*1
Ill *7 Defender, Borman, Jones, L. Assistant Public Judith Dale Defender, Deputy and Bernadette De- First Assistant Public Defender, Castro, argued the cause Deputy Public Assistant Defender, Caraballo, attorney). Public appellant (Wilfredo for Deputy Attorneys Gen- Flanagan, and Boris Moczula Janet (Robert eral, respondent Tufo, Del argued the cause for J. Moczula, Jersey, attorney; Boris Attorney General of New Paskow, Attorney Assistant Flanagan, and Anne C. Janet counsel; General, Flanagan, on Moczula and Janet Boris briefs). argued the curiae Lustberg cause amicus Lawrence S. Jersey Lawyers of New Association of Criminal Defense Vecchione, Deo, Dolan, attorneys; {Crummy, Griffinger & Del Jacobi, briefs). Lustberg and on the Lawrence S. John V argued cause for curiae Amer- A. Ruhnke amicus David Barrett, Jersey of New & ican Civil Liberties Union {Ruhnke
117 attorneys; Barrett, David A. Ruhnke and Jean D. on the brief).
PER CURIAM. Marshall, 1,
In
(1991)(Marshall
State v.
123N.J.
586 A .2d85
I), this Court affirmed defendant’s conviction for the murder of
resulting
his wife and the
appeal
sentence of death. This
requires
“proportionality”
us to resolve the
issue reserved in
170,
Capital
that case.
Id. at
586
2d 85. The
A.
Punishment
provides
defendant,
“request
Act
that on the
of the
the Su
* * *
preme Court shall
determine whether the
sen
[death]
[imposed
capital
tence
on a defendant convicted of
murder]
cases,
disproportionate
penalty imposed
to the
in similar
consid
ering both the crime and the defendant.” N.J.S.A. 2C:11-3e.
process making
also discuss
determination we
proportionality
broader issue of the format of
review.
Ramseur,
123,
(1987),
In State v.
106 N.J.
[Id. 188.] Therefore, 29, 1988, by July appointed dated this Order Court University of Professor David C. Baldus of the Iowa Law Special developing system School as Master to assist us in “Special proportionality requested review. We that the Master * * * produce for the Court a data and files sufficient to base Supreme proportionality enable the Court to conduct reviews as required by statute.” We authorized consideration of “the data report Jersey that formed the of the of the New
base basis Re-Imposition Capital Public Defender entitled ‘the Punish- ” Jersey’ ment in New and the collection of such “additional * * * may nothing in data as be needed.” We directed that Special parties Order shall Master or the “be construed issue, represent position any to of the Court on nor shall the findings Special recommended and conclusions of of the law any concerning Master include determination the excessiveness disproportionality imposed any any death sentence case.” proceeding, Proportionality an earlier In re Review Pro (1990),
ject, 122 N.J. 585 A. 2d we declined to determine appropriate against in advance the “universe” of cases which to compare challenged propor death sentences order to assure tionality. Attorney The General had contended that the appropriate comprised exclusively universe is one of cases in imposed Capital a death which sentence has been under our establishing Punishment Act and that such a would universe be practice majority jurisdictions consistent of a of other developed proportionality-review systems. that have In addi tion, defining noted that we the universe of cases available for proportionality automatically review would not determine which cases any within the universe will be used the review of specific Report, death sentence. We awaited Master’s Final September which was on 1991. received Following argument, Legislature Capi oral amended the “ provide [p]roportionality tal Punishment Act to review * * * comparison shall be limited to a of similar cases in which (eff. imposed.” May a sentence of death has been L. 5c. 12, 1992). Although that amendment is to “take effect immedi Legislature ately,” the did not state it whether intended the apply pending appeals. Attorney to to amendment General suggesting has filed a letter memorandum that the 1992 amend applied appeal. ment this be Were the amendment to be applied pending appeals, undoubtedly required we would whether, applied to resolve as to offenses committed before its
119 date, might post an ex facto law. Act constitute effective 2715, 37, 111 110 Youngblood, 497 S.Ct. Collins v. U.S. (1990), Supreme summa States Court L.Ed. 2d 30 the United meaning post the ex facto clauses: rized the that their citation of this Court so well known may “It is decisions settled, by a crime an act statute which as with, previously that any punishes dispensed which makes more burdensome which was innocent when committed, done; charged one after its or which commission, deprives for a crime, punishment according at the time when the act available to law with crime of defense any is as ex facto.” committed, was prohibited post (quoting Ohio, 111 L.Ed.Zd at 39 Beazell v. 269 S. Ct [Id. at-, (1925)).] 70 L.Ed. U.S. S.Ct. 167, 169-70, 68, 68, argues c. 5 “clarifies” Attorney that A. General Because transgress does not those bounds. prior law and thus appeal this under long appeal, of this we decide pendency of the Furthermore, dispropor- of the given rejection our prior law. law, clearly strengthening such challenge, the tionality new therefore have no the outcome. We rejection, could not affect Hence, validity. applicability or to consider either its occasion required statutory cases to a “universe” of our references to refer to are to be understood proportionality review of this offense. at the time statutory provisions effect appeals pending under capital Because there are several to deal with law, in sufficient detail prior address the issues we this, effect depending on the ultimate as well as appeals those L.1992, 5. c. explain process of designed to Much of the discussion of science analyses, both record-gathering and the methods review and law, proportionality used to conduct that can be claims of system-wide of the data to assess the relevance penalty. Because we the death infliction of unconstitutional format for and the death sentence both the individual address scheme, we capital-sentencing under our proportionality review Marshall, defendant, or the Public O. either to Robert refer context. appropriate to the Defender where *10 scientific Although recognize proportionality is not a we determination, attempted to make our determinations we have reasoning objec- precise in of their and as as terms bases possible. as have used scientific and statistical mea- tive We sures, helpful, although recognize judg- that a value when we practically every measurement. A life is at ment is built into stake, although degree subjective judgment some of value attempted judgments to make may required, we have those against explicit they analyzed can be and tested whаtev- so applicable. objective er measurements are then, computer-based opinion, of this that deal with the Parts nature; process record-gathering are technical in the remain- convenience, legal analysis. der is more traditional For we aspects appeal. outline the different of the TABLE CONTENTS OF Introduction.....................................117 I. Facts...........................................121 Proportionality II. Review Defined..................124 III. from which “Similar Cases” The “Universe” are Drawn....................................131 Identifying Comparison Group of IV. “Similar Cases” the Universe........................141 Catalog A. The of the Cases ...................141 Selecting Comparison B. The Methods of Catalog.....143 Group of from the Similar Cases By By Aggravating/Mitigating By 1. Salient Factors.......................146 2. 3. Factors.......146 n Relating Common Characteristics to all Life/Death Outcomes............147 Comparing C. The Criteria for the Cases Disproportionality.........................148 Frequency Analysis 1. Statistics —Will Demonstrate that a Sentence is Dis- proportionate? .........................152 Precedent-Seeking Analysis 2. —What Specifics Comparison Cases will Demonstrate that Sentence Dis- proportionate? .........................154 an Alternative Method D. Should we Consider Analysis by Categories Culpability Ag- Solely Statutory Derived from the gravating Factors?........................159 Proportionality Application of the Methods of Y. Marshall.................166 Review to Robert O. Frequency Analysis Suggests A. a Relative- — High Degree ly of Blameworthiness Contract-Killing Cases.....................166 Spe- Precedent-Seeking Comparison with B. Dis- cific Cases does not Demonstrate Sentencing proportionate Exercise of Power....................................174 Jersey “Generally” do not VI. That Juries New not Return Death Verdicts does Undermine Penalty of the Death the Deterrent Value *11 and an Extent as to Render it a “Cruel Such Unusual Punishment.”.........................188 Charging and Prose- Geographic Patterns of VII. cuting Capital not Demonstrate an Cases do Arbitrary Exercise of the Prosecutorial Function......................................195 Nor the Race of the Race of the Victim VIII. Neither Has Been Shown to be an the Defendant Impo- in the Impermissible Invidious Factor Penalty....................207 Death sition of the in Made Now and the IX. Revisions That Can be Data-Gathering Simplify Pro- Future to
cess ......................:...................216 X. Conclusion......................................218
I
Facts fully in the I more stated of the Marshall case are The facts 28-62, 85. 586 A. 2d We opinion. 123 N.J. Court’s earlier jury could general outline of the facts that repeat only a from the State’s brief. have found as drawn agent, began extra- Defendant, an a Toms River insurance woman, Kraushaar, in a married marital affair with Sarann 1983, defendant mentioned early as December 1983. As June wife, killing May to idea of his Maria. In Kraushaar the questioned him defendant met Robert Cumber Louisiana and hiring “investigator.” telephoned about an Defendant later Cumber, McKinnon, Billy Wayne referred defendant to a who agreed former sheriffs officer from Louisiana. Defendant to $5,000 pay City, Jersey. McKinnon to meet him Atlantic New City Defendant met McKinnon at Harrah’s Casino Atlantic 18,1984, $65,000 pay him kill on June and offered to to his wife. $5,000 received, already In addition to the that McKinnon had $10,000 agreed $50,000 pay up defendant him front and from expected proceeds insurance on his wife’s life. At that $7,000 meeting paid gave him defendant McKinnon picture of his wife. Defendant told McKinnon to kill her that evening, present. preparation when defendant would be killing, ways defendant McKinnon discussed various kill Maria. Defendant believed he would not be considered suspect outstanding because he was considered an citizen community. with influence time, carry McKinnon did not out the murder at that but to Louisiana. Defendant instead returned communicated with money. him on numerous occasions and sent him additional pressure complete job, Under from defendant to McKinnon 19, 1984, City July returned to Atlantic on and met with defendant, proposed plan killing who a second for the to take place evening. Defendant told McKinnon that he would *12 leave his wife in their car to be executed while defendant went pretense using into a restaurant under the of the bathroom However, McKinnon facilities. did not commit the murder at that time either.
Defendant, killed, persistent in his efforts to have his wife ($15,000) “extra if offered McKinnon an fifteen” he would Jersey “job” return to New a third time to do the Labor before and, 1984, agreed, Day. September McKinnon on he and parking defendant met at a service area lot located south of Together they spot Toms selected on River. a the Garden State plans final Parkway carry to out Maria’s murder and made evening. plan to slaying, was to occur that The was the which robbery. make the murder look like City his to in Atlantic Defendant took wife Harrah’s Casino September pretext of night on the of under the an evening dining gambling. He met McKinnon outside and p.m. told him that he approximately Harrah’s at 9:30 midnight. leaving the casino at about Defen- Maria would photographs dant also asked McKinnon for the return the given that had him June. Maria and of their home he McKinnon, pulled previously arranged As into defendant picnic seventy-one on the Oyster milepost area at the Creek September about a.m. 7. Parkway Garden at 12:30 on State seat, got out lay sleeping on front defendant While his wife needing flat repair ruse of to tire. of the car under the being on squatted prepare to himself for hit Defendant down Marshall part robbery. head of the simulated Maria was as immediately. shot twice. She died the back scene, continued to police When arrived on defendant argues The robbery. murder look like a State make the crime, pretended to no remorse after the but defendant showed loss their mother. join grieving his sons in over the three staged even a suicide argued trial level that he State innocence then and continues attempt. protested Defendant his explanation of his conduct. to do so now Telephone innocence soon unraveled. Defendant’s claims of McKinnon, turned evidence. him who State’s records traced to murder, McKin- exchange plea conspiracy for a to commit man, Larry implicated a Louisiana non Marshall and identified Thompson, triggerman. as planning, defendant during his
Investigation disclosed increasing on life. At policies the insurance his wife’s had been death, life insured for Maria was the time of her Marshall’s premi- $1,400,000. paying had his wife’s Defendant been about complete neglecting his own. Defendant hastened ums while *13 124 application
an policy for mortgage for a home before the murder. day life, On the last of her Maria underwent a physical policy. examination for that The State proof offered that defendant could have been by rising motivated to kill debts business, incurred in his including $128,000 home-equity loan and a $40,000. short-term bank debt excess of While amass- ing large those policies, insurance defendant also continued his relationship Kraushaar, with Sarann with whom he had intend- ed to live after the murder.
A jury acquitted Thompson of the accepted murder but McKinnon’sversion of defendant’s role and guilty found him conspiracy to commit his wife’s murder murder-by-hire. and of The aggravating factor by submitted to and found jury was that defendant had hired another to commit murder. 2C:11-3c(4)(e).1 N.J.S.A. mitigating The two factors submitted and found jury were that defendant history had no c(5)(f), criminal activity, and the mitigating factor, catch-all c(5)(h). At the time of the offense forty-four defendant was years age, and had been involved charitable and communi ty jury activities. The unanimously beyond found a reasonable doubt aggravating that the outweighed factor the mitigating factors. The trial court sentenced defendant to death.
II Proportionality Review Defined
A.
way
best
concept
understand the
proportionali
ty review is to
origin.
understand its
In Furman v. Georgia,
408 U.S.
(1972),
S.Ct.
Supreme
L.Ed.2D 346
Georgia’s
Court invalidated
death-penalty
violating
statute as
Jersey
N.J.S.A. 2C:11-3 contains the New
provi
Criminal Code’s murder
death-penalty provisions
sions. The
are found in subsections c to e of that
referring
shall,
instance,
section. When
c(4)(e)
to those subsections we
use
2C:11-3c(4)(e).
to refer to N.J.S.A.
*14
against
prohibition
cruel and unusual
Eighth
the
Amendment’s
may
a
was that
state
punishment.
teaching
The
of Furman
dies
lives or
to
the
of whether a defendant
not leave
decision
the
such a scheme
jury
because
the unfettered discretion
“wantonly
that
and
in
sentences
are
inevitably results
death
* *
*
cruel
in the
imposed” and “are
and unusual
freakishly
lightning is
and unusual.”
being
cruel
way
same
that
struck
(Stewart,
309-10,
2762-63,
at
33 L.Ed.2d
390
92 S.Ct. at
Id. at
decision,
capital-sentencing
J., concurring). Prior
that
plena-
delegated
judges
juries
and
procedures most states
im-
should be
authority
a death sentence
ry
to decide when
dis-
given “practically untrammeled
The
was
posed.
sentencer
248,
at
that he die.” Id.
let an accused live
insist
cretion to
J., concurring).
2731,
(Douglas,
at
33 L.Ed.2d
355
92
at
S.Ct.
decision,
their
many
revised
Following
states
the Furman
years
decided four
capital
acts.
In a series of cases
punishment
Furman,
capital-sentencing statutes
upheld the
after
the Court
Florida,
concluding
those statutes
Texas,
Georgia,
that
and
eliminate the constitu
promised to
safeguards that
contained
Texas, 428
v.
U.S.
See Jurek
tional defects noted
Furman
.
Florida,
(1976);
262,
2950,
v.
49
929
L.Ed.2d
96 S.Ct.
Proffitt
(1976);
242,
2960,
Gregg v.
49
913
L.Ed.2d
428
96 S.Ct.
U.S.
(1976).
2909,
153,
859
L.Ed.2d
96 S.Ct.
Georgia,
U.S.
premise that
its conclusion on
Supreme
based
Court
guid
“given
would be
insured that sentencers
those statutes
the defendant
the crime and
regarding
factors about
ance
particu
organized society, deems
State, representing
that the
supra, 428
sentencing
Gregg,
decision.”
larly
to the
relevant
2934,
(plurality
at 885
49 L.Ed.2d
at
96 S.Ct.
U.S.
Stevens, JJ.).
Powell,
Stewart,
and
opinion of
fea-
opinion Gregg
cited two
plurality
Justice Stewart’s
guide and channel the
Georgia’s scheme
would
tures of
had
Georgia’s statute
sentencing
discretion.
exercise
guilt first and
deciding defendant’s
procedure for
bifurcated
safeguard of
later,
further
provided for “the
and also
sentence
meaningful appellate
of every
review”
death sentence.
Id. at
When
Capital
New
reintroduced its
Punishment
it
Georgia’s statute,
modeled its
on
statute
which
generally
had
provisions
Penal
followed Model
Code’s
with respect to the
enumeration of
aggravating
mitigating
factors
provision
procedure. Ramseur,
of the
supra,
bifurcated
183, 202-09,
Hence,
enacted,
N.J. at
Following Supreme Harris, the in Pulley Court’s decision v. 37, 871, (1984), 465 U.S. 104 79 L.Ed.2d propor S.Ct. 29 that tionality not an requirement review was essential constitutional scheme, of a capital-sentencing Legislature state our amended the statute to proportionality option make an review for defen L.1985, dants. 478. c. We assumed that most who defendants request receive death sentence proportionality would review. Ramseur, 327, supra, noted, 106 524 N.J. at A. 2d 188. As Legislature has statutory since limited proportionality review to comparison of death-sentenced cases.
B. Legislature provided What did our propor intend when it tionality review in the of Gregg Georgia? context To v. answer question digress distinguish we must to two between aspects of proportionality review. The first has been referred proportionality review, as “pro “substantive” as second proportionality cedural” G. Bradley, Propor review. See Lisa tionality Capital Non-Capital Sentencing: and An Eighth Enigma, 195, 206-08, Amendment 23 Idaho L.Rev. (1986-87). 211-15 mayWe think of aspects those two proportionality review as offense-oriented offender-orient-
127 stated, propor Simply or offense-oriented ed. substantive punishment is looks of death tionality review to whether offense, particular procedural or offender- excessive for a while whether, factually compared when oriented review examines offense, involving death the same a defendant’s similar cases Baldus, Pulaski A. is excessive. David C. Charles sentence See George Woodworth, Comparative Death Sen & Review of 74 Georgia Experience, Empirical Study An tences: 661, (1983) (hereinafter Bal 665-66 Criminology & J.Crim.L. I). dus and Pulaski the two particularly instructive because it illustrates
Gregg insight gives review differing aspects proportionality meaning statutory provision. our probable the most into spoke proportionality useful function of Gregg Court of the “ assuring sen ‘no death and characterized it as review throughout the state cases is affirmed unless in similar tence * * Gregg, imposed generally has *.’” the death been 2939, 892 205, at 428 at 49 L.Ed.2d supra, U.S. 96 S.Ct. 861, 829, 832 State, Moore v. 233 Ga. 213 S.E.2d (quoting 258, State, (1975)); 216 see also v. Ga. S.E.2d Jarrell throughout (1975) (asking “juries generally whether denied, 428 U.S. imposed penalty”), cert. state have the death (1976). 96 S.Ct. L.Ed.2d *16 whether proportionality kind of review that asks Eighth is an Amendment imposed penalty “generally” is death punishment proportionality into substantive inquiry —does analyze (That used to analysis has also been fit the crime? of for certain classes Eighth disproportionality Amendment 361, offenders, minors, 492 e.g., Kentucky, v. U.S. Stanford retarded, (1989), 2969, mildly 106 306 or L.Ed.2d 109 S.Ct. 2934, 302, 106 L.Ed.2d 109 Lynaugh, 492 U.S. S.Ct. Penry v. (1989).) 256 in the perceived is review best type
That
substantive
584, 97
Georgia, 433
of cases such as Coker v.
U.S.
context
Florida,
(1977),
458
2861,
and Enmund v.
U.S.
102
(1982).
S.Ct.
Coker,
L.Ed.2d 1140
for
example, the
imposition
Court held that the
of the
penalty
death
rape
for
Eighth
violated the
prohibition against
Amendment’s
punishment
cruel and unusual
because it was “grossly dispro
portionate and
punishment”
excessive
for the commission of
592,
2866,
that crime.
Similarly, Enmund,
the Court found that the imposition of
penalty
death
is disproportionate for one who “aids and
felony
abets a
in the course of which a
murder is committed
others
kill,
but who does
attempt
kill,
not himself
to
or intend
killing
place
that a
take
or that lethal force
employed.”
will be
797,
3376,
129
doctrine,
Arizona,
applications
In later
of that
as Tison v.
(1987)
(imposition
But that offense-oriented Rather, “punishment ask whether the exercise here. we we propor procedural, offender-oriented fits the criminal.” Georgia Supreme by the Court tionality review undertaken simply of a recital of a respect murder count consisted to the propor making its by that court series of cases considered considering both tionality analysis and a statement that “[a]fter comparing the evidence and after the crimes and the defendant previous murder in this case with those of and the sentences * * * cases, sentences of opinion of the that these two we are *18 130 disproportionate penalties to the
death are not excessive or Ibid. That court suggest did not or imposed in similar cases.” “generally imposed” in require that the sentence of death be unanimity comparison in the cases. the sense of near
C. Pulley v. Harris Supreme held in When the Court later constitutionally required, not it proportionality review was discarding Eighth made clear that it was not Amendment Pulley emphasized: proportionality analysis. The Court us. Traditional- At the we should more issue before outset, identify clearly evaluation, has been used reference to an abstract of ly, “proportionality” Looking a to the sentence for a crime. appropriateness particular gravity of the offense and the of the to sentences for severity penalty, imposed sentencing jurisdictions, and to in other this Court has crimes, other practices struck down as and there- occasionally punishments inherently disproportionate, category crime or unusual, fore cruel and when imposed particular crime. [********] * * * sought for in The review Harris and provided proportionality [referring Georgia’s] numerous state statutes is of a different specifically sort. This sort of review that the death sentence is proportionality presumes not to the crime in the traditional sense. It disproportionate purports inquire is nonetheless in a case
instead whether unacceptable particular to the on others convicted of the because punishment imposed disproportionate same crime. (footnotes at 104 at 79 at 35-36 42-43, 875-76, U.S. S.Ct. L.Ed.2d [465 omitted).] Pulley suggested dissenting any not that members requirement generality nearly unanimous sense there be crime, rather death verdicts for those convicted of the same but “ suggested only suitably ‘that discretion must directed and be wholly arbitrary limited so as to minimize the risk of id. at 104 S.Ct. at action’,” 63, 886, 49 capricious 79 L.Ed.2d at (quoting Gregg, supra, 428 96 Ct. at J.) 189, U.S. S. (Brennan, at “ 2932, 883), capital at 49 L.Ed.2d have ‘insiste[d] consistency, punishment imposed fairly, and with reasonable
131 ” Oklahoma, (quoting or not at all.’ Ibid. Eddings v. 455 U.S. 104, 112, 869, 875, (1982)). 102 S.Ct. L.Ed.2d their view, review, proportionality “[although clearly panacea, no * * * often identify examples serves to the most extreme disproportionality among similarly situated defendants.” Id. at 465 U.S. S.Ct. L.Ed.2d at 53.
That,
believe,
acceptable understanding
we
is an
of the
intentions of the framers of our
statutory proportion
Act—that
*19
ality
should
penalty
review
seek to ensure that the death
is
being
rational,
administered in a
non-arbitrary, and evenhanded
manner, fairly and
consistency.
with reasonable
That review
through
imposition
serves as “a means
which to monitor the
thereby
death sentences
prevent any impermissible
Ramseur,
imposing
discrimination in
penalty.”
death
su
327,
pra,
search for the unanimous Eighth rejection attends the Amendment of the death particular categories being dispropor crimes or of crimes as punishment. quest ways tionate The in some for the is antithe argument. Maryland expressed sis of that has its search for comparatively proportionality thus: death sentence is ex “[A] general cessive if other defendants with similar characteristics ly committing factually receive sentences other than death for State, jurisdiction.” similar same offenses Tichnell v. 1, 432, (1983) Baldus, (citing n. 18 297 Md. 468 A.2d David C. Pulaski, George Kyle, A. A. Charles Woodworth & Frederick Identifying Comparatively Excessive A Sentences Death: Quantitative (1980) (hereinafter Approach, 33 Stan.L.Rev. 1 II)). and Pulaski Baldus
m The which Cases” are Drawn “Universe” “Similar from step any proportionality undertaking The first is to review consider. establish the “universe” of cases that the Court will decision, Proportionality Review In our earlier In re Pro to make supra, 122 585 A. 2d we declined ject, N.J. of cases. determination of the relevant universe preliminary only appropriate Attorney had contended that the The General exclusively of cases which a comprised is one those universe imposed. Legislature has since sentence has death been 5. adopted Attorney General’s view. A. c. expressed the Master the view that Report, In the Final sup that could “penalty-trial cases are the narrowest universe noting that proportionality system,” review port a coherent review on proportionality nine other conduct least state courts Baldus, penalty-trial cases. David C. Death Penal the basis to the Proportionality Project: Report Final New ty Review 24, 1991)(hereinafter Court, 1, (Sept. Jersey Supreme Final Nevertheless, the Master recommended that uni Report). clearly death-eligible cases that did also include homicide verse hearing prosecutorial penalty-phase to a because of not advance penalty. not to death decisions seek the contested, Although vigorously been the universe issue has controversy significantly to be overstated. we consider required compilation of homicide How detailed cases *20 adequate given proportionality an review of a death facilitate depends purposes by to be that sentence on the served review. respective positions that in assume the difference the We basic parties of the field of homicide cases of the about the breadth proportionality as a review stems from to serve source by proportion- disagreement objectives about the to be achieved By identifying objectives those shall ality review. we also of appropriate the universe cases. determine A. Attorney preliminary
We offer this observation. General, argument, objects, briefs and at oral to the inclusion universe, non-penalty-phase contending cases homicide questions that consideration of such cases the correctness of
133 prosecutor’s discretion to seek not to seek a death penalty specific view, in a objection case. In our that miscon- ceives the issue. Courts proportionality by that conduct review considering both cases and pen- death-sentenced life-sentenced alty-phase jury cases focus not on whether the decision was correct, but rather on disposi- whether the differences in the tions comparable homicide are cases relevant to whether the death may disproportionate. sentence under review be Similar- ly, death-eligible a that prose- universe includes homicides that prosecute capital cutors elect not to may as cases also be proportionality relevant to for purposes comparison review specific sentence, with irrespective a death of the merits of the prosecutor’s discretionary decision not to treat the homicide as capital a murder case. Ramseur, specifically acknowledged we that basic
purpose
proportionality
of the
Capital
review afforded
our
Punishment Act is to
determine whether
death
a
“
specific
‘disproportionate
punishment imposed
case is
to the
”
on others convicted of the same crime.’
S.Ct. L.Ed.2d at proportionality Were the to limit review Court the focus inquiry specific dispropor- death sentence is —whether punishment imposed tionate to the on others of the convicted comparison only same with cases in which a death crime— imposed inadequate. simple example sentence was would be A point. assumption robbery- illustrates the On the that 100 crimes, felony-murder prosecuted capital cases are as all defen- death, dants are convicted and one defendant is sentenced to comparison punishment of the defendant’s death-sentenced imposed punishment on other death-sentenced defen- proportionality-review process dants would exclude from the ninety-nine robbery-felony-murder juries defendants that Indisputably, did not sentence to death. the determination single disproportionate whether death can sentence *21 comparing imposed made it the life on by sentences 134 of same crime. We ninety-nine defendants convicted the
the propor- for that the universe consider it self-evident therefore minimum, penalty-trial must, all tionality review at a include cases. punish- with the
Comparison specific of a death sentence capital murder imposed on other defendants convicted ments imprisonment or life addresses either to death and sentenced may impose disproportionate death jury that a possibility the specific closely-rélated A issue is on a defendant. sentence dispropor- argument may by a death sentence be the that raised tionate, prosecutors frequently part, exer- at least because specific the death for a their discretion not to seek cise expanded to function of homicide. first adverted that type We Ramseur, raised the proportionality review in where we question whether to in which include all those to cases potential comparison expand Here we anticipate could have been State. by may death penalty requested
considering
concerns about
misuse of prosecutorial
whether
address
possible
*
* *
including
cases
had the
in the review all
in which a
discretion
prosecutor
to seek the death
discretion
penalty.
(citation omitted).]
329,
2d 188
at
524 A.
N.J.
[106
Koedatich,
225,
112
v.
N.J.
reiterated
concern State
We
(1988),
denied,
1017,
813,
2d 939
109 S.Ct.
548 A.
cert.
U.S.
(1989),
prosecu
noting
development
that the
The Master’s prosecutorial decisions not seek penalty death-eligible the death for certain homi- cides are by prosecutors’ influenced the of predictions death- worthiness, ie., the jury impose likelihood that a would penalty-phase death after Accordingly, trial. one purposes expanded served a universe to include such death-eligible prosecuted capital homicides not as crimes is that proportionality-review process can jury then consider both prosecutorial decisions about deathworthiness in determin- ing specific disproportionate. whether a death sentence is yet potential purpose
We identified
a third
for proportionality
prevention
impermissible
in
“any
review
Ramseur —the
327,
in imposing
penalty.”
discrimination
the death
Although of those data us our evaluation “compel do a conclusion substantial observed deviations not death-penal of our discriminatory effect” in the administration law, 212, 1111, at we note that ty at 613 A.2d infra concerning race- Master’s statistical data race-of-defendant death-eligible homicides necessarily include disparity of-victim Similarly, report’s trial. penalty that did not advance to capital-charging concerning geographic data distribution death-eligible homi capital-sentencing rely also on decisions capital conclusion charged that not as murder. The cides were penalty-phase cases inescapable restricted to that universe capital- verify us that our inadequate to enable would an “discrimination on sentencing procedure does not tolerate to, basis, including, limited race and sex.” impermissible but not Ramseur, 330, supra, 106 188. N.J. at 524 A.2d jurisdictions have ac that courts in a few other
We note pur knowledged appropriateness proportionality-review death-eligible not ad considering homicides did poses State, supra, See Tichnell v. hearing. penalty-phase vance may (concluding proportionality-review process .2d 18 468 A Moore, cases); State v. murder non-capital into take account 457, 33, (conducting proportionality 210 Neb. 44 316 N.W.2d by first-degree-murder all other convic comparison review
137 denied, tions), cert. 984, 2260, 456 U.S. 102 S.Ct 72 L.Ed.26 Williams, (1982); State v. 56, 864 205 Neb. 18, 287 N.W.2d 28- denied, (1979) (same), cert. 891, 255, 29 449 U.S. 101 S.Ct. 66 Pursell, L.Ed.26 (1980); 120 Commonwealth v. 212, 508 Pa. 183, 495 A. 2d (1985) (conducting 198 proportionality by review comparison first-degree-murder with other cases in which evi support dence could an aggravating circumstance); State v. Rupe, 108 Wash.2d 734, 210, 743 P.26 (1987) (concluding 229 purposes that for review, of proportionality similar in cases clude first-degree cases which defendant convicted murder regardless of denied, penalty whether death cert. sought), was 1061, 2834, U.S. 486 S.Ct. L.Ed.2d 934 (1988); 100 State v. Harris, 975, 106 Wash.2d (1986) (conduct 725 P.2d 982-83 ing proportionality killing review of death sentence for contract court considered contract-murder cases which death denied, sought by was not prosecutor), cert. 480 U.S.
S.Ct. L.Ed.26 (1987). Accordingly, hold purposes we to be achieved proportionality require clearly review that the universe include *24 eligible death prosecutor homicides in which the elected not to penalty. seek the death process We are also satisfied with the by which eligible the Master identified death those cases that proceed did not to a trial. A summary short of that process explain methodology will sufficient to the used.
B. By compiled by of Jersey review statistics the State New Police, the Master the reviewed 3200 homicides committed in Jersey August New since 1982. He eliminated homicides clearly eligible, that were involving not death such as cases juveniles, death-by-auto, acquittal or in a trial. murder didHe non-penalty same the with other trial homicide cases in- only volved indictments for less than murder. The cases to preliminary (a) pleas murder, felony survive the screen were to murder, aggravated manslaughter original and when the (b) any murder, jury convictions a form of and
charge was remained. Approximately 1500 cases form of murder. eligibil- death stage evaluation of the second involved the The conduct, remaining of the defendant’s ity of the cases terms involved, aggra- presence statutory and the the mental state through provided and' staff vating circumstances. Master (AOC) pre- consulted Office the Courts the Administrative records, counsel, appel- reports and trial and/or sentence court sources, gained from those Based on information late records. eligible, (1) clearly as death provisionally were coded the cases (3) clearly not (2) concerning eligibility, questionable death or screened, reports eligible. progress death As the cases were General, County the Attorney to of the were sent the offices Although Association, and the Public Advocate. Prosecutor’s held, Office nor Attorney General’s meetings were neither the requests for responded to County Association the Prosecutor’s specific information on cases. initially “clearly as death- penalty-trial
All cases were listed changes eligible.” later reclassified because Some were the aggravating were found at or no factors the law because death Non-penalty-trial cases classified as penalty trial. were prosecute case eligible if declined to the prosecutor had (a) that support conclusions capitally but there was evidence victim, (b) kill the defendant had intended paid own killed the victim his conduct defendant had victim, statutory (c) one that at least another to kill the present. aggravating factor had been eligible, clearly as death Those cases were further classified eligible. not questionable, clearly death On basis clearly standards, evidentiary would remain case death-eligible evidentiary strength its was category if overwhelming. strong or *25 3,200 study homicides. After the threshold
The started with juvenile involving death-by-auto, cases screen that excluded defendants, Following acquittals, 1496 cases remained.
139 screen, factual-case evidentiary-strength screen, and the cases, penalty-trial screen of the the Master identified 246 clearly death-eligible cases, Of clearly death-eligible cases. 132 had capital-murder resulted in convictions and ad- had penalty vanced to a and 114 trial were cases in which the prosecutor sought had not penalty. the death Two hundred and fifty questionable cases were excluded from the universe. throughout
We realize that other courts
country
have
comparison.
used different
measures
For example, the
Georgia Supreme
capital-felony
all
Court uses
cases
have
that
appealed
been
for comparison purposes.
State,
Ross v.
233 Ga.
361,
(1974),
denied,
910,
211
356
S.E.2d
cert.
428 U.S.
96 S.Ct.
3222,
(1976).
Had it to be insurmountable cases,” might mid- have made a “clearly eligible death we Review, supra, Proportionality course correction. In re in N.J. 585 A. 2d 358. During proceedings involved that the approximately fifteen appeal ten to additional we learned pool year might have added to the of death- per cases to be death-eligible pool clearly cases. to of noticed cases establish Id. at 358. A .2d aspects routinely gather concerning all of the
We information Minority system. The Force Concerns criminal-justice Task on evaluated, basis, on the effect of race the system-wide has Report Jersey the New See Interim system. criminal-justice of Minority Supreme Force (Aug.1989) Court Task on Concerns (hereinafter Jersey Interim Report). The New Code of Crimi- requires Disposition Commission nal Justice Criminal relating to the aspects justice system the criminal review “all of offenders,” report disposition an annual of criminal and submit concerning dis- detailing findings its and recommendations 2C:48-1 to -4. N.J.S.A. position offenders. See of criminal Justice, N.J.S.A. 2A:4A-20 Jersey of Juvenile New Code Delinquency -91, Commis- to has likewise created a Juvenile sion, 2A:4A-49(b), provisions study and review N.J.S.A. “to juvenile aspects and all of the Juvenile [Code Justice] delinquency trends justice particular reference to system with dispositions.” data, of the as we use that we intend make Because throughout opinion, see explain them the course of this we shall in detail the claimed deficiencies the data- no need to address by the Suffice it gathering process undertaken Master. litigation pending, his was efforts were that while the observe hampered parties for which by the adversarial interests shall, no is to blame be assessed. We IX of opinion, Part this 1113, suggest 2d 613 A. at a means to address infra those claimed deficiencies.
IV *27 Group the Identifying Comparison of the “Similar Cases” in Universe A. Catalog
The the Cases of the Once universe of cases has been identified com parison, steps there process propor are two further to the of tionality development review. The first is the of the of set identify comparison group characteristics that will a of similar defendants; cases and similar second of development the is the analysis methods of identify will enable the Court disproportionality. step requires today
The first the of a creation what called generation lawyers judges data base. Another of and would thought process have of that in terms of a series of index cards wishing with details the of cases on them. One to sort the groups cases into of “similar cases” would read the cards for distinguishing characteristics, rape-murder, place as a such and pile. group rape-murders, them within one Within that of one might by noting sort the further cases the cards that showed or prior aggra- torture of the or a mutilation victim murder as or, contrast, vating recog- factors the cards that revealed factors, mitigating cooperation nized such as remorse or the authorities. type sorting process priori
That is described an a as approach Here, comparisons. clinical lawyer’s to case basic developed taught skills analysis from case-method in law reviewing school are used. The uses or experi- court intuition ence select probably features that it determines influenced the life/death decision. a definable of cards with
If is a number there sufficient characteristics, court evaluate whether pattern can of similar pattern established particular fits the death sentence process is good of that case A illustration characteristics. Judge Davidson of the dissenting opinion of found in the he a series of Appeals in considered Maryland Court of which shooting public officials or other involving deaths cases aggravating robbery in the of a and various victims course Tichnell, supra, mitigating those cases. factors recommends Center for State Courts at 27. National A.2d similarly by examining begin process court its of review that a Baldus, C. subject case. David on “all fours” with cases Woodworth, Pulaski, George Arbitrariness A. Jr. & Charles the Death in the Administration and Discrimination Courts, 15 Supreme Stetson Penalty: Challenge A to State (1986)(hereinafter Baldus Pulaski 176 & n. 89 L.Rev. III). fitting pat- an number cases
If there is insufficient *28 pattern developing to a of tern, might consider a court wish by matching in other classes of features similar characteristics of matching process require some form That would cases. produce yet piles from of cards and would different cross-index converging of of a broader cross-section another set cases with cases, example, felony-factor whether all characteristics —for kidnapping, displayed similar characteris- rape, robbery, or that extreme mental prior no or the influence of tics as record such or emotional disturbance. preconceived sorting might start no type of
A second bring either life verdict or a might of about notions what look at all the cards and Then one would death verdict. are common to them features that attempt to choose from the to death outcomes. life those that are common outcomes an or comparison of is described as actuarial method case That the analysis That method recalls that of empirical of the cases. instance, heavy smoking habit is found epidemiologist. if a For cancer, in 90 lung smoking thought out of 100 of may cases to be a cause of the cancer. empirical approach classifying capital to cases as similar
or dissimilar employ seeks to “those characteristics of the cases explain that actually imposed.” best the sentences Baldus and III, supra, Pulaski 181. jurisdic- Stetson L.Rev. at Not all tions have maintain the data to use necessary empirical the approach. aspects In combining approaches, of the two example, method, the case method with the statistical the advantage taken Master has of the available data to sort out on the cases the basis of the prosecu- characteristics that both tors in charging process juries the in the deliberative process deem most relevant. minimizing required
Without the effort in collate the data way, may that we process engaged describe the in the by Master a form sorting. as of the electronic-index-card Under direction, information Master’s our AOC took the index on the computer using cards and fed it into a of a series codes that will allow the information to the computer. be retrieved from
B. Selecting Comparison The Methods Group Catalog Similar Cases from step in process develop The next is to methods is, analysis, the manner which the Court must look at the electronic-index cards find the similarities. The mathe concepts process matical and statistical set underlie are Report Weisberg Report forth the Final and the submitted Attorney background may Further General. be found Report the National Center for State Courts or the works *29 colleagues. of Professor Baldus his Baldus Pula See and II, supra, ski 1. Stan.L.Rev. give only concepts
We need outline of the and have broad enough familiarity product that of with them ourselves so the accomplish function of review- our analysis enable us to will meaning- there has been a whether
ing to determine similarities penalty. of the death imposition in distinction ful data. noted, ways approaching are two As there (for method, using illustration the index-card first Under the reviewing officers), police robbery-murders of example, the fact) is, it (that before the what priori establish a court will the life/ that influence characteristics the similar believes are method, the reviewer assem the second Under death decision. extract from attempts verdicts all the life/death bles appear present distinguishing characteristics those the familiar with the scientific decisions. One pattern of life/death pattern of decision will recognize that a analysis will method of exclusively. rely either method not on develop. The Court will reviewing other in Rather, as a check on the use each we will As we have Marshall’s sentence. proportionality of Robert believe, II, 124, 613 A. 2d at we supra at explained Part (albeit in the more Supreme Court does the United States as proportionality, see Cok Eighth Amendment limited context of 982), that the 53 L.Ed.2d er, 97 S.Ct. supra, U.S. sentencing as well as the prosecutors, charging decisions pun society’s interest representing both juries, decisions is exces crime, a death sentence demonstrate when ishing will analysis of relative any into should be factored and thus sive disproportionality. ever, compari if example, rarely, will
Recognizing, for (e.g., no two conve on “all fours” crimes of offenders be son same), a exactly are broader nience-store-holdup murders evaluating similarity required. One method search the Court to broad disproportionality, which allows substantive “blameworthiness,” cases, is that of of similar en its base dissenting opinion in in her O’Connor mentioned Justice 3390-91, 823-25, 102 73 L.Ed.2d at at S.Ct. Enmund. U.S. can serve concept of “blameworthiness” 1168-70. The *30 procedural disproportionality Building review as well. on that concept, the Master has sorted the index cards to measure similar cases in objectively-verified terms of measures of blame comparing worthiness derived from empiric assumed and char acteristics implementation with actual results in the of New Jersey’s penalty. death A process thumbnail sketch of that is: Measure
1. The Salient-Factors in terms of factual defines “similar cases That measure supra, at 80. It is based on comparability.” Report, Final *31 by a murder (e.g., or considerations priori both a assumed more blame prior a murder conviction will be a defendant with not), the data by empirical (e.g., considerations worthy than and im statistically practically and collected showed that factor prosecutors juries). and portant explaining the decisions Take, example, convenience-store-robbery murder a for Although in each case the previously-convicted murderer. same, prosecu experience in the form of actions of crime is the judgment that the first- juries and confirms the intuitive tors blameworthy. By sorting out those factu is less time offender statutory aggrava of cases in terms of patterns (typologies) al 2C:11-3c(4) (5), factors, as mitigating see & ting and N.J.S.A. mitigating non-statutory aggravating and circum well as other statistically,” “important conceptually or Final stances that are catalogued to rank the data cards are Report, supra, at receiving a death predicted probability of the cases order arranged by weighted Those electronic-index cards sentence. factually- in terms of sorting yield sample a of “similar cases” related blameworthiness. Preponderance Aggravating
2. Numerical Mitigating Factors and case, robbery- type e.g., rape-murder from a Aside murder, that a more intuitively are convinced case with we mitigating aggravating and fewer factors would be factors imposition of death sentence. A likely to result in the more robbery by repeat committed killer murder convenience-store likely produce a death sentence. escape detection is more Hence, may used as a measure of these numbers raw intu- Report The Final has confirmed that blameworthiness. instance, analysis of the Master’s reveal ition. For the results factor, single aggravating death- “in cases with a sentencing sharply presence rate declines in the of one or more (the mitigating average among factors rate those cases is .10 (5/50)).” Thus, Report, supra, at Final 90. the index of cards yield samples will of similar cases terms of the numbers of by Pennsylvania. factors. That is one method used See Com Pirela, (1986). monwealth v. Pa. 507 A .2d problem analysis prose- with that is that it assumes that juries weigh aggravating mitigating cutors and factors equally. example, “grave For risk of death to another” factor, c(4)(b), weight “cop-killer” carries much less than the factor, c(4)(h). Hence, weighted statutory Master fac- Finally, tors to reflect what the data showed. he added non- factors, statutory aggravating mitigating example, factor, torture/depravity victimization that falls short of the c(4)(c), characteristically prose- but which is found to influence juries. produces sorting cutors and That the final method of ) *32 cases to determine the class of similar cases.
3. Index-of-Outcomes Test “logistic multiple-regression” The Master refers to that as a analysis. Report, supra, produced Final at 92. The index weights placed by jurors “reflects the on the differ- differential statutory nonstatutory aggravating mitigating ent and and priori assump- circumstances.” Id. at 92-93. It adds to our a taught experience example, tions what has us—for death-sentencing grave is a in the there rate .12 risk penalty-trial [to (4b) (4d) gain cases versus a rate of .67 in the killer and others] pecuniary (4h) mitigating cases. The of the individual factors also police-victim impacts (5c) age greatest mitigating The defendant’s has the while in effect, vary. (5b) the victim contribution to the have an contrast, factor, homicide, may aggravating effect.
[Id. 92.] Testing weighted statutory non-statutory aggrava- and ting mitigating present penalty-trial cases and factors both clearly death-eligible yielded and in all cases a scale of overall culpability presence or defendant “as measured absence prosecutorial appear in the cases of factors that to influence 148 of cases jury decision-making.” Id. at 93. The cluster sample of subject yields on the index
ranked near the case culpability. end-product of the that are similar in cases the series of sorting a series of cases not unlike electronic is analogy. in our index cards that we started with C. Comparing the Cases
The Criteria for Disproportionality having having and the means been The data been assembled comparison group of identify the established to sort them to cases,” process develop is to step final in the “similar dispropor- evaluating particular sentence is criteria for when a other “similar cases” identified. tionate in relation to the varied proportionality review use Jurisdictions that conduct disproportionate. a death sentence criteria to evaluate when “in death cases as those which both Missouri classifies similar jury, to the and which imprisonment life were submitted Mercer, appeal.” v. 618 affirmed on State have had been 432, denied, 933, 1, 11, 102 70 454 U.S. S.Ct. cert. S.W.2d elaboration, (1981). court the Mercer Without L.Ed.2d supported affirmance of the death concluded that those cases case, stating sentence to penalty subject “defendant’s * * * disproportionate is not excessive or death for the murder considering crime imposed in cases to the similar 11. Id. at and the defendant.” dissenting opin Exum in his Following prompting by Justice 203, 230, Pinch, cert. 306 N.C. S.E.2d ion State v. (1982), denied, 74 L.Ed.2d 459 U.S. S.Ct. *33 its method for com Supreme Court articulated North Carolina arising uses all cases since the paring similar cases. That court capital punishment statute that have been date of its effective appeal by this reviewed on direct capital “tried as cases and impris death or life jury in the recommended Court and which imprisonment imposed trial court life or in which the onment
149 jury’s agree sentencing after a failure to a upon recommenda period tion within a time” pool compari reasonable as a purposes. Williams, 47, 335, son State v. 308 N.C. 301 S.E.2d 355, denied, 865, 202, cert. 464 104 U.S. S.Ct. 78 177 L.Ed.2d (1983). “propose North Carolina does attempt employ not to or involving regression mathematical statistical multiple models analysis techniques, or other in currently vogue scientific scientists, among having social which have been as described appeal ‘the seductive of science and mathematics.’” Ibid. Zant, (quoting (S.D.Ga.1981)). F.Supp. Blake v. 827 It reviewing might “disregard believes that court tend to the experienced judgments of its own members in favor of the quantitative resulting analysis.” ‘scientific’ evidence from Id. Thus, at 356. the rely court concluded it would on its own reports forming pool case in the “similar cases” the that would comparison purposes. be used for Ibid. methodology comparison used in Williams consisted (without
of an description), identification those cases recital (a being torture-rape of the facts of case reviewed bestial one-hundred-year-old woman), an and a conclusion that utterly murder brutal lead us was “so and so senseless as to imposed conclude the sentence is not of death this case disproportionate considering crime and excessive both the the defendant.” Id. at 357. previously, Georgia’s
As universe of includes all stated cases capital-felony appealed. cases that are In order to determine proportionality, Georgia comparison selects for cases court factually subject those that are similar to case. See God State, (1981). frey It lists v. Ga. S.E.2d appendix an proportionality those cases in to its review. With reviewing opinion, out facts of the cases its it noted that juries seven murder” had returned death verdicts “domestic “multiple (Godfrey wife cases. murder” cases killed his mother-in-law) seven were In three of death verdicts returned. cases, despite juries those death seven returned sentences *34 150 good history and a
fact that the defendants had records psychiatric disorders. Ibid. pool comparison
Maryland establishes a
of similar cases
purposes by examining those
similar facts. As a second
factor,
mitigating
Maryland
aggravating
cir
considers
Tichnell,
It
supra,
cumstances.
Finally,
Pennsylvania
aggrava
as
uses the measure
Pirela,
32;
ting
supra,
factors
a case. See
Justice
in his
dissent
*35
denied,
Wash.2d
cert.
479 U.S.
S.Ct.
398,
722,
922, 107
717 P.2d
328,
(1986),
“balancing
suggested
93
301
the use of a
L.Ed.2d
approach superimposed upon
approach”
a ‘salient
factors’
to
of similar cases.2 Id.
The National Center summarizes various follows: reasonableness,” rely “generalized based on the
The first is to on notions values, familiarity prior general experience, cases.” and court’s “own * * * Using approach, “precedent-seeking approach.” this is the second factors; (b) (a) mitigating aggravating the relevant and the court: identifies proportionality judgment regarding of the sen- or excessiveness makes a factors; (c) comparable upon one or more cases and identifies tence based those “frequency approach.” support This method its decision. The third is (a) specifying review case should be used to find which features of the involves: cases; (b) identifying comparable share the selected the other cases that characteristics; (c) determining percentage in the similar of defendants die; (d) deciding sentences whether death were sentenced to cases who " 2 Washington all 'cases the universe of cases to include statute defines A Washington Appellate Reports Washington Reports since reported or 1, 1965, imposition capital judge jury January or considered in which the ” executed,’ imposed regardless cases that punishment of whether it was "aggravated first-degree statutory proceeding reported had been under J., (Utter, dissenting) (quoting Jeffries, supra, RCW 717 P.2d at murder.” 10.95.130(2)(b)). within this “class of similar cases were with sufficient frequency [so] imposed * * * '* * * justifiable as to as an effective deterrent or to constitute a serve light form of retribution in standards.” contemporary community Courts, Proportionality Center for State Review [National omitted) (1984) (footnotes Project (quoting 2-3 Baldus and I, 668-69).] supra, Criminology Pulaski 74 J.Crim.L. & frequency method first. We discuss Frequency Approach
1.
noted,
frequency analysis
As
Justice Utter believed that the
acceptable approach
proportionality
is the most
review. Use
him
“generally” suggested
of the word
that the threshold
frequency
appropriate
at which a death sentence becomes
“significantly greater
percent.”
supra, 717
Jeffries,
than 50
maintaining
*36
approach
simple,
at 744. He
as
a
P.2d
viewed
genuine
objectivity “by defining
reasonable amount of
a
”
identifying
“specific
by
frequency,’
‘threshold
and
the
factors
”
Nonetheless,
which to select ‘similar cases.’
Ibid.
he had to
employ
concede that to
that test “in some cases where a limited
unique”
selection of salient factors will make the case
is not
situations,
court,
view,
in
feasible.
Ibid.
In such
the
his
probably
subjective comparison
would have “to turn to a more
‘severity’
of the
of dissimilar cases.” Id. at 745.
Defender,
misperceiving
Gregg
The Public
we believe
the
imposed “gen
reference to whether death sentences have been
cases,”
erally
suggested
in similar
has
that we are
to
bound
disapprove
predictable
a sentence of death whenever there is a
frequency
eighty percent.
rate of
in
less than
As we noted
II,
concepts
“generally imposed”
Part
these
of
are not transfer
Ramseur,
Eighth
rable from the
Amendment context.
su
reconciling
pra,
predicted
difficulty
concepts
we
the
the
of
predictability
sentencing
sentencing.
with individualized
330-31,
at
Although endorses the the Master process-for a a numerical suggested has not that we substitute process reasoned of decision. it, carry approach frequency with does not of the endorsement Master’s] [The judg- mathematically however, quantify its that the Court a recommendation among death-sentencing frequency courts similar cases. Several ments of the approach strictly quantitative application expressed that the of a have concern legitimate drawing subject arbitrary limit the line could lead to to the may inap- approach importantly, judicial such an discretion. More exercise of proportionality suggest complex judgments
propriately involved that the precision. expressed mathematical can be determinations Report, supra, 42-43.] [Final cutoff, we frequency method as employ than Rather consistency. The as a coefficient that it will serve believe among compari- frequency of a death sentence higher the cases,” the determina- the more certain group of “similar son frequen- The lower proportionate. sentence is tion that the *37 case for the must scrutinize the strictly the Court cy, the more factors. impermissible possible influence of help will us to review frequency approach that the We believe principle that we believe the substantive in terms of cases cases, namely, death sen- controlling in these should be “[a] simi- if defendants with comparatively excessive other tence death other than generally receive sentences lar characteristics committing factually jurisdic similar offenses the same Tichnell, supra, go tion.” 468 2d at 17 n. A. 18. We need not suggest so far tip very strongly as that the ratios in the opposite justify direction to the invalidation of a sentence on the limits, of frequency approach. basis Within its the scienti fic method is an aid to the Court. group
A with a broad universe can cull a of frequency approach comparable larger group death-eligible cases from a of cases. In this way, proportion group of life and death sentences within this similar can be estimated and an assessment of excessiveness can be made. empirical comparative [Raymond Kazyaka, Paternoster & AnnMarie An Examination Comparatively Excessive Death Sentences in South 1979-1987, Carolina Soc.Change N.Y.U.Rev.L. & (1989-1990).] greater frequency sentencing
The the statistical of life comparison cases, group greater of similar will be the need for the people” Court to focus on the “real involved in the defendant’s and other similar cases. have a data base We system that ways: can define similar cases three salient factors, preponderance aggravating the numerical and miti gating factors, Examining and the index of outcomes. each of pools in frequency help those terms of relative will us to identify comparable cases and to determine whether offenders received, receive, like usually Marshall have will life so, If comparable pools sentence. then those will allow us to consider might what characteristics in Marshall’s case sustain imposition of a death sentence.
2. Precedent-Seeking Approach Comparative The
Proportionality Review then, step, judicial process final is the familiar case-by-case comparison of life-sentenced and death-sentenced (Life-sentenced include, similar cases. sys cases under some analyses, plea bargains tems of non-capital disposi- and other *38 in the outlined tions.) of the methods This is the second noted, see it Report. As we for State Courts’ National Center frequency approach. relationship in functional operating containing having the cards analogy, taken to our To return file, what informa- determine from the we must cases” “similar evaluating whether cards we should consider on the tion compari- suggests a The Master disproportionate. sentence criminal defendant’s according to the similar cases son of non-statutory case characteristics His model uses culpability. (1) a defendant’s elements: of three basic defined terms victimization, (3) (2) blameworthiness, degree of moral Master’s of the A sketch the defendant. character of model is: precedent-seeking not should the Court believes Defender
The Public on non- based judgment[] “subjective moralistic undertake a he of what Rather, argues in favor he statutory factors.” focusing the facts under- on analysis “objective as an describes Re- mitigating factors.” aggravating statutory lying the note of cases, had taken the Master sorting out call *39 and recorded on the index computer cards fed into the both statutory non-statutory appeared factors that to reflect the judgments juries. deathworthiness agree We that courts are ill-fitted judg- to make moralistic ments about who should live or who capital- should die under a sentencing scheme. We have no translating intention of con- cepts that fall outside the Code of Criminal Justice into the capital-sentencing However, structure. we believe that we can examine the data on the cards to see whether there is evidence objective (beyond c(4) factors the listed statutory aggrava- factors) ting determining will assist us in why jury a has regarded one defendant as more deathworthy than another.
We
premise
understand the basic
counter-argument.
of the
Legislature
given
(the
has
us a list of factors
statutory
aggravating factors that made the
eligible,
murder death
c(4)(a) (a
example,
prior murder)
c(4)(c) (aggravated
as
sault/torture))
that it deems relevant to the death-sentencing
process.
State,
387,
1143,
See Trimble v.
300 Md.
478 A.2d
(1984)(“We
bright
1167
see
by
no
line
say
which this Court can
imposed. Moreover,
when death shall be
guide
we believe the
lines
legislature
established
represent
the clearest
course of
attempting
action in
problem.”),
to resolve this
cert.
denied,
1230, 105
1231,
469
(1985).
U.S.
S.Ct.
We think that the function of statuto ry aggravating factors. perform Those factors the function of “categorical narrowing,” Stephens, 862, 879, Zant v. 462 U.S. 2733, 2744, 235, 103 S.Ct. (1983), 77 L.Ed.2d 251 to channel the juries. channeled, discretion of Once requires deathworthiness that an “individualized assessment of the defendant” be undertaken. seur, Ram supra, 106 N.J. at (citing A .2d188 Ohio, supra, at 98 S.Ct. at Lockett v. U.S. 990).
L.Ed.2d beyond If did not the circumstances of the case we consider c(4) disproportionality, aggravating factors in a search for perhaps ignoring reality be situation and we would example, if a defen- disadvantaging For we had defendants. killed impulsively life who previously-blameless dant a had shot, say single we police a officer with a would unable deathworthy than that one with that his crime was less premeditated taunting, life had execution- past similar who those a statuto- style revenge killing of the officer. None of factor, they inevitably reflect yet it seems that ry aggravating on deathworthiness. *40 make a murderer examples of factors that would not
Other arе help explain jury judgments eligible to the death but that statutory might not victimization that constitute type the of example, particularly vulnerable aggravating factor —for 40, Gerald, 2d 792 in 113 549 A. found v. N.J. victims State (1988), 384, Zola, A.2d (1988), 112 548 1022 and State v. N.J. 1022, 1146, 205 denied, 103 L.Ed.2d 109 S.Ct. cert. 489 U.S. relative deathwor (1989) such factors bear on noting that . morali of ethics or thiness, impart judge-made concepts we no Capital to Punishment give to definition ty. often have We 188 524 2d Ramseur, supra, N.J. A. Act. 106 See recog of c(4)(c)depravity factor the absence (defining the emotions). nized human fall can the extent of mutilation. That example is
Another that c(4)(e) prove to a defendant factor because outside of kill necessary to any pain to inflict more than had an intent 413-14, Harvey, 121 N.J. v. may difficult. See State be — U.S.-, denied, (1990), cert. S.Ct. 581 A.2d (1991). subjective moralistic are not Those L.Ed.2d 268 aggrava “non-statutory” Many of the so-called considerations. recognized to be ting appear “card index” fact factors 2C:44-1a(2), which example, For sentencing factors. N.J.S.A. prescribes authority in sentencing, specifically a court requires courts to consider the
gravity including and seriousness of harm inflicted the victim, on whether or not the defendant have knew or should known that the victim of the reasonably offense was vulnerable or to resistance due advanced particularly incapable age, or or other ill-health, extreme was for reason youth, any substantially exercising normal or mental of resistance. incapable physical power
[Ibid.] Surely, the non-statutory aggravating other so-called present system factors in the data-collection as the scene —such crime, is, of the that whether the crime involved an intrusion in kidnapping, the victim’s home killing or a or whether the was axe, particularly stomping beating, an was a brutal or planned present was a appear homicide—do not to us to subjective, approach. Yet, although agree value-laden we protests one who one’s innocence should not be faulted for a remorse, lack of the factor need not be discarded because its presence may appropriate to consider certain cases. Hence, proportionality comparison we think that a that limits presence itself statutory aggravating mitigating to fully explain fails of proportion jury factors the sense in the aggravating verdicts. The statutory encompass factors do not all of the characteristics that affect the blameworthiness or persons deathworthiness of who commit murders. appears recognize
At least the Public Defender the use of *41 by the in dissenting opinion factors mentioned Justice his Utter “(1) victims; supra, namely, (2) in Jeffries, the number of the victim; suffering (3) amount on imposed conscious of the the degree (4) premeditation; aggravating of the circumstances found; (5) personal background and the of the accused.” 717 Although helpful any P.2d at 745. those attempt criteria are in verdict, explain jury’s a they logical do not the exhaust objective criteria the may which deathworthiness of cases be compared. compara
Hence, conducting precedent-seeking a in aggrava identify the relevant tive-culpability review we shall (including comparison cases in the ting mitigating factors and factors). Examples of such an exer non-statutory the so-called dissenting opinions of found in the precedent-seeking in are cise Tichnell, 2d at and Justice supra, in 468 A. Judge Davidson attempt to We shall P.2d at 742. Jeffries, supra, Utter rooted in traditional sen objective criteria ourselves to confine By reference guidelines. 2C:44-1. tencing See N.J.S.A. cases, suggest which we shall specifics comparison in the those between reasonably explain the difference might factors why the cases life-sentenced case and a death-sentenced noted, at 613 A.2d supra As may “similar.” pool of similar frequency of life sentences higher the inquiry to test whether cases, searching will be the more culpable (or cases more life-sentenced comparison sentence was cases) suggests that Marshall’s death-sentenced singled out having been of his in the sense disproportionate unfairly capital punishment.
D. Analysis Method Alternative we an Should Consider of Solely Derived Culpability by Categories from Factors? Statutory Aggravating alter must evaluate the system we applying the Before advocates to us. State suggested that have been natives configurations the same by selecting those with matching cases points out that The State aggravating factors. statutory objective it is approach is that an advantage of such would, in the factors solely aggravating on Relying simpler. definition of view, a consistent give the Court expert’s State’s cases. similar report, relies on the State position, support consultant, Weisberg, I. Herbert by its
prepared and submitted Death Sentences Ph.D., Proportionality Review entitled *42 Jersey: New Independent An Analysis Capital Data on Charging (Nov. 26, 1991) (the and Sentencing Weisberg Re- ). port request At the Jersey of the Attorney New General’s Office, Weisberg Dr. independent conducted an analysis of available data on the administration of the death penalty. Although pointed he apparent out a list of errors by discovered General, staff of the Attorney report his primarily relied on the base, supplemented AOC data by limited provided information by the Attorney General.
1. Dr. Weisberg began analysis by his questioning what he regarded as an Master, inconsistent use of by data derived from cases legal interpretations decided under that were later held to instances, be incorrect. In asserts, some he the Master found such sentences to information; “valuable source” of (including others the geographic analysis) the Master exclud- ed cases that are not eligible death under current law. Weis- berg Report, supra, addition, at 9-10. Dr. Weisberg ques- tioned the Master’s method of determining eligibility by death set of aggravating and mitigating factors that objectively are present case, in a limiting while his in evaluation trials to actually factors penalty-phase found decisionmaker. Weisberg
Dr. questioned further the Master’s treatment of jury simple decision as a dichotomy versus life. He —death analysis believed that the distinguish failed to between a unani- mous life-sentence hung jury. verdict and a In Dr. Weisberg’s view, a deadlock falls somewhere between a unanimous life sentence and a unanimous death sentence as an indicator of culpability. attempted, then, He analyze jury deadlocks on weighing aggravating mitigating factors. Id. at 11.
Hence, attempted “separate he cleanly” prosecutorial component jury component from the and to identify the rele- vant data and cases for each. For prosecutorial-charging deci- sions, he would examine whether a notice of factors had served, regardless been any subsequent guilt-trial decision. *43 “highly elaborate Finally, challenged he what he called the regression’ manipulations ‘logistic in the statistical involved view, included “far too at 13. In his the models models.” Id. might potentially predictive independent variables” that many association, predictions errors associated with distort the and would thus increase. Ibid. view, within what he Weisberg’s accept
In Dr. to and work regard not “existing preferable. is He does calls realities” death-sentencing frequencies as feasi- goal estimating future of quantitative analysis He envisions a more modest role for ble. view, analysis poten- past decisions. In his of “Statistical insight valuable into tially capable providing of the Court with prosecutors juries. and Such the main factors that influence against backdrop useful general information can serve as a arrayed a case can be and particular circumstances of which Id. at 15. evaluated.”
2. of Weisberg’s method terms try shall to illustrate Dr. We it, cards. As we understand concept our of the electronic-index of Weisberg the use of a “universe” Dr. recommends found. He aggravating factor was trials in which at least one aggra- possible for each combination examined the outcomes factors every combination of vating factors found and also for aggra- primarily on the prosecutor. He focused served penalty trial. Ibid. vating factors found at the words, Weisberg electronic-index sorted the In other Dr. actually found at aggravating factors on the basis of the cards twenty-one distinct combinations penalty trials. He found one among in which at least appearing the 108 cases factors group cases on the attempted found. Ibid. He factor was Dr. sentences and deadlocks. proportion of death basis of c(4)(a) involving (prior factors Weisberg reported that cases c(4)(h) re- murder), c(4)(d) (hired (cop-killer) always gun), and deadlock, involving a combina- as did cases in at least a sulted detection), c(4)(f) c(4)(c) (torture/depravity), (escaping tion of (in c(4)(g) felony). Ibid. and commission factors, c(4)(b) involving only Conversely, cases one or more detection), another), c(4)(f) c(4)(g) (grave (escaping risk to verdicts, (in felony) mostly life-sentence commission of received c(4)(f) involving factors exception of those both c(4)(g). there one death reported He further that was sorting His index-card among sentence those cases. Ibid. rough hierarchy in terms to him that cases fall into a indicated style referring Here we use his of deathworthiness. capital factors in letters. Category H or combination A, D, E, I: of factors CFG Any
Category II: None of but CF or CG combinations above, *44 Category C or FG above, III: None but (B, BG) Category G, IV: None of but above, F, BF, mitigating Weisberg incorporate analysis of Dr. declined to multiplicity of and the factors because of the combinations uncertainty relationship with outcomes. He concluded of the mitigat- sorting complex by made the fact that that further was unanimously, especially ing factors need not be found actually jurors on the number of who voted for without data the factor. Id. at 16. Weisberg culpability into four
Dr. thus sorted the cases I, category, categories. Category highest culpability includ- resulting in He “always ed those cases at least deadlock.” aggravating factors3 placed every configuration of Category in I death-sentencing frequency of 1.0 deadlock or (i.e., A, D, E, H, combinations). any Id. of the factors CFG aggravating factors: convenience, For we have the code to the supplied A. murder prior grave B. risk of death to another torture, C. depravity D. killed for money E. hired a killer escaping F. detection G. in commission of etc. rape, robbery, H. servant murdered a public Finding Weisberg exceptions. 15-16. made two that the at (contract killer) already D cases three E cases were “similar” to I, Category Weisberg Category those cases to I. Id. in added Category in II. Weisberg placed 15. also the CF combination IV, Weisberg Category the lowest next sorted the cases into aggra- culpability category. Category IV cases included those death-sentencing vating-factor with a zero fre- combinations involving Weisberg cases one or more quency. found that B, F, sentences, mostly life with the of factors and G received exception of combinations. Id. at 15-16. FG
Weisberg remaining fifty-percent at the sorted the cases is, majority That when the of cases with certain combi- mark. death, Weisberg aggravating Dr. nations of factors resulted Category majority as II cases. If the of cases classified them sentences, Weisberg placed Category III. received life them Id. at 15. three-outcome, approach are four-level
The results of that reprinted presented Weisberg Report, 9 of the below. Table *45 adopt system categorization of case If were to a the Court research, Weisberg’s then all developed that in Dr. similar to category in would form a class of penalty-trial cases the same cases. roughly “similar” category would in this that resulted in a death sentence
The of cases proportion hung juries. insight, However, useful as would also the proportion provide starting Detailed this data would a qualita- quantitative represent only point. among category to the cases within the would be necessary tive comparisons refine the assessment. Court’s culpability Master’s vision of a more mechanized to proportionality Special approach a is to statistical However, beyond review seductive. attempt push analysis methodological that more limited role the door to controversy may simply open confuse the Court. will frustrate and ultimately [Weisberg Report, supra, at 38-39.] , Weisberg’s approach as inconsis- The defense characterizes general, incomplete. In the defense notes that be- tent and factors, solely aggravating on cause the model is based addition, ignored. Weisberg’s In the defendant is character of alleged study, in approach remedy does not flaws Baldus’s size, sample confidence specifically, the small which reduces the dissimilarity one has in the conclusions and the factual between culpability categories. the cases in the challenges specific makes to The Public Defender several charges Weisberg Weisberg’s approach. He does not treat I, Weisberg consistently. creating Category In deadlock cases sentence; however, equates he equates deadlock with a death forming culpability the other the deadlock with life sentences treating cases the categories. Defendant claims that deadlock Important pro- insupportable. same as a death sentence portionality jury’s is the outcome of the decision. Dead- review reflecting properly characterized as locked cases cannot be judgments. deathworthiness variety raises a of other concerns relat-
The Public Defender consistency. importantly, statistical Most ed to model’s I, establishing Category numerical rules for which that after I, c(4)(d) (killed money) Category place cases factor killer) similar, c(4)(e) (hired Weisberg factor cases deems killings. contract The Public Defender both involve because Marshall, designed place manipulation was claims that sentence, highest in the the sole E case to receive a death fact, frequen- culpability category. the three E cases have a .33, place culpability cy rating of which would Marshall
165 III, Category Weisberg recognize not I. Dr. was candid to that assignment he felt “least certain” the E about Marshall’s Category case to I “paucity because of the of available data.” Weisberg Report, supra, at 15.
Obviously, any analytical
subject
method can be found to be
improvements.
mitigating
exclusion
factors from the
approach
especially problematic
Merely using
State’s
for us.
statutory aggravating
process
factors
the
skews
because
aggravating
Jersey’s
primarily
New
factors focus
on the crime.
c(4)(a)
conviction)
Only
(prior
factor
murder
relates to
characteristics of the defendant. N.J.S.A. 2C:11-3e instructs
similarity
the Court to assess
in terms of “the crime and the
Accordingly,
mitigating
defendant.”
factors must
used
be
they
because
focus on the defendant’s characteristics. Rams
eur,
supra,
(emphasizing
V Proportionality Application the Methods of Marshall Review to Robert O. methodology for ana- means
Having developed both the sen- disproportionate to the subject case is lyzing whether a pro- cases,” now the we undertake imposed in “similar tences sentence. We have of Robert O. Marshall’s portionality review analysis. Those all cases used included the names of not The cases reports. included in the Master’s cases have been “Precedent-Seeking” approach under the that we have selected opinion. all be identified this will
A. Frequency Analysis level, appears to be an transparent there At the most sentencing Robert O. Marshall to disproportionality appalling cases, his death-eligible conviction among Alone the 246 death. later, however, or capital stands affirmed.4 Sooner murder may be the simply Marshall day had to come. But because disproportionate that his death will be first does not mean dispropor paradox more than may There under our statute. promi upstanding or matter how in his sentence. For no tion been, among data show that may life have nent his former killers, contract fitting punishment, for whom death is a those Bey 4Although penalty-retrial of Marko have conviction and sentence (1992), day, judgment A.2d 814 filed this 129 N.J. been affirmed in a during defendant whose pendency was the of this case Marshall appeal by Bey, an John Martini affirmed. In addition to sentence had been pending by penalty-trial cases are Several other awaits decision this Court. the Law Division. before principal whether agent, among are frequent more recipients of the death sentence. noted,
As we do not believe that an eighty-percent predictability prerequisite rate is a to a sentence of death. Nor do we believe that a fifty-fifty (as chance of life or death exemplified in this case the stark contrast between Robert Marshall’s death sentence and Engel’s sentence, William life which is discussed at 1095), 613 A is a neces .2d infra sary prerequisite. find, however, We do evidence of the relia bility of Robert Marshall’s sentence in the frequency analyses performed under the three assessing evaluative methods for *48 criminal culpability: factors, the salient the prepon numerical derance aggravating of mitigating factors, and and the index of outcomes.
Although acknowledging “the difficulty estimating of reliable death-sentencing frequencies on the sample basis of a small of cases,” similar Baldus, Marshall, David C. State v. Robert Death Penalty Proportionality Project: Review A Report to Jersey 1, 10 the New Supreme (Sept. 24, 1991) Court (hereinafter Report), Marshall the Master nevertheless concluded that frequency the data are relevant and “through can be validated comparisons close of the cases involved.” Id. at 16. That procedure “provide supplement will a valuable to the court’s prior experience knowledge.” and Id. 16-17. preliminary
There is a issue of whether Marshall’s case should be considered in the count of death among cases similar cases frequency-analysis purposes. for Because purpose frequency calculations is to death-sentencing estimate rates among defendant’s, cases that are similar to the it would seem subject that the case should not be included. On the other hand, because the partial case before the Court is reflection values, community aberrational, even if it should be consid ered. Because we do not attach a conclusive life/death deter minant to analysis, a statistical frequency we shall consider the data under Finally, although both theories. we chosen have all universe, penalty-trial
death-eligible cases we furnish as our purposes. for statistics informational 1. Measure The Salient-Factors analysis has a type Because this “facts-of-the-case” (the criteria for inclusion are almost presumptive objectivity intuitive), “typologies” of persuasive it seems here. The most not an construct data-gathering process were ad hoc is, are, were, priori, case. and the a not Marshall These similar. Con assumptions as to which cases are after-the-fact juries killings that and killings type prosecutors are tract blameworthy. percent of regarded highly Thirty con have as hitmen) initially received a (principals murderers have tract considering significant figure is death sentence. That death-eligible cases have received the thirty-two cases all penalty. death Principals
Contract-Murder cases to a factually-comparable The most to advance Engel, trial, c(4)(e) principals (W. Engel, H. contract-murder Brand) are as all received life sentences. Tabulations follows: Eligible
Penalty-Trial Universe Universe *49 (1/4) (1/3) .33 .25 Including Marshall (0/3) (0/2) .00 .00 Excluding Marshall Contract-Murder Hitmen 2C:11-3c(4)(d) the mur makes one who N.J.S.A. “commit[s] receipt, expectation or in consideration for the der as eligible. In anything pecuniary value” death State receipt of DiFrisco, (1990), explored .2d914 we 571 A v. N.J. regards reprehensible society as more question of whether agent killing. Because of the principal or the in a contract relationship c(4)(d) close c(4)(e), between procures one who the commission of “by the offense payment promise payment anything value,” of pecuniary the Master includes hitman cases factually comparable, as agree. and we
This pool contract-murder hitmen includes six cases.5 The death-sentencing among rate the penalty-trial (2/4) cases is .50 (2/6) and .33 for all death-eligible hitman cases.
Thus, figures for the entire pool contract-murder are as follows:
Penalty-Trial
Eligible
Universe
Universe
Including
(3/7)
Marshall
.43
.30(3/10)
Excluding
(2/6)
Marshall
.33
.22(2/9)
Among the
triggerman c(4)(d)
five
proposed
cases
universe, four
c(4)(d)
advanced to a
trial with the
factor
charged: Melendez,
Rose,
(death
Michael
sentenced),
Clausell
Among
DiFrisco.
those four
jury
cases the
found the
c(4)(d)
present
factor
imposed
three cases and
a death sen
tence in two. The Court vacated Clausell’s death sentence on
appeal and he was later sentenced
non-capital
on the
murder
charge. Clausell, supra,
121 N.J.
vacated sentence DiFrisco, 571 .2d914. supra, A the remand. N.J. very high death- Report concludes that Marshall “[t]his cases, produced rate, sentencing sample in a small of albeit large statistically and principal penalty-trial analysis a our for the 4d significant multiple regression coefficient [hired Report, supra, at 23. Marshall factor.” killer] Spousal Involving High Levels Blameworthiness Murders of
and a Victim. Defenseless frequency spousal analyzed the of The Master has also high and a a level blameworthiness murders that involved compares Report Marshall defenseless victim. The Marshall involving highly-premeditated, cases cold-blooded with three comparison are wife. Those cases murders of a defenseless Dreher, Only ad- Collins, Collins and Williams Williams. a a at which both defendants received vanced to trial Thus, received life sen- life sentence. all three defendants figures follows: tences. The are as
Penalty-Trial Eligible Universe Universe (1/4) (0/3) (1/3) (0/2) .33 .00 .25 .00 Including Marshall Excluding Marshall Involving Ex- Robbery/Kidnap Murder Cases Premeditated Premeditation, Motive, Decep- Pecuniary tensive Victim, tion/Entrapment and a Vic- Defenseless tim group this compared
The Master also fourth cases considered, advanced to a cases three Marshall. Of five one, Martini, resulted in a death sentence. penalty trial and higher culpability, ranked Martini terms criminal the Master Marshall, aggra- finding that Martini’s case involved two than blameworthiness, circumstances, substantial vating extreme victimization, poor with a character. defendant *51 A categories review all of the of factually comparable cases shows a death-sentencing frequency (4/18) of .22 when Marshall is Excluding Marshall, included. the death-sentencing (3/17). rate is .18
2. The Preponderance Numerical of Aggravating Mitigating
and Factors. This problematic test is more than either the salient- factors or the analyses. index-of-outcomes Abstractly, we sense quantitative that a rather qualitative than a analysis will unproductive. be rather No matter many aggravating how factors and mitigating how few presented, factors are jury’s intensely decision is qualitative. We realize that Master’s data do not reflect a analysis numerical but rather weight prosecutors reflect the that juries give specific to a factor; example, rape-murder a will be viewed as more blameworthy Still, than robbery-murder. degree of abstrac tion exists may present not be in the other frequency- analysis measures. repeatedly emphasized We have juries qualitative, are to make a quantitative, and not a analysis of aggravating and mitigating factors.
Hence, when we measure against Robert Marshall’s case other cases with one aggravating factor mitigating and two factors, we are concerned infrequency. about the Aggravating
Cases with One Factor Mitigating and Two Factors
Penalty-Trial Eligible Universe Universe Including (3/15) Marshall (3/44) .20 .07 Excluding (2/14) Marshall .14 (2/43) .05 Aggravating Cases With One Factor Penalty-Trial Eligible Universe Universe Including (5/50) Marshall (5/123) .10 .04 Excluding (4/49) Marshall (4/122) .08 .03 death-sentencing frequency data, by the overall As shown single aggravating factor is .08 involving a among capital cases Marshall, that, include (4/49). Among penalty-trial cases like factors, mitigating the rate is aggravating factor and two one among However, death-sentencing frequencies (2/14). .14 c(4)(d) (hired murder) factor, c(4)(a) involving (prior cases factor, c(4)(h) murder) (cop- factor, c(4)(e) (payment for gun) death-sentencing “above-average rates.” killer) factor have H, 9 to the Appendix Table Report, supra, at 31 and Marshall Report. Final *52 Test Index-of-Outcomes
3. dispro- significant no analysis also indicates This method of sentence. Marshall’s portionality Robert “salient looks not at the that this measure Recall factors,” the facts and factors,” but at all of “number of or the capital sentencing. pattern of cases to determine a all of the on the of the index cards table process spread have all this we to the identify characteristics common sought to the and have perceived as degree of blameworthiness in terms of their cases factually may be as juries. These cases by prosecutors and killing by a bank killing by child molester or as a dissimilar roughly-equivalent is a they have in common All that robber. eyes prosecutors and in the measure of blameworthiness juries. (i.e., derived from largely empirical standard under this
Even system), the measure of Robert experience within the the actual support of fami- significant. His Marshall’s blameworthiness involvement, good record do not coun- prior community ly, found of blameworthiness the other measures terbalance involving premeditation of case records similarly-blameworthy victim, act, of the motive. of the and baseness helplessness the Under the analysis, using index-of-outcomes expanded the indices factors, that include non-statutory predicted proba- the bility of a death sentence in Robert Marshall’s case is .50 among penalty-trial all cautions, however, cases. The Master that that quite estimate is unstable because the small num- c(4)(e) ber of penalty-trial predicted cases. The probability of death for among Marshall’s case death-eligible all cases is .17. again, Here the Master cautions that that estimate is uncertain sample because of the small number. reranking
After the cases to qualitative reach a culpability level, blameworthiness, victimization, based on and character of defendant,6 the death-sentencing overall rate for the ten comparable cases most to Marshall’s in the penalty-trial model (6/10). Including Marshall, is .60 (7/11). Among rate is .64 death-eligible all death-sentencing cases the overall among rate (2/10), ten cases nearest excluding Marshall’s is .20 Mar- Marshall, shall. death-sentencing (3/11). With rate is .27 When the indices are statutory aggravating limited to circumstances, mitigating predicted likelihood of a death sentence in the penalty-trial model for Marshall is .52 and among death-eligible all cases probability of death is .27. Reranking above, among the cases as the cases nearest Mar- penalty-trial shall’s in the death-sentencing model the rate is .69 *53 (11/16), excluding Marshall, Marshall. With the rate is .71 (12/17). Among death-eligible death-sentencing all cases the among rate (11/22), the ten cases nearest Marshall’s is .50 excluding Marshall, (12/23). Marshall. With the rate is .52 data,
Summarizing all of the the Master concludes: eases, of the small number of 4e [B]ecause and no 4e cases that match Marshall dimensions, on both the blameworthiness and victimization we have a much less saying solid basis for that cases like his either will or will not bе associated with frequent sentencing long sample death over the run. Because of this small noted, 6 attempted analysis possible As we have to limit our as much as Hence, objective justify criteria. we state these reranked results not to our report decision but them. confidence the associated is no to resolve with uncertainty there problem, way predicting Marshall. the future for defendants like Report, supra, at 41.]
[Marshall balance, using composite of these mea On capital sentencing frequency conclude that death sures we for murderers is not random aberrational. See contract (1981)(reason State, 119, 274 Tyler v. S.E.2d Ga. frequently death ing “[although lesser sentences than are cases, it does not that the imposed in domestic murder follow for the murder of one not be authorized death would circumstances”). spouse by any another under
B. Precedent-Seeking Approach precedent-seeking comparison of defen turn now to the We cases, imposed “in dant’s death sentence with those similar considering the crime and the defendant.” N.J.S.A. both 2C:11-3e. brief, the Public Defender has chal- his well-reasoned “in terms of moral
lenged the Master’s conclusion that blame- exceeds that found in the three other 4e worthiness Marshall cases, determine, as can all other cases in our and as far we supra, Jersey Report, cases.” Marshall universe New particular, questions Defender the Master’s 12. In the Public perceives subjective on he to be a evaluation that reliance what morally blameworthy, adultery is so Marshall’s crime because than, killing reprehensible example, more is viewed as solely proceeds for insurance when of a wife and a child well, challenges, is not involved. He as another woman “plotting on Marshall’s Master’s reliance Robert double life— sleeping paramour living death and with his while wife’s] [his sleeping pretending with his wife and that all well” as was giving aggravating edge to the case.” at 13- “an additional Id. addition, questions n. 13. In he the reliance on a “total & *54 crime,” lack of remorse for his id. at as inconsistent with right defendant’s to assert his innocence.
We share some of the Public Defender’s concerns. In this section we evaluate Marshall’s case on the of objective basis characteristics comparing appear cases that to be found within sentencing patterns. familiar purposes For analysis, of proceed we along the lines set forth in the Public Defender’s identify brief and the cases and characteristics that bear on Marshall’s relative blameworthiness. We use primarily the Public description cases; Defender’s factual of the some of those are fully more set appendices forth in the to the Final Report. At least one of the appeal cases is on before us so we give stamp no approval give those factual versions but defendant the benefit of his view of the facts.
1. spouses. First-time murderers of among Public Defender asserts comparable first- time offenders who murdered their plead wives and who cannot excuse for lack of education intelligence, only Robert Marshall received a death sentence. We consider each of those cases.
Walter Williams Williams, twenty-seven-year-old officer, police murdered his by poisoning potassium wife her cyanide. alleg- Williams edly had a killing two-fold motive for his wife: to hide his bigamous marriage to another woman and to pro- obtain the ceeds of his wife’s estate. began
Williams’s wife, web deceit he when met his second high-school junior, then a duty high-school while on at a func- tion in relationship and, 1979. Their intensified in November 1984, Williams and she married. Williams deceived both his second wife and performed the minister who ceremony by providing judgment divorce, complaint divorce, falsified and a birth certificate.
176 telling legally married to whom he was
He lied to his wife evenings Agent Orange in the he had to be treated her that had During been Hospital. that time Williams the at Veterans’ parents’ in her home. Williams’s living wife” with his “new relationship and con- bigamous his suspicious of wife became potassi- Williams obtained him different occasions. fronted on 1984, using his official July hydrochloric acid cyanide um and purchasing the him in police officer to assist position as a chemicals. later, on poisoning six months cyanide
Williams’s wife died earli- 31, 1985, again having confronted Williams after January aggravating factors notice of day. The served er that State c(4)(f),killing motive, escape detection. c(4)(d), and pecuniary c(5)(c), (thirty-four age mitigating factors offered The defense c(5)(f), significant offense); no years age at time of the abuse); convictions, drug (no no alcohol history prior criminal during the (served military in the c(5)(h), factor any and other church). war, trustee Vietnam c(4)(f) mitigating aggravating factor and jury found c(5)(h), aggravating factor c(5)(f) found the but factors (Had jury mitigating factors. the two equal balance with c(4)(f) (killing to on basis of imposed a death sentence case, might have sus detection) we not escape factor in that v. the death sentence. See State imposition tained 420-21, (1990) (defining 577 A.2d Hightower, N.J. c(4)(f) factor).) a life sentence with Williams received purposeful ineligibility for the crime thirty-years parole knowing murder. Dreher
John Dreher’s has reversed John Appellate Division Because retrial, Dreher, v. his case for State and remanded conviction again (1991), repeat our .2d 216 we N.J.Super. 598 A alleged by the State and here are as that the facts below caveat assump case on those evaluate the Dreher by Marshall. We tions. brutally
Dreher murdered his wife the basement of their aggravated, home. His was an cold-bloodedmurder. He con- months, gun templated attempting the crime for to obtain a two Marshall, murder. Like he too had to three months before the years his having an extra-marital affair for two before been paramour and had asked his what would wife’s murder she him if he his think of killed wife. murder, day paramour
On the of the Dreher had asked his family meet him at the home at 7:30 a.m. for a “confrontation” *56 school, dragged for Dreher with his wife. After his sons left basement, begged him unwillingly his into the as she not wife her to hurt her. The murder was brutal. He tied hands behind neck, rope then her back and tied a around her which was tied param- Dreher ordered his to a column the basement. then bring something sharp; complied. him she As Dreher our to hand, he tightened rope the around his wife’s neck with one paramour His struck stabbed her in the neck with the other. heavy and her her on the head several times with a tool stabbed in the back.
The examiner determined that Dreher’s wife had died medical eight strangulation, had stabbed and found that she been opinion, In his the in the and once the throat. times back Following lay dying. the wounds were inflicted while she back if murder, appear murder as it had Dreher tried to make the callously disposed of his during robbery. a He wife’s occurred lacked remorse. jewelry, and horror, view, however, despite all of its prosecutor’s
In the
c(4)(c)statutory aggravating factor that the
the case lacked the
beyond
to inflict torture on his wife
defendant had intended
prosecute
killing.
prosecutor thus declined to
pain of
The
guilty
capitally.
juryA
found Dreher
of murder and
case
minimum
imprisonment
him to life
with a
judge sentenced
princi-
thirty years. Significantly, a
parole-ineligibility term of
appeal
on
was that the
pal ground of defense both at trial and
paramour.
perpetrator of this offense was not Dreher but
Dreher,
N.J.Super.
Collins This, too, proceeds on insurаnce their lives. old son obtain Collins, enthusiast, slashed a martial-arts was a brutal murder. throat, face, sharp weapon, in the and breasts with his wife eighteen-month-old his son as he then beat and suffocated lay in his crib. twenty-six years age as a chef at
Collins was worked prior no criminal record and the time of the murders. He had completed year college. The Public Defender ar- had one technically in gues although the case is not the Master’s universe, it should be considered because Collins murdered family pecuniary gain. for defenseless member non-capital murder of his jury guilty found Collins of the however, capital jury, of the murder of his son. The wife and c(4)(d) killing aggravating factor of did not find either c(4)(f) killing escape pecuniary gain factor of detection. thirty-year period of The trial court sentenced him to life with a wife, thirty of his and to parole ineligibility for the murder ineligibility years thirty-year period parole for the with a *57 son, first term. murder of his consecutive to the Thomas Johnston universe,
Although it was not included the Master’s we planned case it involved the have considered Johnston’s because victim, The found murder of a defenseless his wife. Master (tor- c(4)(c) either the insufficient evidence substantiate motive) factors, ture/assault) c(4)(d) aggravating (pecuniary strongly suggests the Public Defender that both factors but present. were by hitting her in the head
Johnston killed his wife twenty-five severity beating The hammer over times. by injuries jaw, fractured was evidenced she sustained —a skull, fractures, depressed five skull and lacerations to her left attempted up cheek. After the to cover his murder, Johnston „ dragged body crime. Johnston her into the woods near their home, leaving purse one shoe and her beside her car to make it appear arranged as if she had been abducted. He her clothes assaulted, give appearance sexually that she had been body then rototiller covered her with a cover. apparently precipitated by many
The murder one of was arguments couple had had over financial matters during stormy, many years what for had been a abusive rela- tionship. financially dependent In 1980 Johnston had become wife, years for divorce on the on his and five later she filed grounds cruelty. argued impend- that the of extreme State pecuniary for ing provided had Johnston with a motive divorce had suf- killing his The defense asserted that Johnston wife. night on the of his problems fered from severe mental and that murder, large amount of alcohol. wife’s he had consumed a Engel and Herbert William is, Engel and Herbert for
The murder committed William us, striking case similari the most difficult because that bears Engel are subject ties to the case. William and Herbert broth ex- capitally the murder of William’s ers who were tried background familiar to the The facts and of this case are wife. applications, participated because it earlier bail-release Court (1985), has 493 2d 1217 Engel, see v. 99 N.J. A. State from the convic petitions for certification reviewed defendants’ (1991). 614 2d 616 non-capital murder. 130 A. tions of N.J. assistance of procured his ex-wife’s murder with the William Herbert, brother, jealousy and an apparently his because delegated to Herbert obsession with his ex-wife. William killer, McKinnon Mar- hiring a contract much like task of murder, case, and had told a before the shall’s one month get rid of year that he wanted to private investigator the before McFadden, employee, into pressured an his ex-wife. Herbert *58 of his ex-sister-in-law murder-for-hire agreeing to commit the money. him liquor promising him and by plying owned William committed a warehouse The murder was the false on Engel his ex-wife to the warehouse Engel. lured shopping birthday and Christ- going pretext they were inside, Engel daughter. Once five-year-old gifts mas for their working when he lights were not the warehouse pretended that waited, McFadden past door where her the bathroom escorted strangle ready to her. watched, smoking ciga- a his ex-wife and
William stood over point strangled death. At one rette, her to McFadden while ordeal, her a “bitch.” William called during four-minute car, and, waiting as body loaded her into The men then two cohort, Wright, transported Pee and a Wee planned, McFadden beyond recognition. burned where it was it to South Carolina person who execute the (Herbert McFadden to later ordered he feared that dispose body of the because had helped murder.) police tell the executioner would murder, when continued after the Engel’s deception William reported first to her house and telephoned his ex-wife’s he twice not daughter that the victim had to her grandfather and then mother that she planned. He told her to meet him as arrived meeting. first arrived at their had never well-educated, Marshall, Engel successful was a Like William was, community, businessman, good reputation had a who work, prior criminal record. had no in charitable and involved however, of his ex- Marshall, Engel’s murder William Unlike jealous solely out of a motive: he killed pecuniary lacked a wife lives, spared the brothers’ jury The anger towards his ex-wife. (mental/emo- c(5)(a) mitigating finding presence factors c(5)(f)(no c(5)(e)(duress), disturbance) in addition to tional factor). jury record) c(5)(h) (any other prior criminal outweighed aggra- mitigating the sole those factors found that killer). factor, c(4)(e)(hired The trial court sentenced vating *59 imprisonment the brothers to life thirty-year period with a parole ineligibility. suggests
The Public Defender that one may factor that have saved the two brothers testimony elderly was the of their father, jury told experiences who of his own Austria during World War I and how his own father had been killed in a camp. managed concentration Defense counsel suggest jury that Herbert felt beholden to job. William for his Overall, culpability the criminal Engel William no seems different from that of Robert Marshall. The two husbands came from the same economic stratum. The victims were not strikingly shattering impact dissimilar. The on the families was the same. question
The ultimate concerns jury whether the fact that a spared Engel requires brothers invalidation Robert Marshall’s death sentence. statutory We do not believe that disproportionality contemplated Jersey ever ju- two New ries must reach identical verdicts in closely-similar even circum- stances. search impermissible Our should be for some pattern invidious factor or that has been broken. That the Engel spared brothers were their lives does not establish pattern life-sentencing killings. for such We do not sense that some factor sentencing pro- invidious tainted Marshall’s cess. remaining spousal distinguishable. murders are Both
Walter escaped jury Williams and Darrell Collins death when a they pecuniary gain. found that had not killed for John Dreher thought by prosecutor was not to have met the criteria for c(4)(c) aggravating factor.
2. (principals). Contract killers category This is another of similar cases that must we Engel essentially consider. Because the brothers were contract principals, agree we need not discuss their cases further. We striking that there are no factual dissimilarities between their Marshall’s, case and Robert other than the fact that William Engel money. did not murder say his wife for One cannot with degree any significant of confidence that there is a difference in blameworthiness in either situation. remaining principals
We now address the contract and then principals discuss the hitmen and the associated their cases.
Francis Brand
The Public Defender describes Francis Brand as the “remain- ing principal” compared contract iswho to defendant the Brand, Report. brother, Marshall Arthur Franсis’s older had physically and mentally family years abused his for and had drugs Francis, sold family living from the home. in fear of his years, procured brother for Randy Burroughs, the assistance of long-time friend, a Burroughs, to kill his brother. who had a background, limited educational had tried to resist Brand’s attempts kill, to convince him to after but Francis Brand had urged him eighteen for about months promise and with the money, Burroughs agreed. Burroughs shot Arthur Brand shotgun twice with a and killed him he as awoke. prosecutor prosecute did not seek capitally, to Francis perhaps because of the victim’s violent assaults on family other history drug members and suggest abuse. Those factors less blameworthiness in Brand’s case.7 contract-principal We have considered the other cases set forth in the Miguel Public Defender’s brief. Lazaro Trimino hired Melendez to murder the intermediary victim. Trimino claimed to have served as the between the Gerome, principal, fugitive, actual presumably Pedro iswho still a in Nicara- gua. Although reports killing, do not show a clear motive for the relationship procurer between the absent of the murder and the victim un- doubtedly pled guilty conspiracy. would establish the motive. Trimino to remaining principals suggested We have also by considered the two Cveticanin, Rose, principal Public Anthony Defender: Zoran in State v. Franciotti, principal Anthony in State v. DiFrisco. The latter hired DiFrisco victim, pizzeria police to murder the a owner. We do not know if the have apprehended him. Zoran Cveticanin hired Michael Rose to murder Cvetica step-mother, eight-months pregnant, prevent nin’s who was to her from inherit ing money. Yugoslavia, his father’s Cveticanin fled to where he was tried and (hitmen).
3. Contract killers Anthony DiFrisco cold-blooded, facts of that
The Court is familiar with the $2,500 agreed, killing. Anthony DiFrisco for execution-style debt, pizzeria kill drug to cancellation of a $500 cash and DiFris- going police inform the about he was to owner because addict, DiFrisco, drug carried drug dealings. employer’s co’s in the head and shooting four times out the “hit” the owner order. body reached to fill a soda in the as he once equivalent at least DiFrisco’s moral blameworthiness account, he committed the By his own Robert Marshall’s. reputation with professional himself a contract murder to earn DiFrisco to death court sentenced syndicate. a crime The trial factors, c(4)(d)(pecuni- aggravating finding after that the two detection), outweighed motive) c(4)(f)(killing escape ary factor, (substantial to the c(5)(g) assistance only mitigating murder). prosecution in the of another State murder, but DiFrisco’s conviction appeal, On we affirmed any of the absence his death sentence because reversed prin with the contract of his connection extrinsic corroboration *61 it 2d 914. We take DiFrisco, 571 A. cipal. supra, 118 N.J. the con investigating responsibility of police the that the are killing. for that senseless principal tract Clausell James case, too, capital having heard this
We are familiar with 221. Clausell, 580 A.2d Clausell supra, 121 appeal. N.J. greater than Robert culpability have an overall appears to Like killing. inanity of the of the absolute Marshall because was to receive DiFrisco, killing the victim motive for Clausell’s as a hitman. $2,000 develop reputation in cash and to dealer, revenge to seek drug hired Clausell principal, a known hard labor. We find to and sentenced thirty-years convicted of murder finding of cases to rule out a disproportion. distinction in those sufficient neighbor municipal-court complaint on his who had filed a against concerning dog. him his by firing
Clausell and a cohort carried out the “hit” two shots through fatally front door the victim’s house. One bullet chest, narrowly struck the victim in the the other his missed daughter. jury finding A sentenced Clausell death after c(4)(b) risk) c(4)(d) motive) presence (grave (pecuniary aggravating imposition factors. All that saved him from the might the death was some evidence that showed that he him, have intended to intimidate the victim and not to kill entitling principal him to a retrial. The contract in his Gerald sentence, given again case a life was but there was a residual respect dispatched on he doubt with to the mission which had Clausell.
Miguel Melendez head,
Miguel killing Melendez in him shot his victim twice presence in daughter being by of the victim’s after hired $2,500 Lazaro Trimino for to do so. Melendez had no role murder; planning handgun supplied even the was to him. suggested mildly-mentally Evidence that he was at least retard- suffering organic ed damage, brain had been aban- from child, doned his father as a and had been institutionalized addition, hospitals state for most of his childhood. he cooperated police with the and confessed that Trimino had hired murder, him expressed to commit the and at the trial remorse reasons, part his the murder. For those his criminal culpability appears less than Marshall’s. Robert
Michael Rose brutally
Michael Rose Kathryn murdered Cveticanin for the Cveticanin, payment principal, in cash. The Zoran hired $540 step-mother prevent inheriting Rose to kill his her from his . Rose, retarded, mildly-mentally father’s estate who also is carried out that task in a vicious fashion—he stabbed his pregnant eighty-three victim times and beat her over the head object approximately twenty with a blunt times. When the *62 herself, victim became too to defend weak Rose smoked a her head neck with a cigarette proceeded to beat and and then pump. sump c(4)(c)(torture, depravity of aggravating
juryA found factor c(5)(f) (no c(5)(e) (duress), prior mind), mitigating and factors c(5)(h) State), record), (substantial and c(5)(g) assistance to factor). jury could not reach a (any Because the other relevant factors, received a sen- weighing of the Rose decision on the parole ineligibility. imprisonment thirty-years tence of life with of duress close; jury hung. The factors His case is was distinguish it. to the State and assistance Randy Burroughs $2,000 with the
Burroughs killed Arthur Brand promise Brand, younger the victim’s contract-principal, Francis from the pressure to kill eighteen of constant After months brother. opened Ar- Francis, Burroughs, any planning, without from killing shotgun, him fired with a door and twice thur’s bedroom Burroughs, who was instantly. The evidence showed retarded, money but killed not for the mildly-mentally had brother. family rid the of his abusive help his friend killing implicated Francis to the Burroughs confessed State at testifying for the conspiracy, in the later Brand imprisonment, of life trial. He received Brand’s sentence Defender rec- ineligibility. The Public thirty-years parole Mar- is less than Burroughs’s ognizes that blameworthiness Burroughs’s lower blameworthiness shall’s believes but culpabili- criminal contract-principal’s overall increase the would ty. killers, appear to be sum, principals, like contract contract blameworthy. DiFrisco and Clausell significantly
recognized as Melendez, Rose, Burroughs death; ap- sentenced to were blameworthy of their less because somewhat pear to have been degree retardation; highest Burroughs showed the mild mental of remorse. society debating whether point little
Although there is repeat the likely to principals, who are less regards contract *63 186
crimes,
(who
as more blameworthy than contract hitmen
appear
no
to have
money),
motives other than
there is no clear line of
demarcation that would indicate to us that to sentence Robert
Marshall to
disproportional. Many
death is
spousal
of the
or
companion
review,
murders
e.g.,
Moore,
that we
State v.
122
(1991) (S. Moore)
N.J.
585
.2d
(killing
A
864
of wife and
during
child with
rage),
Erazo,
hammer
fit of
and State v.
126
(1991)(killing
N.J.
4. robbery kidnapping Premeditated murder cases. These cases comparability have some factual with Marshall. John Martini
John Martini received kidnap-murder a death sentence for the $25,000 of a receiving businessman.8 After money ransom wife, from the completed victim’s Martini plan his well-devised victim, shooting his execution-style, three times to the back of the head.
Martini, fifty-eight years age killing, at the time of the defense, diminished-capacity raised a claiming that a severe problem impaired cocaine-abuse capacity his to commit the purposefully crimes or knowingly. argues Marshall that he is- culpable far less than Martini and thus deserves a life sentence. David Mark Russo planned
David Mark robbery gas Russo of a station and employees. the murder of its Russo carried robbery by out the death-penalty appeal currently pending John Martini’s before this Court. lay on attempting they victims as first to execute his three range, killing point-blank one person floor. He shot each seriously injuring the two. other age years of at the time he committed thirty-two Russo was abuse, alcoholism, history cocaine his and had a crimes (emotional c(5)(a) depression. penalty-trial jury found the *64 factors, disturbance) c(5)(d)(mental mitigating impairment) and high the imprisonment. life Because of and sentenced him to victimization, the found and Master level of blameworthiness culpable criminally as Robert Marshall. Russo as Thompson and Howard Terrence Scales Thompson their Howard murdered vic- Terrence Scales and tavern, tim, to his new they met in in order steal whom had a apartment, luring him back to their Scales car. After clothesline, strangled and when Thompson their victim with a death, the resisted, they him. two After victim’s he beat callously disposed of it in a wrapped body men his blanket and on a embankment. river impris- life sentence of Thompson each received a
Scales and phase in which proceeded to a case onment. Scales’s after it had found on the issue death jury deadlocked detection) c(4)(f) mitigating fac- (escape aggravating factor all). c(5)(h)(catch Thomp- (mental c(5)(d) impairment) and tors penalty trial. did not advance to a son’s case Mclver Vernon prostitute, male mur McIver, nineteen-year-old
Vernon a large knife plunging a butcher by client dered his homosexual killing, Mclver lay as on the bed. After into neck he his guilty felony He pleaded car. wallet and stole the victim’s prison aggregate forty-year term with an murder and received parole ineligibility. period of thirty-year agree cases demonstrate that those We are unable That death sentence. Robert Marshall’s disproportionality of John may deathworthy Martini more than Robert Marshall does disproportionate. not establish that Marshall’s sentence the Russo case jury mitigating present found factors not Scales/Thompson in and McIver cases are far Marshall’s. The too dissimilar to aid the proportionality review of Marshall's death sentence.
5. Other cases. well, We have as although considered we do not discuss detail, each of the other cases mentioned Public Defend- Berta, er’s They Eugene brief. concern who committed possibly pecuniary-motive killing girlfriend; of a Salvatore Fer- rari, hand, who killed mother allegedly his his own in order $30,000; Lewis, to obtain over William Todd who killed his twin estate; Jalil, brother to inherit a share of his Nelson who pregnant murdered his wife impending to relieve himself of the child; (a financial strain of a Jose Machado case with which we familiar), brutally are pregnant girlfriend; who killed his Ed- Freeman, poisoned freedom; ward gain who his wife to his Bert Rindner, Presher, partner; Joseph who killed a business who *65 brutally killed a close woman friend.
Although of each those cases demonstrates deathwor thiness to degree, some each contains sufficient factual differ ences, i.e., killings, not contract and either the absence of specific findings statutory aggravating of the factors or eviden tiary problems concerning aggravating the or mitigating fac require tors that do not us to invalidate Marshall’s death sentence.
VI ” Jersey That Juries in “Generally New do not Return Death Verdicts does not Undermine the Deterrent Value the of Death to Penalty Such an as to Extent Render it a “Cruel and Unusual Punishment.’’ Ramseur, supra, 166-82, N.J. at 188, 106 524 A. 2d this upheld death-penalty Court the statute on both federal and
189 the constituted grounds against facial claim that statute state punishment. agreed with the The Court cruel and unusual 2909, 153, 96 49 plurality Gregg, supra, U.S. S.Ct. 859, penalty is severe and although that the death L.Ed.2d irrevocable, disproportionate penalty not it is an excessive for the crime of murder. “although view is not that the
The Court stated Ramseur belief, strongly held one in unanimous, widely held and a it is a may appropriate penalty murder be society, our that 172, Citing information at 188. death.” 106 N.J. A.2d Defender, noted that supplied by the Public the Court “[i]f society’s of reflection jurors are to be taken as a true actions strongly supports view morality, most recent evidence contemporary standards penalty does not violate that the death 1982, punishment in capital decency. the restoration of Since twenty-six imposed sentences of state have juries this at A .2d 188. death.” Id. conclusion, us reconsider that
The Defender asks Public Proportionality of the arguing as a result of work that complete it evidence Project, this now has before Review Court decisions ren- that the strongly supports the conclusion penal- that the death Jersey’s juries demonstrate dered New decency. contemporary standards of ty violates A. premise argument drawn from Defender’s Public Furman, supra, 408 concurring opinion in Justice White’s He at wrote: 390. at L.Ed.2d 92 S.Ct.
U.S. could so begin the death I a near truism: what consider I or measurably cease to a credible deterrent that it would seldom be imposed justice system. in the criminal end of other any punishment to contribute * * * degree certain reaches a of the death penalty But when imposition general existing *66 need for doubtful that any it would be very infrequency, it with confidence Nor could be said satisfied. would be measurably retribution justifies so death for so few when for deterrence specific need society’s terms are or shorter life imprisonment prison circumstances like many 190
judged sufficient, or that
values are
reinforced
community
measurably
authorizing a
so
invoked.
penalty
rarely
311-12,
2763,
at
[Id.
391.]
Justice White reasoned that in such a circumstance death would
then
pointless
“the
and needless extinction of life with
marginal
any
public
contributions
pur
discernible social or
poses.”
312,
2764,
92
Id. at
S.Ct. at
33
at 391.
L.Ed.2d
Justice
penalty
White
negligible
concluded that
with such
returns
“[a]
to the
patently
State would be
excessive and cruel and unusual
punishment
312,
Eighth
violative of the
at
Amendment.” Id.
92
2764,
S.Ct. at
33
Gregg,
opinion
L.Ed.2d at 391-92.
judgment
announcing the
penalty
observed that
death
“[t]he
said
principal
purposes:
to serve two
social
retribution and
capital
by prospective
deterrence of
crimes
offenders.” 428
183,
2929-30,
U.S. at
at
96 S.Ct.
That jurisprudence thread Court has remained Thus, constant. the Court has embraced the view “when legislatures juries firmly rejected the penalty of [have] death,” Enmund, supra, atU.S. 102 Ct. at S. (O’Connor,J., L.Ed.2d at 1162 dissenting), of death disproportionate is substantially to the offense.
B. argues The Public Defender point that that has come Capital administration of New Jersey’s Punishment Act. He Report relies on the Master’s this Court: charging sentencing trend New principal capital Jersey’s system between 1983 and has been a marked decline in the with which frequency * * * among death-eligible death sentences are imposed eases. The overall rate (29/140), before 1988 was .21 while the overall rate 1987 has after been .06 *67 (5/87). Among death-eligible since 1, 1987, murders committed January has returned in two cases. death verdict been only Report, supra, at 15.]
[Final average frequency argues that the level of The Public Defender years is death-eligible past cases over the nine .15. Id. for all Report indicate 1. The data in Table of the Final at Table during year opera- of the statute’s only the first calendar cases, .50, level, frequency penalty-trial in all rise to tion did the 1987, year, did the level of only in one other calendar and Overall, the penalty-trial cases rise to .43. frequency in all 2. The average frequency is .30. Id. at Table Public level of added, trials are suggests penalty that when recent Defender average rates are even lower. Report suppositions in the Master’s discussing After various in for such a decline death-sentenc- respect to the causes with rates, argues that whether those ing Defender Public attempts predict are a function of prosecutorial judgments allocations, or resource trend jury-sentencing behavior prop- decisionmaking support lends further prosecutorial standards of penalty offends current osition that the death Jersey. decency New writings argues from the Master’s Defender thus
The Public concern over satisfy White’s constitutional that to Justice “[a] State,” Furman, negligible to the such returns penalty with at at 33 L.Ed.2d 92 S.Ct. supra, U.S. “substantial,” noting sentencing must be frequency of death every two one out of “imposing the death notions of satisfy not conventional factually similar cases does death-sentencing frequency rate evenhandedness,” and that a comply notions of evenhanded- is “too low to less than .80 Baldus, George Woodworth & regularity.” C. David ness A Pulaski, Penalty: the Death Equal A. Justice Charles (1990). n. 50 Analysis, 76-77 Empirical Legal c. disagree
We
declining
that the
imposition
rate of the
the death penalty by
Jersey juries
New
makes it a cruel and
punishment.
unusual
Ramseur,
emphasized
we
that there
*68
way
was no
capital-sentencing
which a
system could be
produced that
mechanically predict
could
capital
the outcome of
explained
trials. We
in the face of a
questioning
dissent
the
procedural protections afforded under the
“If
sugges
Act:
tion
capital
is that
defendants are
perfection,
entitled to
consistent,
totally
accurate
procedures,
and reliable
obviously
not
any
this Act
but
death
act would be unconsti
192,
tutional.”
In the face of claims that the statute could
arbitrarily
be
capriciously applied,
attempted
we have
to set standards to
death-eligible
narrow the class of
Ramseur,
murderers.
In
we
undertook to
imprecise [c(4)(c)
“narrow
statutory language in
]
order to render it
200,
constitutional.” 106
at
N.J.
524 A .2d
Gerald,
188.
In
supra,
89,
113
792,
at
N.J.
549 A .2d
we
interpreted the Act to limit the sentence of death to those who
kill,
intended to
just injure.
II,
not
Bey
supra,
In
112 N.J. at
165,
887,
548 A .2d
rejected any
we
idea of a mechanical or
balancing
numerical
of factors in the death-sentencing process.
We
jurors
made it clear that
must be instructed
they
that it is
qualitative
who must make the
judgment about who shall live
Zola,
or who shall die. Ibid.
In
supra,
428-31,
imposition
punishment
in our
determinations
—
conclusively
repu
to the
legislative
point
enactments —both
and
Woodson, supra, 428
at
penalty.
of the death
U.S.
diation”
J.).
2986,
Stewart,
293,
(opinion of
at
That New segment eligible does not make a ty for a small of the death capricious long adequate as standards arbitrary sentence and so impermissible factors place are in and there is no evidence of in his influencing jury. As the Public Defender has noted race-of-victim, analysis, race-of-defendant infra high jury quite predictable is at the A. 2d at behavior aggravating mitigating In that ranges low factors. fulfilling respect, Jersey juries may seen to be New be Legislature’s penalty rarely but invoked: wish that the death rigorous provisions protection some rather in it for the of the bill has [T]he defendant, theory being paid, that ultimate as difficult as that comes, it, part day to at
will be on all of us who have a when that we want every possible contingency protection for the least feel we have tried to cover hopefully defendant and it will be utilized in the most extreme cases. argues figures suspect. The Public Defender that even those are He suggests removing thirty-two that after from the death verdicts those cases that I, remove, criteria, Moore, statutory e.g., Bey Marie we should dо not meet *70 well, as all reversals that have not resulted in retrial-death verdicts. Of those verdicts, thirty-two only gone remand-penalty vacated death four have to a trial, believe, and in two were the defendants sentenced to death: We trials, however, Master, original penalty although as does the that the reversed issues, reasons, burden-of-proof and have for various most often for the Gerald juror reflected values of deathworthiness in terms of deterrent effect. Hearing, Committee, Judiciary N.J.Senate Senate [Public (Feb. 26, 1982) (statement No. at 1 of the bill’s
sponsor, Russo).] Senator John
VII Geographic Patterns Charging Prosecuting Capital and
Cases do not Arbitrary Demonstrate an Exercise of
the Prosecutorial Function. Next, we Jersey’s consider defendant’s claim that New Capital Punishment Act is geo unconstitutional because the graphic capital-charging sentencing distribution of and deci sions within the state capital punishment demonstrate that arbitrarily imposed. Defendant dispari claims that decisional ties between imposition the counties render of death sentences inconsistent, unfair, arbitrary, contrary Eighth and to the I, Amendment to the United States Constitution and Article Paragraph Jersey 12 of the New Constitution. addition, particularized defendant advances a argu- more regarding
ment his death sentence. Defendant asserts that his sentence should be vacated he adversely because was twice by geographic pursuit implemen- affected variations in the capital tation of sentences. capital Defendant was indicted for when, County according murder Ocean at a time to his calculations, prosecutions such excep- were undertaken without Afterwards, venue, change tion. because of a defendant tried County, was and sentenced in Atlantic he which asserts higher-than-average has a in capital conviction rate cases. De- argues unique geographic fendant that this combination meant his chance of receiving greater a death sentence than was any that of other capital defendant the universe of cases. After a careful review of the statistical evidence submitted expert, the Master and the State’s we conclude that defen- dant has any capital-prosecution not shown that variations in sentencing practices in the state amount to a constitutional deficiency application in the of the death penalty. We remain potential prosecutorial mindful of the for abuse of discretion in *71 poses the desired capital decisionmaking and the threat it to However, uniformity pursuit in sentences. the data of such presented appeal in do not establish the existence of such this part prosecutors. arbitrariness on the of
A.
recognized
prosecutorial
in
potential
We
the
for arbitrariness
decisionmaking
respect
capital
early
experi
in our
to
cases
McCrary,
death-penalty
ence with the
statute.
State v.
132, 141,
(1984),
acknowledged
signifi
we
the
N.J.
We
analysis
our
in
by noting
Koedatich
Gregg,
that
supra,
153,
2909,
859,
428
96
U.S.
49
S.Ct.
L.Ed.2d
holds that
the federal
require
Constitution “does
prosecutori
not
limits on
beyond
al discretion
aggravating
the
factors
in
outlined
the
252,
statute.”
112 N.J. at
.2d
beyond
A
939. We looked
requirement, however,
that
and found
Jersey
that “the New
* * *
Constitution
mandates consistency
reliability
and
in the
capital
251,
administration
punishment.”
of
Id. at
548 A .2d939
(citing Ramseur, supra,
190,
188).
Instead, we held that
assessing
critical
in
discretion
[t]he
question
is what standards are
prosecutorial
death-eligible
to move a case from
to
status.
applied
To assist in
death-possible
answering this
this Court cannot
question,
on
rely solely
county-by-county
findings
statistical
or on
that are
discrepancies
de-
developed exclusively by
fense counsels’ evaluation of the case included in the data base.
among
That
there are differences
the counties in the likelihood that a
will
the coincidence
prosecutor
pursue
that the
has more often
prosecutor
—or
standing
does
pursued
demonstrate
capital prosecution
not,
alone,
that the
—a
being
death
there are a
arbitrarily imposed. Surely,
myriad
reasons
a
handles different
why
cases
such as the
prosecutor
differently,
willingness
guilty,
strength
of a defendant
to
of the State’s
a
plead
case,
against
defendant’s
in the State’s case
cooperation
the relative
co-defendant,
aggravating
mitigating
weight of the
and
factors,
availability
and
statutory
the resources of the
witnesses,
relative
and
credibility
persuasiveness
list
few.
to
office,
county prosecutor’s
.2d
548 A
112 N.J.
[Id.
939.]
from
Although
reluctant
draw conclusions
we were
Koedatich,
preliminary
in
we
statistical data submitted
never
guidance
prosecu
“recognize[d]
greater
need for
theless
duty
perform
they attempt
tors
their constitutional
as
Therefore,
enforcing
Id. at
B. prosecutorial- Report The Master’s Final examines both the in process jury determinations the various coun- selection and Report categorizes disparities geographic-sentencing ties. The (1) ways: twenty-one in are three state’s counties divided the. “southern;” “north,” “northwest,” (2) regions: into three and “non-urban;” (3) they or the are classified as “urban” and state Report is as a that the overall examined whole. concludes death-sentencing among death-eligible rate offenses is more high than as addition, twice as in non-urban urban areas. In the Report determines substantially-higher that a death-sen- tencing rate in part the southern the state makes the overall approximately rate there higher two times than it the is north and northwest.
. The Attorney challenges Report’s General method classifying counties as example, “urban” “non-urban.” For Report labels as those “urban” counties that Professor major Camden, Baldus determined to embrace a urban center: Essex, Mercer, Hudson, Middlesex, Passaic, and Union. But Bergen which, absent from that is County, list like remain- all counties, ing However, Bergen was classified as “non-urban.” with County, population, adjacent its substantial sits to three Paterson, large Passaic, Clifton, cities: and shares a border Additionally, Manhattan and the Bronx in New York. county major is home to development, highly-trav- industrial highways, elled retail Al- concentrated establishments. though county character, some of decidedly suburban it have purposes should been included in the urban counties for Report. of the
Furthermore, group the urban/non-urban classifications sub- stantially together. example, different counties For suburban County part Morris in the northern non- the state shares County urban rural status with Salem far to the south. addition, Report does not account for counties that have significant significant both urban and rural characteristics. County City, Atlantic municipality embraces Atlantic hardly time, however, could be more urban. At the same *74 county quite western end of the of rural. Classification the county solely as one or the other cannot accommodate those characteristics. Attorney questions also General the classification the north,
regions. dividing Instead of state the the into familiar central, south, north, Report regions northwest, and the uses Counties, and which example, south. For Monmouth Ocean
and New York clearly ring comprising of counties are within the area, Regional Report, are classi- metropolitan Metropolitan see part Jersey. fied as South difficulty foregoing note that the issues underscore
We neat, categories into packaging the various counties absolute why comparison explain to purpose of statistical and we accept Report’s findings in this area as not Final do in Report perfect is not its Although the Final conclusive. analysis (such reasonably be ex- a standard cannot statistical findings nevertheless, instructive on the pected), its overall are sentencing general capital-charging in decisions and trends geographic a useful from which to examine the serve as basis death-penalty of the statute. application
C. classifications, Report, determines using The Final the above penalty in counties the death prosecutors non-urban seek frequent 1.6 times than their urban counter at a rate more addition, disparities prose regional In demonstrate parts. penalty at a region in the northwest seek death rate cutors prosecutors in the north frequent more than do 1.6 times prosecutors do in the frequent times more than south. 1.3 considered, Report are the Final When individual counties spread, from a sixty-eight-percentage-point about a low shows high in where rate of to a counties all penalty-trial .32 two to eligible death advanced determined Baldus cases concern, figures worthy of Although trial. those are penalty Maryland. in they come nowhere near the aberrations noted penalty Maryland county prosecutors seek the death one cases, City, death-eligible of the whereas Baltimore “100% Tichnell, supra, they seek that 1.8%.” (Davidson, J., dissenting). A. 2d at 31-32 behavior, respect Report indicates that the jury With high in death-sentencing is more than as non- overall rate twice *75 addition, urban than in urban death-sentencing counties. In the in rate the part southern of the approximately state is two higher times in than it is the north and northwest. Notably, almost one-fourth of the counties have death-sentencing rate zero, compared to fifty three counties have that a rate of percent. response,
In Weisberg the Report, Attorney submitted the General, attempts explain unreliability the of Professor Bal- geographic dus’s Weisberg determinations. Dr. first observes sample that the sizes for most simply counties are too small for significant any flaw, analysis. Overlooking statistical that however, Weisberg Report Dr. concludes that the Final dis- closes disparities, raw numerical which demonstrate nei- significance ther deficiency. statistical nor constitutional significantly, Weisberg argues Most the Report that the Report fails Final to take into consideration the case-mix state, differences across the which account for could some of prosecution the variations rates between the counties. words, Special figures unadjusted other Master’s are be- they aggravating mitigating cause do not consider cir- cumstances point, attendant to each case. To this illuminate Weisberg Dr. culpability divides the universe of into cases four categories (the beginning Category culpable) with I most ending (the Category culpable). IV least data, reciting Weisberg
Without we note Re- port’s ultimate conclusion * ** penalty-trial primari- the variation in rates across areas the state is ly adjustment to the case attributable mixes in these areas. After different greatly level, these differences are reduced and fail to achieve culpability significance. Thus, statistical the notion that differ prosecutors substantially terms of their to seek death penalty personal propensities appears implausi- ble. Report, supra,
[Weisberg at 37.] challenges validity Weisberg’s Defendant of Dr. conclu- Weisberg Report sions. Defendant first asserts that the does disparities prosecution county-by-county not address *76 culpability categories ap- sentencing practices are because its by region Sec- plied only and urban/non-urban classifications. ond, Weisberg Report supports a argues defendant that the system is capital-punishment that flawed conclusion the entire prosecution in and because it demonstrates that some variation sentencing application Weisberg’s of Dr. cul- exists even after categories. pability operate a argues prosecutors that with
Defendant because regional a county-wide jurisdiction and not on urban/non- basis, report address discre- Weisberg’s nothing does to urban Again, that prosecutors. tion individual we note Dr. Weis- of berg’s report, any study capital-punish- of like other statistical every possible of practices, not address combination ment does However, Weisberg’s practices in the Dr. death-penalty state. helpful light capital-prosecu- they are shed on
statistics because state, throughout and view sentencing practices tion and the we argu- in findings his as informative our review of defendant’s ments.
D. argues Report “crazy- a portrays that the Defendant Final decisionmaking practices that ren- quilt” prosecutorial have of in nugatory that result dered the Prosecutorial Guidelines and capital of unpredictable application an and unconstitutional Report Weisberg’s rejoinder Dr. The Master’s and sentences. together capital-prosecution decisions are not demonstrate that Yet, accept not complete uniformity. we do carried out any part on the proposition the that the exercise of discretion system capital prosecutor punishment the our uncon- renders regarding determinations stitutional. Prosecutors must make successfully securing a death sentence when likelihood effort to do so. deciding whether to commit resources appropriately process That involves evaluation evidence prove beyond a predictions ability of the State to about
-203 aggravating reasonable that the doubt factor or factors out- weigh mitigation. those in
Inevitably, capital in some cases that could result a convic- prosecutor will accepting plea tion determine that murder prudent be a would course of action based on an evaluation of prosecutor presented the evidence. Another with the same will case have no slide rule to tell him or her when the expenditure pursuit capital of resources of a sentence can wisely be undertaken. Such a does variation not offend the Although suggest possi- State Constitution. the statistics bility (and conditions) norms different and cultures societal may producing different outcomes not under our desirable equal justice, although notions of we are disturbed possibility, ensuring twenty-one prosecu- nevertheless that all tors would capital-charging every make same decision *77 simply case is constitutionally unnecessary. unattainable and course, unacceptable Of any suggestion we would find that a particular prosecutor or group prosecutors engaged of had charging that to decision amounted an aberration and related evidentiary strength impermissible not to to but some other guidelines adopted The Jersey consideration. the New County require prosecutors to Prosecutors Association hew closely statutory requirements to to the of the Act and evaluate weight any aggravating the of the evidence to sustain factor. guidelines require any The of also avoidance extraneous influ- race, sex, victim, of status of notoriety ences of defendant or any prosecute guidelines case or the resources it. The to negate “any procedural rights.” explicitly substantive or The provide no guidelines system of administrative review at the county or state level.
Aside from the concerns about the race of the and race victim VIII, that defendant we shall discuss Part infra Report presents 613 A. 2d at no other Final impermissible prosecutory evidence bias in function. Although capital-charging vary extent decisions to some from constitutionally
county county, we do not find deviations suggest significant. Nor the statistical evidence does acting arbitrarily. county jurors particular in a or counties are nature, degree. Jury will, by vary to some their deliberations Long capital resisted jurisprudence, defense counsel before metropolitan ones. from to less-urban transfers of venue areas sought a transfer from That not done here. Defendant was pretrial publicity. County non-urban Ocean because adverse City, of the County, except for Atlantic shares much Atlantic County. flavor of Ocean death-penalty
If resulted in a death sentence all cases North Jersey death-penalty and none of the cases in South sentence, system might Jersey in a our resulted death then However, community death-penalty unconstitutional. not purposes Jersey. entire of New Thus do is the State we simply system find that as a whole is unconstitutional may death-sentencing vary somewhat from coun- because rates ty statutory aggravating factors as well as county. decisionmaking death- prosecutorial limits on ensure must eligible penalty-phase jury. Jurors cases arrive before - aggravating required to de- unanimously find factors and are outweigh factors beyond termine a reasonable doubt that such impermissible systemic mitigation. those in evidence of Absent bias, sentencing is among juries respect to some variation inevitable; application equate it does not with unconstitutional Capital of our Punishment Act.
E. *78 challenges specific sentence as arbi Defendant also his the of trary capricious unique of circumstances because charged a having capital county murder a with been with in a higher-than-average indictment rate and sentenced to death county higher-than-average death-sentencing rate. awith his argues at the time of indictment the
Defendant regard with to County Ocean Prosecutor exercised no discretion seeking defendant, death penally. According the to such a rate prosecution Thus, of average. was twice the state-wide defen- dant contends that he had murdered his wife a further little Parkway County, south on the in Atlantic the of his likelihood being prosecution to subject capital a gone would have from argument, to For 100% 43%. his defendant on the relies statistics contained in Report. the Final indictment,
After defendant’s his trial was moved to Atlantic County, which he has the highest penalty-trial contends death- sentencing rate in the to According Report, state. the Final County juries impose Atlantic a death sentence in one out of every penalty sentencing twenty per- two trials. That rate is centage points higher average than the state and is consistent with in only county. the rate one other applies oversimplistic State counters that defendant an reading Report’s findings, the to which do not for the account case-mix All differences across various areas. of cases Report eligible arising identified the Final as death from County prosecuted capital Ocean were trial as Thus, Report cases. county concludes that initiates capital prosecutions However, at a rate review 100%. aggravating presented by specific factors indicates cases that all eligible” County cases identified as “death Ocean fell Category Category into either I II Weisberg’s of Dr. classifi- Thus, county presented unusually- cations. was with an defendants, culpable group of justify high which could its contrast, prosecution rate. County repre- the Atlantic cases range, County sented a one-half total wider of the Atlantic IV, Category only category cases were classified as prosecution Hence, capital which is uncommon. less-fre- quent-prosecution county rate for that would be reasonable. argument makes respect
Defendant a related his venue, sentencing County. change of a Atlantic Because County. County defendаnt was tried in Atlantic Atlantic is one highest death-sentencing penalty-trial two counties with the *79 County impose death in in the Juries in Atlantic rates state. trials, percent twenty rate every out of two a one average. higher than the state County argument Atlantic argues The State that defendant’s present no evidence relies on data that reliable flawed points several mistakes defen- The State out arbitrariness. erroneously sentencing data. The Public Defender dant’s non-penalty-trial Craig Timpson Alfonso as counted Hart and figures, the Recalculating defendant’s County Atlantic cases. eight penalty-trial were cases concludes that there State Huff, (Gerald, Hart, Long, Highlander, Mar- County Atlantic (Gerald, shall, Long, Perry, Timpson) of which three Marshall) in a sentence. Such calculations ar- resulted death rate, death-sentencing rate frequency lower rive at .375 County. than Ocean statistics, there is a
Apart the State contends that from legitimate precludes any of defendant’s case that basic element the murder- argument regarding county-charging differences: c(4)(e). In resulting aggravating setting and factor for-hire having as identified the Master of the four cases three c(4)(e) prosecutor capital instituted a aggravating factor sample disclosing that small that even with prosecution, county case cut across lines circumstances of Robert Marshall’s uniform treatment. and received argument on these issues to be do not find defendant’s We sentencing in Ocean and prosecution and rates persuasive. The vary significantly from the rates of Counties do not Atlantic Moreover, any county-by-county disparities are other counties. Similarly, geography. of case mixes rather than the result County, mix rather than presented fortuitous case to Ocean prosecutions. high capital its rate De- geography, explains sentencing prosecution convinced us that the fendant has not county to an that resulted amount aberration rates either unjustified sentence. an
VIII Neither the Race the Victim Nor the Race the of of Defen- Been
dant Has Shown to be an Impermissible Invidious Factor in the Imposition the Death Penalty. of
A. disturbing A aspect Report suggestion of Master’s is the may discrepancy that there be a in capital-sentencing rates that correlate to the race of the defendant or the race of the victim. Supreme resigned
The United States accept Court seems to “[a]pparent disparities sentencing that such are an inevitable part justice system.” Kemp, of our criminal McCleskey v. 481 312, 279, 1756, 1778, 262, (1987). U.S. 107 S.Ct. 95 L.Ed.2d discrimination, purposeful Absent Supreme apparent- Court ly will not invalidate a on the death sentence basis of racial profound. disparity, no matter how history Jersey’s New would coun traditions never capital sentencing. disparity people, tenance racial As a we are uniquely committed to the elimination of racial discrimina tion. All of our reflect institutions that commitment. We were among rights first of the states that enacted civil law. L. 169, 1945, to c. codified at N.J.S.A. 10:5-1 -42. “[Racial] rights proper privi not discrimination threatens leges of the inhabitants of the State but menaces the institu * * tions and foundation aof free democratic State always 10:5-3. Our decisional law N.J.S.A. has reflected “strength policy” State’s in this area. v. Con Jackson Co., 113, 123, (1969). cord 253 2d To 54 N.J. A. 793 countenance capital sentencing racial would discrimination mock guarantee equal protec our tradition and own constitutional I, Jersey tion of the laws under New Article Constitution paragraph 1. Court, emphasized special
As we repeatedly have our equality in the As justice. commitment administration we “ stated, jury qualified groups have exclude from service ‘not under it but the laws enacted our Constitution and only violates society and a concepts of a democratic our basic is at war with ” Gilmore, 103 N.J. government.’ State v. representative Texas, 311 (1986) (quoting v. U.S. Smith 511 A .2d (footnote (1940) 164, 165, 128, 130, 85 L.Ed. 61 S.Ct. sole omitted)). imposition capital-death sentences based equally or the victim would be of the defendant ly on the race society and a concepts of a democratic with the basic at war government. representative
B.
may argue that our
defendant
that a white
We have no doubt
Spink
constitutionally
system
invalid.
capital-sentencing
*81
Cir.1978),
denied,
(5th
cert.
‘Spenkelink.” F.2d at 582 n. 1. surely Defendant right has a to raise a challenge structural to the constitutional fairness of the Jersey Capital New Punish- ment Act. A death-penalty statute that systematically discrimi- nates on the basis of race of the victim or race of the defendant “menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3.
The McCleskey.Court
although
reasoned that
the statistical
data showed a discrepancy
may
race,
correlate with
“dis
parities
sentencing
are
part
an inevitable
of our criminal
justice system.”
312,
1778,
U.S. at
This Court cannot refuse to confront those terrible realities. *82 We have committed determining ourselves to whether racial and ethnic judicial bias exist in our system and to “recommend ways eliminating it wherever it is found.” Report, Interim supra, Hence, at i. were we that the believe race of the victim and race of the played significant defendant part capital-sentencing decisions in Jersey, New we would seek measures, corrective not, and if that failed we could consistent policy, with our State’s tolerate discrimination that threatened system the foundation of our of law. case, find, however, in this evidence do not
We sentencing. disparities in constitutionally-significant race-based contrast, presented the Court in the statistics By way of disturbing. Brennan’s dis startlingly Justice McCleskey were majority senting opinion the statistical data that recited analysis. unadjusted The purposes of its accepted as sound fоr factors) (for mitigating aggravating effect of other data (at culpability capital-sentencing rate for all all showed that the greater than levels) almost “11 times white-victim cases was * * * who for cases. the rate black-victim kill[ed] [B]lacks the rate of nearly to death at 22 times sentenced whites [were] blacks, the rate of and more than 7 times who blacks kill[ed] 326-27, 107 at at S.Ct. who blacks.” U.S. whites kill[ed] addition, 1785, prosecutors were at 300-01. 95 L.Ed.2d defendants penalty death for of black shown to “seek the 70% victims, only defendants with of black with white but 15% victims, only of white defendants with black black 19% 1785, at 301. at at 95 L.Ed.2d victims.” Id. S.Ct. relationships between the statistical A more extensive set of Here, McCleskey Court. presented was to the variables the rate at which presented by the Master were statistics at sentenced to death and the rate which defendants are black proceed to a trial. white victims cases with defendant, the most critical respect to the race With Defender, extrap- derived from an made the Public assertion figures, is that of the Master’s olation range aggravation is a 64- Level there level, the mid culpability [a]t higher percentage-point defendant will be sentenced to death risk that a black * * * Level no non-black other defendant than [and] culpability any although 3 of 10 black defendants has sentenced to death, defendant been death sentences. received emphasizes point because racial ef- Defender Public highest culpability levels and at fects seem undetectable at the Hence, culpability he asserts that when the lowest levels. choices, striking. effects are are faced with real racial juries *83 Although disparities appeared the race-of-defendant in the decisions, data, pr post-Gerald there too e-Gerald were “[i]n involving penalty-trial few death-verdict cases black and non- comparable culpability sup- defendants with to black levels port finding any Report, supra, at all.” at 103. Final respect analysis, principal
With to the race-of-victim con- way penalty Again, cern is the in which cases advance to trial. levels, extrapolating culpability from the various the Public suggests [,] mid-range culpability Defender that “at the ] level[ * ** (.78/.56) Level white victim cases are 1.4 times more likely penalty to advance to a trial than other cases [and] [a]t (.67/.20) culpability Level white victim cases are 3.4 times likely penalty more to to advance trial than other cases.” The reported average, Master that “on cases with a white victim may percentage point higher advancing have a risk of to a instance, do his trial than other cases.” Ibid. this post-Gerald actually slightly stronger data demonstrated a pre-Gerald period than race-of-victim effect data. Id. at 113-14. however, recognizes,
The Master that those results are not reports conclusive. He project, discrimination was not mandate in this we
[b]ecause
primary
consider these results to be
More work will be
strictly preliminary.
required
determine if
under closer
and alternative
analyses,
they persist
scrutiny
whether
are statistical artifacts or
and to
determine,
flukes,
example,
they
legal
significance.
assess their
and practical
Report, supra, at
[Final
101.]
knowledge
We have but little
of the science of statistical
probabilities.
study
We have had occasion to
that science
Ramseur,
jury
process
supra,
connection
selection
explained
from the as to demonstrate the result expected was not random [or by chance].
[Ibid.] complex A mathematical formula determines that standard deviation. In the slip sample case of the 100 a statistician expects that the plus standard deviation would be or minus 4.8 slips, and if a result is “more than 2 or 3 standard deviations from expected,” suspect. statistician assumes it is Id. at 222, 524 188. A.2d
If a court concludes that the statistical evidence is so deviant
compel
as to
significance,
conclusion of substantial
the court
must then look to the
surrounding
circumstances
that statistical
showing to determine
import.
its full constitutional
The consti
importance
tutional
showing depends
the statistical
part
degree
on the
subjectivity
involved
the selection mecha
nism. The more discretionary
process,
the selection
the more
addition,
concern for
In
bias.
courts consider
period
the time
alleged
over which
occurred, and,
violations are
to
finally,
have
courts will look at the State’s efforts to deal
problem
with the
potential
224-26,
bias.
Id. at
Although principles those are clearly applicable not to the case, they give circumstances of this guidance. do us We do not have a report definitive that the deviations are sufficiently alarming compel a conclusion of discriminatory substantial application effect in the of the Jersey Capital New Punishment Despite Act. the apparent disparities race-of-defendant at the level, mid-range culpability those same data no show race-of- penalty-trial victim effects in the Report, decisions.12 Final And, supra, at 101 importantly, n. 109. most the Master concluded that “the race of victim effects we have observed in * * * advancing these data for the penalty cases trial are less stable than the effects we for the observe race defen- dant variable trial Report, decisions.” Final supra, short, yet at 104 n. do not we confront a record 114.. * * * in which relentlessly statistical evidence documents “[t]he the risk that sentence was influenced racial [Marshall’s] McCleskey, considerations.” supra, 481 at U.S. S.Ct. (Brennan, J., at dissenting). L.Ed.2d If that so, were we would not hesitate to invalidate the sentence of *85 death. argument,
Before oral we denied the Public Defender’s mo- findings. tion to remand these issues for further factual There showing has been no further would warrant consideration of this issue. then,
Although,
disparate
must
we
be concerned
rate
capital disposi-
at which white-victim cases have moved toward
tion,
system
we can
that concern
the fact
balance
that the
significant
penalty
discloses no
race-of-victim effects in
deci-
Concerning
disparities,
sions.
race-of-defendant
need
we
examine
systemic.
over time whether those effects are
We
balance that concern with the
drawn from the same
observation
penalty-trial
data that since 1987 there
too few
death-
“were
involving
verdict cases
black and non-black defendants with
comparable
finding
culpability
support any
levels of
at all.”
supra,
Report,
more-clearly-
Final
at 103. Whether due to the
requirements
penalty,
objective
defined
for the
an
e.g.,
death
12
range McCleskey,
imposed
At the intermediаte
was
of the
death
in "34%
325,
white-victim crimes and 14% of the black-victim crimes."
214
c(4)(c)
factor,
torture/depravity
Ramseur,
standard for the
211,
188;
supra, 106
requirement
N.J. at
524 A.2d
of a
kill,
showing
Gerald,
supra,
of an intent to
We have no Jersey doubt the of New would system disparate not tolerate a that condones treatment for system black and white defendants or a that would debase the value of a black victim’s life. in Whether the exercise of statutory proportionality duty review or our constitutional to equal protection process law, assure the and due of cannot we escape responsibility any the to capital review effects of race in VI, 5, 1(c); sentencing. art. par. See N.J. Const. State v. § Koedatich, 553, (1984)(finding 98 N.J. 489 A .2d659 that court not to death sentence even when defendant wishes must review appeal). General, encouraged Attorney the as the chief law-
We have his Jersey, of the State of New to exercise enforcement officer charging prose authority uniformity to instill and undoubted differing cuting practices throughout the state. realize the We If jurisdictional concerns. the attitudes in counties and disparities, that fail system fails to eliminate unconstitutional authority hesitancy to invoke not be of ure should because A Attorney General. statewide currently conferred on the appointed by Attorney General in consultation panel, review any possible able to screen out prosecutors, would be charging or socioeconomic status effects of race factors, statutory e.g., prior process. of the selection Certain factors, murder, obviously make a killing, multiple contract deathworthy. It does not seem burdensome case more 216, IX, 2d at reasoning. part at 613 A. articulate such infra to resolve process outline a which opinion of this we De Attorney and Public General any differences between data-gathering concerning reliability of either the fender particular case in the universe. specifics of a process or the of the ought not bear the burden Although generation this vestiges racial of its unable to rid ourselves past, we seem stated in his eloquently so As Justice Brennan oppression. in McCleskey: dissent sought from the burden have to free ourselves times, In more recent we generation first this Court’s since Yet it has been scarcely
this history. segregation, striking since the two decades down racial barely decision major life. legislative domains of national racial discrimination prohibition decades that in three but we cannot have been honorable steps, pretend These legacy spanning grip centuries. of a historical we have completely escaped descend a is an invitation to claim McCleskey’s fear[s] [T]he Court[] * * * [believing] system penalties that any humanly imposed slippery slope * * * reject racial on bias] evidence [of Yet will exhibit some imperfection. ignore of the death different character both the qualitatively this basis is to * * repugnance *. discrimination of racial and the particular 95 L.Ed.2d at S.Ct. 312.] at 1792, U.S. 339, 344, [481 *87 IX Revisions That Can be Made Now and in the Future
to Simplify Data-Gathering Process compiled The Master has the data base to assist the Court in its constitutional statutory functions of death-sentence steps review. We must kept take to assure that it is current parties and accessible to the and the Obviously, Court. extent of future maintenance of the data base must await the adjudication parties’ L.1992, rights (limiting under c. 5 statu- tory proportionality cases). Still, review death-sentenced data base is relevant system-wide to evaluate the claims of dimension, constitutional as potentially well as the claims of defendants whose offenses were committed before the Act’s effective date.
In his Report, supra, Final the Master reflected on project’s years experience. first original proposal contemplated a participation by collaborative effort with full prosecution. defense and Initially, expected he that the studies of cases would be enhanced or by input corrected from the parties, particularly Input trial counsel. from trial counsel has greatly, particular, varied however. prosecutors have assistance, offered no even with Attorney death cases. The briefs, provided appellate General request- when available and ed, jury as well as verdicts for both death-sentenced cases and a group residual penalty-trial life-sentenced cases. That the process can greatly continuing benefit from a collaborative process is self-evident.
The Master has made certain recommendations to the Court respect entry to data-collection possible and retrieval and a continuing role for the AOC. We need not outline in detail those recommendations at this time. *88 knowing long the Master will way no of how
We have
process. Any
data-gathering
to assist the Court
the
continue
operate efficiently
able to
even
system we maintain should be
Hence,
indeed,
and,
departure.
departure,
after our
after his
ques-
consultant
Attorney
the
General and his
have
because
by the
data-gathering
employed
methods
certain of the
tioned
Master,
Superior
judge
Court
familiar with
appoint
we shall
concepts
data-assembly
to oversee
relevant statistical and
the
of
development
plan for future maintenance
of a recommended
applications
judge
records. That
will entertain
the Court’s
any perceived inaccuracies or
any
parties
of the
to correct
from
example,
record-gathering system. For
in the
deficiencies
(is
premeditation
of
five minutes
questions
quantum
about the
readily resolved.
errors should be
enough?) and even clerical
addition,
may
to accommodate
the data
need revisions
In
base
objective as
culpability models should be as
belief that the
our
sentencing
i.e.,
considerations.
rooted in traditional
possible,
death-eligible
pool
is the
of cases
pool
clearly
of
cases
imper
of
for constitutional review
the Court must consider
Ramseur,
at 186 & n.
supra,
N.J.
missible bias. See
constitutionality
(one
of
that sustains
X
CONCLUSION The parties’ extent to which arguments the will have to be L.1992, reconsidered under 5c. must await eventuality the of a arising case under however, that law. We attempted, have to judgment make our applies under the law that to this case as explicit possible as so that it against could be tested whatever objective measurements are available applicable. and Once defined, however, process the of proportionality review will not Court,” “frustrate and confuse the as the State believes. Weis- berg Report, supra, Although at 39. process the thorough, is concepts the overly are not difficult: use the information at our disposal identify to blameworthiness; similar cases in terms of prosecutorial examine the jury patterns and frequency or of frequency of cases; and, death verdicts in the similar finally, comparison look at the cases to identify disproportionality. parties debate between the under prior the law has focused on the size envelope of the containing comparison the cases, not envelope what the contains or how withdraw the information. We share some of the concurring concerns of our member, dissenting and Garibaldi, Justice reliability about the of the data base. Post at .2dA at 1117. For that reason, we have established in opinion, Part IX of supra, this 216-218, 1113-1114, procedure and 613 2d at a to test resolve A. specifics any categorization as any case doubts about eligible Regardless method of deathworthy. death of which use, computer card or cataloguing the cases we whether index base, obligation dispense ized data we can never past genuine does not create assure that the burden will sentenced to death either because risk defendants repeat the words of of their race or the race of the victim. To not Legislature: threatens our discrimination “[Racial] privileges of the State but rights proper and inhabitants free democratic institutions foundation of a menaces the 10:5-3. State.” N.J.S.A. proof state of
And, a more certain finally, we cannot await must in this case the judgment. we render We confront before We comparison cases. do not problem sample of the small cases, happen in next ten similar but we know what will the next ten judgment make now. Were must nevertheless our to declare this to result in death and were we similar cases mistake; have disproportionate, would made we in life and we were similar were to result if the next ten cases made penalty, we have an even to affirm the death would greater mistake. society’s
Proportionality recognizes that sense review in one change proportionate which may and that standards *90 There are no abso may disproportionate in another. era be obligation our see that finite role defined lutes. Ours is a given We had to make some is at a time. have justice done for statistical assumptions. example, For we have included analysis verdicts such as Clausell purposes in our death recognize argument We been reversed. DiFrisco that have dissent, 253-258, 613 2d at post at A. made in Justice Handler’s may 1132-1134, logical step process that there is a that that continue, nonetheless, to be scientifically unjustified. We be sufficiently-reliable infor jury provide lieve that such verdicts ju concerning prosecutors and mation the characteristics that the inclusion of those cases important to warrant ries consider in proportionality analysis. Although fairly we have had a large sampling (246 in our death-eligible cases), universe system itself is Society new. is longer experience entitled to a say before one can that apply it cannot proportionally the punishment legislated. that it has member,
Our dissenting
Handler,
Justice
sees in those uncer
disquieting
tainties “the
truth
capital punishment
that
cannot
really be made to work in
I,
society.”
civilized
Marshall
supra,
Even profound the most search for an essence of law must reality confront the experience. of human justice “Hence traditionally thought maintaining of as restoring or a balance proportion, leading and its precept is often formulated as alike’; ‘Treat like though cases we need to add to the latter ” ‘and treat different cases differently.’ Hart, H.L.A. Concept (1961). Law 155
In the best of all worlds there would be no doubt about like being cases treated alike. From point view, defendant’s all that he knows is that he is the one whose sentence .death we have affirmed. But when measuring system our counts two cases as the same because both have the same mitigating c(5)(h), “[a]ny other factor which is relevant to the factor — record,” defendant’s character or it allows for a characteriza- tion of sameness may greatest conceal the differences between the two cases.
The United States requires Constitution juries permitted any aspect consider of the defendant’s charac- *91 as ter; therefore, extent, case considered to some that each constitutional- is but almost a different case not inevitable have proportionality review could not ly required. Statutory which the United States Consti- been intended to invalidate that requires. tution sentence of death is affirmed.
The J., dissenting part. GARIBALDI, part in in concurring and affirming the sentence judgment I in of the Court concur addition, I concur imposed on O. Marshall. of death Robert VIII, I, VI, VII, opinion. parts II, IX and X of Court’s in Moreover, appeal properly is majority I that this agree with the 2C:11-3e, amendment prior to its recent decided under N.J.S.A. However, 12, 1992). 1992, (eff. Legislature. May c. by the A. parts conclusions contained respectfully I dissent from the regarding scope III, IV, opinion and V of the Court’s contemplated by the former N.J.S.A. proportionality review Marshall’s, 2C:11-3e, against which the universe of cases compared. death sentence should be a system majority’s I construction agree with the careful analytical incorporates both the proportionality review that the members experience of study and the collective statistical acknowledges the correctly majority’s view of the Court. in which an process applied judgment a proper role of reviewing sen tempting. When enslavement to numbers appeal of science the “seductive we must resist tences of death 47, Williams, 308 mathematics,” v. N.C. Carolina North denied, omitted), (citation 464 U.S. cert. 301 S.E.2d (1983), which threatens 78 L.Ed.2d 104 S.Ct. regarding judgment of our seasoned application overcome capital a sentence. appropriateness I during propor- of cases considered I limit the universe would has prosecutor served tionality review to those which *92 222 factor, aggravating thereby indicating
notice of an intention to capital majority seek a on sentence. the other hand would Special include in the “universe” homicides that the Master “death-worthy” prosecuted deemed to be but that were not as capital may proceeded offenses or not have even to trial. comport Such a fails universe to with the United States Su- preme concept proportionality Legisla- Court’s of the review intent, unnecessary uncertainty ture’s and adds of an element unreliability Jersey’s capital-sentencing procedures. and to New Proportionality is the by Supreme not vehicle chosen the major Court to correct the in capital constitutional infirmities punishment Georgia, statutes cited Furman v. 408 U.S. (1972). 33 92 S.Ct. 346 the Supreme L.Ed.2d Instead newly-enacted death-penalty Court looks to to statutes elimi- arbitrary the imposing nate and freakish of nature death sen- tences that caused the Court Furman strike down death- punishment. statutes as and cruel unusual Jersey, New those concerns been the by have addressed Jersey Capital (“the Act”), New provides Punishment Act which jury regarding guilt bifurcated determinations and sentenc- ing, textually-delineated aggravating mitigating and factors for by consideration capital-sentencing authority, the a sufficient narrowing defendants, the death-eligible class of and direct appellate Court of review this all death sentences. Those safeguards the Supreme are the has on Court relied strictly arbitrary application to limit of death sentences as principal protecting serve methods of defendants from face, “On system, any require- arbitrariness. its this without practice review, ment or comparative proportionality cannot successfully challenged under subsequent Furman our Harris, 37, 53, Pulley 871, 881, cases.” v. U.S. S.Ct. (1984). 79 L.Ed.2d constitution,
Under federal proportionality review is con- correcting cerned with the occasional aberrational outcome of a death-penalty case permissible that exceeds individualized sen- Jersey the New Supreme Court nor fencing. Neither the propor expansive view majority’s Legislature intended propor nothing history tionality Surely, review. intended the Legislature suggests that tionality statute comparison of to include a of death sentences Court’s review As noted capital as offenses. prosecuted not cases that were originally enacted the Legislature majority, when the by the statute, operated under the they likely most death-penalty pro required Constitution misconception that the United States *93 of a valid death- essential element review as an portionality assump 126, 1067. That 613 A. 2d at penalty system. Ante at Harris, holding Pulley v. incorrect proven tion was 29, 871, at 79 L.Ed.2d which at supra, 465 S.Ct. U.S. constitu review was not procedural proportionality held that a properly circum in order to effectuate tionally mandated punishment. capital system of scribed review nor a appellate a second Proportionality review is not other constitutional due-process concerns or broad review the defen- concept directed to whether It is a narrow issues. imposed on disproportionate to a sentence dant received and the defendant. defendants, considering the crime both other prosecutors abused determining whether for It is not a vehicle a means of review proportionality is discretion. Nor their or other of racial discrimination addressing instances individual course, not tolerate this Court will process. Of of due denials influences, of death that any sentence and impermissible such However, proper fatally infected. will be results therefrom capital defendant’s is the addressing those issues avenue proportionality review. appeal, not on direct data-gathering additional wishes to undertake If the Court or to misconduct examining prosecutorial purpose for the unreliable and issues, But such it should do so. other address analy- belong proportionality-review not in a data do speculative uncertainty and doubts about sis, creates its inclusion final result. validity of the Court’s propor- By the time a sentence of death is considered for its opportunity tionality, already the defendant will have had an challenge his or her before this conviction sentence Court. rigorous scrutiny Both that we consis- will have survived tently applied point, to sentences of death. At that have proportionality correctly limited to a determination of review criminal-justice system generally of the im- whether the State poses a sentence or life sentence on those who have death magnitude committed crimes of a similar to that of the death- sentenced defendant.
II Special As Master Baldus notes: goal The first of a realistic is to review, therefore, system proportionality judgment limit its focus to cases in which there was an identifiable as to the defendant’s deathworthiness. Penalty Proportionality Death Review Baldus, Master, T. [David Special Court, Project Report Jersey Supreme to the New Final Sept. (Baldus Report).] securing majority’s judg- The universe makes an identifiable impossible. prob- ment on defendant’s deathworthiness by adopting majority’s recog- lems unleashed universe are *94 by Special nized the Master: is either unknown or First, that the information for the decision required unavailable. that even if all relevant information the Second, known,
judgment third, called for is And that even if valid hopelessly speculative. judgments gained were the information is not to possible, sufficiently helpful justify collecting the considerable involved the data to make expense required them. Report at [Baldus 51.] validity system depends of the entire on the correctness by personnel subjective of the evaluations made of the Adminis- concerning the the trative Office of Courts “deathworthiness of evidentiary a case” as contrasted with the concerns and other evaluations, litigation presents. a hazards of case Such
225 difficult, record, if extremely even undertak- made on a cold are replace defense counsel. To by experienced prosecutors and en and, judges, prosecutors, of trial the reasoned determination cases, subjective the evalua- juries, rely to instead on some and the realistic difficulties persons of have never faced tions who and сreates an unreliable data-base trying a criminal case misleading conclusions. acceptance of the majority’s apparent disagree
I the also prosecutorial decisions not conclusion that Special Master’s reflect a determi certain homicides seek the death contrary, decisions To the nation of death-worthiness. likely most capital sentence to decline to seek
prosecutor likelihood that the avail regarding the reflect a determination to meet the State’s burden will be insufficient able evidence discarding in the business of simply are not proof. Prosecutors significant evidence death-eligible for which clearly homicides personal of a because establishing guilt has been collected undesirable. As we penalty would be that a death decision 225, (1988), 2d 939 Koedatich, 112 548 A. N.J. noted in v. State 102 L.Ed.2d denied, S.Ct. cert. U.S. (1989): handles different cases are a of reasons why prosecutor there myriad
Surely, strength guilty, willingness of a defendant plead such as the differently, against a co- in the State’s case a defendant’s case, cooperation of the State’s mitigating aggravating weight relative of the statutory defendant, witnesses, relative and persuasiveness factors, credibility availability to list a few. office, of the and the resources county prosecutor’s A.2d at 954.] [Id. pursuit capital concerning the decisions prosecutorial
Most prosecutors Most rely permissible considerations. on sentences satis- objectively penalty for homicides the death will seek factors and where aggravating or more of fy one likelihood a reasonable evidence create testimonial physical and proof. its burden of to meet will be able that the State pursue capital sen- decisions to Second-guessing prosecutorial uncertainty. review with proportionality riddle the tences will *95 226 trial, proceed not there will be no
For those matters that did Undoubtedly, disputes there will be over established record. were and what role the defendant what facts of cases challenging example, suppose capital defendant played. For argues prosecu- proportionality of his or her sentence penalty for a murder of similar tors had failed to seek death magnitude to that for which he or she had been convicted. however, know, may not is that What that defendant physical prosecutor could amass limited evidence connect- crime, princi- an inarticulate ing the other defendant to the had recollection, not pal a flawed and was at all certain witness with requisite establish the mens rea. evidence would argue prosecutor’s Surely, to allow the defendant to that the pursuit to the of a death choice not to dedicate limited resources capital that a sentence in that case amounted to an indication disproportionate for that homicide is unfair. sentence would be death-eligibility Special Master’s classification of the extremely-subjective process carried out in the cases is an Conversely, findings jury determinations. absence of factual aggra- notice of limiting the universe to those cases which a vating provide easily-ascertain- an factor has been served will cases, concerning I speculation set of free from evidence. able will defining am confident that the universe that manner against provide adequate an foundation of cases which a sen- pure guess- compared can but without the tence of death majority’s in the universe. necessarily work entailed approach adopted Maryland, was Tichnell v. 297 Md. That (1983), denied, 468 A .2d cert. U.S. S.Ct. (1984), proportionality in which review 80 L.Ed. 2d imposition those cases in which of the death was limited to sentencing authority penalty properly was before the for deter Thus, “only Maryland the universe in consists of mination. sought degree cases in which the State those first murder * * * imposed whether it was or not.” Id. 297 death 464, 468 .2d at 17. Md. at A
227
dangers
expanding
The
the universe to include those cases
clearly death-eligible
prosecuted
considered
but that were not
capital
Palmer,
as
offenses were addressed in
224
Nebraska v.
282,
(1986),
denied,
872, 108
Neb.
399
706
N.W.2d
cert.
484 U.S.
206,
(1987).
Palmer,
S.Ct.
to avoid a of all likely acquittal N.W.2d
[399 734.] clearly scope proper Such determinations are outside the of a proportionality review.
Moreover, Special assumption Master’s that unfettered prosecutorial decisionmaking discretion exists at the level of in capital already significant arena is flawed. This Court has potential ly by prose circumscribed the for abuse of discretion seeking response cutors a death sentence. to the Court’s Koedatich, 225, suggestion in supra, State v. N.J. 548 A .2d Attorney county prosecutors and the General various adopted guidelines throughout selecting for use the state in Moreover, capital prosecution. permitted judicial cases for we scrutiny prosecutorial-charging pre-trial decisions at the level 132, 142, McCrary, in .2d 343-44 State v. N.J. A (1984). opinion In that we held that defendants who had been could, aggravating through with a notice of an factor served court, proceedings challenge summary before the trial sufficiency support of the evidence to those factors. Ibid. However, holding we were careful to limit that “to effect in prosecutorial minimal intrusion into this area of discretion” light discretionary powers” historically exercised of the “broad by prosecutors determining charges. The Ibid. review McCrary has resulted the nullification
established sentencing in one case exposure capital at least defendant’s originally sought a death sentence. prosecutors in which the (1989). Matulewicz, .2d 1001 See v. 115 N.J. 557 A State Ill acknowledges comprising cases majority that a universe *97 aggravating in which a notice of factor was served would 139, Yet, pool. constitute a Ante at 613 A .2dat 1074. reliable universe, majority adopt ingenuously re the declines to task marking appeared it to be an insurmountable “[h]ad cases,’ might ‘clearly eligible death we have to examine all 140, 613 A .2dat 1074 made a mid-course correction.” Ante at 122 585 (citing Proportionality Project, In re Review N.J. (1990)). majority shrift of Although .2d358 the makes short A time, compile expense the effort and that will be needed to its cases, approxi Special the Máster estimates that universe of per year in mately non-penalty-trial 250-300 cases will result proportionality-review purposes, Baldus factual case screen insignificant to review and Report at 110—not an number evaluate, penalty-trial when included with the cases. limiting cases in a notice of
After the universe to those which served, aggravating I would winnow the cases to factor was challenged by applying proce- sentence those similar to the majority part in of its generally dures described IV addition, comparative analysis opinion. In I conduct a would part opinion. employed by majority similar to that V of its However, proseсutorial parts to the extent that those refer to decision-making, I therefrom. dissent aggrava- cases in which a notice of
Because removal those ting not from those cases included factor was served reduce the likelihood of Marshall’s Court’s universe would being disproportionate, application my sentence considered change case would not the Court’s ultimate universe this sentence is sound. conclusion that defendant’s death IV Special The report undeniably Master’s subjective relies on repeated determinations of second-guess- death-worthiness and ing prosecutorial speculation decisions. Such undermines objectives proportionality unnecessarily review com- plicates analysis. our majority issue, concludes that although the universe
“vigorously contested,” “significantly has been overstated.” Ante at agree. Ultimately, A.2d at 1070. I the Court will use its experience common sense and collective in review ing proportionality. death sentences for rely The Court will on those already cases with which we are familiar and for which a thorough developed record has been appeal. at trial and on approach appropriate. That analysis is most Statistical serves departure as a point from which apply the Court can its judgment regarding proportionality aof death sentence.
HANDLER, Justice, dissenting. year
Last this Court affirmed the death sentence of Robert Marshall, (1991) Marshall. v. State N.J. A .2d 85 *98 (Marshall I). Marshall, salesperson, a Toms River insurance capital hiring profes had been convicted of murder for his of a motive, killer kill apparently, sional his wife. Marshall’s had proceeds policies been to collect on insurance that he had taken Jersey capital- out on his wife’s life. Pursuant New statute, every murder Jersey defendant in New who is sen tenced to may Supreme death call on the Court to “determine disproportionate penalty imposed whether the sentence is to the cases, considering similar both the crime and the defendant.” N.J.S.A. 2C:11-3e. requested proportionality
Marshall has review. Because his capital- is the first death sentence affirmed under the 1982 statute, murder he is first defendant to do so. The Court has proportionate now decided that Marshall’s death sentence is and therefore comparable capital defendants
to those of other disagree. may I Marshall be executed. may not under the state constitu- my opinion, a defendant propor- is unless that death sentence sentenced to death
tion be defendants have imposed sentences on other who tionate to places constitutional stricture similar crimes. That committed adopt adequate standards to heavy obligation to on courts the sentencing and consistent. that death is evenhanded ensure requirement, I exacting constitutional against Measured that determining methodology for whether that the Court’s conclude I fundamentally flawed. proportionate is a death sentence believe, however, proportionality stan- that even under the also Court, dispro- adopted by Marshall’s death sentence is dards portionate. done, proportionality review all is said and the Court’s
When inefficacy death-penalty of our statute but not reveals itself. This case con- inefficacy proportionality review although constitutionally required, is proportionality, firms that support to the This case lends added practically unattainable. jurisprudence fails to meet our position capital-murder that our punish- prohibit cruel and unusual constitutional standards exacting procedural protections as a matter ment and demand This case further process due and fundamental fairness. punishment sensibly cannot adminis- capital be confirms managed. capital- tered, soundly applied, rationally Our integrated system of only cannot into our murder law not to weaken and distort it. The conclu- justice, criminal it serves unconstitutional, un- capital punishment is sion is irresistible: wise, It should be abandoned. and untenable.
I appreci- capital sentencing must be Proportionality review of constitutionally-founded constitutionally-inspired and ated as a any than other protection. appreciation, That more procedural *99 defining applying for and insight, the standards determines
231 proportionality review validating capital and for sentences. understanding of significance the constitutional propor- of tionality encompasses, initially, review federal constitutional doctrine, finally but turns on principles. state constitutional
—A—
In
238,
Furman v. Georgia,
408 U.S.
92 S.Ct.
33
(1972),
L.Ed.2d 346
the
Supreme
United States
Court invalidat
ed Georgia’s death penalty
violating
Eighth
statute as
the
central,
A
Amendment.
throughout
constant theme
the nine
opinions of Furman is that the statute lacked sufficient safe
guards
prevent
to
arbitrary, inconsistent,
and discriminato
ry imposition
penalty.
death
Specifically, the statute did
provide
not
“meaningful
distinguishing
basis
the few
cases in
imposed
which it
many
from the
cases which it
[was]
not.” Id. at
92
at
S.Ct.
Furman to muster, constitutional pass punishment capital objectives: statute must achieve two limit to imposition penalty what group assumed to small be the for which it is and ensure appropriate, limited class selected for the is chosen rationality consistency. eliminating Both are aimed nature requirements primarily arbitrary proceedings high in the and their risk of discrimination. capital past (1987) (citations omitted).] Ramseur, v. N.J. [State A.2d 188 123, 183, 524 Furman, response drafted attempt- states statutes that ed capital to restrict the discretion juries available either guiding jury through discretion enumeration certain aggravating mitigating by eliminating jury factors dis- through mandatory cretion sentencing death for certain crimes. *100 232 2909, 153, 49 L.Ed.2d 96 Gregg Georgia, 428 U.S. S.Ct. v. cases, upheld guided (1976), accompanying the Court
859
and
262,
Texas,
96
428
S.Ct.
v.
U.S.
discretion statutes. See Jurek
242,
Florida,
(1976);
428 U.S.
2950,
v.
49
929
L.Ed.2d
Proffitt
(1976).
2960,
913
49
96 S.Ct.
L.Ed.2d
plain that
Supreme Court made
Subsequent
Gregg, the
if
limit the
permitted only
they
schemes are
capital-sentencing
may
imposed.
penalty
the death
range of crimes for which
356, 363-64, 108
486
See,
Cartwright,
U.S.
e.g., Maynard v.
372,
(1988); Godfrey v.
1853,1858-59, 100
381-82
L.Ed.2d
S.Ct.
(1980).
1759,
420,
398
100
64 L.Ed.2d
446
S.Ct.
Georgia,
U.S.
280,
Carolina, 428
96
However,
U.S.
v. North
Woodson
(1976),
Supreme Court struck
2978,
Proportionality review is the obvious for antidote the endur ing disparate sentencing. Nevertheless, arbitrariness of the Supreme States comparative United Court has held propor that tionality required constitutionally review is not capital- of a sentencing provides if that scheme scheme otherwise some protect against rational mechanism to arbitrariness. Pulley v. Harris, 37, 45-46, 876-77, 871, 465 104 U.S. S.Ct. 79 L.Ed.2d 29, (1984). 37 practice, following Pulley, no federal court required has comparative ever a state to include proportionality system imposing capital review its for punishment.
—B—
This Court
approach
respect
has
different
taken
to the
importance
proportionality
sentencing.
in death
In State v.
Ramseur,
123,
188,
supra,
N.J.
524
106
A .2d
Court ex
pressed preliminary
purposes
on the
and
views
framework
proportionality
consistency
The Court
review.
identified
as its
331,
paramount purpose.
at
According
Id.
The proportionality review ensures concerns: evinces similar fair, being out in a even-handed “are meted death sentences on the N.J. throughout Hearings the State.” S.112 way Before (1982) Comm., Leg., 2d 20-21 200th Sess. Judiciary Senate Edwin (statement Division of Criminal Justice of Director al., Rodriguez Proportionality Stier), Joseph H. H. cited in Safeguard in the Jersey: Indispensable An in New Review (1984) Process, Rutgers L.J. Sentencing Capital Review). (Rodriguez, Proportionality capital sentencing proportionality in policy demands Special Master in this case. acknowledged by the also was noted, that “death sen- sentencing, he assures Evenhanded *102 is categories cases on which there only imposed in tences are deathworthiness.” Final as to their a clear societal consensus “(a) serves to insure Proportionality review Report 25 n. 23. are carried out can be in death sentences that the cases which lesser distinguished from those cases which meaningfully (b) sentencing limit normally imposed and to death penalties are aggravated are most categories eligible cases that death usual, practice.” routine death sentences are and which Ibid. procedural exacting proportionality review as a
I
that
believe
constitution, grounded in our
by the state
protection
required
is
punishments, due
concerning
unusual
principles
cruel and
own
Ramseur, supra,
equal protection. See State v.
process, and
J.,
(observ
(Handler,
dissenting)
370,
at
We should not
slightest
have the
hesitancy to look to our own
jurisprudence
constitution and
rights
determine the
protected
must be
when the
impose
State seeks to
capital
punishment. The United States Supreme Court itself has rec
ognized
that the death
peculiar
is a matter of
state
Ramos,
concern.
v.
463 U.S.
103S.Ct.
California
(1983). States,
L.Ed.2d 1171
question,
without
“are free to
provide greater protections in their
justice system
criminal
than
the federal
requires.”
Constitution
at
Id.
S.Ct.
3460,
We
acknowledged
have
proportionality
review is
integral component
an
of a
capital-punishment
constitutional
scheme, providing
through
a “means
which to monitor the
*103
imposition of
Ramseur,
death sentences.”
supra,
State v.
N.J. at
or local concern and does have, fact, analyzed in our cy.” at 524 A .2d188. We Id. many times. death-penalty statute under our state constitution 40, 75-76, (1988). Gerald, 549 .2d792 A E.g., State v. N.J. Thus, regrettable exceedingly perplexing it is and that protection as expounding applying in a essential majority, and review, and our constitution timid proportionality as shuns own granted by the ly the freedom of action United fails exercise Supreme States Court. complementary policies,
Proportionality review embodies two independent application policies that a for the of provide basis Jersey’s The first is New concern even- our constitution. policy sentencing of is sentencing. handed The evenhanded prevent cruel sources that and derived from constitutional law, and punishments, unequal unusual treatment under laws, application discrimination in the of as well as the invidious guarantee process complementary and the doctrine of of due justice. of criminal fundamental fairness the administration decisions, legislation, policy expressed judicial and The is practices. rules and administrative evenhandedness is the Closely policy associated with the role in recognition appellate plays principal review vindi cating procedural rights criminal causes and substantive and effectuating by the goal of evenhandedness. Conducted jurisdiction, proportionality review highest court with statewide appellate indispensable aspect is that “tests the an review capital penalty scheme for fairness and consisten murder-death Ramseur, A cy.” supra, at 524 .2d State v. 106 N.J. (Handler, J., dissenting). principles of evenhanded sentenc appellate express legal philosoрhy ing and tradi review They strong in our state. constitute tion that distinctive justification seek within our own constitution the standards capital sentencing. v. determining validity See State 458, 473-74, Johnson, (1992) (declaring .2d315 127 N.J. 606 A particular matters state interest concern warrant constitution) 322; .2d on state 606 A State v. reliance
237
Williams,
39, 57,
(1983);
93
Hunt,
N.J.
The
achieving
has
committed itself
greater
uniformity
sentencing.
Prior to the enactment of the Code
(Code),
of Criminal
sentencing
Justice
enjoyed
when
courts
discretion,
unfettered
interposed
this Court
the constraint of
consistency
sentencing
onto the
determination. Because the
legislature had not corralled the virtually unrestrained sentenc
ing
courts,
discretion
by
attempted
exercised
trial
our Court
by identifying
legitimate,
do so
basic aims of criminal
Ivan,
punishment,
197, 199-200,
see State v.
33
.2d
N.J.
162 A
(1960),
by cataloguing
851
and
sentencing
the relevant
consider
requiring
ations and
protect
a statement of reasons to
effective
appellate review of the sentences.
Leggeadrini,
See State v.
75
150,
(1977).
1112
Although
N.J.
380 A.2d
the Court acknowl
edged
sentencing,
the need for individualized
it also understood
importance
of consistency
uniformity. E.g.,
and
State v.
DeStasio,
247, 254-55,
(1967)
49
(recognizing
N.J.
229 A .2d636
“[u]niformity
of treatment is an ideal of law enforcement”
requiring
as a
policy
matter of administrative
that all
gambling sentences
single judge
be handled
in each
denied,
county),
cert.
389
88
19
U.S.
S.Ct.
L.Ed.2d 89
(1967);
369, 379-80,
Hodge,
see
v.
State
N.J.
471 A .2d389
(1984)(Code
explaining
decision
consistency
sentencing goal).
as
legislature
judiciary’s
shared the
concern with evenhand
Prompted by reports
ed treatment of criminal offenders.
arbitrary
disparate sentencing,
legislature
overhauled
sentencing provisions
the Code’s
in 1978.
Robert F. Knowl
See
Code,
ton,
Rutgers
Upon
Jersey Penal
Comments
the New
sentencing purposes of
(1979).
key
One of the
L.Rev.
excessive,
against
safeguard offenders
reformed Code is “[t]o
arbitrary punishment.”
2C:1-
disproportionate or
N.J.S.A.
(1984),
334, 345,
2b(4).
Roth,
This Court
has reaffirmed
sentencing sections of the
uniformity
interpreting
in
of
(1990)
621,
Pineda,
575 A .2d855
119 N.J.
Eg.,
Code.
State v.
uniformity in
is
sentenc
(stating
polestar
that the
Code
(1989);
558, 577,
Pillot,
A .2d634
ing);
115
560
see State v.
N.J.
(1989);
69, 79,
v.
114
552 A .2d994
State
Towey,
v.
N.J.
State
(1987);
399, 405-06,
O’Connor,
.2d423
v.
105
522 A
State
N.J.
(1985). Thus,
627,
in both
A .2d 1239
Yarbough, 100 N.J.
498
reviewing
sentenc
and
interpreting
applying
and
the Code
courts,
has embraced
ing
of lower
the Court
decisions
uniform,
sentencing.
evenhanded
dedication to
Code’s
judicial
for
sentencing
not eliminate the need
reforms did
important
an
tool
oversight,
appellate
and
review constitutes
Knowlton, supra,
achieving the desired uniform results. See
a central role to
15. “The Court foresaw
Rutgers
32
L.Rev. at
in the
enhancing uniformity
played by appellate courts in ...
facts under similar
statutory standards to similar
application of
394, 400-01,
Jarbath,
555
114
v.
N.J.
circumstances.” State
80, 97,
(1989);
Dunbar,
527 A .2d
108 N.J.
A .2d 559
State v.
explain
(1987)
court must
basis
(ruling that the trial
Roth,
review);
supra, 95
judicial
v.
sentence to facilitate
State
361,
at
(commenting
N.J.
This state’s of uniform and appellate the concomitant role of review to effectuate that implicate significant policy clearly state constitutional concerns. guarantees pre- Those concerns involve the constitutional punishments, unequal vent cruel and unusual treatment under 240 law, laws, application in the and invidious discrimination process protect right to life. Those
and that assure due and singular protection from the concerns also derived involve complementary of fundamental fairness the adminis- doctrine justice. tration of criminal
Although the state constitution does not echo the federal
laws,
language
protection
precise
equal
constitution’s
on
I,
protec
paragraph
provides “analogous
superior”
1
Article
Trustees,
55,
Peper
tions.
v. Princeton Univ. Bd.
77 N.J.
79,
(1978).
always
389
2d 465
This Court has
insisted on
A.
respect
protection against unequal treatment of
proper
for the
similarly
equal protec
are
situated. The concern for
those who
applied
tion of the laws intensifies when the law is
to take a
life,
fully justifies
human
recourse to the state constitution
require proportionality
review.
Concededly,
equal protection
on
few defendants succeed
See,
relating
sentencing
ordinary
claims
criminal cases.
379,
(1977),
Corbitt,
e.g.,
aff'd,
74
[Pulley (Brennan, dissenting) (quoting Zant v. U.S. 862, 874, Stephens, J., *107 (1983)). S.Ct L.Ed.2d Accord State v. N.J. 77 112 Bey, 2733, 2741, (Bey (1988) (Handler, concurring) I).] 548 A.2d 45, 105-19, J., legis- equal protection invariably concern arises when the The categories dispa- of offenses that result in lature has created death-penalty scheme is rate treatment of offenders. That the results, therefore, generate disparate enough unfocused “A equal protection analysis appropriate. capital renders an sentencing system results in differential treatment of which capital effectively classified similar similarly situated felons has respect rights Gary differently felons to their to life.” Sentences, Death 74 J. Crim. Judicial Review of Goodpaster, 786, 788, (1983) (hereinafter Criminology L. & Judicial 802-03 Review). depreciates unequal the occasional majority and excuses by attributing that
sentencing treatment of similar defendants
“mercy.” Ante
tion of treatment under the law. Moreover, accepting legitimate even the state has a penological goal adopting capital punishment, the means possibility chosen to effect that interest must minimize the wrongly deprived right defendants will be of their to life. Ibid. capital sentencing “Since the basic issue is whether state’s defendants, system differentially similar classifies a state must ensuring proportional sentencing. devise some means of Com- review, issue, parative explicitly since it is directed to this is the making least restrictive means of this determination.” Ibid. Again, appellate by review surfaces as a basic mechanism goal equal which to achieve the desired treatment of those similarly who are situated. unequal capital implicates treatment of defendants also I, Constitution, paragraph
Article
5 of the
which bars the denial
rights
against persons
of civil
or discrimination
in the exercise
race,
any right
religion,
origin.
because of
or national
When
race,
inequality
improper
arises from
considerations such as
Special
study
those concerns are most acute. The
Master’s
preliminarily shows the race of the victim to
factor
many
impose
penalty,
Report,
decisions to
the death
Final
100-06,
supra,
many long-held
at
suspi
seems to confirm
Gerald,
163-66,
supra,
cions. See State v.
Georgia, supra, 408 at 92 at 33 at U.S. S.Ct. L.Ed.2d (White, J., concurring). accomplished by purpose 392 That is a proportionality system review “that assures similar results Ramseur, 330, supra, similar cases.” 106 at 524 State v. N.J. A .2d 188.
Implicit
prohibition
punishment
in the
of cruel and unusual
is
arbitrary sentencing
unacceptable
is
because it fails both
comport
contemporary
decency
standards of
and to
169,
legitimate penological purpose.
serve a
id. at
524 A .2d
See
Marets,
62, 82,
(citing
188
92
Whether look- porary standards cannot be determined isolation face; instead, it ing the death sentence on its must be at comparatively. Proportionality review serves that assessed impose the death juries generally do not function. “[W]hen case, appellate proce- certain kind of review sentence circum- that no defendant convicted under such dures assure Gregg Georgia, v. will suffer a death sentence.” stances 206, 2940, 49 at 893. supra, 428 at 96 S.Ct. at L.Ed.2d U.S. Moreover, impose must be “decisions to the death sentence (in consistency with other decisions to consistent sense impose impose death).” or not Ramseur, supra, State v. at (interpreting Eighth N.J. A.2d 188 Furman and Amendment). process
Constitutional due
and the complementary doctrine of
support
fundamental fairness also
proportionality
exhaustive
process
strengthened by
review. Due
fairness,
fundamental
particularly in the
capital punishment.
context of
principle
protect
fundamental fairness “serves to
generally
citizens
against unjust
arbitrary government action,
specifical-
ly against governmental procedures
operate
that tend to
arbi-
trarily.”
(Handler, J.,
Id. at
dissenting).
A.2d 188
“Considerations of
fundamental
particularly
fairness are
heightened
potential
where the
harm to the individual from
arbitrary
greatest.”
state action is
Id. at
—C—
I have called attention to the infirmities of
death-penalty
our
many
E.g.,
Jackson,
statute
times.
State v.
128 N.J.
607
(1992) (Handler, J.,
(Jackson
A.2d
975
dissenting)
II) (not
ing
prosecutors
unguided
have
discretion to decide who
exposed
will be
to the
penalty);
Hunt,
death
State v.
115 N.J.
330, 391-95,
(1989) (Handler, J.,
II assumptions about The Court has made some fundamental By methodology proportionality review. purpose methodology, understanding philosophy and one can the Court’s *111 statutory sufficiency of its assess the constitutional and better capital review of sentences. proportionality standards for sentence is has determined that Marshall’s death The Court by the proportionality The review undertaken proportionate. bring the to a principle application or in Court Court does not 246 proportionality
sound and correct method of result. No review remedy can fully constitutional defects inherent our statute, death-penalty but some methods than are better others. majority adopted designed Had the genuinely a method to sentencing, address inconsistent it would have corrected the injustice done this case.
—A— today, Until precisely Court never has stated its standard assessing proportionality. Today the Court answers the question most design fundamental that arises in the of a system proportionality “disproportionate” what review: does extremely disappointing. mean? The Court’s is answer cases, several recent I observed have that the Court has devel oped I would “split personality” what now describe as a on times, capital-punishment issues. At has been Court laud ably capital punishment prosecutions, committed to fairness in applied seeming but at others it has severity the law with and I, 1, 170, E.g., supra, indifference. Marshall N.J. A .2d (noting rigid applications the severe principles derived decisions) (Handler, J., prior capital-punishment from dissent ing). philosophy Court’s exemplified by The conflicted is its holding today on the for assessing proportionality. standard goes lengths majority great trumpet the virtues of justice decry evenhanded may and to unfairness it wherever capital Yet, sentencing. lurk in when the time arrives to holding impose requirements deliver a that would real of fair rationality capital sentencing, ness and on the Court offers placebo. points out, comparative As proportionality the Court review supposed consistency evenhandedness; is to be about pro portionality penal review “should to ensure seek that the death ty being rational, non-arbitrary, administered in a and even manner, fairly handed consistency.” and with reasonable Ante 130-131, conducting .2d comparative A at 1069. When
247 review, it would be courts determine whether proportionality punish- capital single particular out a defendant unfair to receive life sentences. similarly situated defendants ment when sense, quite unlike comparative proportionality review is In that review, examine the proportionality in which courts traditional executing defen- any committed and determine whether crime contemporary standards of offend dant for that crime would decency. ways in majority, emphasize I at the outset
Like the
depending on
meaning
“disproportionate” differs
which
being used. Traditional
proportionality review
the form of
when evalu
review is what all courts undertake
proportionality
the United
Eighth Amendment to
ating sentences under the
undertake
Jersey
New
courts
and what
States Constitution
1, Paragraph 12 of the
evaluating
under Article
sentences
when
584, 97
See,
Georgia, 433 U.S.
e.g.,
v.
state constitution.
Coker
(1977) (declaring
sentence
2861,
death
The sort
sentencing.
If a
in death
arbitrariness
helps to reduce
often
disproportionate, a
morally
sentence
a death
court deems
strong possibility
many juries
exists that
would draw similar
Thus,
Enmund,
conclusions
similar cases.
Coker
Supreme Court amassed considerable evidence to show that
*113
people
question
most
convicted
the crimes in
did
not receive
penalty,
terribly
the death
and that the few who did had been
Nevertheless,
unlucky.
we must remember that the outcomes
proportionality
depend
of those traditional
cases did not
on the
death-sentencing patterns.
inconsistencies the Court found in
sentencing
Those cases were not about evenhanded
but were
strictly
Enmund,
797,
moral decisions. See
Given following steps: the following steps and involved from of cases identified a universe first should have Court did); (as it then it could be drawn comparison cases which groups of cases similar comparison have formulated should (as did); have document- it it then should case under review groups determine sentencing outcomes those actual ed the imposed actually have been death sentences frequently how life decided whether (it not); finally, it should have them did frequency death imposed with sufficient were sentences —and sen- of the infrequency warrant reversal sufficient —to not). followed the Court (again, it did Had review tence under have been reversed. sentence would procedure, Marshall’s steps, only the first two undertook Unfortunately, the Court the final two. ignoring from of cases proper universe
Although identifies the Court *114 holding cases, putative it dilutes its comparison to draw which First, a death sentence that when ways. it states critical two a death sentence reversed, may counted as it still has been review, even if the defendant purpose proportionality of for the subse- has sentenced reversed been has been whose sentence that those overemphasize I prison. cannot quently to life trial that errors at we found were reversed because sentences the death that led to process very deliberative infected the destroyed the reliabili- place. The reversals in the first verdicts defendants that the determinations as valid ty of those cases construct The Court’s artificial sentence. the death deserved about survey jurors’ attitudes produces a flawed thus frequen- exaggeration of the well as a colossal penalty as death Jersey. Sec- out in New penalty is meted that cy with which proportionality method ond, adopting precedent-seeking “function- operate in some undefined supposed to that is review propor- method of frequency analysis relationship” al By of its endeavor. review, the focus the Court blurs tionality method, incompatible entirely onto another grafting one method propor- illogical definition of a mutated the Court creates tionality: a death sentence is disproportionate if other defen dants with generally similar characteristics receive sentences other committing than death for factually similar offenses unless the through Court concludes subjective its intuitive precedent examination that the sentence is my fair. view, that determining standard for proportionality is indefensi By embracing ble. it the Court turns its back on its earlier pronouncements in Ramseur comparative proportionality review must ensure factual uniformity” capital “statewide sentencing, 329, 106 N.J. at 188, A. 524 2d proportional and that ity review is “distinct” from a if punish review that asks morally justifiable. 84, ment is Id. at 325-26 n. 524 .2dA 188.
—B—
majority
The
correctly concludes that the universe of cases to
be considered in assessing the proportionality of death sen
tences must consist of
cases. Ante at
death-eligible
137,
all
A.2d at 1073. It soundly rejects both
proposal
the Staté’s
the universe be limited to death-sentenced cases and Justice
proposal
Garibaldi’s
that the universe be limited to cases in
prosecutors
which
sought the
death sentence. Ante
against against to determine whether or not have been they discriminated is an . exercise in being If one wants to determine futility individuals are whether against discriminated in one does not look public transportation, at those merely who are to sit in the back of required the bus and conclude that since everyone in the back of the bus looks there alike, is no discrimination. One, necessity, riding must look at who is in the front of the bus as well in order to determine
251 against. being there So, too, the in the back discriminated whether are persons sentenced to death are determine those who are is no that we can whether way having against being cases same if not examine those the discriminated we do did not result in the for whatever reason, or similar circumstances which, of a death sentence. imposition Palmer, (1986) (Krivosha, v. 224 Neb. 399 N.W.2d [State C.J., 752 706, concurring part).] dissenting in part Further, authority initial prosecutors are vested with because crime, or her should die for his to decide whether a defendant prosecutors confining sought in which the universe cases review, for it proportionality penalty death would undermine charging decisions from arbitrary prosecutorial insulate would II, at supra, I N.J. appellate As noted Jackson review. system of decentralized 975 our current A.2d potential prosecutorial abuse prosecution is rife for capital with capital charging authority power. exercise their Prosecutors they are supervision, the decisions make almost no to date reveal that highly idiosyncratic. All data collected often death-eligible defen prosecutors seek death report The of the consistency predictability. with little dants committed that were 246 homicides Special finds there Master prosecuted as Jersey since 1982 that could have been in New sought penalty in cases, prosecutors the death capital but Report, supra, percent) of them. Final (fifty-six Attorney expert independent 13. retained Table conclusions, estimating that 154 very reached similar General percent) capi resulted in (fifty-eight death-eligible cases of 264 Weisberg, Proportionality Re I. prosecutions. tal Herbert 26, 1991) (Nov. Jersey New view Death Sentences figures are broken down Even (Weisberg Report). when among sub-categories charging decisions are examined so See, e.g., crimes, charging still exist. Final disparities wide 13; 2. supra, Table Weisberg Report, Report, Table supra, capital-charging Thus, judicial supervision of need for arbitrary charging prevent and the need pressing, function *116 resulting arbitrary capital sentencing from even so. more we prosecutors Were to look cases in which actually sought the penalty, prose- death we never would if know those cutorial decisions were aberrational. And if could we not know if a death charging sentence resulted from an aberrational decision, then if disproportionate. we also could not know it was conclude, I majority, therefore the that the universe from comparison which to cases are be drawn must include all cases that could have resulted the penalty, including death those prosecutors cases which actually did not it.1 seek by majority, legislature death-penalty 1 As noted the the amended the act shortly argument provide proportionality after oral in this case to that review comparison "be limited to a of similar cases in which a sentence of death has imposed." (eff. 12, 1992). May urges been L.1992 c. 5 The State that the applied retroactively amendment be I to Marshall’s the case. believe that case, case, applied any amendment not should be to death-sentenced let alone a Marshall’s, involving prior like a crime committed to enactment of the amend ment. face, noted, itsOn the amendment is I unconstitutional. As believe our that and, proportionate requires sentencing constitution death to enforce that guarantee, requires comparative proportionality it that this Court conduct universe, employ death-only completely review. Were we to we would guarantee, proportionality undermine that constitutional so review con- Ramseur, empty by ducted is an exercise. Under this Court cannot abide legislative amendment. event, any Marshall, plainly apply any the amendment cannot toor prior other defendant who his or crime committed her of the date provides amendment’s enactment. I of Article the United States Constitution Congress any pass any post that neither nor State shall “ex facto law.” Article IV, para. Jersey imposes prohibition. 7 of the New Constitution a similar Supreme interpreted provision barring Court has as criminal laws that do (1) enactment; following: they apply occurring all of the to events before their (2) they disadvantage them; (3) change they the offender affected personal rights merely implicate procedures substantial not and do used to Florida, punishment. establish conviction or to fix a Miller v. 482 U.S. 2446, 2451, (1987). 107 S.Ct. plainly 96 L.Ed.2d Those elements applied capital would be met if the Court the amendment to a conviction for a Any crime committed before its enactment. defendant sentenced under disadvantaged, revised statute would be for he or she lose would the chance to sure, disproportionate. have the sentence set aside if found To be fact a sentence is reviewed under old statute does not mean that the sentence automatically certainly will vacated. Marshall’s case demonstrates that
—c—
*117
death-sentencing frequencies is
majority’s
calculation of
by
cases that
distorted
its treatment
death-sentenced
grossly
majority
thirty-
Court. The
counts
by
have been reversed
this
though the death
cases even
three cases as death-sentenced
and have not
down in them have
vacated
sentences handed
been
A,
289, 613 A. 2d at
Appendix
See
at
reinstated.
been
infra
cases,
analysis,
two
the Court does so without
1149. In all but
5,
See Ante at
comment,
169 n.
613 A. 2d at
or
justification.
infrequency
doing
the extreme
so it obscures both
1090 n. 5.
death-eligible
to
defendants
our state sentences
with which
sentence.
disproportionality of Marshall’s
glaring
death and
as
death-sentenced cases
life-sentenced
I
count reversed
would
unless the case
conducting proportionality review
cases when
on re-trial.
in a valid death sentence
has resulted
enacted, there
death-penalty statute was
Since the current
of the
interpretations
applications
important
have been
changed the re
capital punishment
have
governing
that
laws
require
example,
now
many
For
we
individual cases.
sults
acquitted of a death
jurors
may be
be told that defendants
not
that trial courts
by
verdict and
sentence
a non-unanimous
Clausell, 121
v.
into unanimous verdicts. State
juries
coerce
Ramseur,
v.
State
345-46,
(1990);
298,
2d 221
N.J.
580 A.
301,
have narrowed
supra, 106 N.J.
at
Our implications have different *118 the counting for of in juries cases which returned life sentences from those that have counting for the of in juries cases which returned death Special sentences. As the explains, Master of effect the new [b]ecause rules been lower penalty-trial has to procedural the likelihood of a death we can be confident sentence, that had the new rules been in
procedural the earlier trials in applied that resulted life penalty sentencing sentences the life outcome would have been same. Report, supra, at
[Final
58.]
Special
points
The
Master
out that
same cannot
said
“[t]he
...
the earlier death sentenced cases.” Ibid. That is
procedural
because the new
obtaining
rules have made the
of
death sentences
Every
more difficult.
reversed case was re
versed because
clearly
the error “was
capable
affecting
either the
I,
verdict
the sentence.” Bey
supra,
In the
cases in
purports
few
which the Court
to “rehabilitate”
sentence,
analysis
a reversed death
the
and unjust
untenable
Appendix
illustrate,
majority
ifiable.
B.
See
To
the
finds that
can
reported
Clausell’s case
as a death verdict because the
grounds
Court’s reversal on Gerald
did not “undermine the
findings of deathworthiness.” Ante at 169 n.
613 A.2d at
insupportable given
1090 n. 5. That conclusion is
the nature
scope
pervaded
of error that
Clausell’s trial.
addition to
error,
the
impugns
Gerald
which
jury’s sentencing
itself
the
conclusions,
directly
jury’s
several errors related
to the
deliber
ations
appropriateness
punishment
on the
of death as a
example,
Clausell’s crimes. For
the trial court did not define
the
“grave
factor,
mental
in the
risk” aggravating
state
problem
exacerbated
its incorrect
on
aggra
instruction
Clausell,
charge.
vated
supra,
assault
121 N.J. at
explanation
c(4)(d)
A.2d 221. The court’s
aggravating
inadequate, ibid.,
factor
as
was
were its
on
instructions
344-45,
mitigating
By
factors.
Id.
A. 2d 221.
not ex
plaining
meaning
factors,
mitigating
the function and
diluting
importance
instructions risked
of the factors relied
Moreover,
byon
improper-
the defendant.
Ibid.
court
trial
*120
weighing process. Id. at
ly
jury
instructed the
on the
Further,
misled the
221.
the verdict form and instructions
A .2d
unanimity
required on the death verdict.
jury on whether
was
instructions diminish
Finally,
jury
.2d221.
the
Id. at
580A
responsibility
for the death sentence. Id.
jury’s
ed the
sense
346-47,
significantly
could review, Special proportionality disproportionate pursuant Master as argues they universe as death-sentenced cases. be included in the should observes, community not, changed impossible they for then it will be If are he supra, sentencing practices. Report, changed Final at 64. to result in values arise, type example, certain result if the first five cases of a could That issue sentences, twenty in death. The initial death- but the next result life might disproportionate. death- The twentieth be reversed as sentenced cases *121 —D— Compounding counting the Court’s mistake death-sen- tenced “precedent-seeking” ap- cases is its decision to use a which, Court, proach, according operate to the is to in some relationship” undefined “functional frequency ap- with the proach. explication aspect The Court’s of that of its methodolo- and, gy unconvincing, end, by appears is unclear and the it virtually indistinguishable proportionality be from traditional only morally review that determines whether the sentence is justified. Its defects only irretrievable demonstrate that a frequency approach can measuring comparative come close to proportionality.
The Court writes that we are correct that death need not “[i]f general sentence, normal or to be a licit it that the follows frequency approach provide sole-source, will not a fail safe 152-153, proportionality method of review.” Ante at 613 A.2d hardly premise. at 1081. That conclusion follows The effect, saying, Court is if rejecting high that it is correct in point death-sentencing cut-off frequency, for then the conclu- infrequency sion follows that justify finding no level of can that a product death sentence is aberrational or the of inconsis- arbitrary tent and decisionmaking. assumptions The Court’s analysis simply wrong. accepting are Even the notion that death-sentencing a moderate rate for similar cases would not review, impugn a sentence may under it still be true that a low very death-sentencing or a low rate for similar cases would impugn a sentence under review. Court, employ writes: “Rather frequency than meth cutoff,
od as a
we believe that it will serve as a coefficient of
consistency.” Ante at
613 .2dat
A
1081. What the Court
sentenced case also would be reversed as
the fact
disproportionate
despite—
eighty
juries gave
verdicts of death in that
of case —unless
percent
type
notwithstanding
the reversed cases were treated as death-sentenced cases
fact that
resulted in life sentences
virtue of
they actually
by
proportionality
review.
expression
know. When the Court
by
means
is difficult tо
frequency,
strictly
the more
concludes that
lower
“[t]he
possible influence of
must scrutinize the case for the
Court
factors,” ibid.,
all
two of its
impermissible
it
but abandons
objectives
proportionality
stated
for
review. Those were
three
(1)
initially
protection against
arbitrary decisions
described
as a
(2)
by juries,
arbitrary
by prosecutors,
decisions made
made
(3)
prosecutors
juries
decisions made
either
based on
133-135,
impermissible considerations such as race. Ante at
However,
purpose
now
the third
The legal based, form of reason loosely, least on the traditional following the rules enunc ing by decide cases in which courts decided, similar, courts conduct previously cases. When ated in method, using precedent-seeking proportionality review to the case under review and they identify prior cases similar prior closely more resembles if the case under review decide prior that in sentences or the cases that resulted death cases 861, State, 233 213 Moore v. Ga. in life sentences. resulted 910, denied, 829, (1975), 96 S.Ct. cert. U.S. 832-33 S.E.2d State, (1976); v. 378 So.2d Coleman 49 L.Ed.2d cf. cases, holding (Miss.1979)(finding comparable no but aggravated less case was death sentence excessive because The compared). obvious cases to which it was than the death in there are cases both approach is that when failing of that resem group that group the death-sentenced life-sentenced review, for the approach fails to account the case under ble group. If the cases that fall within each of cases that number group, then the death-sentenced similar fall within are most affirmed, majority if very sentence will be even the vast similar in life sentences. cases resulted might hope respond
One Court would to such a taking by situation into account the fact that the bulk of the words, precedent group. was in the life-sentenced In other one might hope that the Court would reverse the death sentence in precedents generally the case under review because the similar so, course, in If simply result life sentences. the Court did it employing surreptitious rigorous would be and less form of frequency analysis. engage prece- It would no distinctive dent-seeking analysis at all. discussing comparison
When its selection of a universe cases, aptly the Court observes that the selection of a universe proportionality “depends purposes review on the to be served Ante at 613 .2d at The review.” A 1070. soundly proportionality Court then concludes that because re designed consistency sentencing view was to ensure decisions by juries prosecutors, required a universe is that includes all death-sentenced cases and all cases that could have resulted in the death appreciate sentences. Somehow the Court fails to reasoning in choosing applies that the it uses a universe greater assessing propor force to the choice of the standard for tionality. frequency-analysis method is the method of comparative propor review that addresses the core concern of tionality being imposed review: whether the death arbitrary way. an or non-evenhanded That conclusion is tauto *123 logical. Because the core concern relates not to the abstract appropriateness of the death consistency but to the justice system which criminal hands death sen down circumstances, particular tences the Court’s final determina depend frequency tion must on the actual with which the death imposed sentence is in those circumstances.
The methodology appears Court’s discursive to have been spawned frequency approach simply from a concern that the standing majority suggests would not work alone. The that a statistics, frequency analysis, by relying heavily too on can Ante A. ignore experiences. real at 613 2d at 1082. human taken, objection applies That is well but it not so much to the comparative frequency approach enterprise as to the entire valid, proportionality the extent the criticism is review. To that soundly the conclusion to be drawn from it is that even conduct sentencing. proportionality prevent arbitrary ed review cannot I, fact, 159-163, conclusion. See infra very at draw A.2d at 1085-1087. agree disapproves
I with the insofar as it of formulaic Court sure, any or mechanical classification of defendants. To be focus, possi proportionality decent review must to the extent ante ble, people,” on “real 613 A .2dat and must account, possible, unique characteris take into to the extent especial render cases tics of defendants and crimes that certain ly aggravated. grasp fails to that those features are Court during cases frequency analysis considered in the selection of death-sentencing comparison groups for inclusion whose comparison to calculated. When a case bears rates are be review, it is excluded superficial similarities to a case under similarities, comparison group, notwithstanding the from the truly similar must made for frequency for the calculation supra, cases Report, Final (suggesting See cases.3 frequency analysis precedent-seeking employs or a Whether a court analysis, incorporate or notion of what makes cases similar it must some very not believe I differ much from dissimilar to one another. I do majority, reject majority that a fair Like the I the notion on that issue. by looking only at the proportionality can be constructed review should be or capital-murder aggravating mitigating statute. factors enumerated in the and statute, identify sentencing supposed jury trial Under that in a then, aggravating mitigating have been after those factors factors identified, many weigh supposed I that there are facts it is them. believe aggravating mitigating factors that as that are not themselves enumerated respective weights. example, in For the enumerated factors with their endow is, c(4)(b) involving aggravating cases in which defen- factor —that cases grave put persons factor would have other than the victim at risk —that dant by setting weight to a crowded arena killed someone fire more if the defendant by shooting single into a small someone bullet than if the defendant killed
sharing
may be dissimilar and unsuitable as
common facts
analysis
they
if
distinct
comparison
frequency
cases in a
reflect
end, however,
In the
once
ly
culpability).
different levels of
comparison groups
(taking
formulated
into
proper
have been
special
of the cases under
account
individual characteristics
consideration),
consistency
only
is the
the
issue that remains
groups
have resulted
death
with which the cases
those
numbers,
or life sentences. The Court mistrusts
but
sentences
questions require
answers.
numerical
numerical
majority
frequency approach
objection
A second
of the
to the
Marshall’s,
it does not
well in cases such as
which
is that
work
groups
comparison
similar to few other cases. When the
are
small,
frequencies
majority implicity recognizes,
as thе
are
anything
may
products
of chance more than
else. Ante
frequen
Unfortunately, replacing the
Instead of the related how to empirical (2) draw conclusions on little based data and what to empirical reached, do when no reliable conclusions can be the majority simply pretends proportionality that can review juries conducted without reference to the actual conduct of prosecutors. If the Court were truly committed to evenhanded capital sentencing proposition and to the there must be a coherent for distinguishing basis the the cases which death imposed not, is from those in which it is then Court “supplemented” would not have the frequency approach with non-empirical another method. infirmity precedent-seeking
The of the approach magnified reviewing approach when the court uses the includes case review comparison group. majority under in the does precisely that. When the case under is in the review comparison group, the always case under review will resemble group closely the death-sentenced more than the life-sentenced group because the case always under review will resemble closely itself any more than it Here resembles other case. case, cases most similar to the Marshall other than the Mar- itself, Engel, shall case are the cases of William and Herbert both of which resulted in life sentences. The Court concedes subject those cases are almost on fours all with the case. 179-182, 1095-1096, See ante at 613 A.2d at but affirms Mar- shall’s anyway. sentence Had Marshall’s not case itself been precedent, any analysis considered precedent-seeking as would have dictated the reversal Only Marshall’s sentence. includ- ing group Marshall’s sentence in the death-sentenced is the majority And, to Engel precedents. able circumvent the by including group Marshall’s sentence the death-sentenced is the to majority years able overcome the fact that after ten capital-murder prosecutions murder under the statute there has precedent— even reversed independent precedent no been —not like Mar- in cases the death sentence support imposition of shall’s. accept moreover, out, if one were that even point
I should cases as death-sentenced designation of reversed majority’s still cases, controlling precedent death-sentenced valid category. Of the so-called from the life-sentenced come would John Martini cases, majority concludes that death-sentenced Marshall, higher culpability than possessed Clausell and James 1098, 1099, 1090, 1097, 186, 188, 170, 183, 613 A. 2d at ante at equal culpability. Ante Anthony Di Frisco was while *126 equally almost cases were The life-sentenced A. 2d at 1096. (William Engel, Her culpability equal those divided between Russo) Rose, and those less David Engel, Michael bert Melendez, Randy Brand, Bur (Francis Miguel and culpability majori 182-186, 1096-1098. 613 A. 2d at roughs). Ante striking departure configuration is a from that ty’s conclusion Special Master. suggested by the conclusions from the report to given Special in the Master’s hypothetical In a exist similar cases Court, assumes that six Special Master life sentences. Final Re and four death sentences with two approach, the precedent-seeking supra, at 33. Under port, under court should the examination a Master describes Special take: greater than the deemed of culpability case was comparable If the review if some However, affirmed. the sentence would be ..., cases
death-sentenced than the two death- less case made it appear culpable features of the review ..., life-sentenced cases to one or more cases or sentenced comparable be vacated. sentence would death at 34.] [Id. majority the situation that the fairly reflects hypothetical
That culpable less Marshall to be facing, as it has deemed says it is Clausell) (Martini and of and cases than two death-sentenced Frisco) (Di case culpability to one death-sentenced equal Rose, (H. Engel, Engel, M. W. life-sentenced cases four the review case Russo). majority’s conclusion that Despite the greater is not of culpability cases, than the death-sentenced majority misapplies the approach to conclude that Marshall’s case is not disproportionate.
The results of the Court’s precedent-seeking analysis are hardly surprising, for the Court does not even define that process, let conscientiously alone apply it. Ante at (asking A. 2d at 1095 whether some pattern invidious factor or has been discerned from precedent); ante at 613 A.2d at 1099 (concluding analysis without that Marshall’s sentence is disproportionate). not judgments The Court’s that some cases are similar to Marshall’s and that others are not are moral and hopelessly subjective and value-laden assessments. On the one hand, I cannot majority blame the for its failure to use the precedent-seeking Special Master, method as the and several courts, other suggest hand, it however, be used. On the other I find unconscionable the Court’s use of utterly some unstruc review, tured method of calling its “precedent- that method seeking,” and its claim that justifies that method affirmance of a death sentence when the most reliable measures dictate that the sentence be reversed.
—E—
definition,
By
engaged
a court
in frequency analysis must
establish at least a loose
point
permissible
cut-off
death-
*127
sentencing frequencies among comparison
noted,
cases. As
the
majority purports to hold
disproportion
that a death sentence is
only
аte
other
with similar
gener
characteristics
if
defendants
ally
committing
receive
sentences
factually
similar
life
131,
offenses. Ante at
I
A. 2d at 1070. believe that a death
disproportionate
sentence is
unless other
with simi
defendants
lar characteristics generally receive death sentences for com
mitting factually similar offenses.
Jeffries,
(1986),
State v.
105 Wash.2d
case in which the Supreme prece applied Court dent-seeking approach using containing a universe only death- holding of the cases, from the dissented Justice Utter
sentenced required by the Court, frequency approach was arguing that a 743. Id. 717 P.2d at proportionality review statute. Washington “If thought required, he said: approach he Elaborating on the sentencing is less for similar frequency death cases] the [of ofUse death sentence should be reversed. ‘generally,’ the than frequency’ at suggests that the ‘threshold ‘generally’ the word significantly appropriate a death sentence becomes which percent.” Ibid. greater than 50 generally in cases similar penalty imposed is not If death review, should be vacat the death sentence to the crime under constitutional position majority, of the Contrary to the ed. sentencing does not requirement that there be individualized impose penalty death occa may mean that the State 152, 613 A .2dat type crime. Ante at sionally for a certain requirement of individualized sentenc 1081. The constitutional imposed invari penalty death cannot be ing means that the crime, that the death can type of not ably for a certain type certain of crime. See imposed sporadically for a 296-98, Carolina, supra, 428 U.S. v. North Woodson 2987-88, at 956-57. 49 L.Ed.2d S.Ct. at type of imposed generally for a penalty is not the death Once imposi crime, that should bar conclusions can be drawn two involving type penalty in the cases the death tion of constitutional dimen conclusions have crime. Both of those imposed generally First, penalty is not the death sions. when crime, that those no societal consensus type of there is for a penalty. death crime deserve the type who commit contemporary link sentencing between “[J]ury constitutes II, supra, 112 penal system.” Bey community and the values routinely find that the juries 548 A .2d887. When N.J. at aggravating factors even when outweigh mitigating factors prosecu present, and when mitigating factors are no obvious charge cases routinely decide not to lead and tors follow their II, 607 .2d see, supra, 128 N.J. at A capitally, e.g., Jackson public 974, 979, must reflect ambivalence judgments those
267
imposing
about
penalty
death
in those cases. See Good
paster,
Review, supra,
Judicial
74 J.Crim.L. & Criminology,
at 802-03.
Execution
defendants
those cases would be
“ ‘
unconstitutional,
doing
so would offend
evolving
“the
decency
standards of
progress
that mark the
of maturing
’ ”
society.”
II,
Bey
supra,
162,
Second,
juries assessing
when
a certain type of crime and
defendant routinely find
mitigating
that the
factors outweigh
aggravating factors,
the conclusion
many
follows that
the defendants who receive the
death
are no more
deserving of death than are the defendants' whose lives are
spared. There is no rational basis on
distinguish
which to
those
who are sentenced to death from those who are not. The ones
who are sentenced
just happen
to death
unlucky.
to be
When
occurs,
that
the lives of the few who have been sentenced to
death
spared.
Ramseur,
must be
State v.
supra,
For both of those I still would have dissented from majority’s putative holding, holding even had that not been by methodological diluted errors. requires Our constitution no less.
—F— majority would draw Special comfort from the Master’s observation that among contract murderers are the defendants likely most to receive the death penalty, behind those who victims, multiple kill before, those who have killed those who victims, kidnapped have their public those who kill ser- *129 171-172, 1091; Report, vants. See ante at 613 A. Final 2d at supra, Table 7. That observation ignores the both the fact that death is Mar only currently contract-murderer under sentence that, counting the even reversed shall and fact death-sentenced valid, group as in has the death sentence cases no of cases regularly imposed. been cases Marshall’s are fact that like among likely the in death sentence is inconse most result likely in a quential the cases that are most to result unless actually regulari result in death sentence death sentences with Because, years, capital no ty. types ten of murder cases after sentences, regularly in death the fact that contract- result killings likely penalty are more to result in the death than other types killings mitigate irregularity of alter or the attend cannot sentencing general. in ant to death
Ill pro- for proportionality The Court’s review are standards foundly Only by proceeding as it from a mis- deficient. does requirements propor- guided understanding of the essential sentencing uphold the sen- tionate is Court able to Marshall’s reiterate, approach: frequency To is tence. there a sounder analysis sentencing practices. A conscientious based on actual inexorably to application approach leads one conclusion: rarely imposed Jersey in in cases like penalty the death New Marshall’s.
—A— conducting proportionality in this One obstacle to review many not have any case—and case—is that defendants do thorough hearings. If universe the benefit of the contains cases in which some defendants were able to establish not, mitigating and others were the com- a record evidence among necessarily universe will parisons made cases Moreover, comparisons prone to error. work to the will disadvantage of defendants like Marshall whose trials did not presentation include mitigating evidence. pointed I my I,
As
out in
dissent Marshall Marshall’s
penalty trial
perfunctory
was a
exercise that
involved little
more
brought
than
recitation
counsel
during
of facts
out
guilt phase.
(Handler, J.,
N.J.
—B— majority, acknowledge I proportionality Like the review comparison groups, reflecting must use several each a different similarity. comparison group measure of Each must serve as a case, results In this because cross-check on the others. consistent, are the ulti- comparisons from the various derived may regarded as reliable. from them mate conclusion derived inconsistent, or a a closer re-evaluation results been Had the necessary. approach have been refined would essence, a contract crime was its Marshall’s Distilled to gain. The murder pecuniary for family of a member murder in the heat planned and was not committed carefully was especially However, not brutal —for the murder was passion. depravity did not involve torture capital murder —and prior his conviction. record Marshall had no criminal mind. similar, proportion- purposes of for the I consider the case to be review, cases. Closest to Marshall’s types of ality to several killings. Be- involving contract case, those cases perhaps, are important as or of a crime to be as I consider the ends cause means, I consider Marshall’s also important more than pecuni- involving murders for to those cases crime to be similar members, friends. family spouses, murders of ary gain and therefore, criteria I settle on the same part, most For the rely I majority uses. creating comparison groups that involving the comprised cases comparison groups heavily on (both princi- following of criminals: contract-murderers types *131 not kill in the heat murderers who did agents); spousal pals and defenseless; and murderers were passion and whose victims victims, planned their crimes kidnapped their or who robbed motives, entrapped or and deceived extensively, pecuniary had addition, comparison I consider two In defenseless victims. majority did not Special Master that the groups proposed by the pecuniary killed for involving murderers who consider: cases kidnap- robbery, or burglary, did not involve gain whose crimes 5, 80-84; 7, app. E supra, at app. at Report, table ping, Final acquain- involving murderers who robbed 8, cases F at 80-84; supra, Report, relatives, or friends. Final tances, F app. E at at 5-6. app. table Appendix In D opinion to this death-sentencing frequen- cies for comparison several groups are frequen- listed. Those cies are based on a universe of death-eligible all cases. All living currently defendants not under death sentence are count- ed as life-sentenced defendants. No case is counted more than once, unless it is a case in which a defendant was sentenced separately for more than one murder. I have excluded from the universe all defendants not currently under conviction for the homicides of they which compari- have been accused. All groups son are in Appendix listed F. frequency
A calculation comparison group for each reveals that the death sentence in disproportionate. Marshall’s case is example, For of the nine contract murderers convicted of mur- decade, one, der in the only Marshall, last was sentenced to death. Of the ten murderers pecuniary gain who killed for killings whose did not robbery, burglary, kidnapping, involve or one, only Marshall, was sentenced to death. Of the eleven robbing friends, murderers who killed acquaintances, while relatives, none was sentenced to death. In most of compari- groups, son death-sentencing frequency hovers around one only comparison ten. In one group consisting of —that spousal death-sentencing murderers —does the frequency reach high three; as as one in group there were three cases, and Marshall’s is the one that resulted in the death penalty.
Marshall’s notoriety. case has achieved considerable That notoriety, coupled highly with the unusual nature of the facts itself, might of the murder lead one to believe Marshall’s aggravated case must capital-murder be more than most other cases, fact, and that his proportionate. sentence must although crime, (by Marshall’s was a horrible it was no worse standards) many different than several murders committed in Jersey capital-murder New since when the current statute *132 272 5 have since 1982 four death sentences
was enacted. Yet
as valid death
may
still
understood
been returned that
sentences,
majority of murderers who committed
and the vast
killing of
comparable to and more heinous than the
crimes
oper
Those facts
Marshall
received life sentences.
Maria
have
disproportionate.
death sentence
ate to make Marshall’s
—C—
disproportionate
compared both
Marshall’s sentence is
when
other crimes and to defendants
to defendants who committed
him. His case exem
participated in Marshall’s crime with
who
rampant in our death-
plifies
disparity that is
the intra-case
Frisco,
.2d
penalty system.
Di
118 N.J.
571 A
State v.
(1990), expressed
system
that the
allowed the
I
concern
capital
principal
hired killer to be tried for
murder while
302-05,
at
IV Although I proportionality required believe is review constitu- tionally, I do not believe that its use can an save otherwise death-penalty unconstitutional statute from infir- constitutional mity. Proportionality review has its limits. keep It cannot its promise evenhandedness, own cannot assure uniformity, or —it consistency in imposition of the death sentence. It does not and cannot plagues overcome the arbitrariness that imposi- penalty. tion of the death experience proportionality Our profound review itself now confirms that chronic and constitu- tional Jersey system deficiencies endure the New for admin- istering capital punishment. Finally, proportionality review is simply not placed public. final straw on the of the back It is undertaking а massive substantially that adds to the enormous governmental, institutional, and social burdens im- that are posed and sacrifices that are exacted as a result of the decision capital punishment to maintain part justice as of our criminal system.
—A— fallacy proportionality attempt The inheres in review its identify precisely makes what some cases similar and others we, dissimilar. inheres in the judges, It notion that as can identify qualities that make deathworthy some murderers and others not. The Court’s efforts by assessing to do that — culpability amply moral proportionality demonstrates that re- — perpetuate view often serves to arbitrary rather than eliminate sentencing. culpability may appear Moral determinations to be sophisticated statutory a more and refined exercise than the process by jurors eligibility which determine death and death- said, process As I worthiness. have often the latter does not sufficiently guide jurors restrict the discretion of or direct and concerning capital them to sound and reliable decisions murder Ramseur, judgments. E.g., supra, and life-and-death v. State 382-404, (Handler, J., dissenting). 2d N.J. 524 A. 188 objective proportionality reviewing review to enable the *134 compensate subjectivity court to for such and correct its unfair results, committing as when similar defendants similar crimes do not in irony propor fact receive the same sentence. The of tionality reviewing review is that the court itself resorts to extra-statutory inherently subjective. factors that are also Be end-point capital prosecution cause the Court at this of val idates or invalidates the defendant’s death sentence on its based judgment Court, culpability, own of the make no mistake about it, becomes the ultimate sentencer. recognizes, majority judgment
As the
itself
a “value
is built
practically every
into
proportionality.
measurement” of
Ante
inescapable entanglement
at
—B—
Ramseur,
expressed
I
the view that the death
contemporary
unconstitutional because it offends
standards of
1, 5,
decency.
respect
paragraphs
I there
and
observed with
I
Jersey
12 of Article
of the New
Constitution:
language
Both the
and
affirm that the life of
structure of these provisions
including
of life embodied
safety, security
quality
liberty,
individual —
highest
greatest
accorded
value
protection possible
happiness —is
under the State Constitution. Government cannot take
detract from
life,
rights
or restrict
that are
based on
life,
life,
essence
supportive
sanctions
factors;
and unreasoned actions or invidious
even when
arbitrary
must be
not
that are cruel and
State
imposed,
may
impose any punishments
logically from
and their obvious
unusual.
It follows
these provisions
purpose
government must be its most
that when life itself is at stake
scrupulous
wrongful
avoid
harm.
any
370-71,
(Handler, J., dissenting).]
ty becoming progressively dramatically was and less tolerated frequent. 372-73, and less Id. N.J. A.2d 188. that, History experience despite and commonly teach us held capital punishment part belief that can be a useful of a criminal justice system, capital punishment stronger founders on and deeper feelings immorality that not abide the in will the arbi- trary capricious taking of life.
I continue penalty regime to believe that our death cannot be contemporary reconciled with decency. standards of Thus our experience past experience. current indeed validates our Our ambivalence, hesitancy angst capital our and travail over punishment represent quixotic quest more than a ideally for an Rather, system. they fair very pervasive deep- reflect a antipathy against taking seated of a life when the fairness taking Plainly, that life cannot assured. proportionality assurance, although may pretend review is no we that it is. Capital punishment decency. continues to offend our common experience recent
Our ratifies the lesson to be taken from our failure capital punishment system to devise a is fair. Death-sentencing penalty rates since the death statute was dramatically. enacted have declined jury Not one New Jersey has returned a death sentence since 1990. See Final Prosecutors, Report, supra, charging at 15-16. their who base part do, decisions in predictions juries on their own of what will charge capitally they cases far less often than once did. Id. at 20. capital prosecutions. Prosecutors sometimes strain to avoid II, E.g., supra, Jackson 128 N.J. at 2dA. (Handler, J., dissenting).
I
said Ramseur:
Our
thus not
confirms that
history
value on
society places extraordinary
judgment
individual
but also teaches us
life,
moral
the death
society's
right
should not be
unless it is
to do
in other
applied
so, unless,
words,
substantive and
have been maximized so that the risk of
procedural protections
injustice
arbitrariness is reduced and the
of the ultimate
is eliminat-
possibility
ed.
*136
Ramseur,
supra,
v.
—C— satisfactory Our efforts to proportionality achieve review has gigantic undertaking. been a It years, has taken about three hours, outlays moneys, untold substantial absorption and the significant attempt develop adequate resources to to an methodology. experience highly That fresh makes relеvant the governmental, consideration anew of the enormous institution- al, capital punishment social sacrifices entailed in and the obvious, disturbing policy implications flowing from those sacri- fices.
Although estimating capital vary the overall costs for trial included, depending jurisdiction on the and the costs the esti mates uniformly costly confirm that the death is a California, recently mechanism. the fourteen cases affirmed average Supreme California Court cost an million $1.7 each, though range another case cost million and most cases $5 $750,000 from to million appeal. for the trial and direct $1 Stephen Maganini, Closing Death Row would $90 Save State Year, Bee, 28, 1988, Million a The Sacramento Mar. at A14 (estimating $592,000 average death-penalty case at com $93,000 case). pared average A study for the murder prepared bring capital for New York estimated the costs up point $1,498,0Ú0. case to the of a death sentence at New Association, Inc., Capital York State Defenders Losses: The State, 1, 1982, Penalty Apr. Price Death New York Losses); Drehle, (Capital at 19 see Dave Von also Bottom Expensive, Line: in Prison One-Sixth as The Miami Life Herald, 10, 1988, July (citing Maryland 12Aat studies from suggesting Kansas that the additional for a total cost bifurcat- *137 278 capital non-capital
ed trial over a murder trial is estimated at $36,000 $116,700) (Bottom Line); between Bar Panel 10, Reports Penalty Expensive, Newsday, Death is Too Feb. 1989, City (reporting Section 34 York New State Bar capital Association had estimated that the cost of a case $2 Florida). million in Texas and more than million $3 Jersey, sentencing person one New to death has been Lane, estimated to cost million. $7.3 about Tabak The (1989). Injustice, Loyola Execution of of L.A.L.Rev. every stage judicial proceedings At of higher the costs are death-penalty non-capital for the case than for the case. The enduring assignment first and most cost to the state is the percent Ninety counsel. of those on death row nationwide appointed cannot afford counsel and receive court counsel. Goodman, Helping Die, Howard Those Sentenced to Philadel 11, 1991, B1; Bienen, phia Inquirer, May Leigh al., B. et The Reimposition Capital Jersey: Punishment in New Discretion, Role 41 Rutgers Prosecutorial L.Rev. 163 n. (1988) (noting of 703 homicide cases in New 81.5% Jersey 1982 and 1986 between were handled the State Public counsel). appointed Defender’s office or court The state there defenses, pays straining fore for those the resources of the example, Public Defender’s For Office. an audit established Jersey spent nearly that New million extra in 1984 to $3 defend indigent charged capital defendants with crimes. Jo Astrid Glading, Times, Indigents Bills to Climbing, Trenton Defend July cases, the complexity capital 1985. Because of assigns State Public Defender two attorneys defense to each case, compared single assignment to the for most murder cases. Alexander, Penalty Price, Ames High Asbury Comes at Park Press, 22, 1991, July Normally prosecutors at 1. two are cases, Jersey increasing needed New death further throughout Booth, proceedings. the costs Michael Mercer Pending Cases, Times, Death-Penalty Leads State in Trenton 17, 1988, example, prosecution Oct. at Al. For estimated $60,000 year litigate. that the case cost Ramseur Pat R. Gilbert, Inmates, up Hurry Bills Add in a Death Row Moreover, Times, 14, 1988, competent at Al. Trenton Feb. counsel on both sides are essential not to ensure legal proceedings inadequate servic fairness of the but because greater progress. dangers “The es will lead to costs as cases appli extraordinary post-conviction and successful of additional trials, increases, if counsel the likelihood for new cations thoroughly effective.” Criminal Justice at the trial level is not *138 Assn., Section, York Bar Reinstitution Death as New State of 13, 1989, (Reinstitution Death). Punishment, 4 Feb. at of non-capital themselves Although nine out of ten cases resolve capital guilty pleas. defendants enter plea negotiations, in few Margot Taking a Dollars and Garey, The Cost See of Life: 1221, 1247n. 18 Davis L.Rev. Penalty, the Death U.C. Sense of (1989) capital go trial ten times as (stating that cases to effect, cases). non-capital In the result of the decision often as Line, supra, at the death sentence is trial. Bottom to seek require a trial (noting capital always cases almost 12A that notoriety because, pretrial publicity and of due to the extensive cases, bargain). prosecutors plea reluctant to are complicated capital in pretrial process longer and more The Maganini, supra, at non-capital criminal cases. cases than pretrial (stating non-capital average day one of A1 trials motions, average days); see also capital trials twelve whereas Bienen, (describing the at 242-45 supra, Rutgers L.Rev. aggravating factor has allegation of an impact pretrial mo throughout proceedings). The usual number seven, typical to whereas the non-capital in a case is five tions twenty-five filing of between ten and capital requires case Losses, pretrial practice 12. Capital supra, at While motions. cases, on an criminal it takes plays important role in most an requires capital capital case significance in the case. added motions attack underlying on the offense but not motions itself, example, constitutionality or penalty for its ing the death alleged aggravating support to sufficiency of evidence generate a need for motions to Capital cases also factors. appoint experts employ investigators, and notoriety and the capital requires cases change sequestration of venue and mo- Garey, supra, tions. Davis U.C. L.Rev. at 1247-51. The concerning standard motions discovery suppression and the critical, evidence also taking become more prepare time to and stimulating heavy litigation. Losses, Capital supra, at 12-13.
Preparation pretrial motions, for the guilt as well as and trials, expensive can take months of investigation. psychiatrists, members, Defense counsel often family call for teachers, mer accomplices past even crimes. Those witness located, interviewed, es must persuaded and cooperate, to all requires competent investigators, time, which money. Line, supra, School, work, Bottom military, 12A. California, medical records must be located and retrieved. typical death-penalty $25,000 defense costs an additional $50,000 special $15,000 investigation psychia costs and expert trists or other Maganini, witnesses. supra, at A14 (quoting Defender); a San Losses, Francisco Capital Public supra, (listing at 15 experts: fees of various crime scene analysts reconstructionists and blood range stain from $700 $1,000 per day; psychiatrists’ $700, average daily fees are *139 per to $125 hour of testimony; $150 courtroom polygraph expert average $500; bill amounts to eyewitness identification expert per courtroom fee is day). Specifically, $500 of the $296,449.41the Public spent Defender’s Office to defend Thom trial, as Ramseur largest portion, $191,881, spent was on psychiatrists. Gilbert, supra, at Al. The Public Defender spent $75,000 more than successfully attacking makeup grand petit and juries in County. Joseph Sullivan, Atlantic F. Jersey Law, New Times, Battle Death New York Defenders 26, 1991, Steep Feb. at B1. investigation expenses are not limited to the defense side. The cost prosecutor’s of the investigation of the Robert Marshall case alone was more than $200,000. Alexander, supra, (quoting at 1 deteсtive at Ocean County prosecutor’s office). average on 5.3 times in a death case is
Jury selection non-capital case. costly, than in a longer, hence more and (stating L.Rev. at Garey, supra, 18 U.C. Davis system as may increase cost to the courtroom time alone selection, ordinarily $87,440). process that Jury a much as to six weeks of court time. days, can consume two takes three routinely (reporting jury A14 selection Maganini, supra, at (report more); Losses, supra, at 13 Capital six weeks or takes four jurors take two to can ing that individual examination individually to weeks). questioned jurors must be Potential feelings capital punish and on explore personal their biases Jury non-capital cases. ment, inquiry that does not arise an experts, as both sides may the cost of dire also increase voir fair, impartial in the selection of experts to assist jury use fee is Witherspoon consultant (reporting that jurors. at 15 Id. Sullivan, (reporting that defense hour); supra, at B1 per $100 routinely juristic hire Jersey capital in New counsel at trials jury). help pick a psychologists to three non-capital covers average trials testimony at Court $6,200 comparison, day. By average cost of days at an court time at an thirty days of court trials take capital-murder (citing a supra, at A14 $7,500 day. Maganini, estimated report). California non-capital analogy in has no penalty trial in death cases investigation bear expended pretrial resources
cases. The teachers, friends, members, neighbors, here, family fruit as complete retro provide jury with a employers are called date prenatal care to the life from the defendant’s spective of rely on Jersey defendants majority of New A of sentence. Bienen, on mental conditions. that touch mitigating factors (reporting that & table 51 at 259-61 Rutgers L.Rev. supra, trials, proceeding Jersey cases sixty-nine New disturbance, was c(5)(a), or emotional mental mitigating factor c(5)(d), impairment of mitigating factor alleged in 59.4% his or wrongfulness of appreciate the capacity to defendant’s trials). persuade the In order to *140 conduct, in of those her 68.1% jury alleged exist, that the mental and emotional characteristics rely expert defense must on testimony. prosecution, The in seeking evidence, to rebut that also heavily psychiatric relies on testimony. Line, 12A; supra, Losses, See Bottom Capital at supra, at 17.
Moreover, stemming the costs high from the stakes involved capital prosecution in a are jury incurred even when the ac quits, offense, convicts of a lesser or returns a life sentence. In example, for none of the twenty Jersey capital New juries Carter, returned a death sentence. Kathy Barrett Ju rors Avoid the Responsibility Killing a Stranger in 20 Trials, Ledger, 18, 1988, Star Dec. ninety-four at 32. Of the homicides Jersey that went to trial in New between 1982 and 1986, sixty-nine capital convictions, resulted in murder but twenty-five Bienen, defendants were sentenced to death. su pra, 41 Rutgers words, at L.Rev. 159-60. other although heavy machinery capital of a trial is in nearly invoked twenty percent homicides, only of all quarter á of those trials Id.; resulted a death sentence. Report, supra, Final Tables (reporting thirty percent & 3 1991); rate between 1983 and Rofe, Prosecutors, John Penalty Death Evades Dispatch, 10, 1987, June 1 (reporting statewide rate around one sen trials). Further, tence three capital the deterrence of punishment may questioned light of the fact that the persons likely number executed will be no more than a percentage accused, tried, minute of those and convicted of capital recognize parallel murder. We must concern “with disproportion between the enormous financially and costs— scarce, in terms of judicial, prosecution, overburdened putative defense services—and the ‘benefit’ of the actual infre quent imposition death, given infrequency.” its Reinstitu Death, supra, tion at 6.
Every death-sentenced defendant is appeal entitled to a direct to this Court. Those mandatory reviews for defense alone cost average $37,740. an Line, Bottom supra, (quoting at 12A Association); consultant for American Bar Maganini, see also *141 penalty (estimating typical appeal supra, at A14 that death $62,000). hours, 1,000 attorney Studies about takes about attorney those costs prosecution that matches defense show the 12A; Losses, Capital Line, supra, at Bottom dollar-for-dollar. of (using defense-prosecution ratios one-to- at 10 n. 28 supra, stage). length pre-trial of and trial appellate The one at transcripts pre must means proceedings also voluminous $33,000. transcript trial cost appeal. for Ramseur’s pared Gilbert, supra, A1. at jurisprudence and the shear complexity capital
The of our compel appellate courts capital of records in trials volume See, Magani- capital e.g., expend energy on cases. inordinate Supreme ni, Court supra, (reporting A14 that California at cases); H. reviewing Andrew spends one half its time death Malcolm, Its Popular, But So Are Capital Punishment 10, 1989, Times, (reporting at A4 Alternatives, Sept. York New its time Supreme Court devotes one-third that Florida’s Gradess, Pay, cases); Does Not capital E. Execution Jonathan Post, thirty percent of the (noting at Washington The for the Eleventh Appeals of the United States Court docket cases). death consists of Circuit appeal. on David overturned Half of all death sentences are Gottlieb, Legislature: in Some Penalty Death J. Morality, 37 Money, Kan.L.Rev. Thoughts Myth, About Drehle, 443, (1989); Punishment in Capital Dave Von 10, 1988, ("Punish Herald, 1A July at Miami Paralysis, The Gradess, 5; Kaplan, A. supra, David Paralysis")', ment 2, Journal, 1989, Mill, USA, May at 38 National Law Death reversed (observing Supreme Louisiana Court has 36.8% 32.9%; Florida, it; to come Texas death sentences before courts, 46.3%). state federal upheld if the case is Even corpus proceedings, courts, reviewing the sentences habeas percent of the death sentences. error 40.7 find reversible supra, at 38. Kaplan, retrials, prosecutors pursue
When many of the costs dis See, repeated. Winkler, cussed are e.g., above Renee Prosecu tors Pleased but Wait to Study Opinion, May Chance (quoting County prosecutor at 27 concluding Camden as sentencing that a phase requires retrial “a virtual retrial of case”); Lait, the whole Penalty Matt Second Death Seen as Times, Costly Angeles Los Effort, Apr. 1992, at B1 (quoting *142 attorneys estimating and court in officials California as that eventually county retrial of one defendant taxpayers would cost $500,000 million, between to though even the $1 defendant changed plea early trial); guilty Gray, his to in the Ian A Expensive Logjam Door, at Death’s Los An Shameful —and — 17, geles Times, 1989, Dec. M3 (reporting at that retrial carried price a tag million $4.6 after defendant had received ineffective during original trial). Although assistance of counsel the continue, high death-sentencing costs retrial rate on is low. Fox, See Nick may Condemned Inmates Win Review Sen tences, Record, 2, 1988, Bergen (citing Mar. at A1 NAACP Legal figures showing Defense Fund that of the 696 resentenc nationwide, ing trials 197 resulted in a second death sentence). appellate
Additional costs are incurred when death-sen- post-conviction tenced defendant seeks relief in state and feder- states, al courts. In most lawyers volunteer must found for collateral they expenses review which can incur out-of-pocket $10,000 spend average and an of 665 hours. Linda Green- house, Right Lawyer Curbed, Times, to Death-Row New York 1988, A8; Wermiel, June at Stephen Delays see on Death Debate, Journal, Row Fuel Hot Wall Street Mar. at 136 (noting centers, federally death-penalty funded which to- gether budgets totalling budget, have million $5.9 recruit and lawyers, train budget that the 1989 federal allocated $10 appointing attorneys represent million for in- death-row mates); Paralysis, supra, Punishment (estimating at 1A capital cases reviewed in federal will courts cost the taxpayers year nation’s counsel). million a for appointed $30 however, that authorize Jersey, is one of the few states New through represent capital defendant Defender to Public Thus, post-conviction costs of stages judicial all review. Alexander, at supra, by also incurred the state. review will be 1. non-monetary system is felt in the court also
The strain on must judiciary courts increases when terms. burden on Dave during midnight vigils. See appeals address last-minute Executions, The Drehle, Fast was Fatal Blow to Von Fairness 11, 1988, (describing midnight appeal Herald, 1A July at Miami Powell); Paralysis, supra, Punishment handled Justice thirty hears Supreme Court (reporting that the Florida at 1A appeals, In those frenzied appeals year). minute forty last on the legal arguments deposited are reams of documents during these increase doorstep. Incidental costs also courts’ overdrive, air process shifts into proceedings, as the last-chance Dave overnight couriers used. arranged and travel must be Clemency, The Miami Drehle, Pressure Thwarts Von Political 12, 1988, Herald, 1A. July stage are another
Clemency before the Governor proceedings *143 executing a criminal process, in increases the cost which the USA, The Truth About Amnesty International defendant. News, June 1990. Real in States is Penalty the United Death housing protecting the defen- prisons, entrusted with The execution, costs. When for additional awaiting account dants sentence, cells they receive individual a face death defendants in Housing a inmate security. death sentenced and increased at Trenton Capital Unit Jersey Prison’s Sentence the New State $3,000 percent than year more a or an additional costs general prison in the inmate housing a non-death-sentenced super- (noting close Gilbert, A1 that the supra, at population. an requires officers escort inmates two of death row vision minutes on every in the file ten anywhere notations inmate Geurds, activities); “Fantasy The World” Pamela inmate’s 15, 1988, Times, A10 Row, Feb. at Trenton on Death of Life (reporting strip that death row inmate must be searched before visitor); greeting Knarr, and after a Spaces Jack on Death Year, Times, 21, 1987, Row Sept. $22G Available at a Trenton at (reporting per A3 that the cost capital inmate in Trenton’s $22,000 $2,000 year, sentence unit a is above that of the general population supervision). because additional The operate special $465,355 total cost to unit amounted to Ibid.; Maganini, supra, (noting 1986. see also at A14 spends special California an housing $2.8 extra million for inmates); Losses, death row Capital supra, at (estimating $15,000 spends that Florida per year an additional for each separate inmate to maintain individual cells and to the death general prison population). Florida, row inmates from the signed, guards once death keep warrant is twenty-four- hour watch to ensure that the inmate does not commit suicide. guards $13,800. Line, cost overtime for those Bottom supra, at 12A. generate
The actual execution can Georgia additional costs. spent $250,000 anticipated more than for the but aborted execu tion Losses, of one inmate in Capital supra, 1980. at 27. special telephone Incidental such costs as lines between the prison Supreme and the United States Court and Governor’s necessary personnel office are as are costs police for extra for control, security, crowd airspace and the shutdown of federal prison. over Jersey, Ibid. In New volunteer execution ers—two are so responsible used that neither knows who was injection paid the actual lethal procedure. for the $500 —are Gilbert, Pat R. N.J.’s Injections Ready, Lethal are Trenton Times, 15, 1988, Feb. at A1. figures totaled,
Once those are staggering. sums are spent Between 1973 and Florida an estimated million $57 on death-penalty costs. Paralysis, supra, Punishment 1A. The re-enactment of the death cost Texas $183.2 Leigh Bienen, million. Savings Money No in Lives or *144 Times, Aug. 7, 1988, Penalty, Death New York at 24. Because machinery the capital is many summoned for cases in which the jury returns a life or the death sentence is reversed on verdict appeal, expenditures much of those costs are “unsuccessful” in death-penalty system. example, expend- For million $57 executions, eighteen meaning ed in that each Florida resulted Line, 12A; supra, execution cost million. Bottom at $3.2 USA, Amnesty supra (reporting International Florida’s cost at executed). $3,178,000 California, per person where one out capital every of ten cases filed as a case results a death verdict, per year each cost the estimated six executions will taxpayers Maganini, supra, about million. at A14. $15 life, contrast,
By the cost house an inmate for based on an to $930,240. Al; average forty years, Capital life of Id. at $602,000 Losses, (estimating for supra, at 23 cost 1978 at Malcolm, H. forty years imprisonment); of see also Andrew Society’s Penalty on Death Stalls Procession Conflict Times, 19, 1989, Condemned, (Society’s B10 New York June at imprisonment require mas Conflict) (stating that “Life would $55,000 cell”). construction, costing per prison about Thus sive sentence, including public cost each over a death battle courts, attorneys, guards, may judges, prosecutors, defense imprisoning typical thirty-year-old be three times the cost of (quoting supra, at B10 Society’s Conflict, defendant for life. ABA). consultant money policy,
Ultimately question is one whether See, expended productive e.g., to more uses. could be dedicated Herald, Drehle, July Change, The Miami Dave Von Cries for 13, 1988, Mc- (quoting Supreme 1A Florida Court Justice to itself if the saying, society as “I think needs ask Donald cost,” Supreme Court justify the and former Florida results asking, really “Is the derived England as value Chief Justice trouble?”); (reporting Al Maganini, supra, at all the worth police to cut services to county was forced small California spent on capital prosecution). The millions of dollars finance crime, compen- spent prevent penalty could the death costs, victims, justice see or other criminal Reinstitution sate Death, governmental 6. In these times of scarce supra, at *145 resources, million expenditures capital punishment dollar on can hardly justified. be
—D— conscientious, No matter how sincere and genuinely civi- cannot, society lized consistently legal with its own and moral code, punish by reprehensible death its most criminals. Per- law, haps logic punishments which limits its and vision to fair in justice, administration of accomplish capital criminal could punishment. ignore But law cannot morality dictates of or reject the decency influences of that a society civilized absorbs justice into its system. criminal society We have our places a constitution that a moral value on jurisprudence human life and a that accommodates decency component justice. as a oppose capital To punish- ment one stigmatize need not a sentence of death as atavistic or barbaric. struggle protect citizens, Governments their they attempt to mold effectively criminal laws that will punish and deter Capital punishment criminals. understandably may thought responsive public to be to a need for retribution and need, however, deterrence. repudiated That denigrat- is not to, ed if yield with, it must because it cannot be reconciled stronger much part need on the society a civilized for a justice criminal system recognizes both a core morality that values life and a decency basic common that insists on fair punishments. and humane
GARIBALDI, J., concurring in result. For Justice WILENTZ and Justices affirmance —Chief CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN— 6.
For reversal—Justice HANDLER—1. A
APPENDIX Have Death Sentences Cases Which Re-imposed and Not Been Vacated following as death-sentenced cases majority counts have returned them though death sentences even cases *146 ante at 194 See not been re-instated. and have been reversed 1102 n. 10. 613 A .2d at n. by asterisks as similar preceded majority regards cases
The for the cases as death-sentenced and counts them to Marshall’s disproportion- determining his sentence whether purpose cases. down similar sentences handed compared to ate when (Alston murder) 1. Marko Bey, trial) (first (Olesiewicz murder) Biegenwald, and second trial Richard *2. James Clausell, *3.
4. Brian Coyle, Steven Davis,
5.
*6. Di Frisco, Anthony Dixon,
7. Phillip Erazo,
*8. Samuel Gerald,
9. Walter
*10. Nathaniel Harvey, Hightower, Jacinto
*11. Hunt,
*12. James Kevin Jackson, *13. murder) (Sharp, A. *14. Walter Johnson, 15. Kise, Raymond murder) (Hoffman James
Koedatich, Benjamin Lodato,
Long, Ronald murder) (Bass, McDougald, W. Anthony murder) (Bass. McDougald, M. Anthony Marie Moore, murder) (Moore, M. Samuel Moore, murder) (Moore, K. Samuel Moore, Oglesby, Walter
Pennington, Frank Arthur
26. Perry, 27. Pitts, Darryl n
28. Purnell, Braynard
29. Thomas Ramseur,
30. Rose, Teddy Savage, (first trial)
*31. Roy
*32. Williams, James (first trial)
*33. James Zola, majority Bey’s also counts Marko conviction for the twice, Pensiton murder both times as a death-sentenced case. I case, also count it as a I death-sentenced but count it one time.
APPENDIX B Analysis Illustrative Reversed Death-Sentenced Majority’s
Cases Used as Part Precedent-Seeking Analysis (1) State v. Clausell 142-143, supra discussion 613 A.2d at
[See 1075-1076] *147 (2) Oglesby State v. majority Oglesby comparison includes in several of its
groups, including those with aggravating the same number of mitigating factors and the index of outcomes test. Ante 170-172, 613 A .2dat majority reports 1090-1091. The Oglesby as a death analyzing commenting verdict without on whether this Court’s reversal of that death sentence undermines the jury’s oversight confidence death verdict. That is uncon scionable, as the jury Court reversed because the instructions aggravating case, c(4)(c), on the sole factor in the were constitu tionally 522, 532, deficient. Oglesby, State v. 585 .2d N.J. A (1991). comply The instruction did not with this Court’s narrowing construction of that Although factor Ramseur. the conviction jury was overturned due to an erroneous instruc proof defense, tion on the burden of of the diminished-capacity the Court found that aggravating error factor instruction provided independent an basis for the vacation of the sentence. aggravating factor of the sole definition Clearly, an overbroad reliability of questions about the in the case raises substantial Oglesby to death. jury’s decision to sentence (3) v. Zola State example of the Court’s yet another provides case
Zola’s death sen reversed cases. Zola’s questionable treatment of weight grounds that affected was reversed on tence factors, rendering mitigating aggravating and of the treatment suspect. The highly precedent for a death sentence its value as aggravating factors jury that the to inform the trial court failed beyond a reasonable mitigating factors outweigh the must 390-91, .2d 1022. Zola, 112 A N.J. v. doubt. State that the deathworthiness the conclusion That error alone forces decision is deathworthiness Yet the judgment is unreliable. jury that court told the the trial suspect also because 433, 548 unanimously. Id. at found mitigating factors must be firmly the two errors effect of 1022. The combined A.2d untrustworthy. plead Zola that the death verdict establishes rever to life after the sentenced murder and was guilty ed to a life- counting his case as sal, supporting the further case. sentenced
(4) v. Erazo State in the on errors overturned conviction was Although Erazo’s proof to (a shifted the burden instruction guilt phase jury jury instruc and the prove passion/provocation, defendant phase Gerald), in the error comply with tion did not untrustworthy. The especially death sentence makes Erazo’s any evidence” was “devoid of the record found that Court c(4)(c) factor to the aggravating support the submission *148 Erazo had intended was no evidence there jury because killing on his victim. State the act pain beyond above inflict (1991). 137-38, The State Erazo, 594 A.2d v. N.J. alleging The prohibited was from that factor on retrial. unwar- c(4)(c)aggravating almost ranted inclusion of the factor certain- on the deathworthiness of ly jury’s affected the deliberations defendant.
APPENDIX C Analysis Factual Cases Similar to Marshall’s in Did not the Death Which Prosecutors Seek Penalty Impose Did not It Juries Engel v. and State v. Herbert (1) (2) State William Engel brother, Engel Engel, and his Herbert
The cases of William strikingly they The murder commit are similar Marshall’s. committed, ted, contract-killing like the murder Marshall awas recognizes spouse. majority of a defenseless The that there is distinguish culpability Engels little to of the and Marshall. trial, Ante 613 A. 2d at 1095. After a jury Engels prison. sentenced to life terms in v. (3) State Collins eighteen-month-old
Darrell Collins killed his wife and son to lives, policies proceeds obtain the from of insurance on their which had been taken out nine weeks before murders. jury of the murder of his wife and of the convicted Collins c(4)(d) son, alleged capital murder of his but it did not find the (murder value) aggravating present. pecuniary factor to be overwhelming Because the evidence was that he killed for gain, regard jury’s I that there pecuniary determination aggravating judgment factors as a deathworthiness were no judgment. death-eligibility rather than a The case is similar to (the pecuniary court Marshall’s in that there was a motive trial Collins) sentencing it cited that involved motive Moreover, family of defenseless members. Collins’s murder murder, multiple easily was a and therefore could be seen as Report See Final having culpability. enhanced 81 & table *149 (multiple victims is first on list of factors that increase a culpability). defendant’s The murder of the wife was violent and brutal as he slashed her neck and stabbed her neck and breasts; and the evidence showed that the victim fought had during attack, back suggesting she, that unlike Maria Marshall, was aware impending of her death. Collins suffocat- ed his infant son—a defenseless by pressing his head victim— crib, into the mattress of the causing hemorrhages on the child’s head.
(4) State v. Dreher Although John Dreher’s murder conviction has been re- versed, I discuss it because majority and, equally does importantly, because prosecution’s theory of the case was prosecution’s similar to the theory in Marshall’s case. Dreher’s case prosecuted was not capitally. majority assumes that that was prosecutor because the did not believe c(4)(c) aggravating factor, wantonly murder, a vile was present in that there was insufficient evidence to show that Dreher had intended that his pain beyond wife suffer incident to her death. Ante at .2dA at 1094. Yet (as Dreher’s case prosecutor trial) described Marshall’s are similar in terms of both the crime and the defendant. Both Marshall and Dreher alleged were to have killed gain their wives for pecuniary so they could live luxury with their mistresses. Both financially defendants were secure, mature prior adults without criminal records. Neither cooperated authorities, neither, consistent with his innocence, claims of expressed remorse for his crime. Both had indicated they to their lovers that wished their wives were out of their lives at a murder, time some months before the actual indicating long period premeditation and a motive to spouse eliminate the in order to be with another woman. Both could be having understood as involved attempts aborted to kill victims, sought gun as Dreher several months before the arranged oppоrtunity to have his wife and Marshall an
murder nights before the parking at a restaurant lot a few killed extenuating pres- circumstances murder. neither case were *150 justify the defendant’s actions. explain that ent would enhancing culpability is that he enlist- element Dreher’s One Seifrit, mistress, killing. in The help Nance the ed the of his c(4)(e) c(4)(d) aggravating factors reflect the notion that and reprehensible deserving of the death killing profit for is hiring concept the that a penalty. part, In those factors reflect person another in a killer is offensive because it involves the enterprise beyond person the who intends victim to criminal plan more grounded in a concern that the is die. That notion crime, in as partners if others are involved as likely to succeed prod another into action. That element partners will one case, as he had hired present in Marshall’s inasmuch was payment money The person to kill his wife for him. another c(4)(d) Similarly, Dreher was triggered aggravating factor. person plan in his to kill his wife. to involved another said have bring According to him prosecution, to the he asked Seifrit strangling his something sharp process he in the while was scissors, wife; gave pair him said the only after she his in the throat. prosecution, did Dreher stab wife Marshall’s, point one that comparing Dreher’s case with died, was terrified when she stands out is that Dreher’s victim not to have known what was whereas Marshall’s victim seems death, happen her. Before her Gail Dreher was said about to dragged begged for her life as her husband her down to have If, claims, her. as the State the stairs to the basement beat “something sharp,” then she overheard her husband ask impending death. Mar- certainly she was aware of her almost by compari- less appears victim to have suffered much shall’s died suggests The that when Maria Marshall she son. evidence probably dozing seat of the car and was was on the front Dreher, pain of her assailant. Unlike Gail who was unaware immediately period, Maria Marshall died for a considerable
295
32-33,
from two bullet
(noting
wounds.
N.J. at
A.2d
police
that Marshall told
that
asleep
his wife was
but that he
lever);
had
her
pop
asked
the trunk
id. at
(5) Walter Williams majority distinguishes Walter Williams’s from case Mar- jury shall’s did pecuniary because not find a motive and rejected c(4)(d) thus aggravating factor. Ante at A.2d Although majority at 1096. treats that occurrence as first, distinguishing fact, note, I jury would that the did not either, find aggravating factor Marshall’s case so that jury’s hardly failure to find it case distin- Williams guishes however, from importantly, it Marshall’s. More I point would out underlying that our concern motivates our undertaking disparate entire is that treatment of similar *151 by prosecutors by juries disproportion- lead to cases— —can sentencing. ate jury The fact that a treated a similar case differently prove does not that the is case dissimilar. comparison group is included in the
Williams of defendants case, Marshall’s, the; selected as similar because like involved a spousal high murder of a defenseless and levels of victim Report blameworthiness. v. Robert Marshall: A to the State (Marshall Supreme Report). New Jersey Court Williams advanced a jury to trial returned a life verdict. Special The Master culpability concluded that Williams’s was equal Report to 28. Marshall’s. Marshall Williams, police a particularly
Williams’s crime is relevant. record, prior poisoned cyanide officer no his wife with to bigamist (he prevent detection to his as a inherit her estate will). forged rejected aggra- jury pecuniary-motive her The factor, vating order but found Williams had killed in to Marshall, escape for Like detection another crime. Williams victim, plan obtaining long-settled had a to murder the death. Williams his wife’s least five months before cyanide at cyanide to obtain the police a officer position his official as used killing his order a man wife Both cases involved poison. Marshall, prior had no Like Williams with another woman. mature, in his communi- involved record, educated adult was a justify his crime. extenuating circumstances ty, and had no painful death victim, died a Williams’s wife Marshall’s Unlike reflecting significant level of victim- suffering, hours of after ization. D
APPENDIX Sentencing Frequencies Various Capital-Murder
Types Cases (Cases Sharing Fea- Salient Factually Comparable Cases 1. tures) (Principals)
Contract-Murderers of con- group of similar cases consists comparison The first feature, hiring another principals. The salient tract-murder factor, victim, statutory aggravating kill is also a person to equivalent group to a of cases c(4)(e); group this thus that Mar- statutory aggravating factor the same match have small, consisting group is comparison This shall’s had. cases, very similar to Marshall’s. it includes cases four but comparison group are as sentencing frequencies for this death follows: (0/3) (1/4) .00 .25 Excluded: Included: Marshall
Marshall *152 (Agents) Contract-Murderers Marshall, participated in a alleged to have who was Unlike out of dissatisfaction greed out of and contract-murder both gain. solely pecuniary marriage, killers killed his these The death sentencing frequency for comparison group this is as follows:
Marshall (0/5) Excluded: .00 (Both All Principals Agents) Contract-Murderers distinguished We never princi have between contract-murder pals agents contract-murder terms of death-worthiness. Frisco, (1990). State v. Di See N.J. 571 A .2d914 Accordingly, comparison I a group have created that includes death-eligible all participated defendants who contract mur sentencing frequencies ders. The death comparison for this group are as follows: (0/8)
Marshall Excluded: .00 (1/9) Marshall .11 Included: Spousal Murderers Who Did Not Kill in the Heat Pas- sion and Whose Were Victims Defenseless group death-sentencing
This of three consists cases. The frequencies comparison group for this are as follows: (0/2)
Marshall Excluded: .00 (1/8) Marshall .33 Included: Victims, Kidnapped Murderers Robbed or Their Who Motives, Planned Extensively, Pecuniary Their Crimes Had Entrapped and Deceived or Victims Defenseless a group sharing Master created of five cases several kill, premeditation common pecuniary facts: extensive motive, significant deception entrapment, measure or and a victim. These cases did contract kill- defenseless not involve ings, Marshall’s, they robbery unlike but did either involve *153 compari- death-sentencing frequency this
kidnapping. The group is as son follows: (1/5) .20
Marshall Excluded: For Crimes Pecuniary Murderers Who Killed Gain Whose Robbery, Kidnapping Burglary, Not Involve or Did c(4)(d),Mar- Although charged aggravating not factor with group of had a seems to fall murderers who shall within burglary. robbery pecuniary motive did not commit or and who comparison group this are death-sentencing frequencies for The follows: as (0/9) .00
Marshall Excluded: (1/10) Marshall .10 Included: Relatives, Acquaintances, Murderers Who Robbed Friends case, pecuniary of these murders were for
Like Marshall’s all person gain killing of a who trusted and involved the sentencing group is as frequency The for this defendant. death follows: (0/11) .00
Marshall Excluded: Aggravating Mitigating Preponderance Numerical 2. Factors general ap- majority on this includes two variations aggravating mitigating
proach: cases with one
factor and two
factors and
aggravating
cases with one
factor.
I would tend to
agree
majority
comparison
group
that such
has
*154
extremely
applicability given
limited
our repeated admonition
jurors
supposed
qualitative
that
are
quanti-
make
rather than
judgments
tative
concerning
aggravating
mitigating
the
and
Nevertheless,
factors. Ante at
Cases Aggravating Mitigating With One Factor and Two Factors factor, c(4)(e), jury aggravating
Marshall’s found one and two factors, c(5)(f) c(5)(h). mitigating forty-three There are aggravating mitigating other cases that had one factor and two sentencing frequencies group factors. The death for this are as follows: (0/43)
Marshall Excluded: .00 (1/44) Marshall Included: .02 Aggravating Mitigating Cases With Two Factors and Two Factors many
Although group regarded of the cases in this could aggravated Marshall’s, fairly group as more I than consider because, noted, suggests Marshall killed as evidence c(4)(d), aggravating factor pecuniary gain, implicating kill, aggravating implicating factor he hired another to in this c(4)(e). object that the cases doubtless would Marshall his, regarded similar to but aggravated to be as group are too suggesting dispro- group yields a result comparison this even death-sentencing The fre- in Marshall’s sentence. portionality quency group for this is as follows: (2/34) Excluded: .06
Marshall Receiving Likelihood of a Death with a Similar 3. Cases Measure) (Index of Outcomes Sentence index-of-outcomes majority applies also the Master’s groups. The index method constituting comparison method of *155 enough cases on all fours with recognizes may there not be that proportionality a reliable review to conduct the case under group cases gathers method compensate, To review. necessarily not culpability but that are similar terms index factual contexts. Master’s similar in terms of their character- empirical types of the of factual is based on evidence sentencing Using a statisti- explain outcomes. istics that best regression analysis, each factor is technique multiple cal called juries to sentence according tendency to induce weighted to its given is a “score” based on the to death. Each case defendants their arranged in order of present. Cases then are factors (“near neighbors”) are scores, scores and cases with similar group. The index method is comparison form a chosen to group may quite designed generate a of cases that be to quite similar in their overall levels disparate factually but Master, method “it According to the with the index culpability. culpability of different possible determine the relative to that, characteristics on a statisti- on the case defendants based basis, cal explain best which defendants actually received death sentences.” Report, Final supra, at 87. I
Because have concerning reservations the index method for creating comparison groups, I emphasize would tend to straightforward more methods constructing for comparison groups that involve the identification of salient factors. As noted, the Master’s index is multiple regression based on a that identifies what persuade factors tend juries to impose to death and what factors do not. For that sort of multiple regression to any accuracy, work with a substantial juries number of must have returned death verdicts. If there are verdicts, three or four death conducting multiple regression analysis may pointless. The Master addressed problem by mislabeling thirty over life-sentenced cases as death-sentenced Report, cases. supra, Appendix See Final B. so, doing he enough created data to make an analysis feasible, but he also analysis created an may not identify accurately the sway juries factors that system in the that uses the rules the Court has laid Stated simply, down. too few death verdicts issued properly juries may instructed exist anyone to know what factors tend juries to induce such return death verdicts.
Because the majority rely seems in part on the index method forming comparison groups, I review results groups produce those notwithstanding my regarding concerns methodology used to create I them. include two sets of results, using only one statutorily aggravating enumerated factors, mitigating using the other factors that have little relationship obvious to the factors enumerated the statute. *156 Index Method Only Based on Statutorily Derived Factors Using only statutorily enumerated factors to evaluate the sentence, likelihood of a death culpability Marshall falls into (with level “2” being level “1” aggravated the least and level being aggravated cases). “5” the most Twenty-one other cases Report 37. The death-sentencing
fell into level “2”. Marshall frequencies comparison group are as follows: for this (1/20) .05
Marshall Excluded: (2/21) .10 Marshall Included: Statutorily on Derived Factors and Index Method Based Factors Other proposed
Using death-eligible all cases universe using statutorily on enumerated factors the index based both (to factors, culpability “1” other Marshall falls into level levels), ranking he repeat, the lowest of the Master’s five large is too to include in this shares with 177 cases. list opinion, Appendix I do include a list of Marshall’s but sentencing frequencies neighbors.” The death for this “near comparison group are as follows: (1/10) .10
Marshall Excluded: (2/11) .18 Marshall Included: Weisberg’s Model 4. Master, models created the the State
As an alternative to the expert, offers a method fashioned its own Herbert Weis- berg. comparison groups Weisberg’s under Even formulated penalty rarely imposed the death cases criteria reveal that like Marshall’s.
Weisberg’s approach approaches is similar to on the based statutory aggravating Using counting of factors. what intuition,” Weisberg to a form of “educated divided all amounts death-eligible “culpability categories,” with Cat- cases into four culpable. including thought the defendants he most egory *157 According to Weisberg, Marshall fell into Category Catego- 1. ry 1 includes cases the following configurations of statuto- ry aggravating c(4)(a); c(4)(a) (c); factors: c(4)(a), (c), and and (g); c(4)(a) (g); c(4)(b) (d); c(4)(b), and (f), (h); c(4) and (c), and (f), c(4)(d); (g); c(4)(d) and (f); c(4)(e); c(4)(f) (h). and Weisberg Report, supra, at Weisberg 15-16. does not list death-eligible cases trial, that did not result in a but using uses, even the universe thereby he creating a bias in finding favor of a proportionate sentencing, Marshall’s sen- tence appears still disproportionate. The death sentenc- ing frequencies comparison for this group (count- are as follows ing only cases that trials): resulted in penalty
Marshall (3/26) Included: .12 (2/25) Marshall Excluded: .08
APPENDIX E following graphs two indicate the death-sentencing fre- quencies for comparison each group. Death-sentenced cases are shaded in black. Life-sentenced cases that once were death sentenced diagonal cases are shaded with lines. Life-sentenced cases that never were death-sentenced cases are shaded with graphs dots. The plain that, make the fact if even cases in which death sentences were returned and subsequently vacated are cases, counted as death-sentenced Marshall’s sentence still disproportionate. graph expresses
The first death-sentencing percent- in rates ages, the in second number of by looking cases. One can see graphs percentages that mere occasionally can mislead. example, For comparison one group the death-sentencing thirty-three percent rate reaches if case is Marshall’s included in the group; one must graph look at the expresses that death- sentencing rates numbers of cases to understand that Mar- shall’s case is aberrational even in comparison group, group three, the total number of cases is Marshall’s
being (Hence, the one that resulted in a death sentence. when group, per- Marshall’s case excluded from the one hundred reported cases.) cent of the cases are as life-sentenced Sentencing Outcomes Similar Cases Expressed In Number of Cases *159 Codes Groups
Composition Comparison Type of Cases Code (principals) (agents)
A B C Contract-murderers Contract-murderers All contract-murderers Spousal kill in the heat who did not murderers D passion were defenseless and whose victims victims, kidnapped their or Murderers who robbed planned motives, E extensively, pecuniary had their crimes entrapped victims defenseless and deceived or gain pecuniary whose crimes who killed for F Murderers did not kidnapping robbery burglary, or involve relatives, acquaintances, who robbed Murderers G friends Marshall excluded included Marshall Cases for Similar
Sentencing Outcomes Percentages Expressed in Codes Comparison Groups Composition of Type Code of Cases (principals) (agents)
A B Contract-murderers Contract-murderers All contract-murderers C D Spousal passion who did not kill in the heat of murderers defenseless and whose victims were victims, kidnapped their E Murderers who robbed or planned motives, extensively, pecuniary had their crimes entrapped victims defenseless and deceived or *160 pecuniary gain whose crimes F who killed for Murderers did not Involve kidnapping robbery burglary, or relatives, acquaintances, robbed G Murderers who friends Cases with one factors mitigating aggravating two factor and i-< mitigating aggravating and two I Cases with factors Index method based factors two statutorily derived factors J K on statutorily and other derived Index method based on factors Weisberg’s L Model Marshall excluded Marshall included APPENDIX F Comparison Cases Lists appendix I names of the defendants whose this list the group. placed comparison each cases are within following abbreviations: I have coded the cases with the trial; penalty PT: case went to a trial; noPT: decided without case defendant; L: life-sentence defendant; D: death-sentenced majori- treated defendant [ ']: life-sentenced ty a death-sentenced defendant. as Sharing Factually Comparable (Cases Salient Fea- 1. Cases tures) (Principals) Contract-Murderers Death Sentence Life Sentence (PT/L) Marshall, 4. Engel, 1. William Robert (PT/D) (PT/L) Engel, 2. Herbert Brand, 3. Francis (noPT/L) (Agents)
Contract-Murderers Death Sentence Life Sentence _ Melendez, (PT/L) Miquel 1. Rose, (PT/L) Michael 2. (noPT/L) Randy Burroughs, 3. (PT/D/Rev’d)] [DiFrisco, Anthony 4. (PT/D/rev’d/PT/L)] [Clausell, 5. James Principals Agents) (Both All Contract-Murderers Death Sentence Life Sentence Marshall, (PT/L) 9. Robert Engel, William 1. (PT/D) (PT/L) Engel, 2. Herbert (noPT/L) Brand, Francis 3. Melendez, (PT/L) Miquel 4. (noPT/L) Burroughs, Randy 5. (PT/D/rev’d/PT/L) [Rose, Teddy 6. ] (PT/D/Rev’d)] [DiFrisco, Anthony 7. 8. (PT/D/rev’d/PT/L)] [Clausell, James *161 Spousal Kill in Heat of Passion Murderers Did Not Who Were Defenseless' and Whose Victims Life Sentence Death Sentence Marshall, (PT/D) Collins, (PT/L) Darrell 3. Robert 1. Williams, (PT/L) 2. Walter Victims, Robbed or Their Murderers Who Planned Their Crimes and Deceived or Life Kidnapped Extensively, Pecuniary Motives, Had Entrapped Defenseless Victims Death Sentence Sentence Martini, (PT/D) Scales, 1. Terrence 5. John (PT/L) Russo, Mclver, (PT/L) 2. 3. 4. David (noPT/L) Vernon (noPT/L) Thompson, Howard Pecuniary Killed For Gain Crimes Murderers Who Did Not Involve Life Sentence Whose Burglary, Kidnapping Sentence Rose, Burroughs, (noPT/L) (PT/L) Marshall, 10. Robert 1. Michael (PT/D) Randy 2. Melendez, Brand, Engel, Engel, Williams, (PT/L) Miguel 3. (noPT/L) 4. Francis (PT/L) 5. 6. Herbert (PT/L) William (PT/L) 7. Walter (PT/D/rev’d/PT/L) [Clausell, 8. James ] (PT/D/rev’d) [DiFrisco, Anthony 9. ] Acquaintances, Relatives, or Murderers Who Robbed Friends Life Death Sentence Sentence Ferrari, (noPT/L) 1. Salvatore Jefferson, (noPT/L) 2. 3. Richard Lazorisak, Mclver, (PT/L) George (noPT/L) 4. Vernon James, (noPT/L) 5. 6. Marvin Grant, (noPT/L) Michael Sullivan, (noPT/L) Roy 7. Clark, (noPT/L) Reginald 8. 9. Graf, (noPT/L) Clifford Johnson, (PT/L) 10. Nathaniel (PT/L) Neapolitano, Anthony 11. Preponderance Aggravating Mitigating 2. Numerical Factors Aggravating Mitigating Factor and Two Cases With One Factors *162 Life Sentence Death Sentence Jones, 1. Tracy (noPT/L) Marshall, (PT/D) 44. Robert Sullivan, Roy (noPT/L) 2. 3. Dinkins, (noPT/L) Robert 4. Worthington, (noPT/L) Earl Messam, Stevens, Floyd, LaPointe, (noPT/L) 5. 6. Gladstone (noPT/L) Larry 7. (noPT/L) Lamont (noPT/L) 8. 9. Pierre Delvalle, Williams, (noPT/L) Efrain 10. (noPT/L) Gerald 11. Calloway, (noPT/L) Derrick Williams, (PT/L) 12. Walter Anderson, 13. 14. 15. 16. 17. (noPT/L) Antoine Preston, (noPT/L) Johnie Graf, (noPT/L) Clifford Perry, (PT/L) (PT/L) Harold Jones, Jimmie Stamps, Dollard, (PT/L) 18. 19. Aaron (noPT/L) Thomas Norman, (noPT/L) 20. 21. Anthony McNeil, (noPT/L) Keith Turner, (noPT/L) 22. 23. 24. John Clark, (noPT/L) Hashona Montalvo, (noPT/L) Orlando 25. Armstrong, Joseph (noPT/L) Ruano, (noPT/L) 26. Heriberto Keresty, Scales, Hudson, Slaughter, (noPT/L) 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. Walter (PT/L) Terrence (noPT/L) Franklin (PT/L) Rafael Kershaw, (noPT/L) Albert Jacoby-Irwin, (noPT/L) Barbara Deeves, Muscio, (PT/L) William (PT/L) Nicholas Edwards, Eugene (noPT/L) Melendez, Mendez, (PT/L) Miguel (noPT/L) Oscar (Ward Biegenwald, murder) (PT/L)
38. 39. 40. 41. 42. 43. Richard Guagenti, Joseph (PT/L) Dreher, (noPT/L) John (PT/L) Reyes, [Oglesby, [Long, Jose (PT/D/rev’d)] Walter (PT/D/rev’d)] Ronald Mitigating Aggravating Factors and Two Cases with Two
Factors Life Death Sentence 33. Sentence Brown, (noPT/L) Holmes, (noPT/L) Martini, (PT/D) 1. Vincent John (Peniston Gregory Bey, 2. 34. Marko murder) (PT/D/ rev’d/PT/D) (noPT/L) Culley, Melendez, 3. Carl Angel 4. (noPT/L) (noPT/L) Taylor, Wiley 5. 6. Huff, (PT/L) Aaron Cancio, (PT/N) 7. Gustavio Morton, (noPT/L) 8. 9. Adrian Thomas, Tucker, (noPT/L) Christopher (noPT/L) Stanley 10. 11. 12. 13. 14. 15. 16. 17. 18. *163 Merola, McCollum, (noPT/L) Thomas (noPT/L) William Wheeler, (noPT/L) Ronald Jones, (PT/L) Larry (noPT/L) Mujahid, Washington, Corey Rivera, Watkins, Mendez, Rasheed (noPT/L) (PT/L) Rafael (noPT/L) Ricky (PT/L) 19. Incenzio Jalil, (noPT/L) 20. Nelson Barone, (PT/L) 21. 22. 23. 24. 25. 26. Jamie Nieves, (PT/L) Alberto (PT/L) Spraggins, Jerry Reese, (PT/L) John (PT/D/Rev’d/noPT/L) [Zola, [Purnell, [Dixon, Phillip (PT/D/rev’d)] [Biegenwald, James ] (PT/D/rev’d)] Braynard 27. 28. (Olesiewicz Richard murder) (PT/D/rev’d/PT/D/rev’d) [Lodato, [Rose, [Jackson, ]. (PT/D/rev’d)] Benjamin 29. 30. 31. (PT/D/rev’d)] Teddy (PT/D/rev’d)] Kevin [Ramseur, (PT/D/rev’d)] 32. Thomas Receiving 3. Cases with a Similar Likelihood of a Death Sen- Measure) (Index tence of Outcomes Only Statutorily Index Method Based Life Sentence on Derived Factors Death Sentence 20. Weston, (PT/L) Marshall, 1. Elisha Robert Brand, (noPT/L) Carrol, (Peniston Bey, 2. 21. Marko Francis (PT/L) murder) (PT/D/ rev’d/PT/D) 3. 4. John Melendez, (PT/L) Miguel (noPT/L) Mincey, Nieves, Reyes, Spraggins, Jerry 5. Samuel (PT/L) 6. 7. 8. 9. Alberto (PT/L) Jose (PT/L) (noPT/L) Taylor, Leroy Johnson, murder) (PT/L) (Sharp, 10. B. Walter murder) [Johnson, [Hightower, [McDougald, Anthony [McDougald, Anthony (Sharp, (PT/D/rev’d)] 11. 12. 13. 14. 15. 16. 17. 18. Walter A. (PT/D/rev’d)] Jacinto (Bass, murder) (PT/D/rev’d) (Bass. murder) (PT/D/rev’d) W. M. (PT/D/Rev’d/PT/L) 'Savage, Roy ] murder) [Moore, (Moore, (PT/D/rev’d)] M. K. Samuel Samuel 'Moore, (Moore, murder) (PT/D/rev’d)] (Olesiewicz [Biegenwald, Richárd murder) (PT/D/rev’d/PT/D/Rev’d) ] [Zola, (PT/D/rev’d/noPT/L)] 19. James Statutorily Index Method Based on Derived Factors and Other Factors Life Sentence Death Sentence Martini, (PT/D) Brand, (noPT/L) Engel, Muhammed, 1. Francis 10. John Marshall, (PT/D) (PT/L) William 11. Robert 2. 3. Jihad (noPT/L) (PT/L) Anthony 4. Neapolitano, Mendez, (noPT/L) 5. Oscar (Ward Biegenwald, Richard 6. murder) (PT/L) Reese, (PT/L) 7. John *164 (PT/L) Guagenti, Joseph 8. (PT/D/rev’d/noPT/L)] [Zola, 9. James Weisberg’s Model 4. Death Sentence Life Sentence Schiavo, 1. Miguel 24. Dominick Melendez, (PT/L) 2. Biegenwald, Richard (Ward murder) (PT/L) (PT/D) (PT/L) (PT/L) Marshall, 3. Engel, 25. Robert Herbert (PT/D) 4. Engel,William Manfredonia, (PT/L) 5. Michael (Peniston Bey, 26. Marko murder) (PT/D/rev’d/PT/D) Weston, (PT/L) Elisha 6. Ploppert, (PT/L) 7. Charles Booker, (1st Victim) (PT/L) George 8. Johnson, (Sharp, 9. Walter B. murder) (PT/L) [Johnson, [Pennington, (Sharp, murder) (PT/D/rev’d)] Walter A. 10. (PT/D/rev’d)] Frank 11. [DiFrisco, Anthony (PT/D/rev’d)] 12. [Coyle, Bryan (PT/D/rev’d)] 13. 14. (Oslewicz [Biegenwald, Richard murder) (PT/D/rev’d/PT/D/rev’d) ] [Rose, Teddy (PT/D/rev’d/PT/L)] 15. 16. 17. Thomas Ulausell, Erazo, (PT/D/rev’d/PT/L)] James (PT/D/rev’d)] 18. 19. Samuel Hightower, (PT/D/rev’d)] Jacinto McDougald, (Bass, murder) Anthony (PT/D/ W. 20. rev’d) ] McDougald, "Kise, TKoedatich, (Bass, murder) Anthony (PT/D/rev’d) M. ] 21. Raymond (PT/D/rev’d/PT/L)] 22. 23. (PT/D/rev’d/PT/L)] James
Joel D. Rosen respondent cause for Melik, attorneys; Melik, counsel). O’Neill & Arnold M.