*1 For and remandment —Chief Justice WILENTZ affirmance CLIFFORD, HANDLER, POLLOCK, and Justices GARIBALDI and STEIN —7.
Opposed—None.
339 Foddai, General, Attorney argued the A. Deputy Catherine (Fred Jersey Attorney of New curiae General cause for amicus General, DeVesa, Attorney attorney). Acting Court was delivered opinion POLLOCK, J. defendant, incidents, Bey, sexually assault Marko
In unrelated
juries
defen
Separate
sentenced
women.
and murdered two
ed
Initially
both
we vacated
of the murders.
to death for each
dant
(1988)
Bey,
v.
112 N.J.
A.2d 846
State
In
548
death sentences.
Alston,
Cheryl
we reversed
(Bey
I),
murder of
involved the
which
not death
defendant was
and held that
the murder conviction
time of
eighteen
of
at the
age
he
eligible
was under
because
pur
remand,
guilty of
jury found defendant
the murder. On
court
trial
aggravated sexual assault.
poseful murder and
plus
imprisonment
of life
aggregate sentence
him to an
sentenced
In State v.
years.
forty
parole eligibility for
twenty years,
no
(1988)
II),
(Bey
the same
Bey, 112
decided
N.J.
Page Facts....................................................340 I. Proportionality Review....................................343
II. ................................343 A The Cases Universe Classifying ...........................345 Cases B. Method *6 Comparison III. of Cases.....................................350 Approach..............................350 Frequency
A. The 1. The Salient-Factors Test ...........................353 Numerical-Preponderance-of-Aggravating-and- 2. The Mitigating-Factors Test...........................358 3. The Index-of-Outcomes Test........................362 Precedent-Seeking Approach.......................366 B. The 1. Relevant Factors...................................366 Comparison Bey’s of Marko to Similar ... Case Cases a. The Cases......................................369 Comparison.................................382 b. The 3. Other Cases........... Impermissible IV. Race an Factor..........................388 V. Conclusion...............................................396
-I-
FACTS
surrounding
facts
the murder of Carol Peniston are set
II,
Bey
supra,
131-33,
Bey
112 N.J. forth in
548 A.2d
and
III,
supra, 129 N.J.
On Neptune around 9:20 Carol Peniston left School, High course, computer where had she attended a and had away later, driven in her Approximately car. four hours car was involved a one-car accident in finger- Newark. Defendant’s prints Peniston, on were mirror. rearview Ms. who had been alone, apartment divorced lived neither returned to her nor reported day. to work next 3,May Asbury police
On body Park discovered Ms. Peniston’s building. a shed near an autopsy performed industrial An on May 4 disclosed that had days. she been dead for several autopsy beaten, further that sexually disclosed she had been assaulted, strangled. From imprint her sneaker on chest and from evidence of hemorrhaging right fractured ribs and column, lung, right heart, vertebral atrium of the the Mon- Ms. County medical examiner concluded that Peniston’s mouth stomped on The ultimate cause of her her chest. assailant had death, however, Subsequent police ligature strangulation. was spermatozoa investigation the characteristics revealed those of defen- on coat were consistent with found the victim’s saliva, imprint an sneakers bore dant’s and that defendant’s impression chest. similar to the victim’s was defendant, 6,May eighteen only had three who turned On earlier, receiving property, stolen Ms. was arrested for weeks custody, police defendant Peniston’s After five hours car. *7 murder. confessed to the statement, gave a in which he admitted
Defendant
then
written
apartment
of her
he
Ms. Peniston
front
that
had accosted
building
money from her. The statement contin-
and demanded
coming,
grabbed
someone
he
her
ued that when defendant heard
events,
ensuing
repeatedly
he
led her to the shed.
In the
dollars,
Peniston,
her,
eight
sexually assaulted
and took
struck Ms.
way
pocketbook.
to
keys,
from her
While
his
as well
the car
car,
car.
he
accident and abandoned the
Newark
her
had an
him
capital
and sentenced
juryA
convicted defendant of
murder
jury’s finding
from
of two
sentence followed
to death. The
torture, depravity
had “involved
aggravating factors:
murder
victim,”
mind,
N.J.S.A 2C:11-
aggravated
to the
an
assault
of
(the
3c(4)(c)
c(4)(c) factor),
had
committed in the
and it
been
factor).
(the c(4)(g)
2C:ll-3c(4)(g)
felony,
of
N.J.S.A.
course
conviction,
jury
mitigating factors. We affirmed
found no
sentence,
the court had
primarily because
reversed the death
but
II,
Bey
factors.
incorrectly
jury
mitigating
on the
charged the
166-71,
On same Peniston, also vacated his we for the murder of Carol sentence prior murder and sexual conviction and death sentence 51, I, A.2d Bey supra, 112 N.J. at Cheryl Alston. assault decision, was not death that defendant we held murder before committed the Alston eligible because he had Ibid. eighteen. On re-trial for the Alston reaching age of murder and murder, guilty purposeful found defendant aggregate an sentence assault. He received aggravated sexual years, forty years parole plus twenty imprisonment life conviction, 258 Appellate Division affirmed the ineligibility. The certification, 130 N.J. N.J.Super. denied 610 A .2d and we (1992). 611 A.2d murder, the State re-sentencing trial for the Peniston At the previously defendant had been proffered aggravating two factors: Alston, murder, N.J.S.A. Cheryl 2C:11- that of convicted of a 3c(4)(a) (the c(4)(a) factor), and the Peniston murder had occurred c(4)(g) robbery, the factor. Defendant during a sexual assault and factors, argued four aggravating but did not contest these outweighed them: “defendant was under the mitigating factors disturbance,” N.J.S.A. mental or emotional influence of extreme (the c(5)(a) 2C:ll-3c(5)(a) factor); age at the time of defendant’s 2C:22-3c(5)(c) (the c(5)(c) factor); murder, “defen- N.J.S.A. wrongfulness appreciate the of his conduct or capacity dant’s signifi- requirements to the of the law was conform his conduct of mental disease or defect or cantly impaired as the result (the c(5)(d) 2C:ll-3c(5)(d) factor); intoxication,” and the N.J.S.A. “[a]ny factor which is relevant to the catch-all other *8 factor — or record or the circumstances of the of- defendant’s character 2C:ll-3c(5)(h) (the e(5)(h) factor). fense,” N.J.S.A. jury unanimously aggravating found factors. Two both disturbance, c(5)(a), and
jurors
mental or emotional
found extreme
c(5)(h).
factor,
jurors
jurors
None of the
six
found the catch-all
c(5)(c),
significant impair
age,
or the
found that either defendant’s
faculties, c(5)(d),
mitigating
was a
factor.
ment of his moral
Furthermore,
beyond
that the
the
found
a reasonable doubt
mitigating factors.
aggravating
outweighed the two
two
factors
III,
Bey
to death.
Consequently, the court sentenced defendant
576,
supra, 129
N.J.
-II-
REVIEW
PROPORTIONALITY
2C:ll-3e,
Capital Punishment Act
a section of the
N.J.S.A.
(the Act),
review
a defendant’s
requires
proportionality.
sentence, considering
request
whether the death
to determine
defendant,
disproportionate to
is
both the crime
1985,
general,
imposed in
cases. L.
c.
In
penalty
similar
478.
penalty
imposed fairly
must
and with reasonable consis
death
be
“
tency.
disproportionality
‘[A]
The test of
is
death sentence
comparatively
other
excessive if
defendants with similar charac
generally
other than death
commit
teristics
receive sentences
”
jurisdiction.’
factually
State v.
ting
similar offenses
the same
(1992)
Marshall,
109, 131,
(citing Tichnell
130 N.J.
Before preliminary questions regarding the universe of first must answer classifying those cases. eases and the method of
-A- THE OF CASES UNIVERSE Marshall, relevant of cases. defined the universe we Preliminarily, must decide we 130 N.J. at A.2d Act, 12, 1992, which May follow the amendment to whether to comparison similar cases proportionality limits review to L. imposed, c. actually has been which the sentence death cases that are we should continue to consider all whether did not eligible, including those in which the State death cases penalty. seek designed to také effect immedi-
Although the amendment was apply should ately, Legislature did not indicate whether it *9 344 pending apply the amendment to appeals. If we were to
pending it is unconsti obligated to consider whether appeals, would be we in Marshall post law. We decided tutional as an ex facto appeal, we would review the long pendency of that because of the 119, A.2d 1059. prior under the law. N.J. sentence challenge under rejected proportionality Marshall’s Because we law, affected the outcome prior amendment would not have same conclusions here. Ibid. We come to the that case. 1983, 26, April sixteen Peniston on Defendant murdered Ms. Defendant’s murder of Robert Marshall’s wife. months before the initial sentence on appeal pending since his death has been eight years the effective more than before September Marshall, reject defendant’s As in we date of the amendment. reasons, For challenge under the old law. these proportionality constitutionality of the amendment. We we decline to address the Thus, as in apply pre-amendment in its form. shall the statute Marshall, that are of cases consists of those the relevant universe capital they prosecuted if cases. eligible, even were
(cid:127) identifying procedure for the universe summarizes the Marshall A.2d 1059. the Marshall of cases. Id. at Since (AOC) decision, has as the Administrative Office Courts Special C. Baldus for responsibility from Master David sumed the statistics, maintaining compiling cases. the data base of Special procedure, as modified has followed the Master’s the AOC Bey The universe of cases for opinion our in Marshall. death-eligible committed from 1983 to of 266 homicides consists proceeded penalty phase. After oral 117 of which supplement the rec argument, granted defendant’s motion we 25, 1993, compiled that had been since March ord with data Bey’s appendices and tables for last revision of the date of the (the information, Bey Report). This which proportionality review 25, 1993, compiled through of cases June constitutes the universe (the Martini Marti pending proportionality review John for the death- universe of cases to 298 Report), increases the relevant ni phase. offenses, penalty-trial proceeded to the eligible 125 which
345 any in this will affect these data case Our consideration of review. proportionality in his argument proffered Martini -B- CASES METHOD OF CLASSIFYING cases, next convert that Having the universe of we determined In Mar comparison purposes. base universe into the data shall, analyzed ways. in first method the cases two we clinical, analyzed priori, approach, in which we followed an experience proba has according that shown the cases to features 141—42,144, Id. at 613 bly A.2d influenced the decision. life/death analyzed empirical an one: we approach 1059. The second was explained the according to characteristics that best the cases 142-43, Id. at actually A .2d 1059. imposed. 613 sentence methods, advantage of Following Special “[took] Master’s we the of the to sort out the cases on basis the available data charging prosecutors process that both characteristics Id. juries process deem most relevant.” in the deliberative A 613 .2d companion to be a coding of cases continues variables Attor- Public Defender and the between the
source of contention
Marshall,
recognized their differences and
ney
General.
we
Id.
developing
urged
cooperate
data base.
them
then,
meetings
AOC
conducted
Remaining are first raised some issues coding questions reliability again One issue here. although as thirty-four cases remain coded death-sentenced errors, improper instructions. for various such reversed 346
Specifically,
the cases
defendant identifies errors
all seven of
(State
involving prior
Biegenwald,
murder convictions
v.
106 N.J.
(1987)
IA);
13, 53,
Biegenwald,
(Biegenwald
130
State v.
524 A.2d
(1991)
1, 8,
IB);
(Biegenwald
Coyle,
126 N.J.
594A.2d 172
State v.
194, 218-20, 220-21, 229-32,
(1990);
If we exclude these seven
cases
cases,
pool
Bey
from the
of death-sentenced
would remain as the
only prior murderer whose death sentence we affirmed. That fact
not'compel
finding
Bey’s
alone would
that
death sentence is
Marshall,
disproportionate.
In
we faced a similar situation. We
“simply
may
that
[contract-
stated
because Marshall
be the first
killer to receive an affirmed death
does not mean that
sentence]
disproportionate
his death will be
under our statute.”
347 death previously of murder and whose sentence been convicted affirmed, disproportionate. need not be that sentence was
Furthermore,
suggestion
we decline
follow defendant’s
cases
life-sentenced cases those death-sentenced
to re-code as
code
reversed. The AOC continues to
which the sentence was
Marshall,
we stated
cases as death-sentenced
cases.
these
Master,
believe,
[Special]
...
does the
that
as
“[w]e
trials,
reasons, most
although
for various
original penalty
reversed
issues, have reflected
burden-of-proof
often
Gerald
Id.
juror
of deterrent effect.”
values of deathworthiness
terms
phrase
A.2d
“Gerald issues” derives
194 n.
holding in
“that a defendant who
our
State v. Gerald
from
injury
causing
bodily
knowingly
or
‘serious
purposely
convicted
resulting
opposed
...
to one who is convicted
death’
as
may
subjected to
knowingly causing
...
not be
purposely
(1988).
40, 69,
Mar
penalty.”
We therefore
treat
death-sentenced
case that
resulted in a death sentence but that was reversed. As we stated
Marshall,
acknowledge
in
been
“[w]e have
candid to
that there is
infallibility
frequency
in
no scientific
data that we cite.” 130
Indeed,
above,
5,
at 169 n.
N.J.
We
Master,
adopt
Special
we
“a
recommendation
the
that
should
presumption that reversed death sentences are invalid
rebuttable
406,
Post
at
disproportionate under the first to receive defendant must be grim fact is that some The penalty. the death
-III- OF CASES COMPARISON the universe of cases After the Court has determined cases, coding step proportionality third those the criteria according to the group cases to similarities relevant review is to Marshall, mea we selected determination of deathworthiness. blameworthiness, on culpability, based our consider sures of mitigating statutory aggravating and factors and of both ation nonstatutory “objectively-verified measures of factors based A.2d 1059. Id. at 613 blameworthiness.” ways:' factors in two the fre We then evaluated these analysis. frequen quency analysis precedent-seeking computes frequency of death sentences within a cy analysis depends analysis that cases. It on a statistical pool of similar appropriate consensus that death is the measures the societal Baldus, C. Death penalty in the measured cases. See David Project, Report Penalty Proportionality Review Final New 1991) (Final (Sept. Report). The Jersey Supreme Court intuitive, comparing analysis is more a defen precedent-seeking factually-similar that of defendants dant’s deathworthiness with Combining analyses helps to Id. at 30-31. these two cases. proportionality of a reliability of our evaluation ensure pool of remains small. As defendant’s death sentence. The cases heavily frequency expands, rely more on the pool we can rely heavily analysis. being, we are forced to more For the time analysis. precedent-seeking on the
-A- FREQUENCY THE APPROACH frequency analysis consists of three different methods test, the nu- assessing culpability: the salient-factors criminal test, merical-preponderance-of-aggravating-and-mitigating-factors Marshall, N.J. supra, 130 and the index-of-outcomes test. analyses that assess the A .2d 1059. These tests are statistical compared to other defen culpability of a defendant when criminal frequency approach a form of statistical dants. Because the is necessarily underlying steeped in the analysis, our discussion data.
Generally more as speaking, statistical results become reliable grows two sample the data increases and the correlation between higher frequency “[t]he we stated that variables. Marshall cases,’ among comparison group of ‘similar of a death sentence is propor that the sentence the more certain the determination strictly frequency, the more the Court tionate. The lower impermissible for of possible the case influence must scrutinize “ rule, 153, general As a ‘[a] 613 1059. death factors.” Id. at A.2d comparatively if other with simi sentence is excessive defendants generally other than death for lar characteristics receive sentences ” jurisdiction.’ committing factually similar offenses the same Tichnell, 153-54, supra, 468 (quoting A.2d A.2d at Id. at 613 1059 18). however, “Generally,” require not rate n. does threshold 17 152-54,167, fifty percent. 613 1059. Even if the Id. A.2d over as fifty percent, than it could serve evidence frequency were less sentence, if reliability particularly confirmed of of 154, 167, analysis. A .2d Id. at 613 1059. precedent-seeking 1059, Marshall, 265-67, 130 A.2d Justice As N.J. at 613 722, set post at A.2d at that we a more urges, Handler analysis general specific frequency in the than that standard standard, general comparability sentences. A with other death In admittedly imprecise, necessarily arbitrary. not although is deed, applies generally is antithesis one that a standard that Marshall, Hence, arbitrarily. 130 N.J. applies specifically the standard for more A.2d we decline define defining acceptable frequency imposition an for the the death penalty.
’852 only to determine wheth
Proportionality review seeks aberrational, whether it particular death sentence er a A.2d Id. at perfectly with other sentences. compares disproportionali every disparity establishes Not statistical tests, conclude that defendant’s conducting all three we ty. After random nor aberrational. is neither death sentence might dispro- death sentence seem glance, defendant’s At first (117/266) forty-four percent of the Bey Report, portionate. In the penalty-trial proceeded to the death-eligible in the universe cases (34/117) cases result- only twenty-nine percent of those phase, but added, the Martini data are When the ed in a death sentence. (125/298) forty-two percent approximately the same: ratios remain penalty phase and death-eligible proceeded to the cases (38/125) resulted a death sentence. thirty percent of those cases comparison is not all death- significant The more basis cases, only characteristics rele but those with similar sentenced Marshall, and death. sentencing decision between life vant to the to death whose example, only defendant sentenced was death-eligible eases among all 227 sentence was affirmed *16 24, September 1991. 130 N.J. at penalty-trial cases as of and 113 Yet, 166, his sentence not to be A .2d 1059. we found 613 1059. Marshall’s status as disproportionate. Id. at 613 A.2d category cases with put him a one who hired a contract-killer likely a death sentence. more than not received defendants who here, 166-67, that of all 1059. So the data show Id. at 613 A.2d those, defendant, prior deathworthy like with a murder defendants conviction, penalty. frequently receive the death more him in
Preliminarily,
urges that we should not include
defendant
compare
case to
be to
his
study
because to do so would
Marshall,
good
for both in
recognized
reasons
himself.
In
we
Thus, we
excluding a
case from review.
cluding and
defendant’s
Id. at
under both alternatives.
decided to review the statistics
Here,
approach.
use the same
Among cases in the the seventeen murder, seventy-five percent prior of a dants had been convicted (9/12) reaching penalty-trial phase re- of these defendants (9/17) of all fifty-three percent penalty, the death ceived penalty. figures the death death-eligible defendants received are: Eligible
Penalty Trial Death ' (9/17) (9/12) .53 Including Bey .75 (8/11) (8/16) Excluding Bey .50 .73 Martini’s compiles data for John Report, which The Martini cases, review, death-eligible of which all proportionality adds three additional cases are penalty phase. When these proceeded to the sixty considered, high: including Bey, percent remain the ratios (9/15) conviction who prior murder of the defendants with forty- penalty, and penalty phase received the death reached the (9/20) eligible who were death percent of all such defendants five penalty. received the death prior murder death-sentencing rate for defendants Report Martini Bey Report and the both the
convictions principals death-sentencing for contract-killer rate exceeds the Marshall, we A.2d 1059. Marshall. Id. at such as death-sentencing rate significant thirty-three-percent found *17 twenty-five-percent death-sen- cases and a among penalty-trial A.2d among death-eligible cases. Id. tencing rate most By comparison, death-sentencing rate cases higher illustrates a correlation between similar to defendant’s case prior murder conviction and a death sentence. figures even-higher These correlation when the illustrate an factually pool comparable is cases more narrowed include Bey’s A case significant defendant’s case. factor murderer, being Bey addition to a two-time committed his second juries regard during murder Prosecutors and sexual assault. blameworthy prior highly defendants have a murder those who either conviction and whose current case involves one additional (the particular aggravating circumstance or violence terror factor). Bey Report In thirteen cases in the violence/terror involv: murder, ing prior juries defendants who had convicted of a been or the aggravating found one additional circumstance violenee/ter- (8/8) cases, Among percent ror factor. reach- those one-hundred ing phase penalty, penalty-trial resulted in the death (8/13) sixty-two percent death-eligible of all cases resulted penalty. figures death are: Eligible
Penalty Trial Death (8/8) (8/13) Including 1.0 .62 Bey (7/7) (7/12) Excluding 1.0 .58 Bey Again, high these ratios remain when we consider the relevant (8/9) percent Report: eighty-nine data from the Martini of all (8/14) fifty-seven percent reaching penalty phase, cases death-eligible category all cases in this resulted sen- tence. validity disputes results
Defendant
these
on several
First,
argues
grounds.
he
that the cases most similar to his are
indicators of
the sentences in
reliable
deathworthiness because
fraught
procedural
other
those cases are
errors.
argument
questionable
proceeds
if these
cases were excluded
pool
from the
cases
coded as
of death-sentenced
and instead were
cases,
death-sentencing
much
life-sentenced
rate would be
*18
345-349,
however,
above,
supra at
reasons set forth
lower. For
them.
shall continue to include
Conse
645 A.2d at
we
death-sentenced cases those
quently,
shall continue to treat as
we
Therefore,
reversed the death sentence.
cases in which we have
should remain
initially
resulted
a death sentence
the cases
Marshall, supra, 130
factually-comparable cases.
pool
in the
n.
194 n.
Third, categories of other defendant asserts that high of death sen- rate comparable cases do not demonstrate the results of the particular, points to tences. defendant pool in the robbery The cases. sexual-assault sexual-assault and cases, involved a thirty-five none of which Bey Report consists of eigh- death-sentencing rate prior murder conviction. twenty-eight percent reaching penalty-trial phase is cases teen (5/35) thirty-five death-eligible (5/18), for all percent fourteen limited, defendant analysis were pool. If the cases factor, contends, the death- to cases with the violence/terror (5/14) thirty-six percent slightly sentencing rate increases (5/26) death-eligible percent penalty-trial cases and nineteen figures are: resulting penalty. the death eases Penalty Eligible Trial Death (6/36) (6/19) including Bey .32 .17 Sexual assault (5/35) (5/18) excluding Bey .28 .14 Sexual assault (6/27) (6/15) including Bey .40 With violence .22 (5/26) (5/14) excluding Bey .36 With violence .19 *19 added, Martini data are approxi- ratios remain the When the (7/44) Bey, all mately including percent sixteen of the same: sentence, cáses a death and death-eligible sexual-assault received (7/20) thirty-five penalty cases percent proceeding of these the phase the death sentence. When we narrow our focus to received factor, twenty- exhibiting the sexual-assault eases violence/terror (7/34) death-eligible forty-four percent percent one of all cases and (7/16) cases, including Bey, received a sen- penalty-trial of tence. ninety robbery pool Like the in the includes cases. cases prior pool, involved a murder
sexual-assault none of these cases robbery Bey. Consequently, pool the does not include conviction. Thirty robbery-pool proceeded penalty phase. cases to the of (6/30) cases, Among twenty percent resulted the death those (6/90) percent death-eligible all penalty; only seven cases this category penalty. received the death As with the sexual-assault pool, sub-group category exhibiting in this the vio- cases significantly factor increase the does not death-sen- lence/terror tencing thirty-four in this rates for robberies. Of cases (4/13) thirty-one penalty-trial pool, percent smaller of the cases (4/34) percent death-eligible and of all cases resulted in a twelve figures death sentence. The are:
Penalty Eligible Trial Death (7/31) (7/91) Robbery including Bey .23 .08 (6/30) (6/90) Robbery excluding Bey .20 .07 (5/35) (5/14) including Bey With violence .36 .14 (4/13) (4/34) excluding Bey With violence .31 .12 change the The Martini data do significantly death-sentenc- Excluding Bey prior of his murder convic- ing rate. —because (7/33) twenty-one robbery proceed- cases percent of all tion — (7/100) such penalty-trial phase percent of all ed to the seven cases, defendants, including death-eligible resulted in the death penalty. death-sentencing
Although agree we with defendant robbery pool lower pool in the and the are rates sexual-assault prior-murder-conviction pool, rate difference than the in the Bey categories meaningless. these as defined Both murder Martini Reports prior cases convictions. exclude Alston, Bey prior Cheryl murder of convicted of Because was categories in which case is not included cases his even only robbery. As a sexual assault defendants have committed above, is one most prior murder conviction demonstrated Martini, Bey In both significant indicia of blameworthiness. (9/14) having percent death-eligible all cases two sixty-four conviction, factors, murder prior of which is a aggravating one *20 Therefore, compare in defendant’s resulted a death sentence. robbery, but not involving to cases a sexual assault or case conviction, disregard prior involving a murder is to one sentencing prior murder influential elements death most —the conviction. moreover, above, pool of a smaller cases accounts
As outlined prior murder convictions whose crimes exhibit for defendants with factor, aggravating factor or the one additional violence/terror robbery. during murder the course a sexual assault or such as Bey’s are like Neither with both characteristics most case. Cases Bey Report Report Martini these indicates which of the nor the a sexual assault or aggravating the factor was cases additional Prosecutors, however, robbery, frequently seek the or both. involving assaults. penalty prosecuting murders sexual death when therefore, believe, jury Report, supra, at 81. We Final that blameworthy prior murderers who highly convicted would deem subsequent conjunction murder. a sexual assault commit measure, not show that the data do the salient-factors Under other than Bey generally receive a sentence similar to defendants like contrary, demonstrate that defendants To the the data death. during again kill a sexual and who Bey, have killed before who Indeed, having assault, blameworthy. defendants highly are aggravating factor an additional prior murder conviction and sixty-two percent of the time. The penalty receive the death compa- sixty-two percent of all imposition penalty death reliability strong death-eligible evidence of rable eases death sentence. defendant’s THE NUMERICAL-PREPONDERANCE-
OF-AGGRAVATING-AND-MITIGATING-
FACTORS TEST subject compares the case numerical-preponderance test aggravating mitigating having number of with cases the same analysis, the purely quantitative test factors. In addition to this juries qualitative place attempts account for the value also mitigating factors. aggravating on certain case, jury aggravating and two found two defendant’s factors, Concerning aggravating mitigating factors. prior convicted of a murder and found that defendant had been during a sexual assault and he had murdered Ms. Peniston factors, jurors robbery. mitigating two found that defendant For disturbance, and six found that from extreme emotional suffered application to the catch-all factor. Unlike he was entitled Marshall, an numerical-preponderance test in which reflected mitigating two infrequency of sentences for cases with factor, application of that test only aggravating factors and one one, mitigating factors and two to cases such as this with two *21 factors, high frequency of death sen- aggravating demonstrates a jurors twenty penalty-trial cases in which tencing. Among the circumstances, mitigating aggravating and identified the relevant sentence, them, fifty-five percent weighed then returned a and Report, The Martini (11/20) which resulted in a death sentence. cases, slight death-penalty in the rate three shows a increase adds (13/23). fifty-seven percent argues frequency death-sentencing rates that the Defendant mitigating having aggravating factors is low and two for cases two forty- Among are death-eligible all cases considered. when twenty-six only percent death-eligible category, in this three cases (11/43) figures penalty. These are summa- received the death rized: Eligible
Penalty
Death
Trial
(11/43)
(11/20)
Including Bey
.55
.26
(10/42)
(10/19)
Excluding Bey
.24
.53
Report, which includes five additional
death-
In the Martini
(13/48).
cases,
twenty-seven percent
eligible
the rate is
sentence,
consider
agree
probability
of a death
We
mitigat
death-eligible
aggravating
with two
two
ing all
cases
factors,
death-sentencing
low. The
rate
ing
comparatively
is
cases, however,
for cases
higher
is much
than
rate
such
all
death-penalty
death-eligible
for all
to Marshall. rate
similar
factors,
mitigating
two
as was the
aggravating
with one
cases
Marshall,
(3/44)
including
percent
Marshall
was seven
case
(2/43)
Notwithstanding
frequen
excluding him.
those
percent
five
cies,
proportionate
was
found
Marshall’s death sentence
we
factor,
N.J.S.A
aggravating
payment-for-murder
because
2C:ll-3e(4)(e)
(the c(4)(e) factor),
above-average
an
produced
Id. Similarly, when
death-sentencing
360 compared be to argues that his case should
Defendant further
three,
two,
mitigating factors.
additional
not
cases with
age,
he was
he
is his
because
mitigating factor that
claims
No
he murdered Carol Peniston.
eighteen years old at the time
however,
mitigating factor.
jury,
age
found
to be a
member of
defendant,
jury’s rejection
age
of his
as a
According
irrational. Defen
indicates that the verdict is
mitigating factor
significant
mitigating
argues
age
the most
dant
is
by jury
a
to be relevant
and is the factor most often found
factors
(stating
Report, supra, at 92
sentencing
See Final
decisions.
effect”).
(5c)
mitigating
His
age
greatest
has the
“defendant’s
(6/83)
death-eligible
only
percent
of all
argument
that in
seven
(6/41)
percent
proceeding
eases
to the
and fifteen
all
cases
mitigating
a
factor did
penalty phase
age
in which
was found to be
penalty. The Martini data increased
jury return the death
(7/43)
penalty-trial
slightly
percent
with
of all
the rate
sixteen
(7/91)
death-eligible
resulting
eight percent
of all
cases
cases and
Furthermore,
proportionality
because
re
penalty.
in the death
factors,
non-statutory
invites us to recon
defendant
view includes
jury rejected
persuasive than
that the
or found less
sider factors
the invitation.
others. We decline
Bey
jury
failing
not erred in
held in
III that the
had
We
age
mitigating factor.
Other
sentencing
example, when first
age
mitigating
factor. For
beat,
Dixon,
sexually
eighteen at the time he
Phillip
who was
contacted,
girl,
jury failed to
thirteen-year-old
and murdered
Dixon,
age
mitigating
factor.
v.
125 N.J.
find
to be
State
(1991);
A.2d 266
Detailed Narrative
Summaries
Summaries).
(Detailed
Dix
Narrative
Eligible
Death
Cases
*23
case,
appeal.
In
as in
sentence
reversed on
that
on’s death
was
however,
III,
jury’s
age
mitigating
failure
find
to
Bey
the
to
be
Dixon,
sentence. See
factor
not a reason to reverse the death
was
III,
266; Bey
supra, 129 N.J. at
supra,
at
593 A.2d
125 N.J.
613,
In we are Marshall, sentencing jury Bey sentencing jury in the Like the factors, mitigating aggravating and but a number of considered eighteen fact only mere that defendant was found some. The jury mean that the must murdered Ms. Peniston does not when he law. mitigating as a matter of Our youth find to be a factor his factors, including contemplates juries reject will some system that juries may age mitigating find factor in age. Although to be cases, every many they not so find it case. need Moreover, non-statutory does factors not our consideration reject jury findings. mayWe the entitle to overrule the us role, might disagree with them. Our as jury’s findings even if we stated, might be the that previously is to search aberrations analysis, frequency we will impermissible factors. result of to found relevant only jury those factors consider By comparison, precedent- penalty. in the imposition of the death objective to analysis, expand we our review include seeking will record even if the did clearly present are factors that We not include these additional to be relevant. will not find them analysis of the need to maintain frequency because factors in the Otherwise, obliged we would be uniformity of the statistics. for each case in the universe and recalculate the ratios reconsider recognize our judicial generally, we must review of cases. As proportionality limits in review. here, did on review of argues as it direct
The dissent 632-48, conviction, at 610 A.2d Bey’s see 129 N.J. experts, report of one of the State’s court’s exclusion of the
trial Bey’s Cooke, permit leading questions of its refusal to Dr. mother, harmless error. Post could not have been Further, asserts that harmless-error the dissent A.2d at 724. 414-418, death-penalty Post at analysis place in eases. has no however, believe, did on we A.2d at 725-727. We continue errors were harmless. 129 N.J. appeal, that the asserted direct review is not to proportionality role in 610 A .2d814. Our appeal but to deter rulings made on direct second-guess that we defendant, imposition if of the death sentence on mine defendants, imposed on other compared to sentences when death-penalty point, case or aberrant. At some even irrational must end. THE INDEX-OF-OUTCOMES TEST identify the charac- approach seeks “to
The index-of-outcomes
degree
of blame-
to the cases
terms of their
teristics common
*24
Marshall,
juries.”
by prosecutors
perceived
and
worthiness
organizes
It
cases accord-
supra, 130
When consider cases, Bey among penalty-trial ity a death all sentence extending ninety-six percent, range from fourteen to within a fall percent. to defendant’s case sixty-seven Eleven cases similar (60-80% culpability). The overall culpability level four within eighty-three percent death-sentencing rate for these cases is Martini, (10/12). receiving Bey’s probability of predicted sixteen sixty-two percent, with a lower limit of sentence is ninety-four culpability percent upper percent. an limit of At sixty- four, level, death-sentencing rate is level defendant’s (10/15). percent seven *25 eases, predicted probability of a
Among death-eligible all percent, twenty-five is with case death sentence defendant’s sixty-one limit percent upper of and an of limit seven lower eighteen similar to defen- percent. comparison includes cases two, level, overall culpability In level defendant’s dant’s case. (11/19). Martini, percent In death-sentencing fifty-eight rate 364 thirty-
Bey’s
probability
receiving
of
a death sentence is
predicted
percent
upper
an
limit
percent,
a lower limit of ten
three
with
place
culpability
him in
level
sixty-eight percent. This would
(12/23).
two,
death-sentencing
fifty-two percent
has a
rate of
which
Marshall,
constrained,
as we were
the small
We are
of blameworthiness as defen
sample of cases with the same level
“
Marshall,
much
solid basis for
case. As in
“wehave a
less
dant’s
saying
like his either will or will not be associated
that cases
”
frequent
sentencing
long
over the
run.’
Culpability Culpability Range Sentencing Rate Level Death ( 0/33) 1 0-.0019 0% ( 0/19)
2 .0019-.012 0% ( 1/21) .012-.145 5% (10/23) .145-.89 43% (28/29) .89-1 96% inescapable problem culpability with defendant’s modified four, ranges they is that consist of dissimilar cases. level level, culpability range of cases is vast: a case defendant’s having is in the an overall blameworthiness index .145 same comparison group having as a case a blameworthiness index of .89. Thus, signifi- level four includes cases in which defendants have cantly culpability. example, different levels of For defendant’s Hicks, culpability Joseph four extended version of level includes culpability has a ratio of .15. Hicks shot his victim once who *26 marijuana. Detailed during struggle over a sale of a the head Summaries, at four also includes supra, 126. Level Narrative Muscio, Muscio culpability ratio .16. who has Nicholas her during robbing a woman course repeatedly stabbed Joseph Guagenti, 208. another defendant apartment. Id. at level, culpability ratio of .18. He culpability has a included this dancing and ex-girlfriend his at where she was was a bar shot Finally, Ray- boyfriend. Id. 113. time with a new spending culpability of .20. He beat then mond Kise has a ratio called neighbor of because the victim drowned a his co-defendants drinking in girlfriend group of men were a “slut” while Kise’s Id. apartment co-defendants. of one prior murder Bey, none of these defendants had Unlike Guagenti they sexually their victims. Nor did assault conviction. hospital for psychiatric fifteen been committed to a forensic had attempted following the depression and had suicide months for relationship victim. Kise was intoxicated. break-up of his with his culpability comparable Bey, who has a These defendants are stomp- assaulting, beating, strangling, sexually of .76 for level Peniston, victim, prior for and who had a conviction ing his Carol Cheryl murdering Alston. Be- beating, sexually assaulting, and case, Bey’s they should be are dissimilar from cause these cases comparable Although Special pool of cases. excluded from the expanded be to include pool noted that should Master he never said comparison purposes, number of cases for sufficient dissimilar cases. pool should include constituting the types analyses of the three overall result capital-sentencing rate that the frequency approach demonstrates is not random aberra- prior murderers such as defendant for showing has reliable evidence Defendant failed offer tional. his, generally other than death similar to a sentence cases imposed. -B- *27 THE PRECEDENT-SEEKING APPROACH part proportionality The second of prece- review involves the dent-seeking analysis. analysis, supplements This which the fre- quency approach, is a less mechanical and more traditional case- by-case comparison death-eligible of similar cases. As with the frequency analysis, study incorporates only our cases decided 24, 1993, March Bey Report, the date of the but also cases 25, through 1993, June Report. the date of the Martini precedent-seeking analysis persuades also us that defendant’s disproportionate. sentence is not
1. RELEVANT FACTORS
Marshall,
In
the Court extended the factors
in
involved
precedent-seeking approach beyond
statutory
factors to in
“objective
clude other
criteria
rooted
traditional sentencing
guidelines.” 130 N.J. at
(citing
A.2d 1059
N.J.S.A. 2c:44-
1). The Court identified three
culpability
elements of criminal
examples
types
155-59,
of the
of such additional factors.
Id. at
universe
cases that we
frequency analysis.
considered
Here,
Id. at
Defendant
comparison
those
argues
group
He
that the
should include
cases.
factors,
juries
mitigating
found certain
such as
cases which
disturbance,
abuse,
age,
or emotional
history
of child
mental
remorse,
prosecutor
plea
or in which the
offered the defendant
selecting
bargain.
argument misperceives
method of
comparable
Initially,
death-eligible
cases.
from the universe
all
cases,
according
we
a class of eases
to their salient factors.
select
factors,
which differ from
Id. at
The salient factors for age (although only eighteen penalty his he when are not was Peniston), infirmity, history alleged his mental he murdered Carol remorse, abuse, expression that he was of or the fact of child Rather, plea bargain. Bey’s that a essential attribute is offered assaulting sexually murdering he before was convicted sexually Peniston, assaulting and he been convicted of Carol had earlier, mur murdering Cheryl two-time Alston. As we stated blameworthy Supra at among is the most defendants. derer 352-353, fifty-two Only A .2d 694. eleven cases at prior conviction. murder defendant offers “similar” involve Marshall, that do not exhibit As in we decline to consider cases of the case under review. the salient factors comparable identify group of Having how to determined cases, compare those cases. Defendant we now turn to how only sentencing proposes the factors that that we consider found, age, or jury rejected, such as jury those that the but also asserted, factors that defendant never such as intoxication or the plea bargain. offer of a above, Marshall we
As discussed distinguished similar cases range based on a broader statutory aggrava of factors than the ting mitigating factors. expanding range The reason for accurately juries factors was to reflect more the factors consid determining impose er when penalty. whether to the death N.J. If, however, 613A .2d1059. evidence of a factor is not objective jury, or was not submitted to a we will not consider it. Thus, although the expressly statute does not include factors such abuse, as child if evidence of such clearly present abuse is on the record, it, likely Here, to consider as will we. sentencing jury did not hear evidence that the State had offered plea bargain, defendant a intoxicated, that defendant had been prison defendant had not served time for the Alston murder. Hence, we will not consider evidence of those factors. will, nonetheless, abuse,
We
age,
consider defendant’s
child
objective,
remorse. These factors are
rooted in traditional sen
tencing guidelines,
clearly presented
were
sentencing jury,
to the
likely
and are
jury’s sentencing
influence a
decision. As we
indicated,
have
although
jury rejected
age
separate
as a
factor,
mitigating
may
it
have
youth
considered defendant’s
Supra
finding
the catch-all factor.
In Bey twenty-one we will cases in Martini Reports in which prior defendants had a murder convic- tion, cases, compare those Bey’s determine whether case is more like those of defendants capital who received a sentence or those non-capital who received a sentence. In conducting our analysis, objective we will clearly consider present factors on the blameworthiness, victimization, and charac- record that reflect ter. MARKO OF BEY’S COMPARISON SIMILAR CASES
CASE TO
Bey’s
grouped
approach,
salient-factors
AOC
prior
had a
murder
the defendants
case with other cases which
defen
Twenty-one
involving thirteen different
cases
conviction.
separate
conviction that was
could
murder
dants exhibited
Bey,
Excluding
prior
murder conviction.
been offered as
have
sentence,
and the remain
eight of those cases resulted
a death
ing
resulted
life sentences.
twelve
whether,
jury
by comparison to
determine
Our task is to
cases, Bey’s sentencing
comparable
of defendants
sentences
A
aberrantly by sentencing him to
defendant’s
death.
acted
simply because other defendants
disproportionate
not
sentence is
crimes have not received sentences
similar
who have committed
comparable
are identical. The
than death. No two murders
other
cases,
many respects, involve different defen-
although similar in
issues,
facts,
juries.
dants,
legal
and different
different
different
inconsistency
the results
anticipate some
between
We therefore
necessity, the
Of
comparable cases and the case before us.
Bey’s
others will
comparison of
case to
persuasiveness of the
sentencing
similarity
presented to the
depend
of the facts
on the
published
glean
from the
those facts
jury in those cases. We
unpublished, from the AOC’s
or,
opinions
opinions
if the
are
juries in com-
We conclude
Narrative Summaries.
Detailed
Bey
to death
generally
defendants like
parable cases
sentence
sentencing
to
aberrantly by
him death.
Bey’s jury
did
act
THE
a.
CASES
I and II
RICHARD BIEGENWALD
(Biegenwald
murder of Anna Olesiewicz
These cases involve the
II).
IC)
IA, IB,
(Biegenwald
On
William
&
and that of
Ward
friend,
Anna Olesiewicz and
eighteen-year-old
August
City
spend the
Hunter,
Neptune
Camden
Denise
drove from
*30
Asbury
stay
evening at the
Park boardwalk
then
at the home
boardwalk,
of Hunter’s uncle. While at the
Olesiewicz sat on a
bench
went
room.
and Hunter
to the women’s
When Hunter
returned,
not find
she could
Olesiewicz. Hunter returned to her
home,
missing
morning
persons report.
uncle’s
next
and the
filed
14, 1983,
January
On
Olesiewicz’sremains were discovered in a
Biegenwald
vacant lot behind a fast-food restaurant.
had encour-
Smith,
aged
“protege,”
Theresa
whom he
considered
become
“tough” by
reneged
killing
plan
someone. When Smith
on
to kill
co-workers, Biegenwald
one of her
to kill
decided
Olesiewicz. He
marijuana.
his
promising
lured the victim to
house
her
Then
Biegenwald
gold
he shot her in the head four times.
removed a
ring
finger
gave
from the victim’s
to Smith.
it
alleged
aggravating
prior-murder-
two
State
factors:
c(4)(a),
e(4)(c).
factor,
factor,
depraved-mind
conviction
and the
Biegenwald
mitigating
three
asserted
factors: extreme emotional
c(5)(a);
disturbance,
defect, c(5)(d);
mental disease or
and the
c(5)(h).
factor,
support
catch-all
of the mental-disease and
factors, Biegenwald presented
videotaped
catch-all
testimony
psychiatrist
Biegenwald
of a forensic
who claimed that
had been
abused as a
and had
age
child
been institutionalized at the
institutionalization,
eight. During
Biegenwald
his
had
diag
been
schizophrenic
subjected
twenty
nosed as
occasions to
diagnosed
psychiatrist
Biegenwald
electro-shock treatment. The
suffering
anti-social personality
paranoid
from an
disorder with
traits,
prevented
appreciating
a condition that
him from
wrongfulness
jury
aggravating
of his conduct. The
found both
factors,
rejected
but
extreme
mitigat
emotional disturbance as a
ing
defect,
jurors
factor. Three
found
mental disease
and four
jurors found
factor.
weighing
aggrava
the catch-all
After
the two
factors,
ting
against
mitigating
jury
factors
the two
sentenced
1A,
Biegenwald
Biegenwald
supra,
death.
We affirmed the but for a new remanded proceeding because had not been instructed to find that *31 beyond outweighed mitigating the factors aggravating factors the jury A A.2d 130. second a doubt. Id. at reasonable death, this Court reversed that Biegenwald to but sentenced IB, Biegenwald supra, a dire. sentence of defective voir because reversed the two A.2d 172. After this Court 126 N.J. at imposed Biegenwald for the Olesiewicz mur on death sentences der, Biegenwald a life sentence. a third sentenced to murder, principal Biegenwald and the State’s
In the Ward witness, to Fitzgerald, met with William Ward hit-man Dherren Fitzgerald perform to arrange terms of “hit” that wanted the a $25,000. Fitzgerald joined ear the two drove in Ward’s and Ward Fitzgerald’s Biegenwald Fitzgerald’s followed them to home. apartment, Fitz- Biegenwald Fitzgerald’s arrived at car. Before Fitzgerald, the “hit.” gerald discussed the terms of and Ward witnesses, permit to watch who wanted no refused Ward men responded by displaying his revolver. The “hit.” Ward off, gun. Fitzgerald gun went claims the wrestled over Fitzgerald then shooting his or neck. him in either shoulder Because he could pistol a .22 with a silencer. reached for caliber hand, hit head gun Fitzgerald Ward on the cock with one barrel, rendering gun inoperable. Ward, Fitzgerald top of who on struggle was The ended with Biegen- back, Fitzgerald clutching gun. stated his still in the head five times. appeared and shot Ward wald then car, re- into the Biegenwald Fitzgerald then stuffed Ward they home, body garage in the until buried and stored the turned it. factor, only aggravating prosecution notice of one
The served c(4)(a). factor, presented Biegenwald prior-murder-conviction defect, c(5)(d), and the disease or mitigating factors: mental two c(5)(h). factor, aggravating factor jury found the catch-all factors, a unable to reach verdict. mitigating both but was Therefore, imprisonment Biegenwald to life the court sentenced parole disqualifier. Appellate Division thirty-year awith unreported opinion. in an affirmed JAMES KOEDATICH 23, 1982,
On November
approximately
p.m.,
eighteen-
9:30
year-old Amie
part-time job
Hoffman left her
in shopping
center.
days
body
Two
floating
later her
was found
face down in a water-
retention tank
located
a secluded area. Koedatich had abduct-
discovered,
ed her in
parking
the mall
lot.
wearing
When
she was
clothing
day
same
as on the
of her abduction.
autopsy
An
long gash
head,
revealed a
on the left side of her
shoulder,
right
injuries
wound
her
at the base of her neck.
severed,
Her left ear had been
leaving deep
wound that extend-
spinal
ed to the
chord. She also had sustained two severe chest
wounds,
penetrating
one
four-and-one-half inches and the other
inches,
*32
seven
through
lungs
her
and to her back. The medical
examiner
once,
theorized that the knife had
causing
been inserted
wound,
the shallower
and
deeply, causing
then thrust in
the seven-
inch wound. The victim’s hand revealed defensive wounds consis-
knife,
tent with grabbing for the
and abrasions and bruises on her
thigh
arm,
left
and lower
having
consistent with
dragged
been
over the
Vaginal
retention-tank wall.
and rectal swabs revealed
sperm, and the medical examiner estimated that intercourse had
twenty-four
occurred within
hours of the victim’s death.
alleged
The State
the existence of four aggravating factors: a
prior
conviction,
c(4)(a) factor;
mind,
murder
depraved
the
the
c(4)(c) factor;
the murder was
purpose
committed for the
escaping
crime,
3e(4)(f)(the
detection for another
N.J.S.A. 2C:11—
c(4)(f) factor); and the murder was
committed
the course of
either a kidnapping
aggravated
assault,
c(4)(g)
sexual
the
factor. Koedatich refused to allow his
present any
counsel to
mitigating
concerning
evidence
his childhood trauma. The trial
court, nonetheless,
factor, c(5)(h),
submitted the catch-all
and
charged
jury
the
that the decision on this factor must be unani-
jury
mous. The
found that
prior
Koedatich had committed a
murder,
O’Brien,
that of Deirdre
for which he had received a life
mind,
sentence.
It also
depraved
found that he had a
but it did
unanimously
find
mitigating
the catch-all
jury
factor. The
Koedatich,
225,
v.
112 N.J.
to death. State
sentenced Koedatich
denied,
1017,
(1988),
109 S.Ct.
cert.
488 U.S.
This Court affirmed
improper
regarding
instructions
death sentence because
In the
THOMAS to death his former August Ramseur stabbed On lived with girlfriend, fifty-four-year-old Asaline Stokes. Stokes house. street from Ramseur’s aunt’s grandchildren her across the physi- to kill and had frequently had threatened Stokes Ramseur occasion, severely had beaten one when he cally attacked her. On Stokes, police Three or four months before were called. murder, grandchildren. kill her and her Ramseur threatened to argument, had an day murder Ramseur Stokes before the drinking threats. she tired of his during which she stated was kitchen, her, sorry,” stole knife from her “you’ll told be Ramseur and left. murder, day speaking to a mechanic Stokes was
On the
*33
house
walked
left his aunt’s
and
near her house when Ramseur
patted her on the
mechanic. He
over to the victim and the
her,
shoulder,
as
fell to the
and
to stab her
she
stabbed
continued
by saying, “if I
dying,
her
ground.
lay
As
Ramseur taunted
she
finally
going
I’m
to kill them too.” Stokes
your
again
see
kids
in
major stab wounds
hospital.
at
had
succumbed
She
chest,
eight-and-
penetrated
in the
two wounds
chest
face and
and
lung.
deep, piercing her
one-half-inches
c(4)(a),
prior-
alleged
aggravating
two
factors:
The State
c(4)(c),
factor,
depraved-mind factor.
and
murder-eonvietion
testimony
changed after
presented
that his behavior had
Ramseur
mugged
neurologist
A
testified that Rams
he had been
1982.
shrinking
the brain in the frontal and
progressive
had
eur
suffered
temporal
psychiatrist
A
testified that Ramseur
lobes.
seizures,
may
epilepsy
a form of
cause
psycho-motor
from
diagnosed
during
psychiatrist,
who
loss of control
a seizure.
stabbing had occurred
paranoid,
testified that
Ramseur
alleged that four miti
during
psycho-motor seizure. Ramseur
a
e(5)(a),
present:
extreme emotional distur
gating factors were
e(5)(h),
bance; e(5)(c),
c(5)(d),
defect;
age;
mental disease or
jury
aggravating
factor. The
found both
factors and
the catch-all
mitigating
emotional disturbance and
found two
factors —extreme
him to death. Rams
then
mental disease or defect.
It
sentenced
eur,
supra, N.J.
This Court affirmed Ramseur’s supplemental instructions on death sentence because the Id. A sentence. .2d deadlock had coerced - SAMUEL ERAZO 20, 1986, wife, Lucy, July Erazo stabbed his to death. The
On prison serving two had been married 1982while Erazo was girl. young of a After Erazo was sentence for the murder released, Lucy’s apartment. relationship he moved into Lucy many the two Erazo hit occasions. between worsened. Lucy’s daughters spoke parole authorities about Erazo’s One children, living apartment parole. a violation of his As an result, night imprisoned for several months. On the Erazo was murder, Lucy during party apartment, in their Erazo and heavily. throughout evening, drank Tension increased Lucy merenge with Erazo became infuriated when danced the another man. accompany party p.m., ended at 11:30 Erazo left to
When the returned, guests Lucy leaving the his home. When he was thereafter, midnight. Shortly apartment. returned after She neighbors glass breaking Lucy screaming that Erazo heard *34 clothes, apartment changed his left the killing was her. Erazo house, personnel to an ambulance. Medical and told a friend call a knife. Lucy lying the next to bloodstained She found on floor hands, chest, arms, knife wounds to her and had sustained four neck, single to to stab wound the back three slashes the instantly. had killed had her asserted Erazo killed The State hand, purposely her she threatened her after she cut had because police, led to the revocation of the a call that could have call parole. Erazo’s aggravating penalty phase, relied on two
At the
the State
c(4)(c),
c(4)(a),
conviction;
depraved
prior murder
factors:
testimony
mitigation,
presented
Erazo
from his brother
mind.
jury
spare his life for them and
his
urging
the
sister
mother,
Rahway
at
State Prison
who was ill. Corrections officers
had
during
imprisonment, he
been model
testified that
Erazo’s
He offered
prisoner.
gave
Erazo
a statement of allocution.
also
c(5)(a)
mitigating factors:
support
this
of six
evidence
3C:ll-3c(5)(b)
disturbance;
factor,
N.J.S.A.
extreme emotional
(the c(5)(b) factor),
participation
led to her
victim
in conduct that
(the
ll:3e(5)(e)
intoxication;
c(5)(d) factor,
death;
N.J.S.A.
c(5)(c) factor,
c(5)(e) factor),
duress;
unusual
substantial
e(5)(h)
aggra
age;
catch-all factor. The
found both
and the
mitigating
emo
four of
factors: extreme
vating factors and
intoxication,
disturbance,
participation,
and extreme
victim
tional
factors,
rejected
age
and sentenced
It
and catch-all
duress.
Erazo,
supra,
A .2d232.
126 N.J. at
Erazo to death.
remanded the case to
the conviction and
This Court reversed
guilt phase
because
an
Division for a re-trial
Law
manslaughter and
jury charge
passion-provocation
on
error in the
At the time
Pennington
at a
in East
arrived
bar
later,
Thirty
September
minutes
p.m,
about 11:30
Connor,
daughter
victim,
help
close
bar.
arrived to
her
Arlene
*35
Pennington
closing
1:00
time at about
a.m.
Connor announced
fourth,
beer,
and went to the men’s room. The
asked for a
his
Pennington
to the
by
had left
the time
returned
other customers
heart, killing
her.
In a
Pennington
Connor once
bar.
shot
pulled
police, Pennington conceded that he had
statement to the
anyone,
hurt
and that
gun,
the victim he did not want to
out a
told
money.
glass
that hit him
just
When Connor threw
he
wanted
chest,
ducked, straightened up,
pulled
trigger.
and
in the
he
c(4)(a), prior
alleged
aggravating
two
factors:
murder
The State
conviction;
engaged
contemporane-
c(4)(g), murder while
and
c(5)(a),
mitigating
felony. Pennington alleged three
factors:
ous
disturbance; e(5)(d),
defect;
mental disease or
extreme emotional
c(5)(h),
factor.'
the catch-all
members,
testimony
family
presented the
of various
who
He
immature, promiscuous,
his mother was
bad tem-
asserted that
properly
example,
him. For
she had
pered, and had not
raised
cigarettes
testified that
taught him to steal
for her. His mother
her and
Pennington’s father was an alcoholic who had beaten
Furthermore,
Pennington.
Pennington
enlisted in the
Corps
testimony
Marine
and served Vietnam. Medical
indicat-
disorder,
Pennington
multiple-personality
from
ed that
suffered
home from
he had
and that after he had returned
Vietnam
syndrome.
post-traumatic
from
stress
He also was an
suffered
injury.
a brain
alcoholic and had suffered
Finding
aggravating
the mental-disease-or-
both
factors and
factor,
mitigating
jury
Pennington
defect
sentenced
to death.
Pennington, supra, 119 N.J.
BRAYNARD PURNELL 28, 1988, Purnell, August p.m., thirty-six-
On at about 6:00 Davis, user, friend, Jeffrey purchase to year-old cocaine asked a local Talley. went to a of cocaine from Lawrence Davis $20 buy. Talley later an to make a sent playground but was unable Purnell, but Purnell wanted more cocaine deal associate Talley Purnell Talley agree to sell for than would $20. house, killed backyard Purnell to Purnell’s where in walked days later. Talley body. body was found several hid chest, neck, killed fifteen wounds to the Talley had stab been were with the on his back consistent and abdomen. Scratches Davis, According night body having dragged. been murder, cocaine, police did not Talley carrying but the was drugs Talley’s body. cash on find *36 c(4)(a), prior aggravating murder alleged The State two factors: conviction; e(4)(g), during the course of a murder committed and c(5)(h), mitigation, the catch-all robbery. In Purnell asserted factor; c(5)(b), precip in the participation and victim conduct about Purnell’s his Defense witnesses testified itated death. others, redeeming good his works for personality, and character jury aggravating The drugs. his found both and non-use his jurors participated in found that the victim had factors. Three e(5)(b) death, factor, jurors the catch-all and two found own Purnell, c(5)(h). factor, supra, Purnell sentenced to death. was A.2d 126 N.J. 175. because the reversed the conviction and sentence
This Court felony crime of charged on the lesser court had trial sentencing A.2d At the second murder. Id. hearing, a life Purnell received sentence.
BRYAN COYLE prison serving a shortly his from after after release murder, Bridge. Coyle He soon became moved Old
term Lemberg, sexually married next-door with Rhonda his involved Coyle unhappy her Lemberg that she was neighbor. told husband, children. She also disclosed had beaten her and her who gun day against use her the would fear that her husband one her that was their house. 28, 1983, July Lemberg argument, her
On and husband had an Coyle’s Coyle following which she went to house. had taken mescaline, narcotic, thereafter, Shortly before her arrival. husband arrived and demanded that his wife return home. When answered, window, cutting no one the husband broke his hand. door, opening Coyle Before retrieved his nine-millimeter hand- it, gun, put pocket. it in his back loaded husband entered and, him, ignoring Coyle’s placate efforts to moved towards his shot, Coyle warning wife. When fired a the husband fled and husband, police. seeing returned home to call the his wife car, Coyle Coyle’s enter ran into the street and used a garage Lemberg discarded door to block the car. believed gun. Coyle her husband had a She told that her husband would car, kill caught her. She fled from the but her husband her and they engaged in exchange. a heated verbal Her husband walked Coyle Lemberg. back to his home and walked down block with thereafter, Shortly the husband stormed out of his house and Lemberg. Coyle hurried after chased husband and fired his handgun. Coyle again, The first two shots missed. shot this time hitting leg. the husband in the The husband crawled across a Coyle lawn and hid behind a tree. followed him and fired three shots, husband, more two of which hit the one in the back of the head, trial, killing Lemberg Coyle him. At both testified that acting irrationally night the husband had been on the Coyle murder. also claimed that he fired at the husband to save *37 husband, Lemberg, only that he had intended not to kill her but to stop him attacking from her. alleged c(4)(a), aggravating prior
The State two factors: murder conviction; c(4)(c), depraved Coyle and mind. asserted four miti c(5)(a), gating disturbance; c(5)(d), factors: extreme emotional intoxication; c(5)(b), e(5)(h), participation; victim and the catch-all aggravating only factor. The found both factors factor, c(5)(b), victim-participation mitigating as a factor. It sen Coyle Coyle, supra, tenced to death. N.J. 574 A.2d because of various reversed the death sentence This Court to errors, on the intent including the absence an instruction bodily injury, improper and an opposed serious cause death as to re- A.2d 951. On charge passion-provocation. Id. at sentencing, life Coyle received a sentence. VASQUEZ
CARLOS a.m., 3, 1988, forty- Vasquez, who On at about 8:00 was June sexual- three-years-old, thirteen-year-old girl then abducted victim, and feet ly killed her. whose hands assaulted and together her with electrical cord were tied behind back clothesline, put had out to be was found in a box that been Vasquez that he had made sexual with the trash. said collected hysteri- girl. became she resisted and advances toward When cal, prevent anyone hearing her. grabbed her to from he neck ligature asphyxia by gagging, caused The cause death was spine. strangulation, and fracture of cervical request parents spare them the stress At the victim’s murder, trial, felony plead guilty to of a defendant was allowed to Vasquez prior he murder conviction. despite the fact that had twenty imprisonment plus aggregate an sentence life received any physi- He denied years, forty-year parole disqualifier. awith cal, Narra- problems. Detailed or substance-abuse mental-health Summaries, swpra, at 285-86. tive MUHAMMED JIHAD 3, 1984, approached Dawn Andrew and August
On Muhammed “speed.” sell them on the street and offered to Clarence Maxwell declined, twenty left returned Muhammed but When Andrew co-defendant, Boyer. his Forrest Muhammed minutes later with fired handgun, pointed couple, it and then it pulled out a at the rummaged Boyer purse, ground. into then took Andrew’s Boyer it, marijuana. give back through Maxwell told and stole pulled steps, two out a sawed-off purse. Muhammed took of a came out shotgun, and him. Andrew’s father shot When victim, why shot the Muhammed had nearby house and asked “I replied: like his attitude.” Muhammed didn’t *38 weapons pleaded guilty Muhammed to murder and various charges, imprisonment aggre- life with an and was sentenced to Id. at 189-91. thirty-six years. gate parole disqualifier of ALBERTO NIEVES 25,1987, leaving grocery store when he
On March Nieves was heard Hector Rentas sound his automobile horn at Nieves’s wife. followed, exchange gun In the Nieves took a from his car and head, pointed telling girl, it at him if he his Rentas’s wanted gun he should take her. Nieves then lowered the returned to and his car. later, days parked
Three on March Rentas was outside a six-year-old up store with his son when Nieves to him and walked “stop messing my girl.” responded told him to When Rentas messing girl, gun that he was not with Nieves’s Nieves raised a passed through and shot Rentas once in the head. The bullet lodged Rentas’s head and in the seat him and his son. between The medical examiner later testified that at the time shooting, gun had been six inches of the within victim’s head. jury purposeful knowing
A convicted Nieves murder. At penalty phase, prosecution aggravating offered two fac- c(4)(a), factor; c(4)(b), prior-murder-conviction tors: factor, grave-risk-of-death endangering six-year- for the victim’s c(5)(a), mitigating old son. The defendant offered four factors: disturbance; e(5)(b), participation; extreme emotional victim (the factor), N.J.S.A. 2C:ll-3c(5)(g) c(5)(g) substantial assistance State; c(5)(h), to the the catch-all factor. The catch-all factor supported by eighteen was evidence that Nieves one was grown up poverty. children and had extreme of his One siblings imprisoned had been murdered and another had been avenging that murder. jury aggravating mitigat- found both factors and two of the c(5)(b),
ing c(5)(h), participation; factors: victim the catch-all juror deliberate, factor. One refused to and the could not reach a unanimous verdict. The court sentenced the defendant to *39 imprisonment, thirty-two-and-one- a aggregate term of life with an half-year disqualifier. Id. 222-25. parole GEORGE BOOKER 6, 1972, George was convicted of murder January Booker
On twenty-nine twenty-seven years to and was sentenced to 15, Sep- paroled on November 1983. On Prison. He was State 1985, being leave the home of friends after asked to tember staying, home a he had Booker went to the with whom been knife, friend, sexually out thirty-one-year-old pulled a female her, away, car. As he drove Booker ran assaulted and stole her his pedestrian and stole wallet. down living the home of two women who were Booker then went to woman, raped one bashed her together. Booker and sodomized forehead, strangled her an electrical mouth and then with home, forced her to woman returned he cord. When the other to roommate. Then he lie in next her dead undress and the bed hand, Booker, arrested on knife in was stabbed her to death. elderly female. September the home of an 13 while inside capital murder both victims. Booker was convicted jury aggravating prior factors for a murder sentencing found c(4)(a); mind, c(4)(c); conviction, escape and murder depraved victim, c(4)(f). detection, Concerning the murder of the first factor, as an jury e(4)(g), contemporaneous-felony also found murders, jury mitigation found aggravating of both factor. Also, c(5)(a), factor. the extreme-mental-or-emotional-disturbance jury c(5)(h), catch-all Because the could found factor. murder, concerning either court reach a unanimous decision imprisonment, aggregate sentence life Booker an sentenced parole disqualifier. Id. at 29-32. sixty-year a with HECTOR SANABRIA September when occurred on first murder
Sanabria’s dealer, drug dealer, Sanabria, drug killed another shot and to obtain a attempt an Sanabria shooting was Omar. pre-sentence drugs in Paterson. The monopoly the sale of over Junior, brother, were con- and his report stated that Sanabria territory, into their attempting to move that Omar was cerned During meeting one of their workers. that he had robbed brothers, struck Omar Junior and the Sanabria between Omar gun, for his both Sanabria gun. Omar reached with a When grabbed gun weapons. also Omar’s fired their Sanabria brothers suggested weapon. proof him his own Substantial and shot body was provoked the encounter. Omar’s had Sanabria it, heart. five found with seven bullets *40 1984, when, on December The second murder occurred ownership drugs, shot during argument about the of Sanabria an in As Aponte on a street Paterson. killed Edwin and Nelson and Omar, claim of self killing supporting evidence Sanabria’s in the of victims was The cause of death both was weak. defense in multiple gunshot wounds the chest. murder, April jury of and
A convicted Sanabria Omar’s imprisonment, to life with the court sentenced Sanabria conviction, disqualifier. Despite this murder thirty-year parole c(4)(a), prior-murder- prosecutor not file a notice of the did Aponte involving the murder of the factor in the case conviction pur- knowing and convicted Sanabria of the brothers. The court sentenced Sanabria poseful murder of brothers. both terms, thirty-year parole disqualifi- thirty-year each with a to two Detailed Narrative Sum- each consecutive to the other. er and maries, supra, 227-28. THE
b. COMPARISON evidence, Bey’s prior murder totality of the which includes victims, his leads us to sexual assault of both of conviction and the disproportionate. Bey’s that death sentence is not conclude victimization, Bey moral blame- argues that when measured character, worthiness, deathworthy as other he is not as and sentences or death sentences. who received either life defendants disagree. We
First, in and compares the his murder sexual Bey victimization of Peniston the murders other assault of Carol comparison Bey group. points to the fact that defendants killing people, five Biegenwald been convicted of total of and has killing people, three been convicted of a total of that Booker has only Although the people. has killed number of but he two victimization, degree that bears on the victims a factor sentencing juries Biegenwald prosecutor presented the murders, four. only cases with evidence of two other One those was a 1959 conviction for a murder that had murders Booker, robbery. during occurred the course of a As for two spree. Bey’s during occurred the same crime Unlike the murders murders, they independent and separate two were not incidents. Purnell, Ramseur, defendants, Biegenwald, Coyle, Some such as Others, Sanabria, and shot or their victims several times. stabbed Erazo, Ramseur, Nieves, their victims over a like threatened time, presence period killing his victim in the of a with Nieves however, Bey, defendants young child. Unlike none of these sexually By comparison, Bey sexually as his victim. assaulted victim, saulted, beat, strangled, stomped on his woman provoke nothing had done his whom he not know and who did Booker, Koedatich, sexually Vasquez, rage. who assaulted victims, As we Bey are closer to terms of victimization. *41 their 710-711, 386-387, discuss, 645 A.2d at these subsequently at infra distinguishable Bey’s case for other reasons. cases are from Second, culpable also that he is less than defendant contends morally he is not blamewor several other defendants because as the time of thy. Specifically, younger he he was much at contends they murdered their they murder than were when his second culpability, Although age mitigates a as victims. often defendant’s 697-698, above, 360-361, supra at 645 A.2d we have stated evidence, age by itself does not light totality of defendant’s of the compel of a other than death. the return sentence possible
Bey child abuse and offered evidence of chronic also that he is less organic syndrome support argument his brain many comparable Like of the defendants. culpable than other His violent child- defendants, childhood. Bey suffered an abusive Biegenwald, however, materially from that of hood, does not differ Nieves, Ramseur, also had suf- Koedatich, Pennington, and who defendants, But these or other violence. from child abuse fered additional, demon- evidence to Bey, uncontroverted unlike offered they had suffered. abuse and violence impact strate youth Biegenwald institutionalized as example, had been For experienced twenty electro- eight. also had age of He from the treatments, diagnosed suffering from been and had shock disorder, paranoia. personality schizophrenia, anti-social physical evidence Pennington uncontradicted offered Ramseur defect. Ramseur of mental disease or support their defense temporal frontal and lobes shrinking of his brain exhibited seizures, experi- he had psycho-motor which and suffered from Pennington was a Viet- during murder of his victim. enced syndrome, post-traumatic stress suffered from nam veteran who case, disorder, injury. Bey’s multiple personality and a brain damage however, disputed organic brain the evidence the State merely showing Bey from that suffered and introduced evidence prevent him from personality disorder that did an anti-social acting purposely. The uncontradict- understanding his actions or damage comparable defen- physical brain to the ed evidence of juries them to be explain why their did not deem could dants deathworthy. explanation of the difference between our
The dissent attacks by pointing to evi defendants Bey’s and that of other sentence Bey during his childhood that was endured dence of the abuse points to the exclusion Specifically, the dissent excluded at trial. Cooke, preclusion Dr. and the report psychologist, of a state of a Bey’s mother. Post 645 A.2d leading questions to the notion that the excluded Implicit the dissent is at 723-724. who Bey is like other defendants would establish evidence Bey’s direct other than death. On have received a sentence therefore was cumulative and appeal, found that the evidence we *42 590, 594, 610A .2d814. errors were harmless. 129 N.J. that the adequately established that other evidence We continue to believe excluded Bey as a child and that abuse that suffered Thus, we find that not have made a difference. evidence would for the difference between does not account the excluded evidence imposed on other defen Bey’s sentence and the sentences dants.
Moreover, sentencing jury any evidence Bey to offer the failed Erazo, contrast, Booker, Pennington pre- In of intoxication. they commit- they had been intoxicated when sented evidence that Furthermore, defendants, e.g., Biegen- many ted their crimes. Purnell, (in Ward), Erazo, Coyle, wald the murder William they had been Pennington, offered evidence that and Sanabria by been motivated by the victim or otherwise had provoked contrast, Bey, in did not know his victim passion or duress. the differences provoked her. We conclude was not suggest Bey is comparable cases Bey’s case and the between blameworthy than these defendants. more Third, distinguish from that" attempts to his character defendant defendants, the other He states that unlike of other defendants. Sanabria, any prison time exception of he had not served with the however, Defendant, explain does not how prior murder. for a evidence, From this we cannot reflects on his character. this fact of the other Bey’s any is better than that conclude that character defendants.
Last, that his his remorse as evidence defendant also offers In culpable than that of other defendants. character is less family. Bey, victim’s points apology to his to the support, he however, only sentencing phase when expressed at the remorse circumstances, his belated facing penalty. Under these the death any than that his character is better apology does not demonstrate that of the other defendants. victimization, sum, degree analysis the results of our blameworthiness, compara- of defendants and character
moral Bey’s support conclusion that sentence do not ble eases *43 in than Bey may respects no some disproportionate. seem worse Yet, other received a sentence than death. defendants who have illustrates, other the cases of those preceding discussion as the viewed, Bey’s significantly Bey’s ease. defendants differ from So death sentence is not aberrant. prior comparison group in a of had
Each the defendants Koedatich, Booker, Vasquez, Except for murder conviction. however, distin- their share a common characteristic that cases Bey’s guishes them case: the absence sexual assault from prior culpable As as defendants with murder convictions victims. be, jury Bey, two may a find that such as could a defendant assault, aggravated particu- sexual convictions for murder and larly deathworthy.
Koedatich, culpa- Vasquez, and similar levels of Booker exhibit his bility sexually of these assaulted because each defendants prior But these victim and each had been convicted of a murder. defendants, Bey, ultimately for unlike received life sentences three this, argues he also should their crimes. From defendant that disagree. received life sentence. We have a First, juries differently. expect may we that decide similar cases Marshall, disproportionality. Disparity not demonstrate alone does sup ra, A.2d 1059. As we stated 130 N.J. Marshall: jury [other ultimate concerns fact that whether a spared question cases] invalidation Marshall’s defendants of Robert requires comparable contem- sentence. do not believe that ever We statutory disproportionality juries that two identical even in closely- New must reach verdicts Jersey plated for some or invidious similar circumstances. Our search should be impermissible [other defendants] were
factor or that has been broken. That the spared pattern life-sentencing killings. We do lives does not a such their establish pattern sentencing factor Marshall’s not sense that some invidious tainted process. [Ibid.] Marshall, Here, sentencing pattern as in we do find a life not require taint of factor that would us to reverse or the an invidious arising in Koeda- Bey’s death sentence. Unusual circumstances sentencing Vasquez finding pattern preclude tich and of life Koedatich, after a unanimous- for sexual-assault murders. death, juror in the second Koedatich to one ly decided to sentence childhood, light of Koedatich’s abusive penalty-trial phase, penalty. The mere fact that one the death refused to consider penalty prevented imposition of the death juror in one case juries imposing penalty from prevent other need Similarly, Vasquez, in another case. another defendant plead parents Vasquez be allowed to victim’s insisted spare of a trial. non-capital offense to them trauma *44 noted, It distinguishable on the facts. previously As Booker spree apparently caused went on a crime involved a defendant who sexual assaults and abuse. Booker committed his substance jury that Booker during spree. The heard evidence murders this quart marijuana anti-depressants, and had drunk a used and had expert commencing rampage. before his Uncontroverted of beer unusually exaggerated had an testimony explained that Booker uncontrollable while drugs these and had become reaction to jury Bey did By comparison, the second under their influence. moreover, Bey, committed any evidence of intoxication. not hear independent criminal separate, murders in his sexual assaults and episodes. prior murder
Finally, Vasquez in neither nor Booker was Only Bey’s Koedatich’s murders joined assault. and with a sexual above, the Koedatich case joined rape and murder. As we stated evidence, juror, light mitigating one was unusual because penalty. Despite their imposing to consider the death refused Koedatich, similarities, Vasquez, Booker cases differ and basic Bey’s death sentence is sufficiently support to our conclusion that disproportionate. not CASES OTHER prior murder category defendants with
In the of cases of convictions, Leroy Taylor, Orlando includes the cases defendant Montalvo, Rogers. decline to consider these Marcus We and previous- had been convicted cases because none of the defendants prior prosecutor could not have asserted ly of murder. The Taylor, In the defendant was any of them. murder conviction adjudicated first murder case and therefore delinquent his Summaries, of murder. Detailed Narrative was not “convicted” Montalvo, guilty supra, pled the defendant at 257-60. manslaughter in first case before the second murder his murder Finally, Rogers, began. trial Id. at 179-83. defendant’s appeal, pled he prior murder was reversed on then conviction guilty murder. manslaughter before he committed the second Id. In none of these cases could the State have at 215-19. Hence, prior-murder-conviction aggravating factor. asserted the they distinguishable Bey. from are
-TV- RACE AN IMPERMISSIBLE FACTOR AS Finally, prosecutors juries defendant contends impermissibly the race consider of defendants and victims when imposing point the death is that if he not an sentence. His were African-American, sought prosecutor would not have imposed penalty. not have do would the death statistics abiding problem support analyzing his contention. Our the effect of race is that the case universe still contains too few *45 of prove improperly cases to that the race a defendant influences sentencing. death point distinguishes opinion
That
our
from the
fundamental
enough
inescapable
fact
that we
to
dissent.
is
lack
cases
any degree
reliability
of
race is
conclude
statistical
whether
dissent,
impermissibly
working
sentencing.
in death
For the
however,
large
pools
consequently
the “under-sized data
error,”
425,
730,
margins
merely
post
for
at
645 A.2d at
mean that
imposition
not
the Court has
met its burden to ensure that the
above,
penalty
explained
proportionate.
the death
As we have
however,
remains
of the
we believe that
burden
that
defendant
348-349,
prove disproportionality. Supra
to
at
389 in the Marshall, equality our commitment reaffirmed In we justice, stating that administration of the defendant played of the victim and race that the race were we to believe would seek capital-sentencing in New we significant decisions Jersey, part our State’s could consistent with not, if that failed we measures, and corrective law. of our the foundation system that threatened tolerate discrimination policy, 1059.] 613 A.2d [130 209, N.J. at Consequently, we will to that belief. remain committed We imposi- race and the any correlation between monitor continue to penalty. tion of the death Marshall, find the race- that we would we indicated
Also in 279, Kemp, McCleskey 481 U.S. v. disparities described based (1987), 1785-86, to be 1756, 95 L.Ed.2d 107 S.Ct. 210, In McCles 613 A .2d1059. significant. Id. at constitutionally imposition sustained Supreme Court key, the United States disparities in death notwithstanding penalty certain death race of the defendant sentencing according to the 1766, 291, at 277. 95 L.Ed.2d 107 S.Ct. at at victim. U.S. capital received cases were that white-victim disparities Those involving black of cases times that a rate eleven sentences at sentenced victims were victims; killed white black defendants who of black defendants nearly twenty-two times the rate to death at pertained the rate and seven times killed black victims who 326-27, 107 S.Ct. Id. at killed black victims. who white defendants McCleskey data further 1785, at 300-01. 95 L.Ed.2d seventy penalty for sought the death prosecutors indicated that victims, only but who killed white defendants percent of black black victims who killed of black defendants percent fifteen victims. killed black defendants who percent for white nineteen 1785, Although the at 301. 95 L.Ed.2d 107 S.Ct. at Id. at signifi not to be these data Supreme Court found United States Constitution, dispari these believe that we under the Federal cant Jersey Constitution. New significant under the be ties could Marshall, A.2d 1059. supra, 130 N.J. data did McCleskey, the Marshall the data
Unlike
constitutionally-significant role
played a
race
demonstrate
Marshall,
pre-
Special Master
sentencing.
Ibid.
defendants;
race of
which treats the
*46
Table
two tables:
sented
Table 18
18A,
of victims.
treats the race
which
and Table
four,
are
black defendants
culpability level
that at
illustrated
than non-black
sixty-four percent more often
sentenced to death
18A,
cases are
According Table
white-victim
Ibid.
defendants.
cases
penalty trial than
likely
advance to the
more
1.4 times
211,
1059.
at
613 A.2d
involving
victims.
Id.
other
disparity that
degree
demonstrate
Although these tables
ultimately
McCleskey,
found
analysis
we
in our
troubled us
application
in the
discrimination
no substantial
Marshall
provide
not
an extensive
the tables did
reason was that
Act. One
variables.
Id.
relationships
the statistical
between
set of
rate of death
18A showed the
Table 18 and Table
391 penalty-trial cases to 18A. twenty-eight 18 and more Table Table tables, Bey argues that an overall racial Using these amended level, particularly at statistically-significant exists disparity at a ranges culpability choice between life and middle where the is less certain. death Marshall, dis- Bey’s displays Table 18 race-of-defendant
As among penalty-trial parities death-penalty-sentencing decisions standard-culpability levels. As stated adjusting after cases four, above, Bey’s level only culpability fall within seven cases Bey, The Martini data only add case. to include one level. statistically-reliable comparison, level enough cases for redefined four now contains from to .145-89. His new level four .60-.80 cases, penalty. in the twenty-three of which resulted death ten (10/23) Thus, culpability level forty-three percent of the cases penalty. The Martini data include four resulted in the death cases, penal- in the twenty-seven thirteen of which resulted death death-sentencing rate at level four to ty, thereby increasing the (13/27). forty-eight percent
Bey argues
disproportionate
number
these
that a
cases
on black
Of the ten
imposed
were
defendants.
sentences
sentences, eight
Bey
in the
in death
included
data
resulted
defendants,
only
was
but
one defendant
white
black
involved
Therefore,
imposed
was
Hispanic.
death sentence
one was
level,
four,
Bey’s
at a rate
culpability
level
black defendants
defendants,
only
(8/10);
percent
non-black
the rate was
eighty
(2/13).
produced
below:
percent
results are
fifteen
Non-Black Defendant
%
Level
Black Defendant
Disparity
Culpability
( 0/12)
( 0/21)
0
0
1
0
0(0/8)
0/11)
(
0
2
0
( 0/15)
(
)
17
0
3
.17
1/6
( 2/13)
( 8/10)
.15
65
4
.80
(16/17)
(12/12)
1.0
.94
similar,
decreasing
although slightly
reflect
The Martini data
the thir-
non-black defendants. Of
disparity
black and
between
sentence,
black
ten involved
received a death
teen cases that
Hispanic defendants.
only
white or
three involved
defendants
four,
Therefore,
culpability level
the death
Bey’s
show that at
data
eighty-
at a rate of
imposed on black defendants
was
sentence
(10/12),
*48
at a rate of
and on non-black defendants
percent
three
(3/15). The results are:
twenty percent
Non-Black Defendant
%
Black Defendant
Disparity
Level
Culpability
(
0/16)
0/10)
(
0
0
1
0
( 0/15)
( 0/12)
2
0
0
0
( 2/16)
( 2/10)
7
.2
.13
3
(
(10/12)
3/15)
63
.20
4
.83
(15/16)
(11/11)
.94
6
1.0
efforts,
analysis remains
Despite
best
defendant’s
amici’s
culpability
distorts
redefinition of the
levels
flawed. Defendant’s
four,
highest percent
culpability level
the level that evidences
Bey.
problem is that
age
disparity
that
The basic
of
includes
ranges
create
that
includes too much. To
middle
level four
cases,
culpabili
defendant extended
a sufficient number of
contain
range
range of
to .75. This extended
fails
ty level four from a
.20
creating culpability levels
underlying purpose
to achieve
Supra at
Implicit
proposed
of level
in the extensions
extending
is the
without
the dissent
admission
*49
cases, level four would contain too few
range to
additional
include
conclusion.
lack of
support
to
a reliable statistical
cases
analysis
if
confine our
to the
becomes clear we
sufficient cases
Bey and Martini
contained in the
twenty-percent levels
standard
Bey Report,
in level four
Reports.
the cases included
Of
phase,
of which resulted
penalty
to the
three
only
proceeded
seven
comparable
penalty.
data
imposition of the death
in the
cases,
of which resulted
Report
only eight
show
four
Martini
a sufficient number
Neither table contains
in the death sentence.
disparity
significant statistical
to
whether a
of cases
determine
death-sentencing
non-black defendants.
black and
exists between
moreover,
probability
Bey’s predicted
Report,
In the Martini
.81,
places him in
to
which
receiving a
sentence increases
five,
culpability
highest
level.
culpability level
cases, we cannot hold
of similar
number
Without a sufficient
of the death
imposition
impermissibly
race
influences
that
be,
may
have no
vexing
waiting for more data
we
penalty. As
as
analysis
adding dissimilar
to wait. To force the
alternative but
cases,
propose,
disserve the
and the dissent
would
as defendant
modify
justice.
attempts
all
to
do not foreclose
ends
We
ranges
produce a sufficient number of cases for
culpability
to
modification, however,
analysis. Any
must
statistical
such
valid
ranges containing
similar cases.
consist
impermissible
other
fac
Defendant’s Table 18 also addresses
tors,
argues
socio
as socio-economic status. Defendant
such
disparity
Bey’s culpability
aggravates
racial
at
economic status
analysis
subjectively
in defendant’s
is that he
level. The flaw
problem is not that we should
defines socio-economic status. The
Marshall,
In
never consider socio-economic status.
we stated
203,
214,
130 N.J. at
might be relevant.
613 A.2d
such data
data, however,
objective
must
and rooted in tradi
1059. The
be
sentencing guidelines. Supra
at
tional
645 A.2d
700-701.
Marshall,
argument
accepted
the defendant’s
that we
we also
subjective,
judgments
should not undertake
moralistic
when con
Id. non-statutory
sidering
factors.
Defendant to have defined socio-economic status cording general job descriptions considering other without lifestyles. relevant facts about the defendants’ or the victims’ For example, high identifies socio-economic status as includ- defendant secretaries, employed gov- ing victims or defendants who are workers, managers. Consequently, ernment and store he identi- having high simply fies Carol Peniston as socio-economic status record, however, secretary. From the we because she was a Bey glean justify that conclusion. cannot sufficient information status include contends that defendants of low socio-economic worked, sporadically, or are those who have never have worked *50 classification, engaged organized According to this crime. to of low socio-economic defendant deemed William Todd Lewis be status, consistently as although Lewis had worked a truck driver
395 week, married per and was to had earned $400 since Similarly, defendant own house and car. owned her woman who status, Mincey low socio-economic being classifies Samuel landscaping for five Mincey his business although had owned construction, a maintenance work- years, and had been worked er. disparities Table illustrates the race-of-victim
Defendant’s 18A adjusting the death-sentencing after cul- penalty-trial decisions unacceptable in we pability same extent that find levels Marshall, a more this table demonstrates Table 18. Unlike in McCleskey relationships are similar to the that extensive set interaction between race-of- comparisons; evaluated the defendant combinations, and the influ- assessed victim and race-of-defendant statutory such as socio-economic non-statutory factors ence argues that gender Defendant status and of defendant. definitively penalty-trial phase, defen- results show likely are than defendants who kill white victims more dants who presses He receive death sentence. kill non-white victims to although African-American wom- point both his victims were below. produce en. the results We Victims % Victims Disparity White Culpability Non-white Level [2] [3] [1] .35 .65 .72 .90 .19 (15/23) ( ( (13/18) (27/30) 8/23) 6/32) .24 .29 .71 .06 .91 (20/22) ( ( 4/14) (12/17) ( 9/37) 3/50) -1 [36] [11] [13] in defendant’s Table data As with the race-of-defendant disparity general- 18A continues reflect data in his Table twenty- add cases. The Martini data ly decreases with additional cases, culpability four. The fall level eight four of which within results are:
396 Victim % White Victim Disparity
Culpability Non-white Level [3] 2 [4] 1 .74 .42 .18 .57 .93 (27/29) (17/23) (13/23) ( (10/24) 7/38) .87 (20/23) .75 .29 (14/48) .27 .03 ( (12/16) ( 2/59) 3/11) -1 [30] [13] [15] examination, however, any disparity the tables do not show On Bey’s culpability imposition penalty in the of the death level of Moreover, 18A suffers because of the race of the victim. Table culpability ranges from the same flaws as Table 18: the modified inadequate dissimilar that are based on include cases that are sum, we do not find from measures of socio-economic status. presented data that the race of either the defendant or the Likewise, sentencing. plays impermissible role in death victim an we do not find that the socio-economic status the defendant plays any such role. the victim argues violates the
Defendant also that his sentence United juries generally impose because do not death States Constitution disparities geographic impermissibly and because affect sentences Marshall, rejected arguments in sentencing. those We supra, 613 A. 2d and continue to find 130 N.J. unpersuasive. them
-V-
CONCLUSION Marshall, is too small to As we face a universe cases that comparisons frequency support reliable in some areas of the approach disparities sentencing. in our evaluation racial recognize comparison, such We also that our method of reversed, inclusion of cases which the death sentence has been however, Overall, analyses perfect. the statistical and our is not support more traditional review of the cases the conclusion own disproportionate. is not Further- death sentence that defendant’s factors, more, impermissible failed to show that defendant has race, played constitutionally-significant role have such as penalty. imposition of the death dispro- imposition penalty on defendant the death
portionate. J.,
HANDLER, dissenting. imposed on a The now decides that the death sentence Court may proportionate, is that he young African-American man and therefore be executed. defendant, settling, capital the Court again, once the fate of a proportionality issues that surround the
returns to the difficult virtually a sentence. Those issues are intractable. review of death will, acuity insolubility energy, of on Their reflects not a lack Rather, impossibility of part. it stems from the Court’s imposed of a that is evaluating proportionality death sentence regime founded on capital punishment that is itself under a conflicting contradictory principles and is administered with- and consistency, uniformity. degree much less any out of by exemplified this hopelessness proportionality review application of the standards formulation and case. Court’s vague markedly and unworkable. The proportionality remain for proportionality review are in the Court’s most serious deficiencies (1) evident, of a of cases specifically, in the continued use universe has later been the death sentence cases which includes (2) reversed; subjectivity principal the Court’s the inherent frequency analysis, determining proportionality, methods (3) arbitrary application; and analysis and their precedent-seeking defect significant and least tolerable clearly the most recognize the recur- today, the failure to efforts Court’s Court’s in New imposition penalty of the death ring indications Those deficiencies may infected racial bias. Jersey be deprive of whatever design proportionality review application might provide legitimacy faint have chance it had to constitutional imposition death sentence.
I
2, 1983, Cheryl
April
sexually
On
Alston was
assaulted and
Defendant,
Bey,
subsequently charged
murdered.
Marko
was
n withand convicted of
murder,
capital murder, felony
aggravated
assault,
aggravated
Bey,
sexual assault.
State v.
112 N.J.
See
45, 51-52,
(1988)
I).
(Bey
appeal
548 A.2d
On defendant’s
murder,
from his sentence and convictions for the Alston
this
Court overturned both.
Id. at
About
after
April
three weeks
the murder of
26, 1983,
sexually
Carol Peniston was
assaulted and murdered.
*53
custody
into
Defendant was taken
murder of
the
Peniston on
6,1983.
May
jury trial,
capital
After a
defendant was convicted of
murder,
murder,
assault,
felony
kidnapping, aggravated
aggravat-
assault, robbery,
133-34,
ed sexual
and theft.
Id. at
Defendant
second
of death for
sentence
the Peni
568,
(1992).
Bey,
557,
ston murder.
129
State v.
N.J.
399
mother,
leading
who
asking
questions
defendant’s
from
counsel
explicit accounts of her abuse of her
providing detailed or
resisted
814,
593-94,
excluding
son,
report
a
at
610 A.2d
id.
Cooke,
largely corroborated the defense
expert, Dr.
that
State
Peniston,
defendant,
out
murdering
in
had acted
theory that
women,
Proportionality review
Marshall,
The
in State v.
130
than offense-oriented.
Court
rather
(1992) (Marshall
II),
109,
explained
the
A.2d 1059
N.J.
inquires
penalty
approach
whether
offender-oriented
particular
disproportionate
punishment imposed
case is
to the
on
others convicted of
same crime. The touchstone of the Court’s
analysis
ensuring
“imposed
that the
is
penalty
fairly,
is
Ibid.
consistency.”
with reasonable
II,
Marshall
proportionality
Court
concluded that
review
required a determination of
that was
deathworthiness
informed as
fully
possible.
That determination
for the
called
creation of a
sufficiently
“universe” of cases
allow a
inclusive to
broad-based
bearing
relevant
consideration of all
factors
on the deathworthi-
defendant,
including
prosecutori-
ness of a homicide
both
Id. at
al decisions.
The complementary Court then settled on two means of assess ing proportionality defendant’s death sentence rela sub-groupings tion to various of cases to be deemed similar to the approach, generally defendant’s. The first referred to as “fre quency analysis,” composed is of three discrete statistical metho dologies give perspective each intended to the Court a different on proportionality the defendant’s sentence relative to other controlling similar cases. The evaluative focus of the statistical approach frequency is on the relative with which a death sentence Id. imposed in cases deemed to be similar. 613 A.2d approach by The second this Court Marshall authorized II, “precedent-seeking analysis,” relies analysis statistical point as a departure. precedent-seeking approach allows Court, case-by-case basis, compare on a similar eases according Id. culpability. to a defendant’s criminal A .2d 1059. precedent-seeking statistical and approaches are intended complement they Theoretically, one another. afford the Court perspective analysis empirical informed both and the more case-by-case, judicial
traditional manner of assessment. That dual approach, combining precedential analyses, statistical and remains at the carrying core of what the Court proportionality does out review. *55 provide designed a window is also to
Proportionality review
of the
the administration
through
can monitor
which
Court
Ramseur,
Jersey.
supra, 106 N.J.
penalty in New
See
II,
its
articulated
the Court
Ill capital- importance in the determination An of critical issue appropriate sentencing proportionality the definition judicial conduct review. from universe of eases which objectives by the effectively universe are dictated bounds of that proportionality recognized review. Because the Court has proportionality prevent “any impermissible should serve review Ramseur, imposing penalty,” supra, discrimination in the death *56 188, race, sex, 327, N.J. at A.2d 106 524 and socioeconomic defendants, of geography, by status as well the role of as county, sentencing decisions are factored into the definition of Further, prosecutorial the universe. because as well as assessing decisions about deathworthiness are relevant to whether work, invidious discrimination at the Court concluded that the death-eligible outer limits of that universe should include all prosecutors prosecute homicides whether have chosen to capital them as crimes.1 enduring troubling emanating
One II issue from Marshall capital is the Court’s decision include in universe its cases later appeal on purposes pro- reversed as death-sentence cases for portionality provide II any review. Marshall does not extended explanation or of the defense Court’s choice to treat reversed Master, as Special dealing cases death-sentenced. The (1) problem, possible responses: that constructed three treat all (2) sentences, death reversed cases as valid treat no reversed case (3) sentence, basis, proceed as a on case-by-ease valid a assessing reliability original propor- of the sentence for use in II, 1 Legislature to the Prior Court’s decision in Marshall amended Capital provide only Punishment Act to that a "similar cases in which sentence imposed” comparison purpose of death has been would form the basis for the 1992, (effective 12, (codified 1992) proportionality May L. review. c. 5 at 2C:ll-3(e)). apply NJ.S.A. The Court does not the amendment to defendant's case, 344, constitutionality. does it nor consider its Ante at at 690. 645 A.2d Limiting proportionality review to death-sentenced cases is irrational destroys analytic prosecuto- proportionality value of itself. review Review of Detecting effectively rial discretion would have to be abandoned. invidious discrimination, bias, universe, like racial within the amended statute's narrow impossible. Supreme will be almost The former Chief Justice of the Nebraska fact, recognized pointing limiting proportionality Court out that review to reviewing alleged public transpor- death-sentenced cases is like discrimination in Palmer, by looking only riding tation at those in the v. back bus. See State 706, (1986) C.J., (Krivosha, concurring 224 Neb. 399 N.W.2d 752 dissenting).
403 Baldus, Penalty Proportionality Death tionality David review. Court, Supreme Jersey Project, Report to the New Final Review 1991) (hereinafter Report). Special (Sept. Final Court, noting that approach to the the third Master recommended using reversed against death-sentences exist presumption should errors. Id. at 63. penalty-phase because of use of reversed today attempts a defense of the The Court using It eva proportionality review. does so death sentences acceptable of an the absence language, noting “[i]n sive sentence, even that a death we continue to believe explanation, concerning the reversed, represents a societal consensus when A .2d Ante defendant.” deathworthiness II, added). arguing that The Court cites Marshall (emphasis distinguished from procedural fairness, pertaining “issues crime, jury’s do not bear of a affect the substance those that *57 347, A.2d at 691 645 deathworthiness.” Ante determination of added). define what an Court Yet nowhere does the (emphasis even Nor it illuminate or explanation” might be. does “acceptable over-simplification pertaining “issues that on the obvious dwell * ** of jury’s not on a determination do bear procedural fairness Ibid. deathworthiness.” reversal, not prosecutors do after also notes that
The Court crimes, capital observing that the reasons re-try always cases as 348, 645 Ante at indeterminable.” are “varied and for that failure added). Nevertheless, Court is content the (emphasis A.2d at 692 any given that “we cannot conclude inference that to draw the defendant the view that the resulted from that a life sentence case than, example, deathworthy, rather initially was not That is a curious Ibid. strength prosecutor’s case.” it statement, explain means not bother to what and the Court does prosecutor’s by of case.” “strength they were conclusions as those same basic strongly I criticized II, 613 A.2d 130 N.J. at supra, expressed Marshall persuad (Handler, myself no more J., I find dissenting), and 1059 sentences today. Reversed death by explanations Court’s ed 404 proportion- be life
should considered sentences for purpose 253, ality My opinion review. Id. at 613 A.2d based on is are, definition, premise that death reversed verdicts unreli- able indicators of deathworthiness. using irrationality propor- reversed death sentences in
tionality
persists
review should be obvious. Yet the
Court
indulging
I
irony” whereby
what have termed an “unfathomable
sentence, by
reversed
definition too unreliable for use in sentenc-
defendant,
ing
collaterally against yet
is nonetheless used
anoth-
er
proportionality
infirmity
defendant on
Ibid.
review.
reasoning
the Court’s
from insistence
stems
its
that a defendant’s
distinguishable
legiti-
“deathworthiness” is somehow
from
final
verdict
mate
reached in that
case.
defendant’s
justify
proportionality
To
the use of reversed
death sentences
review,
radically
the Court
a facile
draws
but
unsound distinction
“procedural
between
fairness” and “the substance of the crime.”
jury’s
Ante at
405
law since Ramseur
cursory
our
the most
review of
case
Even
capital-murder
to
to refine our
doctrine
indicates our efforts
deathworthy
a death
only
truly
able to receive
that
are
ensure
Clausell,
298, 345-46,
A.2d
See
v.
N.J.
121
580
State
sentence.
(1990)
legitimacy
juries
and
(requiring that
be informed
221
non-unanimous, non-death-deserving
at the
verdict
acceptability
(1988)
Gerald,
40, 85,
v.
113 N.J.
trial);
State
The Court misunderstands process and jury’s deliberative structure that frames its inform ultimate substantive standards determination and Its distinction between substance deathworthiness. crude very penalty’s procedure foundation of the erodes is, deathworthy defen- constitutionality truly the belief —that juries they given a if are deliberative can be identified dants “suitably and their directed within which discretion structure capri- wholly arbitrary risk of so as minimize the limited 189, 2909, 96 S.Ct. Gregg Georgia, v. U.S. cious action.” Powell, Stevens, (1976) (Stewart, L.Ed.2d JJ.). point are because some Death sentences reversed prose- capital-punishment environment of a carefully constructed contaminated, by procedural or substan- whether cution has been fault, impugning thereby undermining the soundness tive of deathworthiness. reliability jury’s ultimate determination *59 as, minimum, must, “acknowledges”, it that a Court death- persuasive is “a less indicator of reversed death sentence death sentence. Ante at than an affirmed worthiness” however, totally unenlightened, as to A .2d at 692. It leaves us be problematic indicator of death worthiness should why such a justify sentence of another defendant. used to the death least, pre very impose should a rebuttable At the Court sumption reversed death sentences are invalid determinations that approach Special of deathworthiness. That was endorsed expressed opinion He that some reversed death Master. might salvageable proportionality review sentences be for use re-trial, if, imposed. especially another death sentence was Report Special suggested that the Final at 61-62. The Master analyze proposed propor for use in Court each reversed sentence tionality requiring if im review to determine the error reversal original pugned reliability sentence. Ibid. Yet here the proof Special inherent in the Court inverts the structure proposal. Master’s The Court states that “defendant does explain why some errors that have caused us to reverse the death necessarily jury’s ability sentence reflect on the to assess the A defendant’s Ante at 645 .2dat 691- deathworthiness.” minimum, respect, due at a bare constitutional With explain Court should and the State should bear the burden demonstrating why requiring reversal of a death sentence errors necessarily do not reflect on deathworthiness. impact excluding
The Court itself concedes the dramatic
proportion
reversed death sentences
have on its exercise of
would
ality
the seven other
review. Ante at
The Court reaches out to note that the fact that Bey only prior finally Marko is the sentenced to death murderer compel finding disproportionate. would not that his sentence was conclusion, hypothetical Ibid. Whatever the merits of that persists in the Court the Court. Because *60 case is not before capital- principles of contradicts the basic following a course that sense, Bey by is condemned a common murder doctrine and comparison primary uses as feature proportionality review that its rejected verdicts of death have been other cases in which seven use of re- The continued by as unreliable. Court’s this Court from proportionality its review versed sentences dooms death start.
IV is pro death sentence The conclusion that defendant’s Court’s process that is itself incoher portionate a of review is end of review, to which subjectivity proportionality ent. The inherent 345, 348, 363, 369, admits, A ante readily 645 .2dat the Court so 702, 690, 692, 699, treatment the Court’s flaccid exacerbated apparent in its fre methodological problems both grave quency analysis precedent-seeking review.
A. palpable analysis a application frequency reveals The Court’s death sentence. Court favoring proportionality of a bias perception engages analysis settled standard or in that without a frequency of death. high predicted or of what constitutes a low inevitably up engaging ends a form reason- Consequently, it a and convenient rationaliza- ing little more than selective that is proportionality. tion of a analysis according to basic Theoretically, frequency operates “ compara sentence is namely, that death
controlling principle,
‘[a]
if
with similar characteristics
tively
other defendants
excessive
committing
other
death
factu
generally receive sentences
than
”
II,
supra,
N.J. Marshall
ally
130
similar offenses.’
State,
1,
(quoting Tichnell v.
Md.
468 A.2d
numerical cut-off. the Court should come conclusion, analyze begins it to the statistical data that before general range fre- up frequency analysis, make about which of Court, here, quencies high. are If the as first are low and which then if that statisti- defendant falls and determines assesses where frequency, represents high enough low the sense ranking cal merely using the to vouch that statistics the Court propor- subjectively-comfortable conclusion about preconceived, Obviously, ranking if a falls defendant’s tionality is unavoidable. minimal, low), but in (high or those concerns are at the extremes one, roughly cases, rank in which defendant’s falls such as this middle, pronounced. those concerns become that death- frequency analysis A of defendant’s sentence reveals frequencies range his from less sentencing for cases similar to amounts percent sixty percent. than ten to about Given coin,” argues, the conclusion should to a “toss of as defendant Minimally, disproportionate. his death sentence is be that frequency death-sentencing in cases as defen such inconclusive susceptibility impermissible bespeaks the such eases dant’s at 362- See discussion factors such as racial discrimination. infra A .2d at 699. range mid-range predicted Falling does in the as defendant peculiarly vulnera- frequencies imposition, sentence he is analysis. frequency this Court’s to the ad hoc character of ble analysis respect frequency analytical Court’s failure with protections defen- only already scant serves to further devalue the analysis. Although originally de- by frequency dant is afforded objective up make signed of the two methods that as the more review, analysis applied by the Court frequency proportionality subjective deter- stage for does little more than set the whatever *62 precedent-seeking approach. might be made under mination B. heavily on acknowledged that relies more it
The Court has
by
designed Mar-
analysis. Unfortunately, as
precedent-seeking
II,
by
today,
especially
practiced
Court
and most
as
shall
woefully inadequate to its task.
analysis
precedent-seeking
is
that,
analysis is
precedent-seeking
The ostensible virtue
employs
it
a more
statistically-based frequency analysis,
unlike a
judicial reasoning.
traditional form of
The Court assesses the
proportionality
by seeking
of a defendant’s death sentence
out
patterns
compar
of common facts and circumstances that inform a
judgment
culpability,
ative
about the relative
and thus the death-
worthiness,
particular
subjectivity
of a
defendant. The
inherent
approach
posits
subjectivity
that
is
The
undeniable.
Court
that
as
a welcome antidote to the sterile and deterministic nature of
analysis.
gamely
during
statistical
Thus the Court
asserts that
review,
precedent-seeking
people
it comes to meet
the “real
II,
supra,
involved
defendant’s and similar cases.” Marshall
154,
As with standardless use of the Court’s precedent-seeking posing review is rife with rationalization objectivity. quite reasonably suggests age The Court that —a youthfulness axiomatically correspond defendant’s to a —need culpability, although decreased ante at 645 A.2d at it age mitigates culpability.” does concede that “often a defendant’s speculate Ante at 645 A.2d 709. The Court does not about why jury youth. unimpressed this was defendant’s It proposition jury’s content that the age failure to find as a mitigating per factor does not make its determination se aberrant. Ibid.2
Although Bey’s youthfulness
itself, may
not have constituted
factor,
mitigating
inexcusably
mitigating
the Court
treats that
slightest appreciation
separate'
factor in a vacuum without the
factors,
them,
mitigating
particularly
weight
in the
ascribed to
willing
jury
State, however,
briefs,
in its
was
this
did
speculate
why
age
mitigating
suggested
jury
not find
as a
factor.
It
was
perhaps
thought
given
carrying
that if
a life sentence
swayed by
mandatory thirty-
ineligibility
being
young, aged eighteen, might
year parole
period, Bey,
relatively
age
forty-eight.
jury,
reasoned,
be released at the
had it so
would have
wrong;
given
been
his
conviction and sentence would not have been
Bey,
prior
eligible
during
for release
his life time. The
was not
informed of
accurately
sentencing
the true
of a life sentence for
however. The
court
implications
Bey,
matter,
failed to answer its
on the
a failure that this Court held to be
inquiry
harmless error.
The Court notes that the of childhood is, many unfortunately, a trait common to defendants faced with Indeed, Ante 645 A.2d 709. death sentence. at at alcohol- Bey’s penalty evidence adduced at trial —his mother’s father, abuse, family by frequent his of his abandonment consequent savage beatings, deprivation and the emotional alienation, drugs its early dependence on and alcohol and finally capacities, resultant destruction mental and social maladaptive litany too resort to violence—is a all familiar any distinguishes Bey’s is his sentencing judge. Yet what case yet eighteen at the youth at the time of his crimes. He was not he committed them. That his behavior is horrific time ought to deserving punishment question. is What of severe however, not, other question, be in and is is whether relative to abuse, Bey’s youthful experienced who have similar defendants distinguishes culpable. him The Court’s failure as less ness seemingly yet another a series question address that marks use of arbitrary that characterize this Court’s determinations precedent-seeking review. respect shortsightedness to the correlation
The Court’s with age of the abuse he suffered defendant’s and the evidence between form in the manner takes an even more saturnine a child distinguishes defendant’s case from that of James which the Court Koedatich. standards, Koedatich, a prior murderer
By the Court’s own
victims,
comparison
pattern
sexually assaulting his
the ideal
pains
At
to differentiate
Ante
A.2d
case.
sentence,
Koedatich,
quite brazenly
received a life
Court
who
additional, uncontroverted
Bey,
“unlike
offered
asserts that he
*64
impact
evidence to demonstrate the
of the
and violence [he
abuse
had] suffered.” Ante at
Koedatich offered more and better evidence of child abuse permeate capital punishment radical that contradictions our system. disturbing, they willingness More to show Court’s paper weakening Bey’s over its own role in the evidence of abusive childhood.
Bey argued forcefully on direct
review that
the trial court
erroneously
prevented
fully adducing
him
had
from
evidence
related to the abuse he had suffered as a child.
trial
court
which,
refused to
Report
although
allow into evidence the Cooke
prepared by psychologist
by
prosecution,
retained
addressed
Bey’s mental and emotional condition at the time of the murders
particular,
and went
to the core of his
defense.
the Cooke
Report
Bey
rage
linked the abuse
had suffered
a child
as
to his
against
and violence
his victims.
It
thus “demonstrated
impact
suffered,”
of the abuse and violence [he had]
which is
Court,
precisely
review,
conducting proportionality
what the
now
says
lacking
respect
in the evidence that was adduced with
to
Bey’s
Thus,
childhood. Ante at
In the same permission were refused to mother, Bey’s treat understandably a defense witness reluctant give testimony detailed about the abuse she had inflicted her son, sentencing ruling prohibited as a hostile witness. The court’s asking Blocked, Bey leading questions. defense counsel from Ms. defense counsel was unable to elicit detailed accounts of the manner, severity, frequency abusive incidents young Bey’s proportionali- Marko life. Now the Court affirms the ty Bey’s part sentence because of his failure to adduce distinguishes culpa- him more sufficient evidence abuse than Koedatich. ble James subjective ignore the
Through judgments impact a series of rulings, depre prior the Court of the Court’s own harmless-error aberrancy. Although Bey is the glaring cates indications Court, juror yet face the no found youngest capital defendant substantial, Bey Although produced “age” mitigating factor. childhood, only during of abuse two incomplete, albeit evidence jurors mitigating factor. Rather found the “mental disturbance” aberrancy comparing Bey’s “hypotheses” than test those young those of defendants defendants where sentence with *65 better, found, or where both mental factor was even disturbance found, of relevance those the Court instead discounts the were Bey comparison a of to the instead on factors and concentrates Then, finally prior of murderers. when confronted narrow class murderers, who, Booker, Koedatich, all Vasquez, prior and culpability, ante at Court, according exhibit similar levels of to the life-sentence, 386, 710, of Court 645 at all whom received A .2d noted, because, Koedatich offered more and distinguishes them life, abuse, Vasquez’s parent’s pled his child better evidence of spree was fueled substance abuse. Booker’s murderous Booker reveal both Ibid. Yet the narrative summaries that persons, significantly older and both were Koedatich killed three thirteen-year strangled old Vasquez, Bey, while who than Marko Appendix, death, problems. any See to denied mental-health child A.2d at at 645 733. infra from attempts distinguish case that its to Koedatich’s
To bolster argumentation more defendant, indulges in a form of the Court Koedatich’s life journalism judicial decision. appropriate to than juror. The result of a lone hold-out Court sentence was the remaining juror eleven of the suggests “prevented” this implying somehow opportunity to return death verdict death, Koedatich, single being juror’s vote of sentenced within a A. deathworthy than not. Ante 2d at really is more implication border and its studied observations 711. The Court’s to a determination Jury unanimity is essential outrageous. on the Ramseur, A.2d supra, 106 N.J. of deathworthiness. or federal constitution nor the state Neither our statute who are “almost deathwor of defendants permits a classification majority does in its precisely what the thy.” Yet is that not distinguish James Koedatich? attempts to rely suggest, on wrong let alone simply for this Court It is non-deathworthy to, notion that some give legal force thinking deathworthy than others. Such are less defendants totally what is a It is at odds with dangerously misconceived. deathworthiness, namely, the unanimous condition of fundamental jurors life shall be qualified that the defendant’s concurrence argument betrays the Court’s endur- to such an forfeited. Resort norms that inform and the basic constitutional ing confusion about regime. capital punishment regulate our only review not precedent-seeking The Court’s exercise Bey rulings grim reminder of the Court’s disastrous serves as a TV, viability impel the Court to consider but also should currently practiced in the review doctrine as it is harmless-error clearly adjudged that error quite see now capital cases. We yet capital can materialize at stage of a case harmless at one substantial, perhaps dispositive, influence stage exerting another directly imposition subsequent that bear on the determinations of death. of a sentence
C.
impossibility
today highlights the
of harm
decision
Court’s
capital
Errors in
analysis
penalty
in the
trial of a
case.
less error
adjudged
on direct
penalty trial that were
harmless
a defendant’s
can
proportionality
in
review where their effect
resurface
review
Court, having earlier determined
incalculably harmful. This
be
they were “not
to have been harmless because
certain errors
result,”
unjust
Bey,
producing an
State v.
129
clearly capable of
(1992)
IV),
557, 591,
the
(Bey
now must confront
415 continuing its foresee the inescapable of failure to reverberations unjust of error” to to an result. capacity “harmless contribute emerge harm- from a consideration of Two distinct conclusions subsequent propor- the light undertaken of less-error-review tionality is that analysis in this case. The first Court’s done penalty errors trial were harmless prior determination that imposed capacity to the sentence on the in terms of their affect obvious, second, although no is less defendant inaccurate. of damning, to be from the Court’s exercise less conclusion drawn analysis, traditionally is that proportionality review harmless-error understood, penalty a phase or in the of appropriate feasible case. capital start, application problems in the of very
From the inherent phase analysis penalty of a to the conventional harmless-error Supreme evident. The United States capital case have been analysis application first of harmless-error Court allowed phase capital case in Satterwhite v. penalty made in of a errors (1988). Texas, 249, 108 1792, 100L.Ed.2d 284 Even 486 S.Ct. U.S. re Supreme use of harmless-error Court sanctioned the view, note “evaluation the conse compelled it felt that the may capital case quences sentencing phase in the an error given that is to the more the discretion be because of difficult 1798, 258, 295 100 L.Ed.2d at at 108 S.Ct. at sentencer.” Id. 738, added); Mississippi, 494 (emphasis see also Clemons v. U.S. (1990) (“In 1451, 725, 1441, 108 L.Ed.2d some 110 S.Ct. situations, peculiarities may court conclude that appellate a state analysis reweighing or harmless-error appellate in a case make extremely speculative impossible.”). Marshall and Justices Satterwhite, Brennan, argued that harmless-error concurring penalty phase in the because unlike impossible was review determination, jury’s pen guilt-phase decision traditional “profoundly moral defendant’s alty phase is a evaluation at 486 U.S. 108 S.Ct. character and crime.” J., (Marshall, complex concurring). Given the L.Ed.2d “predicting jury’s penalty-phase, in the nature deliberation *67 416 is a of a cold record ... on the basis of a sentencer
the reaction enterprise.” Ibid. speculative dangerously can a court harmless-error review —that conceptual basis of in not viable the verdict —is of the error on the effect determine juries to make value determina- requires trial that penalty-phase Carter, Harmless Linda E. simply to find facts. rather than tions Capital Doctrine Misun- Penalty Case: Phase Error In the (Hereinaf- (1993) 125, 149 Misapplied, 28 Ga.L.Rev. derstood “Carter”). penal- jurors [in make choices “The individual ter mitigating circumstances ty-phase about the existence trial] proceeding weighing creates a unique of factors coupled guilt trial.” Ibid. fundamentally from different analysis be fitted to Moreover, cannot harmless-error traditional typical penalty-trial proceeding. nature of a the distinctive of evidence on the amount inquiry is focused harmless-error Carter, supra, 28 particular conclusion. support a adduced to case, Thus, of defendant’s on direct review at 159. Ga.L.Rev. Report and the exclusion of the Cooke that the Court determined Bey testimony of Ms. as a elicit the allow the defense to refusal to errors, they consti part, because were harmless hostile witness IV, Bey supra, 129 N.J. at See cumulative evidence. tuted (“Viewed testimony at context of the medical A 610 .2d 814 trial, compelling cumulative evi report offered but Dr. Cooke’s disorder.”) background personality of the defendant’s dence (“Moreover, added); Bey’s A.2d 814 Mrs. (emphasis id. at 610 cumulative[.]”). does quantitative review Such testimony was judgments not, cannot, complex value take into account the indeed penalty-phase.3 juror constitute determinations case, discretion the sentencer’s phase capital of a where penalty values, McCleskey v. see contemplates the influence of moral 1756, 1767, 279, 294, L.Ed.2d 95 Kemp, S.Ct. 481 U.S. error "structural” and "trial” measurably does the distinction between Nor harmless-error review the penalty or enhance the fairness of aid the accuracy Applying Ogletree, sentencing. Jr., The Harm See Charles J. of capital phase (1991). 152, 159-64 105 Harv.L.Rev. to Coerced Confessions, Harmless Error *68 (1987) (“Each composition, and the jury unique in its is 279-80 innumerable fac- requires that its decision rest on Constitution infinitely tors.”), more than what the Court must consider Comment, juror Deadly Mistakes: might do. See “reasonable” Sentencing, 54 Capital in U.Chi.L.Rev. Harmless Error (1984). review further debilitates right proportionality to
A defendant’s fairly apply can ever conventional prospects that a court the phase of occurring penalty in the analysis to errors harmless-error potential prejudice that acknowledged have the capital case. We (or excluded) at the evidence from the fact that adduced can result overlap prosecution another capital-murder will phase one of a Erazo, 112, 133, 594 v. 126 N.J. phase prosecution. of the State (1991) phase guilt (noting evidence introduced that A.2d impact jury’s deliberation inescapable on capital trial has an cases, guilt-phase moves prosecution the penalty phase). In most But even if the penalty the trial. into the record for evidence into the incorporate guilt-phase evidence explicitly State does rely jury on it danger the will “the abides that penalty-trial, of evi Ibid. The flow during penalty-phase deliberations.” the capital trial is an penalty phases of a guilt the to the dence from uses, do, a bifurcat any system, that as we inescapable problem in guilt and the jury for both the sits the same ed trial structure but today, that of the Court’s decision phases. By virtue penalty Ante at proportionality into review. can now slide over evidence guilt penalty made at the at 701. Thus errors 645 A2d proportionality review. swept along into phases are wrong limiting necessarily My point is not that Court jury that before the review to the evidence precedent-seeking its sentence, accepting rather that actually the death but rendered original jury, the has Court on the record before the evidence (of errors accepts it whatever obligation recognize to that an exclusion) assembling might made have been inclusion or Moreover, recognize that its must Court body of evidence. for the effect rulings properly account cannot prior harmless-error subsequent might have on the determination those errors proportionality. defendant’s sentence’s view, my on chooses to proportionality a court that review willing jury limit its to the “evidence” before the must be review penalty- prior harmless-error determinations of re-consider its may those have phase error account for such effect that errors Further, must proportionality determination. a court complex required of given conclude value determinations impossibility predict- penalty phase given ing evidentiary proportionality errors on likely effects of *69 review, analysis penalty-trial of errors conventional harmless-error is unworkable. lay
The values that behind the harmless-error doctrine —finali resources, judicial the determination not to ty, conservation of compromise integrity judicial allow error to irrelevant substantial, by morality, they process but of reason and force —are severity by are the “awesome death sentence.” dwarfed Satterwhite, 264, 1801, 100 supra, at at L.Ed.2d 486 U.S. 108 S.Ct. (Marshall, J., concurring). today’s see in decision the at 298 We by insidious effects of trial errors sanctioned harmless-error analysis purposes penalty to the that is ill-fitted nature of a begin implications anticipate trial and to its for a subse cannot proportionality quent review.
V
comparative
pre-
review
in
proportionality
plays
The role that
venting
perhaps
significant
its
invidious discrimination is
most
Supreme
recognized
one.
United States
Court has
that when
procedures provide adequate protections
prosecution
in
state
case,
capital
by
proportionality
required
of a
review is
45,
Pulley, supra,
at
federal constitution.
465 U.S.
104 S.Ct.
876,
However, despite the
79
at 37.
lack of a federal
L.Ed.2d
requirement,
death-penalty
capi-
our
constitutional
statute affords
right
proportionality
to seek
of their
tal defendants the
review
2C:ll-3(e).
Indeed,
Legislature
sentences. N.J.S.A
when the
1982,
capital-sentencing scheme in
considering
present
was
guarding
recognized
importance
Attorney
himself
General
death,
sentencing
defendants
against invidious discrimination
are
Legislature
make sure that
sentences
urging
[death]
“to
State,
fair,
way throughout the
even-handed
being meted out
or areas
either classes
individuals
that we do not' have
Joseph
arbitrary
way or other.”
appear to be
one
the State which
Apicella, Proportion-
Rodriguez, Michael L. Perlin & John M.
H.
Safeguard
Jersey:
Indispensable
in the
ality
New
An
Review in
(1984).
Process,
399,
Rutgers
429 n. 203
Sentencing
L.J.
Capital
question
proportion
yet
has
to confront the
whether
The Court
That, I
ality
required
under our State Constitution.
review
submit,
overarching magnitude the answer
question
is a
Yet,
noted, supra, at
even
long postponed.
cannot be
which
re
proportionality
exercise
constitutional mandate to
without a
view,
independent obligation to review the
has an
the Court
system
it is not infected
capital-punishment
to ensure
clearly
has stated
discriminatory factors. The Court
invidious
“
race, sex,
suspect
the basis of
or other
‘[discrimination
”
II, supra, 130
Marshall
cannot be tolerated.’
characteristics
Ramseur,
(quoting
supra, 106 N.J.
420
Id. at
“relentlessly
613
they
document[ed].”
cause
were not
Court,
According
disparities
not
the
were
A.2d 1059.
the
is,
data
indicated
consistently shown —that
the
that
race-of-defen
in
penalty-
effects
the
disparities
dant
did
show race-of-victim
decisions,
advancing to
the
in cases
trial
race-of-victim effects
for
stable than the effects observed
the race-of-
trial were less
Id. at
penalty
in
trial
defendant variable
the
decisions.
yet
This
it
con
1059.
Court announced that
was not
A.2d
Id.
systemic.
effects of racial discrimination were
vinced that the
however,
Clearly,
put on
at
Defendant bases an version of II. Master Marshall Forty Special data base used cases addition, original have been added to data set. defendant’s *71 University, pre- Mills of Princeton experts, Messrs. Weiner and study question To pared their tables to the of racial bias. own responsible disparity in hypothesis the was for the test race sentencing, rigorous used statistical tech- experts the defense explain possibly the niques to eliminate other variables could variations attributed race. updated the experts
Defense Table 18 and found that overall in Marshall II has continued at a disparity racial first noted statistically significant disparity especially strong at level. That is culpability disparity significant, al- level four. The remained three, though disappeared not great, culpability level culpability, highest degree of level five. Special argues that one relies on the Mas- Defendant whether own, impermissible tabulations or the effect of ter’s defendant’s pronounced “mid-range” in of factors —such as race —is most cases ie., culpability, penalty imposed is cases which finding roughly fifty-percent of the or less. That has consid- time see, Master, support Special work of the erable from academic al., e.g., Equal Penalty the Death Justice and David et Baldus (1990) (citing demonstrating magnitude that “the work Baldus impact sentencing racial on the outcome factors varies cases”). findings culpability with the level of the Those also comport If with common sense. invidious racial discrimination capital-sentencing system, likely into it to do so in the enters is juror greatest. prosecutorial is areas which or discretion culpability extremely of a is either Where relative defendant low, high extremely prosecutorial or discretion effect ie., minimized, fairly likely sentencing outcome is obvious. mid-range culpability, vary But which outcomes cases death, consistently opportunity life for invidious between greater. role is play factors to
Although including dispute it defendant’s does results — shocking sixty-five percent disparity treats defendant’s Court —the dismissively. primarily analysis It defendant’s claims attacks *72 re-worked expanse of cases defendant’s of the broad because at 645 A.2d at culpability level four. Ante sixty-five focusing on the its assessment The Court is correct Theoretically, all cases culpability level four. percent disparity at roughly share the same grouped culpability the level at same Special The Master receiving a death sentence. likelihood of covering culpability into five bands originally divided the levels culpability one twenty percentage points. Thus level ranges of frequency, predicted .19 and level includes all cases with a 0.00 to Because so few death sentences includes .20 to .39 and so on. two universe, death-eligible when the cases imposed relative to the are levels, majority grouped at level the vast are plotted are on those Indeed, only Special Master’s model seven cases one. under the up in level four. end hypothesis about race as an invidious factor is operative
The discretionary system creeps the elements of the that it into discretion) juror marginal (prosecutorial discretion occur, going expect it disparity If is to one would to cases. racial (extremely high extreme- not in the obvious cases rear its head cases, mid-range ly predicted frequencies) but the so-called low predicted frequency of death-sentence roughly .30 and .70 between imposition. race, recognized to test for one would Special Master that Hence, mid-range together. instead of set- group
have to
cases
twenty percent
expected frequency,
ting
ranges
of
of
the bands
arranged
pool
entire
of cases in order from
Special
Master
adequate
an
frequency
highest,
to
and then to ensure
lowest
assessment,
culpability
purposes
fixed the
number of cases for
level. At the re-worked
levels at an even number of cases at each
sweep
predicted frequencies now
culpability level four a wide
among
twenty
grouped there.
from .14 to .89
or so cases
exists
cases,
mid-range
omitting the
argues that
those
Defendant
extremely
extremely high predicted frequencies, are the
low and
reasons, however,
pool
appropriate test
for race.
Court
four,
longer
sweep
level
defendant
no
expanding the
Ante
DEFENDANT: Bey 0.19 black death 1. M. * * 4 0^* (2) 0.21 life Monturi white 2. S. * ** Perry 0.22 death A. black 3. * * * 0.24 white death 4. D. Pitts Purnell 0.36 black death 5. Br. 0.40 life Koedatieh white 6. Jm. 0.42 life Manfredonia white 7. M. (1) 0.42 life Monturi white 8. S. life 0.42 white 9. T. Rose white/Hisp. Engel life 0.43 10. Wm. Guagenti life 0.46 white 11. Jos. (2) 0.47 black life Booker 12. Geo. (1) 0.48 white life R. Rise 13. (1) life Booker 0.53 black 14. Geo. Hightower death 0.53 black 15. Jac. white/Hisp. life Melendez 0.54 16. M. * * *4 defendant which the Court later determined indicates cases in eligible, e.g., that he I in which the Court determined even death Bey was not juvenile. of the finished tables used do not appear was a Those names any cases Master, of race those but analysis, defendant or purposes Special majority the use making criticizes of 23 cases level 4. are included a total majority, course, Yet, of 393, 645 at 714. three Ante at A.2d of those cases. sentences, like those insists that reversed death of the heedless steadfastly irony, concerning deathwor- "a societal consensus I, continue to represent Bey 692. Ante at 645 A.2d at thiness of a defendant.” (1) death 0.55 black 17. S. Moore (21) death 0.55 black 18. S. Moore 0.68 death Hunt black 19. Jm. white/Hisp. Reyes life 0.72 20. L. (1) white life 21. 0.79 W. Johnson Bey death 0.82 black M. (2) 0.85 white 23. R. Rise .14, fact, theoretically begins the first Although range level, black defen- At an anecdotal note that three case is .19. Purnell, dants, Braynard Bey, Perry, with the Marko Arthur third; first; frequencies, all received predicted fifth-lowest ( cases, Overall, twenty-three eight of ten death sentences. Zio) only penalty, the death but two of black defendants received (2/18) received death. The most reveal- thirteen white defendants accepts argument that ing information comes if one the Court’s range big analysis to those that fall is too and limits cases .70, mid-range. could be considered a fair between .30 and which defendants, sub-grouping black five of whom That has seven defendants, eight a sentence of death. It also has white received marginal life sentences. Thus in the most all of whom received cases, expect roughly fifty-fifty in which one would chance of *74 sentence, receiving one finds that blacks received the a death Thus, in five out of seven eases and whites in none. penalty cases, analysis mid-range of is on the true even when the focus frequency predicted .30 and .70 of death sentenc- those between ing, disparity obvious between races is visible. an showing, I am convinced that the racial
Based on defendant’s signifi- alleged by culpability level four is disparity defendant at worthy thorough conscientious and cant and of this Court’s most Yet, exhibits both an uncharacteristic consideration. the Court timidity light judicial obligation to confront the of its oft-stated unwillingness discrimination and an possibility of invidious racial credibly cogently pres- rigorously arguments that and to examine possibility. ent that easy concluding route in too few cases
The takes the Court regarding possible to a determination exist from which make discrimination, 388, ante at 712. The effects racial A.2d of pools problems permeate under-sized data associated with inescapable proportionality fact whole of the Court’s review. analyses in this are disadvan that all statistical case remains margins taged pools consequently large by under-sized data indeterminacy casts a of for That shadow doubt error. statistical Court, however, proportionality enterprise. The over the entire bear the of determines that defendant alone should burden dissi logic is at pating doubt —a determination that odds with itself, premised proportionality which is on the notion of review subjected right has not to to that defendant the constitutional be Moreover, punishment. placing disproportionate Court’s doubt on the defendant contradicts its the burden of statistical ferreting out discrimination role race-based institutional justice independent responsibility its to administration determining plays no role in ensure that invidious discrimination who receives a death sentence. Ramseur, vigilant the Court has that it be warned would
Since by Now system. racial in the confronted for traces of bias bias, methodology quibbles with of racial the Court evidence reactionary of statistics. As Court evinces an almost distrust 710, analysis acknowledges, ante 645 A.2d at statistical assessing of racial discrimination. plays an role in claims essential Senate, Injustice N.Y. Times May in the See Racial (Editorial) refusing (criticizing to at A-22 members Senate appended House of federal Act version endorse Racial Justice statistically-based, bill, expressly authorize crime which would death-penalty defendants federal racial discrimination studies possible to discover racial which it would be and without penalty). the death in the discrimination administration ' proved that has racial question is not whether defendant system, operative capital in our but murder discrimination rather, showing requires Court under- *75 defendant’s whether sentencing suspend capital until investigation and to
take further thoroughly discounted. allegations racial discrimination can be of wholly inadequate response to the light of Court’s McCleskey arguments, v. statistical its citation defendant’s modifies its review of Kemp rings irony. Unless the Court discrimination, subjects systematic racial it defen- allegations of waiting Bey penalty to the ultimate while dants like Marko acting invidiously quantum proof that race is unspecified some capital system. The Court suffers under the in our murder allegations of those can be delusion that serious consideration out, eventually continually postponed. Time run as it did for will McCleskey. Warren
VI inadequacy propor- beginning, grave As stated product of a tionality review at issue this case is not the Court Nevertheless, insight lacking in or commitment to fairness. proportionality review reflect the errors that infect this exercise capital jurisprudence. fundamental incoherence of our murder sentences, The Court’s continued uncritical use of reversed death order, only by irrationality supported can be an first drawing an unfounded distinction between the basic fairness of the sentencing process validity pro- of that and the of the outcomes Lacking methodology, the cess. a coherent and workable Court analysis, compro- precedent-seeking over-relies on a which is itself by the harmless-error determinations made the defen- mised application frequency on direct review. The Court’s dant’s ease analysis by no intellectual convenience with is driven more than regarding high given little care to the assessment what is a or low relationship prece- frequency and lax attention to its functional Finally, disturbingly, dent-seeking review. and most evidence of determining who the invidious effect of racial bias receives basically ignored, again once turned aside as death sentences is premature or inconclusive.
427 of the failure of Today’s serves as further confirmation decision punishment. The Court’s sincere experiment capital our squared cannot with the aspirations proportionality for review be abiding of problems attempt apply in an an standard inherent to lights of imposition to of a sentence. fairness the death death humanity common insist that we treat reason our undeniably, today’s differently. Sadly, and the result of decision Bey’s pending nor now execu- is neither rational humane. Marko to appreci- the collective failure tion is bitter testament to Court’s society naturally in respect the limits that inhere ate and by governmental power is governed in which the exercise of law rationally, government act by an insistence that the constrained fairly, consistency, or at all. and with not that it could fashion constitu
The Court’s initial confidence
legitimate
penalty,
the
see
tionally
process
imposing
(“How
Ramseur,
331,
A.2d
we will
supra,
The confusion so
quest
product
to devise and
of a futile endeavor:
inevitable
process protection
due
commensurate with
apply a standard of
imposed.
gravity of the sentence to be
are,
now,
import
of the what has become
by
inured to
We
different____’” Ramseur, supra,
...
“‘death ...
cliched—that
Ohio,
326,
(quoting
v.
438 U.S.
N.J. at
The conclusion is clear: Court juridical brutality imposing to the of mission or accommodate itself process protections to its death without due commensurate awe- finality. some by-now-familiar argument capital jurispru that the murder Supreme on two
dence of the United States
Court rests
funda
mentally incompatible goals
given
poignancy by
was
renewed
Supreme
Justice Blackmun’s recent dissent from the
Court’s
—
Collins,
U.S.-,
in
v.
114
denial of certiorari
Collins
S.Ct.
(1994):
1127,
fairness has been achieved and the need for
feel morally
obligated
and
to concede that
the death
intellectually
simply
penalty experiment
has failed.
[Id.
127 L.Ed.2d at
S.Ct.
438.]
114
at
at-,
1129,
conclusion, coming
Blackmun’s
as it does at the close of
Justice
Court,
long
Supreme
experiences
is
his
tenure on
based
his
twenty years,
indispensable
attempting,
over
to reconcile the
fairness,
yet conflicting
consistency and
a task that he
values of
simply impossible.
concluded was
temptation
by abandoning
to resolve the conflict
one value
ever-present
apparently
for another is
irresistible to some.
Arizona,
639, 673, 110
3047, 3068,
v.
497
S.Ct.
111
See Walton
U.S.
(1990) (Scalia, J.,
511,
concurring
part
and dissent
L.Ed.2d
(“I
not,
case,
future,
ing
part)
in this
or in the
vote to
will
uphold
Eighth
an
Amendment claim that the sentencer’s discre-
restricted.”)
Court, however, can
unlawfully
This
tion has been
evade,
obligation
its
to assess
escape,
and should not
regime
principles
compatibility
capital-murder
of our
with
reliability
undergird
justice
our
consistency
sense
Ramseur, supra, 106
punishment
is death. See
N.J.
when
(“Sometimes
conflicting,
principles
the two
As
oft-expressed
wholly inadequate
legitimating
our State’s
aid
legitimation,
impose capital punishment. Absent
desire
quixotic aspira-
its
must
Justice Blackmun abandon
the Court
irreconcilable,
or with Justice Scalia draw
tion to reconcile
that,
judicially
irrecon-
“at
of these
announced
conclusion
least one
—
Callins,
wrong.”
supra,
... must
U.S.
commands
be
cilable
J.,
at-,
(Scalia,
As intellectual, resources, on economic and enormous both lavish compas- lay claim our sense of person precious can little to who however, have, obligation rely principle, to We an sion. governmental power only basic notion that be can exercised fidelity process, to the of due values values increase as the punitive governmental severity of action escalates. How else can secured, liberty our cornerstones of collective be unless we are willing they sedulously applied to be insist that on behalf of the least of us? acknowledge
This Court should that no sentence can be by process of by affirmed review that is beset inherent contra- dictions, error, subjectivity, riddled with laced with and tainted apparent If racial we are in casting bias. uncomfortable Marko Bey victim, we can legitimately substitute ourselves. Al- though unwittingly, perhaps failing insist that death be imposed protection with the full measure of constitutional or not at all, significant part we lose a and irredeemable of our civilization built on the rule of law.
APPENDIX Detailed, Factual Description of Similar Cases derived from Nar- Case, Summary Eligible Jersey rative Death Proportion- New ality Project. Review George Booker: Booker,
George aged thirty-six, day went on a “three crime spree.” sexually assaulting After stealing his first victim and her car, pedestrian Booker ran a male down and stole his wallet. couple. Booker then raped entered home of a lesbian He victim, sodomized the partner first then killed Her her. returned home; the defendant forced her to undress and lie in next bed partner, her then he stabbed her to death. When the victims found, were it was discovered that the first victim’s mouth and in, gagged forehead had been her bashed mouth with a bathrobe tie, wrapped and a cord was around her neck. Police found the carrying defendant elderly knife in the an neighbor. home of *79 The knowing defendant was convicted of murder respect purposeful the first victim and murder of second. At the aggravating jury presence of three penalty phase, the found murder, prior extreme respect to the first murder: factors with felony. jury The found three suffering, contemporaneous and murder, victim, prior extreme aggravating factors for second jury escape The also found suffering, murder to detection. and and the mitigating of emotional disturbance factors jury applied to murders. deadlocked factors both catchall outweighed aggravating fac- mitigating factors whether tors, of life aggregate an sentence and Booker was sentenced to parole disqualifier.5 sixty year imprisonment with Vasquez: 2. Carlos old, year aged a thirteen Vasquez, forty-three, abducted
Carlos had her hands killed her. The defendant bound raped her and The cause of her back. together pulled feet them behind ligature strangulation, asphyxia by gagging, the victim’s death was denied mental spine. The defendant of the cervical and fracture problems. the catch-all found health or substance abuse aggregate sentence received an mitigating factor. Defendant year forty parole disqualifier.6 imprisonment with a life Taylor: Leroy strangled raped Taylor, age twenty-five, had LeRoy Taylor girlfriend. had babysitter hired his thirteen-year-old girl. pled He four-year-old of a prior for the murder conviction argues Booker more because that Booker was clearly culpable Defendant higher was Booker’s level of victimization a total of three had killed persons. 4(c) aggravated to be assault or torture was found factor of than since the Bey’s, large sharecropping though he had come from a Booker, Unlike present. Bey, Booker was consid- addition, childhood. not suffered an abused had family, older than erably Bey. are the two cases argues of victimization in levels Defendant age, disturbance, and lack lack of mental but that older Vasquez's equivalent more make him childhood, and the victim clearly known abusive youth culpable.
guilty proceed penalty phase, the and did not to a to murder plea apparently part agreement. Taylor of the a received life parole disqualifier thirty-two-and-one-half with sentence a total years.
4. Koedatich: James Koedatich, thirty-four, age eighteen-year-old an
James abducted parking County Amie Hoffman from the lot the Mall of Morris approximately p.m. 9:30 1992. November The defendant times, raped girl, multiple her and sodomized the stabbed includ- wounds, ing body two fatal chest then her left an isolated tank in holding Randolph Township. Defendant had committed a earlier, prior years murder ten and Florida another murder of a twenty-five-year-old two after Amie woman weeks Hoffman penalty phase, jurors At a murder. retrial found four 4(a), murder; 4(c), aggravating prior suffering; factors: extreme assault, 4(f), 4(g), contemporaneous kidnap and sexual and murder jury escape detection. The found a factor of childhood trauma 5(h) under factor. During weighing process, catch-all jury imprisonment life imposed.7 deadlocked and was Anthony McDougald:
Anthony McDougald involving multiple committed murders bur- glary Defendant, and sexual of at assault least one of the victims. age twenty-seven, been dating thirteen-year-old girl, had daughter parents objected of the two victims. Her to Antoinette McDougald having McDougald sexual relations. entered girl, their thirteen-year-old home with another slashed Mr. Bass’ Defendant maintains that fact that had Koedatich committed third earlier, years years murder ten and was 34 when he old committed the New murders, Jersey culpable Bey. renders him more than Marko defense trial, contends that Koedatich a life received sentence because he received a fair as, childhood,” picture in as much that the received "a full of his abusive sentence, understood alternatives the death and was shielded from inflammatory irrelevant evidence. chest, the head struck him in him in the throat and stabbed mother with a cinder- He then struck the a baseball bat. throat, bat, the bat into her her and inserted cut block and killings. girl participated thirteen-year old also vagina. The *81 trial, sought penalty portray defendant At the defense childhood, severely deprived and product a as a violent MeDoug- his wife. impending divorce from despondent over the child, was at trial that when defendant ald’s mother testified Carolina, had sister, living in North had with them her who been later, years A when the defendant. few physically abused the Newark, Jersey, beaten family New defendant was also moved to his mother boyfriend repeatedly witnessed his mother’s trial, jury aggravating found being penalty At beaten. 4(f), 4(e), escape suffering; murder to intent to cause factors detection; engaged in 4(g), murders while commission of the mitigating factors burglary. jury also found commission disturbance, and 5(a), influence of extreme mental emotional 5(h), concerning background and character. catch-all factor mitigating outweighed aggravating factors found errone- penalty phase, on the court’s Retrial of the based factors. 4(c) factor, pending.8 charge aggravating is now ous on the WILENTZ, and Justices For Justice affirmance —Chief POLLOCK, O’HERN, CLIFFORD, and STEIN— GARIBALDI HANDLER —1. For reversal —Justice McDougald abuse as the extended did not experience The defense claims engage did and that Marko was inflicted on Marko Bey child that Bey, mutilation of his victim. such extensive torture or