Notes by Ted Goertzel:

Jack Callahan - Ed Chair, New Jerseyans for a Death Penalty Moratorium -  Manypeople feel ambivalent because they think we need it to deter repeat murders.  A study of costs shows that it costs 5 times as much to impose the death penalty than to imprison someone for life.  The death penalty is mo more effective in deterrming murders.  Increasing skepticism about the fairness of how it is implemented.  Innocents are executed.  Cited the Bible - Jesus is our ethical guide.  A culture of death is encouraged by the death penalty.  Restorative Justice focuses on repairing the harm caused by crime.  Not a rational response, life without parole is better.

Former Congressman Richard Zimmer, favors death penalty as an appropriate punishment in certain rare cases for the worst sort of murders.  This is the only way the public can repress its ultimate abhorrence of the worst murders.  In fact, there has been no one executed in NJ since the 1982 reenactment of the death penalty.  It has not been implemented.  We have too much delay which breeds disrespect for the law.  The moratorium in Illinois was justified because of the problems in implementing the death penalty in Illinois.  Cost should nto enter into the calculation.  Retributive vs. Restorative Justice - restorative justice gives more weight to the victim.  Many victims have favored death penalty.  Racial disparities have beenquestioned in many elaborate and expensive statistical studies which have not reached a firm conclusion.   We should abolish the "proportionality" phase of the trial.  Hung juries with one dissenter have led to no death penalty being assessed, this really reflects the moral convictions of the juror.  The call for a moratorium is phony since the advocates are really for repeal.  A moratorium would never be rescinded.

Former Chief Judge John Gibbons - Against DP on moral grounds, ten commandments, .  No circumstance in which state sponsored killing is justified.  Not a deterrent, except that a dead man can't kill.  There are serious defects in the death machienry inthe US.  -  refers to US, not NJ data - High reveral rate of cases.  Charging decisions of prosecutors are unequal.  More money spent on appeals, e.g., by advocacy groups, than in defense at the trials.   The death machine is in total disarray.

Lorry Post - Ex Dir of New Jerseyans for a Moratorium - His daughter was murdered and got only 20 years, then was to be let out after 6.   Racially unequal.  Inconsistency between states.  The death machinery must be perfect to justify taking life.  Age cutoffs are arbitrary, some lawyers are better than others.  He has a client who is innocent but can't get a DNA test because he is not on Death Row.

Chris Fitter of Amnesty International - executions reinforces a culture of death, deepens our fixation on violence.  We are like murderers, insisting that killing is the answer.  It is primitive barbarism.  Also:  it is done in cruel ways, people's eyes pop out, they are fried, depends on race and income, who can afford a good lawyer - the race of the victim is correlated with imposition of the death penalty.  It is Old Testament morality rather than New Testament.   He had a list of seven arguments against the death penalty but I can't list them all:  inherent barbarism, errors will be made, racial bias, economic bias, cruel method of administering death.....

Michael Duquense (phonetic spelling) Camden County Prosecutor's Office - described how they make decision in Camden County on which cases to prosecute as capital crimes.  Depoends on aggravating and mitigating factors, does not consider demographic or financial factors.  He thinks it is done fairly in NJ.

My opinions:   The presentations were repetitive and the balance between pro and anti speakers was uneven - twice as many opposed.  I objected to the use of what I consider phony or ingenuous arguments by the opponents, ones that are not their real reason, e.g, the cost, the racial and economic disparities, the fact that electrocution is sometimes cruelly done.  They would oppose it anyway even if these arguments were met.  However, in a political dispute one can put together a coalition based onk people with different motivations but the same policy preference.  I thought Zimmer was the most impressive because he gave his real reasons for his belief, that it is needed to express ultimate moral outrage, without resorting to manipulative arguments.  I doubt that many people's minds were changed or that the attempts .   A number of people cited statistics and studies, others were highly skeptical of research, asserting that one could get a study to argue whatever point one wanted.  There was general agreement that research did not show the DP deterred murder, but I think this is largely a red herring in that the people using the argument would oppose the DP even if it did.

The Forum was announced as focusing on issues of Restorative Justice, but the groups involved in it are focusing on a campaign for a Moratorium which has been triggered by the recent moratorium in Illinois.  Restorative Justice focuses on the damage to relationships, which is a bit hard to apply in cases of homicide - it means taking the family of the victims into account.  The moratorium was a result of problems in Illinois that don't apply very well in New Jersey where we have not really had any executions since it was restored by the US Supreme court in the 1980s.

Notes by Kathy Spallone:

The program was mostly excellent and well attended by young law students.
The panel was as listed with the addition of a Camden Co. prosecutor who
favored executions.  Zimmer also favored executions, and the rest of the
panel opposed.  All white men on the panel. I suggested to Jack later that
in view of the large number of women law students, it would be well to have
a more diverse panel.
Jack led off the presentation with points from his paper on reasons to
support a moratorium--also given as a handout [and available via
www.njmoratorium.org ].
The first factor considered
was the $2 to $4 million higher cost to carry out the death penalty than for
a life sentence.  In post meeting discussion, Ted Goertzel, a teacher at
Rutgers and a member of Medford MM, objected that cost shouldn't be a
consideration.  But I think that if legislators can use the cost factor to
save face and not appear "soft on crime", giving them any excuse to support
abolition or moratorium, then go for it.  Jack also went into history of the
ABA decision,
Governor Ryan, suggested the students study the dissents of Justice Long,
and made the point that there is no evidence that execution saves lives.  He
also tried to disabuse the perception that you can't win an election if you
oppose the dp.
Zimmer, who is a friend of the Kankas, supports execution.  He claims it is
torture for victim's families to have to wait for an execution.  He made the
point that there is no doubt of the guilt of the 16 on NJs  death row and
that NJ cannot be compared to other states because the public defenders are
good quality and money is generally no object for the defense.  [My latest
letter from my death row correspondent, Mandingo, in Florida complained that
his hopes that
his new lawyer would be an improvement are dwindling as his lawyer fell
asleep recently in court.  These abuses don't seem to happen in NJ
fortunately.]  Zimmer thought Martini was "gaming the system" when we know
that he had horrible health and dental problems, didn't really want to live,
and may have been responding to the love shown by Sister Gnam and some of
our letters in his change.  Zimmer said the proportionality review was
convoluted with
racial analysis a "huge morass" with great expense and not much result.
When he mentioned the recommendations of his panel to speed up dp, he said
they recommended that if there was a hung jury in the penalty phase, there
would be a retrial of the penalty phase as the alternative would be the 30
year minimum.  Zimmer tried to dismiss the need for a moratorium, saying
there hadn't been any executions in NJ lately.  I accidentally clapped for
Zimmer since I was writing a note to myself to talk to Jack about
diversification of panels, and wasn't paying attention.
John Gibbons, the 20 yr. chief judge of US court of appeals, now law
partner, stated, " No one can say with any degree of confidence that an
actually innocent ..has not gone to their death.  No capital sentencing
scheme requires finding that the person would be likely of killing again.
Over 22 years at least 68% of all capital verdicts reviewed were overturned
[note--not same as proven innocent] whereas fewer than 15% of noncapital
cases were overturned, and noncapital cases are generally not even appealed.
Of 300,000 homicides, only a very small percentage yield capital
convictions.  Even in Texas and Virginia there are large gaps in sentencing
depending on the county.
Gibbons, opposing Zimmer, said propotionality review is a vital element
because the process is media driven.[I had always found it repugnant to
assign formulas to determining death penalty, but Gibbons I think is making
the point that this tedious process at least slows things down.]  The media
drive to hastiness causes failure to consider evidence or mitigation.  Rich
people are rarely charged and rarely sentenced [to death].  NAACP defense
fund brings resources into the appellate process (but not initial process?).
Gibbons spoke of a perversely inverted system in which negligible expenses
are given to defense and investigation of the initial case versus much spent
on appeals.  Gibbons spoke of his granddaughter Anna's awakening his
conscience by asking wasn't all killing wrong.
Lorry:  NJ death penalty, far from being theoretical, could happen within
two years, with the Marshall case a possibility. Justices Blackman and
Powell were convinced the death penalty just would not work.  Lorry spoke of
his daughter's murder by her husband in Georgia.  Her husband could have
been out in 6 years! which was entended to 20 after a petition campaign.
Then the Posts saw the Medino case.  Was someone else's life of more value
than his daughter's? They saw the unfairness of the system.  The better
lawyer usually wins.  Lorry himself had been a lawyer who even represented
the FOP.  NJ has in fact convicted innocent men which fortunately the NJ
supreme court overturned.  As a side issue, if someone is not on death row,
they have trouble getting a DNA test to try to clear them.
Dr. Chris Fitter, a Rutgers English Prof. and Amnesty International member,
went into gory and graphic detail about the electrocution process.  34
mentally retarded people have been executed since ?1983.  A survey shows
homicide goes up after executions.  Killers of whites are several times more
likely to receive the dp than killers of blacks.  There have been "only" 38
executions for killing persons of color.
Michael ??Copaines, a Camden Co. prosecutor, explained the stringent
guidelines which NJ sets up for determining eligibility for the death
sentence.  Race, sex, class, and the economic resources of the prosecutor's
office supposedly are not considered.  The murder must be intentional, and
there must be aggravating factors.  Any mitigating factors must be revealed
to the defense.  Crimes of passion are not eligible.  He gave some lame
reasons to have the death penalty, I think he said to express  societies
outrage with the most extreme crimes, and that crimes went on a scale of
least to worst, so punishment should also, but my attention faded.
That was the end of the speeches, followed by question and answer.  The
title of the lecture had been "The Death Penalty: Pros and
Cons--Implications for Restorative Justice".  I didn't think that enough had
been said explicating the concept of restorative justice, although that was
probably due to time constraints.  Anyone expecting to hear a coherent
argument for the pro side probably went away disappointed.  As Ted Goertzel
pointed out, the panel was weighted anti-, but I imagine it is difficult to
find good speakers to make a case for the death penalty, which is fairly
indefensible except perhaps for a nomadic society.
A new petition, in support of Assemblyman Steele's moratorium bill, was on
the front table, but was not circulated.  Paul Williams circulated the
Unplug Salem petition, so I don't know why that wasn't. Should that have
been my job?  Other handouts were on "For whom the bells toll", poll finding
growing opposition,
the schedule for the May NJ moratorium week.
Question and Answers:
-Paul Williams, as an agnostic, had a problem with the use of Old and New
Testament arguments (which I didn't record, but some speakers used) and
wanted us to look at the moral implications outside of a religious context.
I did not speak, but thought that comparing the "bad" Old Testament with the
"good" New Testament could have been offensive to some of the law students
of Jewish background.
-Someone questioned the prosecutor as to whether he was comfortable to have
such discretion, and learned that he is.
-Someone questioned the racial composition of NJ death row, and learned it
is 8 white, 6 black and that the racial issue is continuing to be studied.
[This doesn't add to 16--some figure is off.]
-A black woman asked re the prosecutor guidelines how would you know whether
the others were or were not considering racial aspects, and I don't think
she received a satisfactory response.
-Jack commented that many who had been found innocent [nationally] had
already been on death row for 7 years, and would have been executed if the
process were speeded up.
-Someone Paul knows stated that corporate polluters whose acts kill many
more people than ordinary murderers should receive the death penalty.  He
said he offered this is the same spirit as the English should eat Irish
babies.  [He was referring to Jonathan Swift's "A Modest Proposal", but I am
not sure everyone grasped that he was being satirical.]  After a pause,
Gibbons told a story of England centuries ago in which capital punishment
was for all offenses, sheep stealing, etc., and those guilty were eligible
to be hung, drawn and quartered.  This was to terrorize the lower classes,
but "only" 3% or fewer of those sentences were carried out.  It was ended
because of the great expense involved.
-Dr. Ted Goertzel asked Dr. Chris Fitter, who had dwelt on the prolonged
agony of some executions, how fast an execution would have to be to be OK.
I didn't hear the response because someone I know, a wonderful activist in
other respects, who is soon going to Quebec to struggle against economic and
environmental injustice, rather loudly called Ted G. an *******, and I had a
side discussion with him instead.  Afterwards I learned that Ted G. was
trying to refine our arguments, that of course how long an execution lasts
or whether or not someone's eyes pop out isn't the main point to be making.
-Lorry made the point that the moratorium movement is a nationwide process,
and so we shouldn't be just looking at the "superiority" of NJ's process
compared to other states.
-Jack stated that no rational basis for the death penalty had been given.
-A questioner asked whether the death penalty could be justified for life
sentenced prisoners who kill in prison.  Lorry conceded that was perhaps the
best argument but that there are still ways of protecting so that that
doesn't occur, and that prison killings also occur by other kinds of
prisoners.  I think it was Zimmer who responded with a disgusting comment
about how when Ambrose Harris had killed Mudman Simon it had saved the state
from an execution.  [This was so pointless, showing that the death penalty
is not a deterrent to prison murder if anything, unless you want to go from
trial to bullet without jail or appeal.  As I recall, we had been writing
about the Martini case, that prison conditions were so disgusting that
Martini didn't want to live, Martini had claimed he was covered with
roaches, whether true or not.  The prison responded by calling in an
exterminator, corralling five death row prisoners into a confined space with
inadequate guards to protect them from each other, had given explicit orders
to the guards that they were not to respond to an altercation without first
receiving backup, which should have already been there but wasn't.  In other
words, the prison was negligent in allowing the murder of Simon by Harris to
take place.]
["Authorities say Harris stomped Simon to death in a lightning attack
that flattened his skull and gouged his eyes out shortly after they
and 3 other inmates had been moved to a fenced indoor recreation area
while an exterminator treated their cells."--Associated Press 11-19-99]
-A questioner asked "Can NJ properly perform its function without the death
penalty?" to which Zimmer replied No, there was a need to express abhorrence
and crimes had to receive gradated punishments.  The questioner persisted
"Can you think of any other way society can express abhorrence?"
-Another questioner asked "What level of imperfection is acceptable?"
End of session
 

Press release from Lois Seeligsohn:

Hi Ted,
This attachment is Lois Seeligsohn's report from the death penalty panel.
It is OK with her if you post it.  She had taped the session.  My report had
an inaccuracy due to wishful thinking.  I had reported that the prosecutor
said that mitigating factors would be shared with the defense (which is as I
think would be just), whereas actually the prosecutor's office only needs to
ask the defense whether they have any mitigating factors to report, in the
phase that was being discussed, which was determining whether to ask for the
death penalty.  At a later stage, if  the prosecutor is presenting a witness
who may know mitigating factors, I have been told that that needs to be
shared with defense.  Your law students will need to have a great deal more
clarity on this issue than I did.  My wishful thinking was that prosecutors
and defenders would be sharing information so that truth and justice would
be served, rather than a tally sheet for their respective offices.
Lois also clarified that it was indeed Zimmer who remarked about Harris and
Simon.  We are both puzzled by Dr. Fitter's remark about 18,000 executions,
but Lois reported it as heard.
Kathy Spallone

Contact: Lois Seeligsohn – 856-854-3182
Rutgers University School of Law
Camden, New Jersey
Wednesday, February 18, 2001

CAMDEN: About 200 persons attended a panel discussion on New Jersey’s death penalty Wednesday, February 28, at Rutgers University School of Law. They included lawyers, law students, Rutgers faculty and members of the community.  Moderator was Cherry Hill attorney, Kevin D. Walsh.

John Callahan, of Cherry Hill, former N.J. State Senate Advisor on Urban Policy and Economic Development Callahan led the presentation with points from his white paper on capital punishment in N.J. The first factor considered was the $2 to $4 million more it costs to carry out the death penalty than a life sentence. He discussed the American Bar Association’s decision to support a moratorium, the findings of consistent error that prompted Illinois Governor Ryan to enact a moratorium, and the dissents of Justice Long.

Callahan challenged the claim that executions save lives, pointing to a lack of evidence to back up the claim. He also cited evidence in other states that contradicts the belief commonly held by elected officials that, if they oppose death penalty, they can’t win reelection.

Former U.S. Congressman and N.J. State Senator Richard Zimmer, of Flemington, contended that delaying executions for constitutionally mandated appeals take too long, adding that the wait is “torture” for victims’ families. He suggested that proportionality review is “convoluted with racial analysis” and should be abolished, adding that prosecutors should be permitted to retry penalty phase cases that end in hung juries. He concluded, “Executions should be carried out within five years, or not at all.” Responding to this, Callahan pointed to 95 death row inmates, who were released after new evidence was found. He said the time for uncovering that evidence averaged seven years and, had the appeals process been cut short, many wrongly sentenced prisoners would have been wrongly executed.

Zimmer declared that all 16 men on New Jersey’s death row are guilty, and that NJ cannot be compared other states’ systems, because public defenders here are good quality and money is “no object” for the defense. Zimmer said that, while death penalty opponents are “driven by conscience and logic,” he believes that the death penalty, even if not a
deterrent, is “appropriate.”

Pointing to “serious defects in the death penalty machine,” John J. Gibbons, former Chief Judge of the United States Court of Appeals, Third Circuit, said, “No one can say with any degree of confidence that innocents have not gone to their death.” Judge Gibbons, of Newark,  said that, over a period of 22 years, at least 68% of all capital verdicts reviewed were overturned.

Of 300,000 homicides studied, Gibbons said, only a very small percentage were capital convictions. Even in Texas and Virginia there are huge disparities in sentencing. He said whether or not a defendant is sentenced to death depends upon:

* whether he is rich or poor (Gibbons said, “Rich people can afford competent defense attorneys, lengthy independent  investigations and costly tests, while compensation for public defenders is disgracefully inadequate.” He added that rich people are almost never sentenced to death.)
* whether he is white or a minority (In most states, minorities vastly outnumber whites on  Death Row.)
* the county or state in which he lives. For example, some counties impose the death penalty for a crime that, in another, merits a prison term. Also, seeking death is entirely in the discretion of a single prosecutor; and some states, such as Texas, Florida, Oklahoma and Virginia, are more enthusiastic in carrying out capital punishment than others.

Gibbons called proportionality review a vital element in sentencing. He said ours is a perversely inverted system, which spends negligible sums on investigation and defense of the initial case, versus vast sums spent on appeals.

Lorry Post, of Cape May, Executive Director of New Jerseyans for a Death Penalty Moratorium said that, far from being theoretical in New Jersey, executions will likely be carried out here in as little as two years. Three New Jersey Death Row inmates have, or soon will have, exhausted their appeals.

An attorney who once represented the Fraternal Order of Police, Post said that New Jersey has convicted innocent men, but lucky for them, the N.J. Supreme Court overturned the cases. “In a trial, the best lawyer usually wins, “ Post said. “In a property case that’s o.k., but not when a life is at stake.” The father of a murdered child, Post said, “The system is not working. It is not a just system.”

Christopher Fitter, of Haddon Township, a professor and founder of the Amnesty International Chapter at Rutgers University, Camden said that the death penalty’s deterrence factor “a myth.” He cited studies that show homicides increase after an execution. “Capital punishment tells our citizens that killing is a necessary and justifiable solution to violence,” he said. “We are the last civilized country in the Western World that still believes any good can come from it.”

Dr. Fitter said research reveals the racial disparity of capital punishment.  Studies show that killers of white people are three times more likely to receive the death penalty than killers of black people. In fact, of 18,000 people executed in the U.S., "only" 38 had killed persons of color. He added that 34 mentally retarded Americans have been executed since 1983. Pointing to 23 cases where people were executed and later found innocent, the said, “The death penalty isn’t justice, but a lottery – it depends not on the crime, but whether you are rich or poor, white or black and on where you live.”

Michael Chewkanes, Section Chief, Trial Unit of the Office of the Camden County Prosecutor, outlined guidelines developed in New Jersey to determine eligibility for the death sentence. He said they maintain that:

 * Every murder is considered for the death penalty.
 * The defendant’s race, sex, class, religion or national origin are not considered.
 * The murder must be intentional, and have probable aggravating factors.
 * The defense should be asked for mitigating factors.

Chewkanes praised the public defender system in Camden County and said, “In my 20 years of practice, I’ve never seen one who was unqualified, impaired or indifferent.”  He reinforced this by declaring that his office has never had a conviction overturned.

The prosecutor agreed with Zimmer’s belief about wrongful convictions, and said, “There are no innocents on Death Row in Camden County or in any other county in this state.”

During a question and answer period that followed the panel discussion, an audience member asked Chewkanes if he were comfortable having such discretion in deciding on death for an accused.  Chewkanes answered that he is.

Another observer made the point that, even if the system in New Jersey were perfect, capital punishment is a national issue, and its merits cannot be judged on the performance of one state.

A questioner said that no one on the panel offered a single rational basis for the death penalty, and asked, "Can New Jersey properly carry out its official function without the death penalty?" Zimmer replied, “No,” adding, “there is a need to express abhorrence and societal outrage.” The questioner persisted "Can you think of any other way society can express abhorrence?"  Zimmer answered, simply, “No.”

Another audience member referred to the risk of wrongful convictions and executions of innocent people. Zimmer replied, “Nothing is infallible. In you insist on perfection, we shouldn’t have a death penalty.”

"What level of error is acceptable?" the questioner insisted, and Zimmer conceded, “There probably are going to be some.”

###