The compromise recommendation of abolition has to be understood in the context of New Jersey’s murder sentencing scheme. There are chiefly three degrees of homicide in New Jersey: Murder, Aggravated Manslaughter & Manslaughter. All persons convicted of homicide must serve 85% of their time before they are parole eligible. For a person committing murder the normal range of sentencing is 30 years to life with at least thirty years to be served before parole eligibility. There is no presumptive sentence for murder so a conviction of murder post-trial can readily carry with it a life sentence, which under NJ parole rules equals 62.5 years before parole. Save a very young killer, a defendant going to trial is looking realistically at dying in prison if they lose, however, a defendant who is in middle age or older has little to lose by not going to trial as the parole disqualifier means they are likely to die in prison anyway.
With the practical realities of the noncapital sentencing scheme out of the way, what about capital cases? Like all states with a “Georgia model” death sentencing scheme not all murders qualify for death only a small subset where the presence of a statutory aggravating factor exists. Under the “Georgia model” following conviction for murder a sentencing jury sorts out aggravating and mitigating factors to determine whether a person should be sentenced to death. There has been over 10000 homicides in New Jersey since the death penalty has been restored. Of those there have been 400+ capital prosecutions in New Jersey less than ten people remain on death row with just sixteen capital prosecutions pending (or at least were pending as of 8/06). Put another way, roughly 4% of homicides lead to a capital prosecutions in New Jersey, with less .1% of homicides leading to where the person is currently on death row. There have been no executions in New Jersey.
So what is the compromise? The compromise is the expansion of life without parole, not just to replace the death penalty but to be more broadly applicable to the offense of murder, to the presence of any murder where an aggravating factor exists, regardless of mitigating circumstances. That compromise is succinctly analyzed by the Public Defender Ms. Yvonne Smith Segars in her reservations to the Report:
Under the guise of replacing the death penalty with life without parole, the proposed statutory scheme goes well beyond the Commissions stated objective by inevitably capturing many cases that never would have been prosecuted capitally or resulted in death verdicts. In order to truly replace the death penalty with life without parole, the scheme implemented must result in the imposition of life without parole in roughly the same number of cases in which the death penalty has to this point been imposed. If not, one is not replacing the other.. . .
Under the Commissions recommended procedure, imposition of life without parole is mandatory upon a finding of an aggravating factor, there is no opportunity for the defendant to offer mitigating factors, and there is no discretion on the part of the sentencer.
Needless to say, the number of defendants sentenced to life without parole will be far greater than the number currently being sentenced to death. That has been the experience in other States in which life without parole has been enacted in lieu of the death penalty. If that is the Commissions goal, it should say so rather than making the claim that the goal is merely replacement of the death penalty with life without parole. If the Commissions goal is in reality to replace the death penalty with life without parole, it should recommend a scheme in which the sentencer has the discretion to identify those cases in which life without parole is not appropriate even if an aggravating factor exists.. . .
The reality is that, if the death penalty were simply abolished with no other changes to the homicide statute, life without parole is, for all practical purposes, already on the books. A life sentence in New Jersey carries a period of parole ineligibility of 63.75 years. Even an 18 year old convicted murderer can be incarcerated until age 81 under current law. I recognize, however, that a stated sentence of life without the possibility of parole has some symbolic meaning to many. Life without parole is already mandated in New Jersey for the murder of a police officer and for the murder of a child under 14 during sexual assault. To expand unnecessarily the categories of cases in which discretion is totally removed from the sentencing equation would be a grave mistake.
So how did all the divergent interests get on the same page of abolition? Expanding LWOP. What do they have in common? Not much save a desire to get LWOP instead of death. Why is the Public Defender not wholeheartedly embracing abolition? As discussed in a previous post & in the student note, A Matter of Life and Death: The Effect of Life-Without-Parole Statutes on Capital Punishment, 119 Harvard Law Review 1838 (2006), this is a heavy bitter pill.
The result has been a strange pairing of death penalty abolitionists with pro-incarceration activists and legislators, joining to push life- without-parole statutes through state legislatures. Working together, they have been remarkably successful.. . .Twenty years of experience with life-without-parole statutes shows that although they have only a small effect on reducing executions, they have doubled and tripled the lengths of sentences for offenders who never would have been sentenced to death or even been eligible for the death penalty. Before death penalty abolitionists continue to push for the expansion of life without parole, they should recognize that their crusade has lifelong ramifications for thousands of noncapital prisoners.