. might Under that the universe not contain some “clearly death-eligible homicides.” Marshall 130 N.J. Standing A.2d 1059. We leave to the Master and the parties keep the further resolution of this issue. We will this open any remaining disputes. docket to resolve that We trust we may Judge expertise continue to call on the of Baime. adopt Judge Baime’s recommendation 2 for adminis

We changes improvement trative related to the of the data-collection process by introducing system coding,” whereby of “double cases, ... independently “[t]wo AOC staff members code all of the and then discuss and resolve their differences.” Baime I at 48. adopt also the recommendation that We the AOC draft and specific protocols data-coding. agree maintain Ibid. We that updated periodically the keep database should be the informa tion “current and accurate.” Id. at 49. work, consider,

In connection with that we ask the AOC Baime, Judge argument Attorney consultation with capitally-charged General that it is inconsistent that not eases resulting capital by grand jury in a indictment are included for review, rejected jury whereas eases the trial petit juries grand are not. Both are the ultimate arbiters of death-eligible what constitutes a case.

II THE MODIFICATION OF SALIENT-FACTORS TEST

A. Organization by Categories Cases Judge Baime makes several recommendations for im provement exception to the of a salient-factors test. With concerning incorporation mitigating recommendation fac tors, adopt organiza we his recommendations. He finds that the by statutory aggravating good tion of the eases factors makes sense, generally subcategories but recommends that dis be Report, supra, reviewing solved. Baime at 56. After 433 death- cases, Baime, eligible McCarthy Joseph John Barraco subcategories predictors that found have little relevance as sentencing By way outcomes. Id. at example, Judge 56-57. prior category Baime notes that the murder conviction contains subcategories aggravating three based on the number factors found, however, present. Id. at 57. He death-sentencing rates in two aggravating cases with or more factors were lower than aggravating for those cases with one factor. Ibid. This finding and others made him “subcategories conclude that the did any not have effect on deathworthiness.” Ibid.

Judge Baime subeatego- recommends retention of a few discrete First, ries. subcategory he would leave the denominated as “with particular violence or terror” in the sexual assault classification because defendants by prosecutors so classified seem to be viewed juries particularly deathworthy. and as Id. at 58. He recom- guidelines mends that strict developed be to avoid the inherent subjectivity defining subcategory, in this specifically suggests and subcategory that the multiple stabbings, gunshot include wounds mutilations, and involving as well as cases children. Id. at 58-59. Judge robbery Baime recommends that category the be subdi- “residential, other,” vided into eliminating business and the nu- categories merous currently that exist. Id. at 59. The creation of categories presumably the three is attempt an large reduce the of robbery-murder category number eases the purposes of review.

Finally, Judge Baime subcategories would retain multiple the category. victims Id. at 59. He many believes that because of intrafamily those cases involve rage killings, prosecutors and ordinarily capitally prosecuted eases, have not such those cases distinguished. addition, should be Ibid. In he notes that cases involving drug transactions between the victim and the defendant “rarely capital prosecutions have resulted in and death sentences.” instances, exception Ibid. With the of Judge those Baime ob- serves that multiple defendants who kill victims in the of course the commission of particularly another crime are viewed as death- worthy. Id. at 59-60. He therefore breaking recommends the category into two subcategories aggravated non-aggravated — killings course multiple 60. He would denote cases. Id. at excluding multiple killings in the “aggravated,” felonies as of other killings. Id. at intrafamily rage drug crimes and course of 59-60.

B. Assignment Principle Unique retain this that the Court Judge Baime recommends stated, though a Briefly principle is that even Ibid. principle. factors, e.g., killing public a identifying may multiple case contain official, assigned to torturing the case is robbing or official and Judge Baime is concerned category for salient-factor review. one than aggravating factors rather emphasizing quality with may decisive in recognizing that one factor be quantity, (noting Id. at 61 a defendant to death. jury’s decision to sentence victim, prior strength public factors like office particular etc.). victims, defendant, multiple convictions of murder however, unique assignment is not acknowledges, that concept of states that Ibid. The Public Defender ideal. system seems unique assignment is “a sensible giving cases expressed has concern reality great degree,” to a but to reflect assignment pro to the application unique Judge Baime’s over Defender categories. The Public ranking the salient-factor cess of system, a ease is used to proposed once notes that under the (e.g. killing public category a sentencing rate for one calculate the calculating sentencing rate servant), the the ease is unavailable for (e.g. torturing the in the same case category found for a lower victim). ranking categories suggests the The Public Defender for case would be available replacement,” which each “with category death-sentencing rate in each calculating the purposes of hierarchy be way, In the would applies. case this to which the method, assign unique rather than using replacement the created uniquely remain ment, purposes a case would comparison but issue, find no the we category. As we understand assigned to one method to create replacement the use of the problem intrinsic with hierarchy unique assignment the and the running method for the purposes producing salient-factors test for reports. the AOC We decline to Following implementa- order that relief now. tion protocols, of the new capital after the first series of case reviews,the may present again Public Defender the issue Judge Standing Baime or his successor as possible Master for reconsid- eration.

C. Mitigating Role Analysis Factors in the Third, Judge abandoning Baime recommends Professor Bal- dus’s hierarchical assigning structure of according eases to the aggravation. level of Judge Id. at 62. Baime notes that it has become clear that the current structure accurately repre- does not hierarchy sent the of death-sentencing frequencies. proposes He structure, an ranking alternative salient factors in descending upon order based death-sentencing among rates all death- eligible category. defendants in a Again, Id. at urges 63. he a approach flexible exceptions. with room for Id. at 63-64. Judge proposes that mitigating factors be introduced into the salient-factors test. Id. at 64-65. Acknowledging the difficul- ty accurately representing mitigating given factors that a jury unanimous need not find factor in present, order for it to be as well juries as the fact that weigh mitigating differently, factors he nevertheless recommends that the category salient-factors be mitigation divided into “low” “high” mitigation subcategories. originally Ibid. As contemplated, the salient-factors test was expected mitigation to include analysis. in that Marshall swpra, 130 N.J. at 613A.2d 1059.

In order to channel analysis the salient-factors into simpler reading data, reject we for now incorporation mitigating analysis. factors into Baime has recom maintaining mended principle unique assignment because “the aggravating number of factors is not particularly relevant deathworthiness____” supra, at 60. Report, Baime assessing predictors factors as may mitigating for The same be true is better suited to Precedent-seeking review culpability. lack mitigating factors. presence of handle the

D. Comparison Test in Selection the SalienP-Factors Use PrecedenP-Seeking Review Cases for is the number of cases Court attempting In to reduce review, Judge Baime precedent-seeking obliged to examine parties, responsibility to the that the leave that recommends Court Standing Id. at 74. Because supervision of a Master. under the arguments for position to make in the best parties are review, accept this we cases in the Court’s including similar potential errors to correct that it can serve approach, and note categories are analysis. If of the some made in the salient-factors open remain important it is that the Court split subcategories, into may concerning eases that parties from both to recommendations or included the reviewed erroneously excluded from been have Standing Master recommends that category. provide the parties and arguments advanced consider make the The Court will Ibid. with recommendation. Court to be considered concerning which cases are decision ultimate review. precedent-seeking

Ill TEST INDEX-OF-OUTCOMES abandoning the index-of-out Judge Baime recommends models.1 Baime instability regression due to the comes test regression is a analysis "Multiple 1 As the Court explained Loftin or more between one indepen used to describe the relationship statistical tool murder) (e.g., the death (e.g., variable and a variables dependent dent prior in a A statistical model penalty)." 8,n. 724 A.2d 129. attempts, 157 N.J. at 295 I, supra, problem at 77. He notes that the main is the lack of models, parsimony computer in the which means that the models using relatively are the data from a small of number cases to explain many the effect of too different factors on the likelihood of receiving penalty. finding the death that the in While increase the of positive stability number cases over time has had a effect on the models, of the “this fact does not itself mean that the models are stable, they now very require but rather have met a minimal Id. at 90. stability.” ment of

In examining the size of the in produced coefficients schedules time, Judge factors, over settling Baime found some of the but large cautions that “the coefficients are still logistic overall for instability.” regression analyses suggest and tend to substantial model Id. at 92. In addition, Judge although Baime notes that an 2 culpability examination of the estimates for each defendant over consistency, time shows some overall the levels for certain defen- way, express independent numerical the effect of each of several variables on (The dependent computer being analyzed the variable. converts the data into an performs electronic format and the calculations that would otherwise be done manually.) example gender pay To return to the of the effect of on scales for workers described in 157 N.J. at 295 n. the Loftin (without attempts presence gender) model to determine the the effect or experience pay "coefficient” of variables such as education or on scales. For example, $130,000, employees average if 1000 with MBAs earned an the ability statistician estimates the effect that an MBA will have on a worker's range pay. attain that Once a coefficient has been determined for each variable, independent resulting predictions the "model" can be used to make future cases. describing average change A dependent coefficient is a number the in the independent indepen- variable when an variable increases one and all other prior large, dent variables are held constant. If the coefficient for murder is (two prior then the model reveals that a small increase in the number of murders one) large instead of correlates with a increase in the likelihood of the death However, penalty. poorly designed may produce model a coefficient that is (for larger example, than its true value a coefficient that indicates that the presence prior aggravating murders factor correlates with a chance of receiving penalty prior the death four hundred times that of someone with no murders). large relationship Coefficients that are too and overstate the between problem the variables thus indicate that there is a with the model. changes with the addition undergone substantial dants have year. Id. at 93-94. new cases each of instabili- following possible causes

Judge Baime identifies (1) of a death sentence important predictor if an ty in models: likely model, will be culpability predictions left out of is case validity of the individual challenge the unreliable and will (2) review; is if excluded variable an rankings model, of the included the measurement a factor related to independent by the exclusion of be biased variable would (3) parsimony variable; persistent lack there remains the index-of- Id. at 96-101. The problem with the models. variables many independent there are too test is that outcomes victimization, nature of of- premeditation, extent of (degree of variables fense) relatively dependent few relationship to the in verdicts) effect of (death about the a reliable conclusion to reach unreliability in has led to This in turn independent variables. culpability or deathworthi- in of overall ranking the cases terms any attempts to end, that Judge Baime concludes In the ness. meaningful results. produce will not problems these overcome gender on effect of example of the analogy, return to the For an II, we said in where described scales for workers pay Loftin analysis regression a class of claimed that cases when it is discrimination

is used in employment based differential compensation or accorded has been denied promotion employees to be gender. variable would be the dependent as race or Salary on factors such gender or be the independent and race would explanatory whereas explained (7th Cir.1988). 302, F.2d 325 Co., Roebuck & EEOC v. Sears variables. 129.] n. [157 8, N.J. at 295 would find a statistician results that study might produce A varia- independent of manageable number if were a reliable there education, job, in relation- experience on age, or such as bles expanded if an salary. But variable of ship dependent to the mix, such as added to the independent variables were of number clubs, marriage status, of membership in status socio-economic number, dress, their on their depending or manner partner, measura- salary might not be variable of dependent effect on ble. In Marshall perhaps sanguine we were too assessing in prospects that the produce index-of-outcomes test could reli- early able information. Its measures of deathworthiness con- formed to our experience intuition and persons that the whom perceived we highly deathworthy be remained so on the index. But problems test, there remain obvious with the and there is no advocate for present the test its form. modeling certainly

Statistical will be needed to system- examine disproportionality. remember, ic however, We must that when Professor test, Baldus created the index-of-outcomes he had not been analysis asked to an undertake of discrimination in New Jersey’s capital punishment system. Baime I at Although 78-79. conceptual “[m]uch framework of by had, devised Professor have, Baldus and continues to great efficacy,” id. at the Court’s consultants have observed present that the suggest schedules do specific “that some variables (of impact have determine),” some a size difficult to Weisburd & Naus, Report: Assessment Approach Index Outcomes Review, in Proportionality Use Apr. A, (Appendix at 24 I), may which instability. indeed indicate model

Judge Baime recommends that his consultants continue to attempt to create more reliable models goals to achieve the systemic proportionality review. He will work with Professors Weisburd, Naus and plans report the results October I, 1999. Baime supra, at n. 108 13.

Experience gleaned from may studies elsewhere refine the statistical methods that enable reasonably one to conclude whether race is or impermissible is not an influencing factor capital- sentencing decisions. See Radelet, Kent S. Miller & Michael L. Executing Mentally III: The System Criminal Justice and the Ford, (1993) Case Alvin 128-29 (noting 1990 General Account- ing study “that, Office showing things other being equal, those who murdered whites were likely more to be sentenced to death than those who murdered blacks” and that over “half of the studies reviewed found that race of the defendant also influenced

95 David C. penalty”); receiving the death of ... the likelihood Zuckerman, Woodworth, Alan Weiner Neil Baldus, David George Penalty Broffitt, and the Death Racial Discrimination Barbara & Overview, Legal Empirical and Era: An Post-Furman in the L.Rev. 1638 Philadelphia, 83 Cornell Findings From Recent With Philadelphia (1998) racial discrimination (describing studies of sentencing). capital-death jury a model meantime, recommends that Judge Baime

In the they are not to jurors that given that reminds be instruction beliefs, origin, or race, color, national sex religious consider of death return a sentence victim, jury is “not to and that the no the same verdict that it would return it has concluded unless beliefs, origin or sex race, color, national religious matter what Report, supra, might be.” or the victim of the defendant 848(o)(l) Special (Supp.1998)). The § (citing 21 U.S.C.A. at 109 only at the given instruction be Master recommends Ibid. appropriate cases.” only “in defendant and request of the certainly ignore bigot would cautioning that a true While impact an might it well have contends that Judge Baime charge, to race or another significance “attach an irrational some who on He Ibid. their awareness.” that is outside nongermane criteria to instructions close attention jury’s ability pay in a has faith Breakiron, v. (citing 110 State diligently. Id. at apply them and to (Baime, 442, 468-69, (App.Div.1986), 510 A.2d 80 N.J.Super. 108 N.J. J.A.D., dissenting), part, rev’d (1987)). that faith. share We Charge instruct Criminal recently approved a Model

We relevant, of race on consider, possible effect juries when ing v. State correct identification. ability to make a a witness’s (1999). Perhaps, when A.2d 457 Cromedy, 158 N.J. proposed in the included relevant, should be orientation sexual statute. hate crime Legislature’s with the charge, in accordance charge to leave the formulation N.J.S.A. 2C:44-3e. We See should, now, trial courts For Capital Causes. on the Committee sug- appropriate, give generally when an instruction in the form gested by Judge Baime.

TV REVIEW AS PROPORTIONALITY A SEPARATE PROCEEDING question to proportionality The last be addressed is whether review a separate proceeding should continue be conducted as following appeal. a defendant’s direct We share the concern expressed July Study Report 1998 of the Governor’s Implementation Penalty, Commission on the of the Death delay prosecution capital appeals excessive in the “undermines capital punishment, promotes deterrent effect of for disrespect justice system prolongs suffering criminal of victims’ Booth, Penalty Urges families.” Michael Death Panel on Limits 1998). Remedies, Trial Appellate (July 153 N.J.L.J. justice system The task of identify any the criminal is to sources delay system excessive in the and to seek to ameliorate them.3 yet developed system proportionality Because we had not Ramseur, review supra, at the time we decided we stated that would in a separate proceed- be conducted ing. thought It proceedings was also that bifurcated would “con- serve resources because a review would not occur if appeal the defendant’s direct was successful.” Loftin 157 N.J. at 724 A.2d 129. Baime has concluded: jurisprudence That in an era in made sense which was practice punishment capital great. Although unsettled and the likelihood of a reversal death cases penalty remain difficult issues have now been extremely complex, many resolved and original compelling. rationale for bifurcation is “this less perhaps Moreover, agree legislative with, For we for, would not await example, concurrence the acceleration cases in order preparation capital transcripts scheduling appeal-management enable a more conferences after expeditious the verdict. Real-time can computer-assisted preparation transcripts help reduce the course of added resources would this delay. assist Obviously, effort. drawing a death out the when ... exacts a cost by appeals process practice is affirmed.” sentence (quoting 157 N.J. at at 111 [Baime Report, supra, Loftin omitted).] 129) (footnote Judge Baime wrote: deterrent value of capital punishment I consolidation. Whatever the favor —an with differ —it is diminished can and do surely

issue which reasonable persons upon passage that can be I believe the process of time caused endless by appeals. the of the As I noted much earlier, are if recommendations my accepted. streamlined the fruitless have been devoted to of the Comí and counsel attention and time meaning attempting the index of in the results yielded by to find endeavor of Eliminating test streamline the system the index of outcomes will test. outcomes rights will be fully of the defendant to the no cost virtually parties. seeking relying review. On factors test and on the salient precedent protected than it will cost will conserve more resources I believe that consolidation balance, that are reversed on direct appeal. in the few cases relatively 112-13.] [Id. at To our his views. agreement with are basic We proportionality review jurisdictions that conduct knowledge, other with our inten proceedings. Consistent do not conduct bifurcated to the recommendations system” pursuant the to “streamline tion proportionality Baime, next scheduled direct that the Judge we format with the revised conducted in accordance shall be reviews herein. recommended AOC, guidance the for the with stage is

The next by the and, Standing appointed Master to be ultimately, the proportionality individual Court, procedures for establish require herein. That will the directives in accordance with review reports. revised production of data and the recalculation briefing and parties discuss with of the Court will The Clerk Systemic procedures. new reflect the argument schedules that existing conducted under have to be review will proceedings, we conjunction with those analysis. In methods proportion- consolidated and how to conduct determine when shall that a principle will demonstrate ality Consolidation review. just and efficient. system can both judicial be responsible will be review consolidating proportionality recognize that We prosecution and defense already burdened to the an added burden teams, integrate and we work with system will them to the new appeal for In process. into the direct connection next proportionality with the reviews under conducted format, parties the revised should their submit views concern- ing procedures implementing request consolidation. We shall parties Standing confer with the Master and the Clerk submitting part the Court before their to us views as of those appeals.

V up, participants To sum the conducting one of has observed that proportionality is not completing review like the Human Genome Project. identifying sorting, by very We are and then familiar characteristics, thirty thirty-five per year. about to cases We permitted have technical debate meaning. to obscure substantive Our task is to ensure that problems technical with as issues such intervals, (or less) confidence convergence, model and parsi- more models, monious translated legal be into an understandable format that we and can parties apply. expect, help the We with the of Judge Master, staff, Standing Baime and parties, AOC the and amici, goal. that we can this achieve It is to them who and those them, clerks, have including assisted our own that the Court expresses gratitude for their on improve efforts to build system proportionality of by Special review recommended Master David participants approached Baldus. All the task without effort at cooperation obstruction. recognizing past Their in problems when pointing potential problems evident and out future has been great of assistance to the Court. allWe goal, share one penalty “to ensure that being the death is adminis- rational, in non-arbitrary, tered manner, fairly and evenhanded II, consistency.” and with supra, reasonable Marshall 130 at N.J. 131, 613 pursuit. A.2d 1059. We shall continue that

HANDLER, J., concurring part in dissenting part. I share the Court’s conviction that the universe of for cases who, review must by include all defendants

99 crime, whether eligible penalty, death nature of their were all encompassing they capitally prosecuted. or were Review not penalty necessary death death-eligible cases is to ensure that the consistently fairly and in each defendant’s being is administered systemic case, just prevent as monitor and and is essential to imposi- prosecution capital discrimination and the in the cases view, therefore, that the tion sentences. I am of the of death in which a legislative limiting the universe to cases amendment 1992, 2C:11-3e, c. 5 L. imposed, death sentence has been N.J.S.A. (eff. 12, 1992), as a mean- May “abolishes review 442, 253, Loftin, ingful safeguard.” v. N.J. procedural State such, (1999) II) (Handler, J., (Loftin dissenting). As 724 A.2d 129 judicial appellate impedes the amendment this Court’s exercise 285, 129, review, at 724 A.2d and is unconstitutional. see id. delay deciding the ante at 82- continues to matter. See Court 285, 535; II, supra, 157 A.2d at N.J. at Loftin objection delay. my 129. I maintain See Loftin (Handler, dissenting). 724A.2d 129 J. N.J. I raised express two concerns the Court’s write presented Special Master David S. Baime recommendations Proportionality Report Jersey Supreme the New Court: (Baime 28,1999) Report). Project (Apr. Review I Court, the First, declining implement urge I that the now to mitigating introducing for by Judge Baime method recommended 89-90, A.2d at testing, see ante 735 into salient factors at factors Baime’s 538-38, sight motivation lose of the sound for not mitigat- is, accounting of need for some recommendation —that test, The as ing in our statistical review. salient-factors factors only applied, as considers originally designed and to this date may such, to As test fails account for aggravating factors. significant mitigating factors. concealing” even as “a device act (1995) 233-34, DiFrisco, 148, 442 A.2d State v. N.J. (DiFrisco III), denied, (Handler, J., dissenting) 516 U.S. cert. 1129, 949, (1996). 116 S.Ct. 133 L.Ed.2d 873 The late numerical- preponderance-of-aggravating-and-mitigating-factors test was weighed flawed because it quantitatively, factors but was never- theless ability commendable for its mitigating to take factors into account. (Handler, See id. at J., 662 A.2d 442 dissenting). that Now the Court has abandoned numerical-preponderance test, see supra, 294-95, 157 N.J. at it is Loftin important more than adopt ever that we by statistical method may which we properly analyze the mitigating effect of discrete factors, thereby proportionality, in sentencing death decisions. Frequency analysis cannot serve as a complement well-rounded precedent-seeking review without taking mitigating factors into account.1

II point second I address concerns the Court’s standard for assessing disproportionality. This long recognized Court has as a “ general rule that ‘[a] death comparatively sentence is excessive disproportionate] [and thus if other defendants with similar char- generally acteristics receive sentences other than death for com- ” mitting factually similar jurisdiction.’ crimes in the same State Marshall, 109, 131, v. (1992) (Marshall 130 N.J. II), 613A.2d 1059 1 I share the Court's concern with the Master's Special would proposal mitigating factors assigning incorporate into the salient-factors test cases to “high” mitigation categories or "low” according mitigating to the number of factors As we aggravating have present. discovered with factors, the number of factors is far less than present their important substance. See ante at 89-90, 735 (citing 60). A.2d at 538-39 A Report, alternative possible would be to create two salient-factors tests —one that takes into account broadly-defined aggravating factors and another that mitigat takes into account broadly-defined ing factors. Both tests assignment, could maintain create unique yet dictating assignment according such descending hierarchy death rates penalty using calculated method. See replacement 89-90, id. at 735 A.2d at 538-39 (recommending that creating Master Special reconsider of salient- hierarchy categories according factors assign method, rather than replacement unique ment). The test permitting results would be distinct, thereby analysis between the two interplay factors. types

101 (1993) denied, 122 L.Ed.2d 694 1306, 929, S.Ct. 113 cert. U.S. 507 State, 432, 1, 17 n. 18 v. 297 Md. 468 A.2d (quoting Tichnell (1983)). review seeks “[proportionality have also stated We is aberra- death sentence only particular whether a to determine other sentences.” tional, compares perfectly with not whether it IV), (1994) (Bey cert. 334, 351, Bey, A.2d 685 v. 137 N.J. 645 State (1995) denied, L.Ed.2d 1093 1164, 1131, 513 U.S. S.Ct. 115 130 1059). II, 131, supra, A.2d 130 N.J. at 613 Marshall (citing “general imposi- Heretofore, and the standard the “aberrational” v. See State interchangeably. invoked standard have been tion” III); (Harvey (1999) 277, 289, 308, Harvey, 159 A.2d 1121 N.J. 731 (1999) (Chew II); Chew, 183, 195, A.2d 1070 v. N.J. 159 731 State III, 129; II, DiFrisco 321-22, supra, 157 N.J. at 724 A.2d Loftin Martini, v. 442; State 160, 166, 139 supra, 142 N.J. at 662 A.2d (Martini denied, (1994) II), cert. 516 3, 20, 28, A.2d 949 N.J. 651 IV, Bey supra, (1995); 203, 133 L.Ed.2d 875, 137 116 S.Ct. U.S. 343, 351-52, 645 A.2d 685. 137 N.J. at Gregg v. principles from the were derived These standards (1976), L.Ed.2d 859 2909, 153, Georgia, 428 96 S.Ct. 49 U.S. which review.2 See adopted in its earliest this Court see also 1059; II, 124-31, 613 A.2d supra, N.J. 130 at Marshall (1987) Ramseur, 326-27, 123, 188 106 N.J. v. State 2940, 96 S.Ct. at Gregg, supra, 428 U.S. at (quoting 893). Gregg, supra, Supreme referred Court L.Ed.2d In “aberrational,” and, jury as specifically, a as a death sentence imposed was “aberrant,” a death sentence where circumstances not “juries generally do for which kind of murder for a certain impose sentence^]” the death general standard have standard and the Indeed, imposition the aberrational its Court to reflect standards enunciated but two of similar

been many III, Gregg, See review. Harvey derived from supra, conception, (Handler, (noting dissenting) J., 355-58, 731 A.2d 159 N.J. at supra, standard); 157 N.J. at different articulations fourteen Loftin (Handler, (noting dissenting) different definitions propor- six J., 724 A.2d 129 review). tionality 102 against review ... provision appellate serves as a check the random or of the death arbitrary imposition In penalty. the particular, review proportionality eliminates substantially the that a will be possibility person sentenced to die the by jury- juries action of an generally aberrant If a time comes when do not impose

the death sentence in a certain kind of murder case, the review appellate proce dures assure that no defendant convicted under such circumstances will suffer a sentence of death. [Id. at S.Ct at 96 L.Ed.2d 206, 49 2940, 893.] Burns, 276, (Tenn.1998) (“A See State v. 979 S.W.2d 283 compara- tive proportionality designed review ... is identify aberrant, arbitrary capricious by sentences determining whether the penalty death in given ‘disproportionate case is punish- imposed ment ”) on others convicted of the same (quoting crime.’ Pulley Harris, 37, 43, 104 v. 871, 876, 465 U.S. 29, S.Ct. 79 L.Ed.2d (1984)). 36 today

The Court reiterates that “[pjroportionality review seeks only determine particular whether a death sentence is aberra- tional,” 76, (internal ante at 735 A.2d at 530 quotation marks and omitted), but, citations as in Cooper, 55, State v. 159 N.J. 731A.2d (1999) (Cooper II), 1000 fails to make clear or even to mention the fact review is a search for death sentences not generally imposed. Cooper In supra, I accused the Court of having “changed produce standard to findings of proportionali- ty,” 167, id. at (Handler, J., 731 A.2d 1000 dissenting), and of narrowing its standard without explanation, 167-68, id. at 731 (Handler, J., A.2d 1000 dissenting). My doing may reasons for so seem somewhat obscure considering Supreme Court’s lan- guage Gregg, in supra, which refers to sentences that are the result jury’s of a aberrant acts as well as sentences generally not imposed. such, As general aberrational and imposition stan- expressions dards are principle; the same an aberrational sentence in the lexicon is a sentence that is not generally imposed. Court, however, This applies the aberrational standard a manner that is distinct from concept of propor- tionality put forth Gregg, supra, and a departure from purpose. its employed by Court, As the aberrational and general imposition standards “substantively are different” and III, supra, 159 N.J. at Harvey “inconsistent.” omitted). reason, the (Handler, J., For this dissenting) (emphasis standard, see general imposition interment of the quiet Court’s 530-31, response. A.2d at demands ante at definition, is, is one that disproportionate that is A sentence aberrance, as common- The notion of with others.3 not in balance Surely the understood,4 disproportionality. is used to denote ly Gregg, interpretations assumed such Supreme Court a jur[ies]” as of “aberrant designated the identification when it review. proportionality of purpose core deviant, odd, of say view an I dare adopted has This Court in, with, manifest and is indeed one which accords proportionality, The uses of aberrance. Court equally odd view the Court’s disproportionality of extreme in the sense term aberrance measure operative as the disproportionality that sense of applies decision, proportionality review sentencing. In most recent our of conducting proportionality review “Our aim declared: Court correlation, in degree of high a symmetry, or even is not to insure primary Our comparable defendants. imposed on sentences sen- prevention of aberrational objective is the detection (citation II, A.2d 1000 supra, 159 N.J. at 731 Cooper tences.” omitted). say, purpose Needless to is, does not that a sentence symmetry, that to insure insure is to generally imposed. from those differ another; 3 such relation of one "[d]ue as the part is defined Proportion thing the whole things a as renders or size, etc., between parts relation of agreement, Edition The balance, Compact harmonious; harmony.” symmetry, (1971). de- is English Inversely, disproportion Dictionary the Oxford etc.; lack of number, size, symmetry as: “want of quantity, fined proportion thing; things of the same or or number between part due relation of or quantity being Id. at 761. out of proportion.” the condition recog diverging straying a or from action of defined as: "the is Aberrance English vagary.” Dictionary, Edition course; Compact nized Oxford at 4. supra, compelled struggle meaning We are thus over the of “aberra- game, tional.” This is more than a word which I would not II, indulge. The in Cooper supra, Court’s statement was not nonchalant, Indeed, but was made with firm conviction. the claim symmetry required is not aphorism for is an for the Court’s method of review: the Court’s altered definitions reflect an application altered and restrictive of proportionality review, potentially one which has severe effects for capital defen- III, Harvey In supra, Cooper supra, dants. example, for great lengths the Court went to explain why the defendants’ death disproportional, sentences were not though even the sen- tences were not consistent generally imposed; with those it delved into minute detail in precedent-seeking review to find a rational explanation why similarly situated defendants were sentenced to life. III, Harvey

In justified the Court defendant’s death by distinguishing sentence it from the life sentences of two other similarly-situated defendants, Ploppert Charles and Lance Phil- lips. recognized The feature by the distinguishing Court as Harvey Harvey was that was older than the others. 159 N.J. at victim, 731 A.2d 1121. Harvey killed his woman her thirties, upon being surprised home; to find quickly her he did so and, apparently, pain with little to the victim. Ploppert and co- defendant killed a blind man known to the defendant after chat- ting him amicably with at his kitchen Ploppert table. beat the by man hitting unconscious him him, with his kicking fists and and 336-38, then set the man on fire. See id. at 731 A.2d 1121 A); 406-07, (Appendix (Handler, J., id. at 731 A.2d 1121 dissent- ing). Phillips accomplices and his cocaine, raided a house for shooting everyone there, they including found twenty-year-old a man, girlfriend, his seventeen-year-old girl eleven-year- and an girl. old The man was shot five times and died from his wounds. 335-36, A); See id. at (Appendix 406, 731A.2d 1121 id. at 731A.2d (Handler, J., 1121 dissenting). rely To on the age basis of Harvey’s determine that death sentence is not an aberration is fallacious. The Harvey Court’s distinction of Ploppert from and

105 acknowledges that the only if one Phillips understandable becomes disproportion. is for extreme Court’s search Gary II, compared the defendant to supra, the Court Cooper In six-year- by strangulation a Cooper raped and then killed Lippen. victim. suffering girl, apparently without extended old stabbed, “beat, strangled, raped, Lippen and his co-defendant the two took turns seventeen-year-old girl. After tortured a stick, victim, in the head with a Lippen beat her raping the jaw, her. The two co-defendants in the and kicked punched her 178, legs.” at her 159 N.J. her into a tree and broke then hoisted 136-37, (Handler, J., 731A.2d dissenting); see id. at A.2d 1000 attempts initial to evade inves- (Appendix). Despite Lippen’s and, indeed, lies, his convic- tigators with blame his co-defendant justify attempted to hindering apprehension, the Court tion for cooperation with by stating: “Lippen’s Cooper’s sentence death authorities, the likelihood that combined with law enforcement actor, for the probably accounts dominant Henderson was the Lippen.” Id. forego capital prosecution of prosecutor’s decision 1000. 731 A.2d II, III, Cooper Harvey supra, and decisions in From the Court’s and the reasonably that unless a defendant may infer one dissimilar, no death sen- entirely of the crime are circumstances review, finding By Court’s tence will be aberrational. That correspondence. requires an utter lack disproportionality review. proportionality contrary principles to the plainly is inconsistency standard Further, between a fundamental it breeds because, supra, “where all argued in goal as I Loftin another, one’s ultimately distinguishable from one defendants are aberration, disproportion- no less never be an death sentence can (Handler, J., dissenting). 157 N.J. at ate.” expanded has thus been proportionate sentences range is narrowed. The result disproportionality the measure of objective provide fails to an Court’s our adminis- ensure that that would assessment reasonably and consistent. coherent penalty is tration of the death only heightens hopelessly The Court’s narrowed review sub- jective 440-41, process. nature of the See id. at 724 A.2d 129 (Handler, J., dissenting); 273-75, Marshall 130 N.J. at (Handler, J., 613A.2d dissenting).

I, therefore, strongly urge proportional the Court to define as only generally those sentences that imposed are on similar defen- crimes; dants who recognize. have committed similar and as disproportional conform, those sentences that do not which would always manner, include aberrational sentences. In that propor- tionality may review against “serve[ ] as a check the random or arbitrary imposition penalty.” Gregg, of the death supra, 428 U.S. 96 S.Ct. at 49 L.Ed.2d at 893.

Concurring dissenting HANDLER —1. —Justice adoption For Justice PORITZ and modification —Chief POLLOCK, O’HERN, GARIBALDI, STEIN, Justices COLEMAN —6.

ORDER having previously The Court Appellate Ordered Divi- Presiding sion Judge David Special S. Baime should serve aas matter, Master in the within

And having report filed a with the Court that recommended, alia, inter appoint that the Court Superi- a retired judge or Court to serve as Standing Master to assist review, And having the Court Standing determined that Master adopted recommendation pursuant Judge should be Baime’s re- port, having

And the Court further determined that the work of Standing Master will be more effective and if develop- efficient implementation ment and approved modifications to the system by Judge are undertaken Baime in light Master, experience Special his as appearing; good And cause Appellate Division appointment

IT IS ORDERED shall continue Special as Master Presiding Judge David S. Baime Court; further and it is order of the pending the further review struc- revised that when the ORDERED who Standing Master appoint place, the Court shall ture is of the respect may, necessary, consult with as system. operation A.2d 548 CAVUOTI, L. PLAINTIFFS-AP- LINDA CAVUOTI AND JOSEPH CROSS-RESPONDENTS, v. NEW JERSEY AND PELLANTS SMITH, FINN, CORPORATION, AND R.J. DEBORAH TRANSIT CROSS-APPELLANTS, AND DEFENDANTS-RESPONDENTS (FIC- MCGITTIGAN, DOE AND RICHARD JOHN DOE AND ED ARE IDENTITIES WHOSE OF PERSONS TITIOUS NAMES UNKNOWN), DEFENDANTS. PRESENTLY August 1999. Argued 1999 Decided March

Case Details

Case Name: In Re Proportionality Review Project

Court Name: Supreme Court of New Jersey

Date Published: Aug 5, 1999

Citation: 735 A.2d 528

Court Abbreviation: N.J.