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The odds are good that New Jersey will make history by becoming the first jurisdiction to repeal the death penalty in the modern era of capital punishment. That era began 35 years ago, when — after the U.S. Supreme Court, in Furman v. Georgia, 408 U.S. 238 (1972), invalidated all existing death-sentence laws as impermissibly arbitrary — states began to reenact revised capital sentencing statutes. The impetus behind this potentially momentous event is the recently released report of New Jersey’s Death Penalty Study Commission. Twelve out of 13 of its members, a diverse group comprising law enforcement officials and victims’ advocates, among others, endorsed recommendations that the state replace capital punishment with life imprisonment without parole (LWOP) and use any money saved “for benefits and services for survivors of victims of homicide.” They spoke to a fairly welcoming audience: New Governor John S. Corzine and many legislators oppose the penalty. But since the report constitutes a general indictment of legalized death, one hopes that eventually other states more committed to capital punishment (New Jersey has not had an execution in more than four decades) will come to realize the basic moral and practical flaws of the ultimate sanction, and reject it. The commission’s findings Pursuant to the enabling law, the commission studied specific questions as well as “all aspects of the death penalty as currently administered in New Jersey.” These inquiries yielded a number of findings, including the following: No compelling evidence exists that capital punishment deters murder; its costs exceed those of LWOP; there is increasing evidence that it conflicts with evolving standards of decency; its benefits, if any, are outweighed by the risk of “an irreversible mistake”; and LWOP sufficiently serves valid penological ends-including, notably, the interests of victims’ families. These conclusions are amply supported. Much-publicized death row exonerations (now totaling 123) have convincingly shown the danger of executing innocents. Systemic problems of unreliable forensic evidence, mistaken eyewitness identifications, false confessions and police and prosecutorial misconduct ensure that this threat will not disappear. Moreover, the public is showing diminished enthusiasm for capital punishment. Recent Supreme Court decisions holding the death penalty for juveniles and the retarded violative of the Eighth Amendment ( Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002)) relied on the widespread legislative and juror consensus against these practices, which has emerged in recent years. Illinois and New Jersey have instituted a formal moratorium on executions, while considering the overall viability of capital sentencing; litigation challenging lethal injection as cruel and unusual has led to individual stays in eight other states. Further, a May 2006 Gallup poll found that when given LWOP as an alternative to death, respondents preferred it 48% to 47% (5% had no opinion). As a reflection of such sentiment, death sentences have plummeted steeply: from 277 in 1999 to 128 in 2005. The death penalty is also a losing proposition from the economic standpoint, not only in New Jersey but also (as documented in studies) in Florida, Indiana, Kansas, North Carolina and Tennessee. The excess expenses in capital cases stem from such factors as more intensive investigations, longer voir dire, the separate penalty-phase proceeding and heightened appellate and collateral review. Florida spends $51 million more a year on the death penalty than what it would expend in an LWOP regime. Against these negatives, the commission could find no countervailing considerations militating for capital punishment. Indeed, it understated the case against deterrence in its finding that the published studies on the subject “are conflicting and inconclusive.” A 1996 article by professors Michael L. Radelet and Ronald L. Akers in the Journal of Criminal Law and Criminology found that 84% of experts disagreed with the proposition that the death penalty deters murder. Also, contrary to received wisdom, survivors often oppose the death penalty. Some cite the grief flowing from “the never-ending appellate process” (which, nevertheless, serves to safeguard defendants’ rights); others, the view “that responding to one killing with another does not honor [the families'] loved ones.” New Jersey Attorney General Stuart Rabner wrote separately: “[T]he current capital punishment system in New Jersey diverts limited resources, does little to advance the interests of public safety, and subjects the families of homicide victims to protracted emotional grief and frustration.” Omit the reference to New Jersey, and his words could serve as a rallying cry for 21st century abolitionists. Vivian Berger, an NLJ columnist, is professor emerita at Columbia Law School.

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