New Jersey's Death Penalty Experiment

Other states will not necessarily follow New Jersey's landmark choice to become the first state since 1972 to repeal the death penalty. But other states will follow New Jersey's crime statistics to determine what effect this change has on the state's murder rate.

If that rate declines or stays roughly the same over the next few years, if the "deterrence" argument behind capital punishment takes a factual hit, several states seemed poised to consider abolishing the death penalty. Depending upon how the stats play out, it is possible that, 10 or 20 years from now, capital punishment will exist only in the South and in a few Western pockets but will generally gone from the rest of the American scene.

I'm not necessarily advocating this. I'm just offering a scenario based on recent trends. In the not-so-blue state of Nebraska earlier this year, a vote to repeal the death penalty fell one vote short. In California, Tennessee and North Carolina, legislators are studying the viability of continuing the death penalty. Illinois has had a moratorium on capital punishment since 2000. New York's death penalty statute was declared unconstitutional in 2004.

The Death Penalty Information Center also reports that only five states (Texas, Georgia, Missouri, Utah and Virginia) are considering an expansion of their capital punishment schemes. Some of these measures are uncontroversial -- like making it a capital crime to murder a law enforcement official. Some are likely to be challenged in court.

Ever since the Supreme Court reinstated capital punishment as a constitutional option in 1972, the approach to the death penalty has become more nuanced, contrasting and even regional. I believe this shift will continue -- like the continents drifting apart -- until we have stark differences by region as to what we do with convicted murderers.

Is this good or bad? I have no idea. But I do know that what happens in New Jersey over the next few years -- what happens to the murder rate, I mean -- will have a significant impact on how the debate plays out.

By Andrew Cohen |  December 18, 2007; 7:44 AM ET
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What this is is proof that legislation works. It would be wrong for the courts to intervene upon the states and try to invent and apply a foolish and unfounded constitutional prohibition against the death penalty.

Over time, democracy works.

Posted by: Constitutionalist. | December 18, 2007 12:12 PM

Is deterrence really a valid argument - pro or con - when, statistically, the death penalty is not sufficiently implemented to produce valid results. The prime example this week is that New Jersey has only 8 convicts on Death Row, and hasn't executed anyone in (I believe) over 2 decades. Will any 'changes' in the state's murder rate be truly attributable to it's argued deterrence or lack of same?

In contrast, neighboring Pennsylvania has over 230 Death Row inmates, but executes maybe 2 a decade. What deterrence could that rate be expected to cause, even if the death penalty were factually known to have a deterrent effect?

Let's first place a moratorium on all executions, then find a way to make absolutely certain the death penalty convictee truly and voluntarily committed the crime - which is the only real argument against it - then guarantee their execution to occur in no more than 12 to 18 months, if not sooner. Until something like this actually takes place for a period of at least 8 to 10 years, questions of deterrence are moot.

Posted by: JUDGITO | December 18, 2007 02:03 PM

Actually the last NJ execution was in 1963, 10 years before the Supreme Court overturned existing death penalty laws. New Jersey's new law was passed in 1981, but never applied.

If the death penalty was a deterrent, then Texas would have a lower violent crime rate (that's crimes per 1000 residents) than New Jersey, but it's not so. The states that execute the most people have higher violent crime rates than those that don't.

One could argue that active use of the death penalty results in people having less respect for the value of human life and being more inclined to murder. This may be a fallacious argument, but no more fallacious than the deterrence argument.

Posted by: Alan | December 18, 2007 03:19 PM

I would be more concerned with Habeas than with the Death Penalty.

Posted by: | December 18, 2007 05:10 PM

Sounds like federalism at its finest (well, except for Texas's record) in experimenting with novel ideas and policies, similar to California and Massachussets with health care.

Posted by: William Smith | December 18, 2007 09:16 PM

We don't need to hang around New Jersey for a few years waiting to get shot by the gun-perverts to learn that America's policies are a failure. Compare the murder rate in Bushistan with the murder rate in developed nations.

Let's first place a moratorium on all executions and then find a leader with the character needed to lead America up to the civilized world.

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Posted by: Iriska-dx | December 19, 2007 12:39 AM

This issue is a farce, New Jersey hasn't executed anyone since the Supreme Court's decision, so how can any measurement of deterrent effects be justified? This isn't a question of being a deterrent anyway, killing murderers is merely a way of eliminating the human trash that we've allowed to accumulate.

Posted by: Paul Michaelis | December 19, 2007 04:06 PM

In order for a punishment to be a deterrent to crime, it must associated with the commission of the crime. This association should be temporally and vividly associated. This means that "Justice" should be swift and spectacular. In the United States this rarely, if ever, happens. My guess is that in China, the number of people adulterating food might just have declined as a result of the recent convictions of several food plant owners--they were executed within hours or days of their convictions. In the U.S., it is not uncommon for implementation of the death penalty may take decades. In the U.S. justice is not swift nor is it inevitable.

However, here in the U.S., we do not have a "Justice System" we have a "Legal System" and this is an important distinction. We have now codified and vast number of rules on how trials are to be run and how evidence is to be collected and used at trial. Prosecutors here attempt to convict by law and not seek "Justice". The recent La Cross cases and Mike Nifong are certainly cases in point. Recent vindications of death row inmates due to re-opening investigations and new forensic techniques have shown the weaknesses of our legal system.

I have no qualms about the death penalty. Governments have for centuries have used the death penalty. Whatever one may say, the execution of a convicted murder ensure one thing: he/she will not do it again. However, because of its uneven application in the United States, I think it ought to outlawed.

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