Leigh Buchanan Bienen: Works

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Title: The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion
: Leigh B. Bienen, Neil Alan Weiner, Deborah W. Denno, Paul D. Allison, Douglas Lane Mills
Publisher: Rutgers Law Review
Issue: Volume 41, No. 27, pp. 27-342
Description: After Furman v. Georgia held that state statutes that allow for the imposition of the death penalty in an arbitrary and capricious manner violate the Constitution, the states were forced to rewrite their capital punishment statutes. New Jersey adopted a new statute in 1982. Despite the attempt of the New Jersey legislature to comply with the mandate of Furman, application of the statute has resulted in clear and significant discrepancies in the treatment of potentially capital defendants based on the race of the victim, the county of jurisdiction, and the race of the defendant. This article details a large study of all homicide defendants (other than those charged with vehicular manslaughter) where the death occurred after the effective date of the New Jersey statute. To determine whether the imposition of death was unconstitutionally arbitrary, the study examined both legal and extralegal factors that might predict whether the defendant would be sentenced to death. Unlike many previous studies reviewed by the article, which only compared defendants charged with crimes punishable by death, this study looked at the entire pool of potential homicide defendants. By separating case processing into discrete stages, the study shows the enormous role that prosecutorial discretion plays in determining whether a defendant receives a death sentence. While the facts of the case would have allowed the prosecutor to seek the death penalty in 404 cases, only 94 of those cases were brought to capital trial. This system of selecting defendants for capital prosecution has constitutional implications.

This is the story of the first three years of application of the New Jersey capital punishment statute. It is a story which formally begins on August 6, 1982, the effective date of the reenactment of capital punishment in New Jersey. This part of the story ends with the death penalty decisions of the New Jersey Supreme Court decided as of August 16, 1988. This Article describes the operation of the statute during its initial period of application. Shortly after capital punishment was reenacted in New Jersey, the New Jersey Office of the Public Defender began a comprehensive study of all homicide cases in New Jersey in which the homicide occurred after the effective date of the reimposition of capital punishment. The purpose of this Study was to examine the implementation of the new statute, with particular attention to the possibility of discriminatory impact. From the beginning, the research design for this study .incorporated a systems approach to capital case processing at the trial level. Entry into the system occurred when there was a formal charge for a homicide offense. The final decision-making point for this analysis was the imposition of the death sentence at the penalty phase of capital trial. This system is presented graphically in Figures 1 and 2 in the Methodology Appendix (Appendix A). Our focus was on discrimination in the capital case processing system as a whole…




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