stating that Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), “left undisturbed *465 the holding in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violated the Eighth Amendment”
How later courts described this case
- stating that Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), “left undisturbed *465 the holding in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violated the Eighth Amendment”
- stating that Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), "left undisturbed the holding in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violated the Eighth Amendment"
- holding that "the court’s directive to jurors that they balance the victim’s 14 HUMPHRIES v. OZMINT background against that of defendant was akin to asking the jury to compare the worth of each person," which is "inherently prejudicial" and "might prompt jurors to impose the death penalty arbitrarily"
- holding that “the court’s directive to jurors that they balance the victim’s background against that of defendant was akin to asking the jury to compare the worth of each person,” which is “inherently prejudicial” and “might prompt jurors to impose the death penalty arbitrarily”
Written by the judges who cited it.
The opinion
*575 LONG, J.,
concurring in part and dissenting in part.
I concur in the majority's reversal of the death sentence imposed on Thomas J. Koskovich. I write separately to express my disagreement with the conclusion, expressed in Point IV of the Court’s opinion, that because the death penalty was declared constitutional in State v. Ramseur, 106 N.J. 123 , 524 A.2d 188 (1987), that issue is resolved.
I.
The analysis of a constitutional claim that a death sentence constitutes cruel and unusual punishment is a unique task: It is different in kind from other constitutional inquiries, not only because it has life and death implications, but because it is not contingent on judicial concepts of stare decisis and precedent. Any examination of what is cruel and unusual is inherently mutable, dependent to an extent on public opinion, and necessarily adaptable to our society’s evolving values. It is thus not enough to rely on a fourteen-year-old opinion that has been cited without comment over the years to support the notion that the death penalty continues to pass muster when tested against the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630, 642 (1958).
II.
In Ramseur , this Court had its first opportunity to step out from under the shadow of irrational federal death penalty jurisprudence and evaluate the death penalty under our own constitution. Instead, and disappointingly, the Court only “half heartedly” invoked our own constitution and continued on in lockstep with federal doctrine, thus foreordaining the conclusion that the death penalty passes constitutional muster. 106 N.J. at 347 , 524 A.2d 188 (Handler, J., dissenting); see also, Karen L. Foster, The New Jersey Supreme Court in the 1990’s: Independence is Only Skin Deep, 62 Alb. L.Rev. 1501, 1506-09 (1999).
*576 In Ramseur , the Court adopted the test applied under the federal cases to determine whether a punishment is cruel and unusual:
First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penological objective?
[ 106 N.J. at 169 , 524 A.2d 188 (citing Gregg v. Georgia, 428 U.S. 153, 173 , 96 S.Ct. 2909, 2925 , 49 L.Ed.2d 859, 874-75 (1976) (plurality opinion); State v. Des Marets, 92 N.J. 62, 82 , 455 A.2d 1074 (1983); State v. Hampton, 61 N.J. 250, 273-74 , 294 A.2d 23 (1972)). ]
Regarding contemporary standards of decency, the Court began its analysis by recognizing that the standard “against which the death penalty must be tested, however, is that of the community, not that of its scientists, penologists, or jurists.” Id. at 171, 524 A.2d 188 . In affirmatively answering the question of whether contemporary standards in our society deem capital punishment to be an appropriate penalty for murder, the Court relied, among other things, on the legislative passage of a death penalty statute in 1982, five years earlier, as presumptive evidence that it accords with community standards; the absence of “other evidence” of community standards to rebut the legislative presumption; and the actions of juries in imposing twenty-six death sentences between 1982 and 1987 as a “true reflection of society’s morality.” Id. at 172-73 , 524 A.2d 188 . In addition, the Court observed that
the passage since 1972 of death penalty statutes in thirty-seven states is strong evidence of community standards here. Despite our diversity, we are a nation of shared values. When, in the course of a decade, thirty-seven states call for the death penalty, the probability that the legislature of each state accurately reflects its community’s standards approaches certainty.
[Id. at 173, 524 A.2d 188 (internal citations omitted).]
The Court went on:
If there was some decrease in support for the death penalty during the 1960s, if there were more people then than there are now who found the infliction of death indecent and immoral, the evidence does not suggest that the change was significant or of long duration. When the meaning of a constitutional provision depends, as does the cruel and unusual punishment clause, on community standards, and when the consequent validity of the most important laws — laws affecting life and death — depends, therefore, also on those standards, the judiciary must measure this critical factor with a scale that registers only changes of significance, signifi *577 cant not only in the extent of change, but also in the duration of change in light of our history. As far as we can see, nothing even approaching that kind of change occurred in the 1960s or has ever occurred in this country or in this state on this issue.
[Id. at 173-74, 524 A.2d 188 .]
The Court added:
Those who contend that the Legislature’s enactment of a capital punishment statute does not accurately reflect community standards must also deal with the evidence provided by public opinion polls. Surveys conducted in 1981 and 1977 by the Eagleton Institute of Politics of Rutgers University indicate that approximately 72% of New Jersey residents support the imposition of the death penalty for murder. While we do not regard public opinion polls as decisive of issues of constitutional law, we cannot ignore their relevance to the largely empirical determination of the content of community standards.
[Id. at 174 n. 10, 524 A.2d 188 .]
My differences with Ramseur are legion. They need not be catalogued here, however, because, even granting its validity in 1987, what has occurred in the ensuing fourteen years requires us to reassess whether the death penalty conforms with contemporary standards of decency.
III.
That there has been a change in the public’s appetite for execution is undeniable as evidenced by the flood of public outcry and repeated calls for re-assessment of the institution of the death penalty itself. In light of those current trends and recent findings, we should now be particularly mindful of the opportunity to conduct a meaningful and independent review of capital punishment under our own constitution.
Recent polls and studies reveal that although Americans still generally favor the death penalty, their overall support is wavering and declining. Enthusiasm for the death penalty is at its lowest point in nineteen years. Frank Newport, Support For Death Penalty Drops to Lowest Level in 19 Years, Although Still High at 66%, Gallup News Service, Feb. 24, 2000. Moreover, the number of death penalty supporters has fallen significantly for the second year in a row — to 64%, down from 75% in 1997. Hum *578 phrey Taylor, Support for Death Penalty Down Sharply Since Last Year, But Still 61% to 25% In Favor, The Harris Poll, Aug. 2, 2000. Now, 63% of voters favor suspension of the death penalty until issues of fairness can be studied. NBC News/Wall Street Journal Poll (July 27-28, 2000) <http://pollingreport.eom/crime.htm>. Most importantly, when provided with additional information, public support for the death penalty declines dramatically: It drops to below 50% when the alternative of life without parole is offered. Gary Langer, Death Penalty Ambivalence: Poll Points to Support for Execution Moratorium in U.S., ABCNEWS/Washington Post Poll, May 2, 2001. Thus recent enactments guaranteeing life without parole and enhanced sentencing provisions are important factors that affect the public’s response to capital punishment. See Law Enforcement Officers Protection Act, N.J.S.A. 2C:11-3(b)(2); Joan’s Law, N.J.SA. 2C:11-3(b)(3); Persistent Offenders Accountability (Three Strikes and You’re In) Act, N.J.S.A. 2C:43-7.1(a); No Early Kelease Act, N.J.S.A. 2C:43-7.2.
Segments of the legal community have recently joined the chorus of concern. The American Bar Association has called for a moratorium on the death penalty until the problems with its application are addressed. American Bar Association Death Penalty Moratorium Eesolution (Feb. 3,1997). More recently, United States Supreme Court Justice Euth Bader Ginsberg gave her support to a moratorium proposal being considered by the Maryland legislature. Anne Gearan, 17. S. Supreme Court Justice Urges Death Penalty Halt, Associated Press, April 10, 2001.
Capital punishment has received similar negative attention and strong criticism far beyond our borders. The international community has moved more quickly toward an understanding of the flaws and dangers inherent in any capital punishment scheme. In every year since 1997, the United Nations Commission on Human Eights voted overwhelmingly in favor of resolutions calling for a moratorium on all executions. Question of the Death Penalty, U.N. ESCOE, Hum. Ets. Comm., 57th Sess., 78th mtg., U.N. Doc. *579 E/CN.4/RES/2001/68 (2001). In 1999, Russia commuted over seven hundred death sentences to life sentences in its effort to abolish its death penalty. Angela Charlton, Yeltsin Commutes Death Sentences, Associated Press, June 3, 1999. Russia is far from alone on this front, as numerous other countries have recently abandoned the death penalty. In allowing capital punishment to exist within our borders, the United States is now alone among developed Western democratic nations. Toni M. Fine, Moratorium 2000: An International Dialogue Toward a Ban on Capital Punishment, 30 Colum. Hum. Rts. L.Rev. 421, 422 (1999). Those statistics clearly demonstrate the cleavage between the death penalty and basic notions of decency, nationwide and worldwide.
Further data on individual states collected by the U.S. Department of Justice demonstrates that, when compared with the states in the Northeast, that cleavage widens. Those states carry out the fewest executions. The disparity is stark: From 1979 to 1999, there were only three executions in the Northeast (all in Pennsylvania), followed by fifty in the West, sixty-four in the Midwest, and 481 in the South. Tracy L. Snell, Bureau of Justice Statistics, Capital Punishment 1999 (Dec.2000), at 10. Admittedly, some of the disparity may be due to the fact that the Northeast is composed of relatively few states that authorize capital punishment. However, the high number of executions in other regions of the country cannot, by itself, be explained by the number of states in those regions that use the death penalty; two states, Texas and Virginia, alone account for 272 of the executions. Ibid.
Consistent with nationwide figures, public support for the death penalty has fallen significantly in the tri-state area. A 1998 poll of New York citizens and a 2001 poll of Connecticut citizens found that only 38% and 42%, respectively, continued to support the death penalty when offered the option of life without parole. Quinnipiac College Poll (June 17,1998) <http://www.deathpenaltyinfo.org/Polls.html# NewYork>; Quinnipiac College Poll (June 22, 2000) <http://www.quinnipi *580 ac.edu/news/poll/ctpolls.html# CT06006>. A 1999 Star-Ledger/Eagleton poll found that while 63% of New Jersey citizens supported capital punishment, only 44% did so when presented with the alternative of life in prison without parole. Kathy Barrett Carter, 68% of Jerseyans Favor Death Penalty, The Star Ledger, Oct. 10, 1999. Of additional note, 42% percent of those polled in New Jersey agreed that an African-American is more likely than a white person to receive a death sentence for the same crime, and a majority (56%) agreed that a poor person is more likely to be sentenced to death than someone else. Ibid.
One final observation regarding contemporary standards of decency involves Ramseur’s conclusion that it is “a true reflection of society’s morality” that twenty-six juries in New Jersey imposed the death penalty from 1982 to 1987. 106 N.J. at 173 , 524 A.2d 188 . Based on that figure, if public standards remained constant, at least sixty-two death sentences would have been expected between 1987 and 1999. In fact, only twenty-six death sentences were imposed during that period, Hon. David S. Baime, Report of the Special Master on Proportionality Review: State v. Thomas Koskovich 1a (Jan. 24, 2000), obviously reflecting a diminishing level of support for that extreme sanction among our fellow citizens.
IV.
Equally problematic is Ramseur’s holding, admittedly based on “conflicting and inconclusive evidence,” that the Legislature “could reasonably find that the death penalty deters murder.” 106 N.J. at 180 , 524 A.2d 188 . We now know that the dozen states that have chosen not to enact the death penalty since Gregg v. Georgia in 1976 have not had higher homicide rates than states with the death penalty. The “homicide rates had risen and fallen along roughly symmetrical paths, suggesting to many experts that the threat of the death penalty rarely deters criminals.” Raymond Bonner & Ford Fessenden, States With No Death Penalty Share Lower Homicide Rates, N.Y. Times, September 22, 2000. See *581 afeo Jon Sorenson, et. al., Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas, 45 Crime and Delinquency 481 (1999) (finding no deterrent effect of death penalty in Texas); William Bailey, Deterrence, Brutalization, and the Death Penalty: Another Examination of Oklahoma’s Return to Capital Punishment, 36 Criminology 711 (1998) (finding no evidence for a deterrent effect of death penalty in Oklahoma); Craig J. Albert, Challenging Deterrence: New Insights on Capital Punishment Derived From Panel Data, 60 U. Pitt. L.Rev. 321 (1999) (finding no deterrent effect of the death penalty based on data garnered from fifty-one American jurisdictions between 1982 and 1994). Like the change in the public’s attitude toward capital punishment, that information underscores the need to revisit Ramseur .
V.
I concur in the reversal of this defendant’s death sentence and, for the reasons I have expressed, I dissent from the majority’s conclusion that Ramseur resolves the issue of the constitutionality of the death penalty. It is time for this Court to reevaluate the state’s death penalty statute. We can no longer ignore the fact that the so-called justifications in favor of the death penalty have withered and that a consensus is growing-not only at home, but across the country and around the world-that the death penalty is unfair, unjust and incompatible with present standards of decency. In light of present day realities, Ramseur must be revisited and, in the interim, a moratorium must be imposed on the use of the extreme and irreversible sanction of death.