The Vote is in: Death Penalty Killed 44-36

All that's left is a signature from Governor Corzine and perhaps some shuffling of inmates. In an historic vote yesterday, which I was unable to cover due to the fact that I was in a Boeing 737 headed for Alaska when it occurred, and, to be quite honest, cell phone reception on those things is atrocious, the New Jersey Assembly voted to abolished the death penalty. Corzine has said he will make good on his promise to sign the bill into law "within the next week." After that, the New Jersey Department of Corrections will be tasked with shuffling prisoners around to accommodate the change in policy.

New Jersey is the first state to abolish the death penalty in the modern era of capital punishment; the most significant question now is whether this outright abolishment will turn the tide in the other states locked in a political, moral, and logistical struggle over the ultimate punishment. Most of those state have been covered in this very blog, such as Ohio, Massachusetts, New York, Pennsylvania, and even Kentucky. We're entering into a very new, interesting era with the potential to have an unprecedented historical impact on capital punishment worldwide. It's going to be a fun ride; I'll be watching the fate of the electric chair from my computer chair, and I think you should too.

How do Jerseyites Feel About All of This? Also, a Yale Study

In light of the recent furor in New Jersey over its probable abolishment of capital punishment, someone (i.e. Quinnipiac University) though it would be a good idea to actually poll the residents of the state on how they feel. The results were relatively unsurprising. 53% percent oppose ending capital punishment and 39% support its demise. These numbers are a little more anti-death penalty than the national average, which, according to Gallup, is typically in the 60s. This is not unusual for a relatively liberal Northeast state like New Jersey, but still shows that the lame-duck status of the current legislative session is relevant in protecting Garden State lawmakers from their constituents, to an extent.

Also in the Tri-State Area, a Yale Law School study has concluded that the death penalty in Connecticut is capriciously applied and racially imbalanced. Some highlights, courtesy of Newsday:

Black defendants receive death sentences at three times the rate of white defendants in cases where the victims were white.

Killers of white victims are treated more severely than people who kill minorities, when it comes time to decide the charges.

Minorities who kill whites receive death sentences at higher rates than minorities who kill minorities.

This may affect the ongoing suit filed years ago by nine Connecticut state death row inmates, all minorities who make claims similar to those in the report.

Both Committees and the Senate Down in New Jersey

Earlier today, the New Jersey state Legislature's Law and Public Safety Committee, the last of two committees I mentioned in the way of passing a law to repeal the New Jersey death penalty, approved the legislation. Even more importantly, the New Jersey Senate voted 21-16 to repeal New Jersey's capital punishment statues. The Senate was considered the more difficult of the two houses for the legislation to pass through; the NJ State Assembly votes next week, where Democrats hold sway 50-30. After its likely passage there, it will receive an even more likely signature from death penalty opponent Governor Corzine.

The Democrats have been the primary supporters of the legislation, but four Republican Senators crossed party lines in voting for it earlier today. Three of them are either retiring or defeated and, as a result, not returning to the Senate next term, freeing them from the possibility of feeling their pro-death penalty constituents' wrath. Some criticized the fact that the voting and debating on this issue took place in a lame-duck session, saying that it is underhanded to decide on such serious issues during this period, which some see as less than completely serious.

In any case, New Jersey has now set itself on a course to almost certainly abolish capital punishment within the week. It will be the first state to do so in the modern era, and indicates an unprecedented initiative by a legislative body (almost all previous restrictions of the death penalty have come from executive or judicial action). The legislative body is generally considered more a "body of the people" than the executive or judicial, so action by it against capital punishment may indicate more of a shift in attitudes among the hoi polloi than among the elites that comprise the upper two branches.

One Committee Down, One to Go in the Garden State

NJ Update: The Senate Budget and Appropriations Committee, one of the two committees I mentioned earlier that the bill to repeal New Jersey's death penalty needs to pass, has voted 8 to 4 in favor of the bill. Now one more committee, the Legislature's Assembly Law and Public Safety Committee, and then a senate- and legislature-wide votes stand in the way of this historic repeal. Lawmakers are predicting it will pas in both before receiving a rubber-stamp approval from Governor Corzine.

New Jersey's drive to abolish the death penalty is the most impactful happening in capital punishment legislation right now. Its implications are huge, as a rollback of the death penalty would be the first statewide abolishment in the modern era and could set off a legislative wave, conceivably leading to similar examinations and repeals in every state in the Union (most immediately, however, in the Northeast; it may take awhile to spread through the South and finally to Texas). It is impossible to underestimate the importance of this abolishment on the future of capital punishment in the United States.

The progress of this issue has long mirrored the progress of this blog, generating more posts and updates than any other issue. The consummation of this blog had been tentatively scheduled for the 12th of December, and the final vote on this issue is tentatively scheduled for the 13th. I have decided that the vote, which will likely represent an historic milestone in American capital punishment policy and attitudes, possibly the day the tide turned, will also signal the end of this blog. It's been illuminating, and I feel that the vote in New Jersey will signal both a fitting note to leave on and exciting new era in capital punishment policy. A new era, for new blogs.

NJ Gets Rolling

A quick update on the previous post about New Jersey rolling back the death penalty: the NJ state legislature seems like it's finally getting the ball rolling on the proposal to eliminate capital punishment in the state. There are two committees that stand in the way of an assembly- and Senate-wide vote on the bill, The Assembly Law and Public Safety Committee and a Senate budget panel. These committees will have both passed judgment by Thursday, and if the verdict is favorable, we will see a vote by the Assembly on December 13th, as well as Senate action around that time.

Blame Canada

A Canadian citizen on death row in Montana is appealing to his country's government to help him avoid execution. Ronald Allen Smith was convicted of two murders in 1983 and has been on Montana's death row (population: 2) ever since. He recently filed a suit with Canada's Federal Court which argues that the Canadian government's decision not to fight harder for a commutation of his sentence is wrong, even illegal. Canada has outlawed the death penalty and has called Montanan officials and requested a commutation of Smith's sentence before, to no avail. This case raises interesting moral and international implications. Once again, the United States' view on capital punishment is being contrasted with the world's wider consensus through a high-stakes international and, in this case, judicial showdown.

A Swing State in Flux

There are signs that the debate over the death penalty in Ohio is intensifying, from the American Bar Association report I mentioned in my October 15th post to an article questioning Ohio's application of the death penalty in the Akron Beacon Journal, printed yesterday. Now, Ohio clergy are gathering signatures for a letter to Democratic Ohio Governor Ted Strickland which condemns capital punishment in Ohio. The current situation is particularly politically interesting as it represents a convergence of opinion between the prominent religious factor in middle-American, swing state Ohio, which was given a large amount of credit in determining the 2004 Presidential Election, and the more liberal, democratic portions of the state. Both of these groups are opposed to the death penalty, and a "coalition" (I use the term loosely, informally, and only with respect to their views on capital punishment) like this in such a crucial electoral state could have very interesting ramifications on the upcoming 2008 Presidential Election.

The Big Report: A Critical Look at What Everyone's Talking About

If you've been following world of capital punishment at all in the past few days, you already know what this post is about. The recent blizzard of articles in the US news media regarding some kind of revolutionary report (actually several studies) which examines the death penalty through the wonderfully empirical lens of economics has appeared with a force that's been shocking; I no longer have to search for articles on capital punishment lately. This whirlwind we've seen in the past three days was touched off by a November 17th front page article in the New York Times which asks Does the Death Penalty Save Lives? A New Debate. The article, and its many, many contemporaries (most of them re-reporting exactly what the Times did, without a shred of additional analysis) are being said (by themselves) to have precipitated the first serious reexamination of the death penalty's deterrent effect "for the first time in a generation" (New York Times).

If one reads the articles and their sometimes hysterical, sometimes jubilant quotes about this report which is, essentially, on the economics of murder, it seems as though the death penalty is of the most effective policemen in the country, "preventing 3 to 18 murders" for every inmate executed.

However, further examination and perhaps just a shred of critical thinking reveal fundamental flaws in the conclusions drawn by the studies and espoused by their media entourage (an entourage eager to sell papers to a public which is equally eager to supplement its 70% support for the death penalty with some favorable articles). Step one is to actually read one of the reports yourself - it's really not that long (the actual text is just over 20 double-spaced pages, followed by about 15 pages of pretty charts). Next, take a course in elementary statistics, and pay particular attention to the lectures on sampling error and significance of standard deviations from the mean. Essentially, the data to construct a coherent, unimpeachable correlation and therefore argument are not present. As the Times article notes:

The death penalty “is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors,” John J. Donohue III, a law professor at Yale with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote in the Stanford Law Review in 2005.

Next, and perhaps most obviously, is the fact that the other facets of the death penalty are utterly unaffected by these studies: the issues of morality, of cost, of the message sent, are still just as pressing as they were last week. As a letter written to the New York Times the day after the piece ran says:

If the death penalty deterred killers, we would be able to find at least one, in a state without the death penalty, who expected to be caught and imprisoned for life but committed murder anyway. No rational person would make that exchange.

Economists will keep debating the numbers, but they should support public policy that sends clear, rational messages. Here’s one: Killing people is wrong — whether they’re walking in a dark alley or strapped to a gurney.

Clearly, the moral and emotional issues are undiminished. These latest studies are interesting, and will serve to intensify the debate over capital punishment in the coming weeks and months. As we move forward with these new opinions, it's important to exercise discretion and critical analysis of how these numbers actually affect the debate.

Quick Update on U.N. Death Penalty Moratorium Proposal

The United Nations anti-death penalty proposal took a step forward as the UN's commission on human rights passed the proposal. General Assembly-wide support for the proposal has also increased to "99 countries, compared to 52 against and 33 abstentions."

Death Penalty Faces Probable Rollbacks Everywhere from New Jersey to the U.N.

The New Jersey Legislature has known it's been coming since January, when a special state commission on the death penalty found that the death penalty was "a more expensive sentence than life in prison and didn't deter murder" (AP Report). The abolition of the death penalty in New Jersey is finally gaining serious traction, with most political analysts predicting that the New Jersey Legislature will take advantage of the current "lame duck" period, in which legislators have maximum protection from their constituents' votes (most legislators won't have to face voters again for 2-4 years), to enact the potentially unpopular abolition of the death penalty. There is little doubt that the bill will be signed into law by Governor John Corzine, who is anti-death penalty as well as anti-seatbelt. New Jersey would be the first state to abolish the death penalty in the modern, i.e. post-Furman v. Georgia, era.

Moving to a broader stage, the United Nations is set to consider a resolution suspending the death penalty worldwide. The resolution, which will likely be voted on next week, has the pre-vote support from little over 40% of the general assembly (81 of 192 nations). It is likely to pick up more states during the actual vote, as 130 countries have banned the death penalty in their own nations. While U.N. resolutions have no binding legal weight, the passage of this resolution would further illuminate the contrast between the 25 or so nations that still regularly execute their citizens and the rest of the world's consensus, possibly increasing the mounting international and domestic pressure to eliminate capital punishment worldwide.

Massachusetts Lawmakers Nix Death Penalty

By a 110-46 margin, the Massachusetts State House voted down a bill to conservatively reinstate the death penalty in the Bay State. The bill would have called for the death penalty only "in the most heinous cases where there is no doubt of guilt." Previous efforts by Massachusetts' conservative Governor and presidential candidate Mitt Romney to reinstate capital punishment in the state have met similar fates in the State House. This firm rejection of the death penalty represents both the general liberality of Massachusetts and the current prevailing sentiment in the state.

Inadequate Advice from Counsel Gets Man off Death Row

Earlier today the Supreme Court announced that it would take on the case of Idaho v. Hoffman. The case has to do with the constitutional guarantee of competent legal counsel for the accused. Max Hoffman was on trial for the murder of a federal informant 18 years ago when his lawyer advised him to decline a plea bargain offer of life in prison and continue with the trial. Hoffman ended up sentenced to the death penalty, and the lawyer with an egg on his face. I know which I'd prefer; eggs exfoliate. A federal appeals court ruled in July 2006 that the advice of Hoffman's lawyer was so poor that it was constitutionally unacceptable, and essentially informed Idaho that it could either give Hoffman his original plea bargain or let him go. The Supremes will hear the case and primarily decide on (a) the standards for effective and ineffective counsel, defined in the sixth amendment, and (b) the fate of Hoffman.

New York Court of Appeals Continues to Practically Prohibit Death Penalty

(I use the adverb "practically" in the proper sense here; it is meant to mean "in all practicality," not "almost" or "basically." The American Heritage Dictionary provides some illuminating commentary on this:

The word [practically] has an extended meaning of “for all practical purposes,” as in After the accident, the car was practically undrivable. That is, the car can still be driven; it is just no longer practical to do so. Language critics sometimes object when the notion of practicality is stripped from this word in its further extension to mean “all but, nearly,” as in He had practically finished his meal when I arrived. (The American Heritage® Dictionary of the English Language, Fourth Edition Copyright © 2007, 2000 by Houghton Mifflin Company.)

In sum, those who strip the notion of practicality from the word practically make the word practically practically useless and constitute strong arguments for linguistic-related capital punishment.)

New York's highest court yesterday tightened a loophole in New York's death penalty laws that would possibly allow for death by lethal injection. In 2002 the jury in People of New York v. Taylor unanimously convicted John Taylor of 3 shooting deaths in a Queens restaurant in 2000. During the 2002 trial, the judge sentenced Taylor to execution, but also made "coercive" remarks to the jury during jury instruction, telling them that "if they didn't agree unanimously on the death penalty or life in prison without parole, he could give Taylor a sentence that would allow him to be eligible for parole in 20 or 25 years," Newsday reports. The New York court ruled today that this constituted coercion of the jury and "nullified the capital punishment verdict."

Beyond the narrow legal argument of whether or not the jury was technically coerced into making Taylor New York's only Death Row inmate, there were more complex issues at stake. The New York Civil Liberties Union and various other civil rights groups filed an amicus curiae brief arguing that the subjective nature of the jury's sentencing inevitably contained racial bias. It seems almost impossible for a high-profile capital punishment-related issue to pass without serious arguments regarding racial bias surrounding and influencing the case. Not only is this auxiliary issue an emotionally impactful strike at the death penalty, it is supported by considerable empirical evidence regarding the racial equity of the application of the death penalty. Seeing the issue of race rear its head in yet another important case merely reinforces the depth of unanswered questions about both the fundamental nature of the death penalty and its application.

Two Separate ABA Studies Find Inequity and Inaccuracy in Death Penalty

Studies on the application of the death penalty by the American Bar Association in Pennsylvania and Ohio have both returned a negative verdict on the accuracy, effectiveness, and racial equity of the death penalty in those states. In Pennsylvania, only 7 of the 93 standards put forth by the ABA for the fair and effective execution of executions were met. Furthermore, "'an astonishing 98.6 percent' of jurors failed to understand at least some of their instructions." The Ohio report went further than its Pennsylvania counterpart, suggest a complete moratorium on executions in the state due to serious, fundamental flaws in the system. Just 4 of 93 ABA's standards were met by the Ohio system.

Both studies also found serious racial inequity in the application of capital punishment in their respective states. The Pennsylvania report flatly stated that blacks were sentenced to death more frequently than whites, and the Ohio report said that the application of the death penalty was "prone to racial and geographic imbalances."

World Day Against the (still popular) Death Penalty Observed

As the 5th annual World Day Against the Death Penalty was observed this week (October 10th), a Gallup poll showed little change in the attitudes of Americans towards capital punishment, with 69% of Americans supporting it. In contrast, in the European Union, 26 of 27 members states (Poland objected) condemned capital punishment across the globe, criticizing the argument that it deters crime and arguing that it makes terrorism harder to fight by attracting martyrs.

Also on October 10th, the Supreme heard 90 minutes of oral arguments in Medellin v. Texas. Mr. Medellin was convicted of murder in Texas and sentenced to death. However, as a Mexican citizen, Medellin argued that "the state violated his rights as a foreign national to consular access under the Vienna Convention." The International Court of Justice actually ruled in his favor, but the lower Texas courts did not. While the Court's ruling in this case is going to pertain more to Presidential power with respect to the Judiciary (the Bush administration filed a controversial brief in the case), this is yet another case pertaining to capital punishment in the Court's very full docket.

Supreme Court's Pending Decision has Wide Ripple

The Supreme Court has agreed to hear a case questioning the humanity of lethal injection, which is used by 37 of 38 states to carry out executions. The suit was brought by two Kentucky death row inmates, who are arguing that the process of lethal injection causes severe pain, and therefore violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Litigation of this sort has already affected current capital punishment proceedings in nine states, and this specific hearing has led to both Oklahoma’s attorney general calling for a delay to executions in his state and a likely, if temporary, slowdown in the rate of Texas’ executions. It is unlikely that this ruling will affect the constitutionality of capital punishment in general, as it is likely to focus the very specific question of how painful and human the drugs used to kill the inmate are not on the humanity of taking a life in general.

Ahmadinejad Draws Parallels Between U.S. and Iranian Capital Punishment

Iranian President Mahmoud Ahmadinejad’s much-anticipated speech at Columbia University touched on the death penalty in a way that may have been slightly embarrassing for some capital punishment supporters. A little over halfway through his controversial speech the moderator asked Ahmadinejad a question about his country’s human rights record, including its policy of “execution on Iranian citizens who are homosexuals.” After addressing the other parts of the question, Ahmadinejad asked how the United States would deal with illicit drug traffickers and other criminals and then finished with a pointed “Don't you have capital punishment in the United States? You do, too,” which elicited applause from the sellout crowd. Ahmadinejad continued, sounding less like one of the most reviled leaders this century and more like an ambitious American politician trying to sound tough on crime:

In Iran, too, there's capital punishment for illicit drug traffickers, for people who violated the rights of people. If somebody takes up a gun, goes into a house, kills a group of people there, and then tries to take ransom, how would you confront them in Iran -- or in the United States? Would you reward them? […]We have laws. People who violate the public rights of the people by using guns, killing people, creating insecurity, sells drugs, distribute drugs at a high level are sentenced to execution in Iran.

Ultimately, Ahmadinejad’s remarks on the death penalty were overshadowed by his typically incendiary remarks on Israel, the holocaust, and the non-existence (in his opinion) of homosexuals in Iran. However, the parallels drawn by a man who is considered by many to be the absolute epitome of radicalism, barbarism, and intolerance between his country and ours with respect to capital punishment were still striking when examined with a more objective eye.

Washington Post transcript of event.