Title: The Reimposition of Capital Punishment in New Jersey: Felony Murder Cases
Author: Leigh B. Bienen, Neil Alan Weiner, Paul D. Allison, Douglas Lane Mills
Publisher: Albany Law Review
Issue: Volume 54, Issue: 3/4, pp. 709-817
Description: This article reports research findings from the analysis of the nature and processing of felony murder cases in New Jersey after August 6, 1982, the effective date of the capital punishment statute. The cases were a subset of the database of 703 homicide cases that were reported and analyzed in an earlier study. Data were collected on more than 100 variables pertinent to the defendant and victim, the circumstances of the offense, and the procedural history of the case.
In 1982 the New Jersey State Legislature reinstated capital punishment,’ a decade after all state death sentences were in effect declared unconstitutional by the United States Supreme Court in Furman v. Georgia and almost two decades after the last execution in New Jersey.’ Shortly after the 1982 statute went into effect, the New Jersey Department of the Public Advocate, a state agency that includes the state-wide Office of the Public Defender, began a study of all New Jersey homicide cases in which the homicide had taken place after August 6, 1982, the effective date of the capital punishment statute. After a final judgment was entered at the trial stage, interviews were conducted with defense attorneys, including private counsel, public defenders, and pool attorneys. Data were collected on more than 100 variables relating to the defendant and the victim, the 4 circumstances of the offense, and the procedural history of the case. This Article reports research findings from the analysis of felony murder cases, a subset of the database of 703 homicide cases that were reported and analyzed in an earlier study.
The New Jersey Supreme Court has played a unique role in the structuring of this research. Reports from this study were submitted to the New Jersey Supreme Court as they became available, and the court cited this research in its first opinion interpreting the New Jersey capital punishment statute. In the summer of 1988 the New Jersey Supreme Court appointed Professor David Baldus as a Special Master for the purposes of conducting proportionality review. The empirical research conducted by the Proportionality Review Project then incorporated data from the Public Defender Homicide Study. As the analysis in this Article indicates, proportionality review is especially important in felony murder cases, where there is great latitude in the selection of cases for capital prosecution.
Not all New Jersey murders are eligible for capital prosecution. Only eligible are those in which there is both a factual basis for one or more of the eight enumerated statutory aggravating factors and the defendant by his own conduct with specific intent to kills either purposely or knowingly committed the homicidal act or paid another to do so. Under the New Jersey capital punishment scheme the individual county prosecutor in each of the twenty-one separate county jurisdictions designates which cases will be subject to capital prosecution through a procedure called the serving of a notice of factors. The notice of factors informs the defendant and the court that the prosecutor intends to allege at the penalty phase proceeding that there is a factual basis for one or more of the statutorily designated aggravating factors. As of February 25, 1991, a total of thirty-seven death sentences had been imposed since reenactment in 1982. Of those thirty-seven death sentences, twenty-seven have been reversed by the New Jersey Supreme Court. When the New Jersey Supreme Court upheld the death sentence of Robert 0. Marshall on January 24, 1991, it was the first death sentence to be upheld on direct appeal since reenactment.
Under the reenacted New Jersey statute and the proposed New York bill felony murder cases are an important subset of all potentially capital cases. The proposed New York statute includes a felony aggravating factor that is virtually identical to the felony aggravating factor analyzed in this Article. The breadth and inclusiveness of the proposed New York felony aggravating factor would allow prosecutors the broad discretion in the selection of capital cases that is documented in this Article. If the proposed New York statute were to be enacted there would be many more potentially capital cases under the felony aggravating factor than could realistically be prosecuted as capital cases. Prosecutors would then be in the position of selecting among cases for capital prosecution on arguably arbitrary grounds that would differ widely from trial jurisdiction to trial jurisdiction…