The federal law gap in the NJ death penalty report
In this post, I lamented the lack of sophisticated analysis in the New Jersey Death Penalty Study Commission Report (basics here). And it’s dawned on me that the report fails to mention what might be the strongest argument for a state to abolish the death penalty: the modern broad applicability of the federal death penalty.
The NJ report does not even mention the federal death penalty or the fact that, as noted here and here, the Bush administration has often been willing to pursue federal capital charges in non-death-penalty states. The NJ report could have highlighted that any particularly horrific murders in New Jersey, especially if they could be described as an act or terror or involved harms to children, likely would provide a basis for the federal government to pursue a capital charge in New Jersey’s federal courts.
Some related posts:
UPDATE: I just noticed that here Capital Defense Weekly defends the NJ report as the produce of “a consensus position between very diverse and competing interests that is, understandably, narrow.” And yet, in the span of a 10-paragraph post, Karl Keys contributes more sophisticated insights to the NJ debate than one can find in the roughly 50 pages of findings in the main portion of the NJ report.
My chief concern is not the narrowness of the NJ recommendations, but the failure to explore complicated issues relating to how having (or not having) the death penalty on the books (or an expanded LWOP) might impact charging and plea bargaining practices throughout New Jersey’s criminal justice system. Karl notes that there have been “10,000 homicides in New Jersey since the death penalty has been restored,” but even this important data point does not appear in the NJ report. And, even more importantly, the report never explores whether and how prosecutors may have approached all these homicide prosecutions differently because the death penalty was on the books (or whether their approaches will be different with an expanded LWOP).